In considering the amount of deferred taxes to record in the home country related to foreign deferred tax assets and liabilities, an entity must consider how those foreign deferred taxes, when paid, will interact with the tax computations in the home country tax return.
In the US, for example, a taxpayer makes an annual election to either deduct foreign taxes paid or claim them as a credit against its US tax liability. Although the deduction of foreign taxes paid is less beneficial than claiming a credit, there are limitations on the use of foreign tax credits, and unutilized FTCs have a limited carryforward period. Also, in deciding whether to deduct or credit foreign taxes paid, a taxpayer will need to consider the interaction of the income and taxes of the foreign branch with the income and taxes of the entity’s other branches.
If the taxpayer expects to take a credit for the foreign taxes to be paid, it should record a home country deferred tax asset or liability for the related foreign deferred tax liability or asset for the amount of the foreign deferred taxes that are expected to be creditable. When determining the amount of any foreign taxes that will be creditable, tax law limitations should be considered. If the foreign taxes that will be paid as the deferred taxes reverse are not expected to be fully creditable, further analysis is necessary. In the US, the federal US corporate tax rate of 21% and FTC limitations for foreign branch income may limit an entity’s ability to claim an FTC for the foreign taxes paid by the foreign branch. For example, FTC availability may be limited when the foreign tax rate exceeds the US tax rate and the company does not have other foreign branch source income to utilize the FTC.
If a US deferred tax asset has been recorded for future FTCs, it may be appropriate to reduce it for the portion of any net foreign deferred taxes that, when paid, are expected to generate FTCs that will expire unutilized. When the aggregate tax rate on foreign branch income exceeds the US corporate tax rate, this would result in the US deferred tax asset being capped at the US corporate tax rate since FTCs would not be available for more than the US tax rate. Other limitations may also continue to impact the amount of the deferred tax asset. For example, the allocation of expenses to the branch basket of income could reduce the amount of FTCs that can be utilized.
A similar situation can occur when there is a deferred tax asset that exists in the foreign jurisdiction. The foreign deferred tax asset signifies a reduction in future foreign taxable income, which inherently will result in the foreign entity paying less tax in the foreign jurisdiction. In this fact pattern, the foreign deferred tax asset is representative of the fact that the US company will forego an FTC that would otherwise have been available had more tax been paid in the foreign jurisdiction. As a result, companies also need to consider whether US deferred tax liabilities should be recorded for the forgone FTCs resulting from foreign branch deferred tax assets based on the aggregate tax rate of its foreign branches. Similar to US deferred tax assets, to the extent the aggregate tax rate on foreign branch income exceeds 21%, the US deferred tax liability should not exceed the 21% US corporate tax rate and should reflect only the forgone FTCs that could have actually been utilized had they been generated.
If the entity expects to deduct (rather than take a credit for) foreign taxes paid, it should establish deferred taxes in the home country jurisdiction on the foreign deferred tax assets and liabilities at the home country enacted rate expected to apply in the period during which the foreign deferred taxes reverse. In some fact patterns, scheduling the reversal of the foreign deferred taxes may be required if the company’s ability to utilize FTCs would be affected by the timing of these reversals.
Generally, a deferred foreign tax asset of a branch is a taxable temporary difference for US tax purposes, and a deferred foreign tax liability is a deductible temporary difference for US tax purposes. But the applicable rate may be:
- 100% of the US tax rate on a post-tax basis if foreign taxes are expected to be fully creditable for US tax purposes;
- Less than 100% of the US tax rate on a post-tax basis if FTCs are expected to be limited; or
- Equal to the US tax rate (currently 21%) if foreign taxes are expected to be deducted.
Example TX 11-5 and Example TX 11-6 illustrate how to account for inside basis differences of a foreign branch.
EXAMPLE TX 11-5
Deferred tax accounting on inside basis differences of a foreign branch – higher home country rate
Company P is a US entity with a branch in Country X where the statutory tax rate is 20%. In the current year, the branch has pre-tax income of $10,000. For Country X and US tax purposes, the branch has a $3,000 deductible temporary difference for inventory reserves that are not currently deductible for tax purposes and a $5,000 taxable temporary difference for PP&E due to tax depreciation in excess of book depreciation. For US purposes, income from the branch is taxed at 25%. Taxes paid to Country X will be claimed as a foreign tax credit. No expenses have been allocated to the branch income basket.
How and for which jurisdictions should deferred taxes be recorded on the inventory and PP&E temporary differences?
Analysis
Because the branch is taxed in both Country X and the United States, the taxable and deductible temporary differences in each jurisdiction must be computed. A deferred tax asset (DTA) and deferred tax liability (DTL) in Country X should be recorded as follows:
The same temporary differences exist in the US; however, the deferred taxes are recorded at the US rate of 25%. The net deferred tax liability of $400 in Country X will increase foreign taxes paid when settled, resulting in an increase in future FTCs in the US. In this case, the FTCs would not be limited based on the tax rate or expense allocation because the US tax rate is higher than the tax rate of Country X and no expenses have been allocated to the branch income basket. In addition to the temporary differences for the PP&E and inventory reserves, a $400 deferred tax asset should be recorded in the US to reflect the future FTCs related to the foreign deferred taxes. Deferred taxes in the US should be recorded as follows:
If there were more than one branch in this example, Company P would need to consider the branches in the aggregate when determining the impact of any limitations on the applicable rate used to measure any anticipatory or foregone FTCs.
EXAMPLE TX 11-6
Deferred tax accounting on inside basis differences of a foreign branch – lower home country rate
Company P is a US entity with a branch in Country X where the statutory tax rate is 30%. In the current year, the branch has pre-tax income of $10,000. For Country X and US tax purposes, the branch has a $3,000 deductible temporary difference for inventory reserves that are not currently deductible for tax purposes and a $5,000 taxable temporary difference for PP&E due to tax depreciation in excess of book depreciation. For US purposes, income from the branch is taxed at 25%. Taxes paid to Country X will be claimed as a foreign tax credit. No expenses have been allocated to the branch income basket.
How and for which jurisdictions should deferred taxes be recorded on the inventory and PP&E temporary differences?
Analysis
Because the branch is taxed in both Country X and the United States, the taxable and deductible temporary differences in each jurisdiction must be computed. Deferred taxes in Country X should be recorded as follows:
The same temporary differences exist in the US; however, the deferred taxes are recorded at the US rate of 25%. The net deferred tax liability in Country X of $600 will increase foreign taxes paid when settled, resulting in an increase in future FTCs in the US. In this case, the FTCs will be limited because the US tax rate is lower than the tax rate of Country X. Only $500 of the FTCs can be utilized on the US tax return (25% US rate divided by 30% foreign rate times $600 net branch deferred tax liability). If expenses were allocated to the branch basket of income, further limitations would also need to be considered in determining the applicable rate. In addition to the temporary differences for the PP&E and inventory reserves, a $500 deferred tax asset should be recorded in the US to reflect the future FTCs related to the foreign deferred taxes. Deferred taxes in the US should be recorded as follows:
If there were more than one branch in this example, Company P would need to consider the branches in the aggregate when determining the impact of any limitations on the applicable rate used to measure any anticipatory or foregone FTCs.
Example TX 11-7 illustrates the complexity that could arise as a result of having multiple branches.
EXAMPLE TX 11-7
US deferred taxes for a loss related to one of multiple foreign branches
Company A is a US entity with branches in two separate foreign tax jurisdictions. Assume that there are no temporary differences prior to the current year in either jurisdiction. The tax rate is 25% in both the United States and in foreign jurisdiction B. The tax rate in foreign jurisdiction C is 20%.
Company A has domestic income of $800, Foreign Branch B has income of $300, and Foreign Branch C has a loss of ($100), resulting in $1,000 of consolidated income for Company A.
Company A claims US foreign tax credits for its foreign taxes paid. The US tax law limits the FTC claimed to an amount equal to the US taxes on the branch income before consideration of the FTCs (FTC limitation percentage in chart below). With regard to Foreign Branch B and C, there is no carryback potential, but both loss and credit carryforwards are allowed in each foreign jurisdiction.
How should deferred taxes be recorded in relation to the branch operations?
Analysis
US federal tax, based on $1,000 consolidated income at the 25% tax rate, is $250.
The following illustrates the calculation of FTC availability:
FTC limitation percentage ($200 / $1,000)
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20% |
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FTC limitation ($250 tax * 20% limitation)
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$50 |
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Although Branch B paid $75 of foreign taxes, only $50 can be claimed as a tax credit in the current year’s return based on the FTC limitation. The remaining $25 would be carried forward. Given that excess FTCs have limited carryforward potential in the United States and have limitations under US tax law, the carryforward needs to be assessed for realizability. Further income in Branch B will generate additional FTCs, so realization of the FTC would need to be based on the generation of income in Branch C, which is in a lower tax jurisdiction. If, for example, losses are anticipated in Branch C through the US FTC carryforward period, a valuation allowance may be necessary on the $25 of excess FTCs.
Also, with respect to the Branch C’s deferred tax asset of $20 related to its $100 NOL, Company A will need to consider whether a valuation allowance should be established on the foreign country deferred tax asset. If a valuation allowance is not recorded, a corresponding deferred tax liability of $20 for the future FTC impact should be recorded in the US jurisdiction taking into account all relevant considerations (e.g., tax rate and expense allocation).