APB23 Implications for Corporations with Subpart F Income

If your company intends to indefinitely reinvest all of your CFC's accumulated unremitted earnings, can your company utilize the APB 23 exception to not record deferred taxes on the portion of your CFC's unremitted earnings that relate to your CFC's investment in another 30% owned foreign subsidiary.

Facts:

Company A operates in the United States and owns 100% of UK Subsidiary B, a controlled foreign corporation (CFC). Subsidiary B owns 30% of the outstanding stock of Irish Investee C and does not have the ability to exercise control over Investee C. Accordingly, Subsidiary B carries Investee C on its books using the equity method of accounting.

Additional facts:

Dividends remitted by Investee C to Subsidiary B will be taxable to Company A under the U.S. Subpart F rules. In other words, even if the cash from the dividend payment were to remain with Subsidiary B, the income would be immediately taxable in the U.S.

Company A has asserted its intention to indefinitely reinvest all of the accumulated unremitted earnings of Subsidiary B.

The entire difference between Company A's book and tax basis in Subsidiary B relates to unremitted earnings.

Investee C has not had a history of making distributions.

Question:

As Company A intends to indefinitely reinvest all of Subsidiary B's s accumulated unremitted earnings, can Company A utilize the APB 23 exception to not record deferred taxes on the portion of Subsidiary B's unremitted earnings that relate to Investee C?

Analysis/Conclusion:

Answer: No.

APB 23, paragraph 12 states:

Indefinite reversal criteria. The presumption that all undistributed earnings will be transferred to the parent company may be overcome, and no income taxes should be accrued by the parent company, if sufficient evidence shows that the subsidiary has invested or will invest the undistributed earnings indefinitely or that the earnings will be remitted in a tax-free liquidation.

In order for Company A to invoke the APB 23 exception, Company A must not only have the intent, but also the ability to control the reversal of the portion of the outside basis difference for which deferred taxes are not recorded. To the extent that activities of a CFC constitute Subpart F income for tax purposes, the Subpart F includable amounts are treated as deemed distribution followed by a subsequent reinvestment of the proceeds back to the CFC. This reinvestment of proceeds results in an increase in the U.S. parent's tax basis in the CFC and also results in causing part of the difference between the book and tax outside basis in the CFC to reverse with a tax consequence -- exactly what the APB 23 exception requires Company A to assert it is able to avoid from occurring.

In the fact pattern noted above, because Subsidiary B does not control Investee C, and because a dividend or certain other transactions involving Investee C will be taxable in the U.S. to Company A as Subpart F income, Company A does not have the ability to assert the APB 23 exception on the portion of Subsidiary B's unremitted earnings that relate to Investee C. In effect, the existence of the Subpart F provisions makes Company A's indirect ownership in the Investee C (through Subsidiary B) analogous to Company A having direct ownership in Investee C. Accordingly, ownership of Investee C indirectly through Subsidiary B does not change the accounting, even if Investee C does not have a history of making distributions.

NOTE: The issue surrounding the ability to utilize the APB 23 exception with a CFC is not limited to a CFC's equity method investments. To the extent that activities occurring at the CFC level or below will cause the recognition of Subpart F income by the CFC's U.S. parent, the underlying facts and circumstances must be examined to determine if the recording of U.S. deferred taxes can be avoided for the item that may become subject to U.S. tax.

For example, an investment which is accounted for under FAS 115 may cause Subpart F income in the U.S. when sold. To the extent that a company is not able to avoid the triggering of Subpart F income on the reversal of the temporary difference associated with this investment, U.S. deferred taxes should be provided irrespective of whether an APB 23 assertion (that funds will not be remitted from the CFC to the U.S. parent) has been made.