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Final Section 367 regulations impact check-the-box planning and foreign restructuring

January 18, 2017 / 1 min read

The IRS released the final regulations under Section 367 that address the tax consequences of outbound asset transfers. The impact of these regulations could change how businesses plan for foreign entity restructurings and check-the-box elections.

On December 16, 2016, the IRS released the final regulations under Section 367 that address the tax consequences of outbound asset transfers. The impact of these regulations could change how businesses plan for foreign entity restructurings and check-the-box elections. The final regulations are effective for transfers occurring before September 14, 2015, and for transfers taking place on or after September 14, 2015, for which a check-the-box election is filed on or after September 14, 2015.

The final regulations impose the following:

These final regulations impact entity selection planning as well as planning for acquisitions and restructurings of foreign entities. Previously non-taxable restructuring of foreign entities and branches now bring with them a tax burden that should be considered, as demonstrated in the example below.

Temporary Regulations

Final Regulations

 

Asset Balance

US Tax Cost*

 

Balance

US Tax Cost*

Cash

100,000

0

Cash

100,000

0

Fixed Assets (NBV)

250,000

0

Fixed Assets (NBV)

250,000

0

Goodwill (zero basis)

350,000

0

Goodwill (zero basis)

350,000

122,500

 

700,000


0

 

700,000


122,500

* Assumes tax rate of 35 percent

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