Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate ...
Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate ...
Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate ...
Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate ...
Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate ...
a subsidiary, treated as a corporation for U.S. purposes;
an LLC, treated as fiscally transparent;
an LLP, treated as fiscally transparent; or
a direct investment, treated as a branch.
A U.S. subsidiary will be taxed on its earnings under the usual corporate tax rules.
A partnership or branch “engaged in trade or business within the United States” is taxable on its income that is “effectiv...
The activities must be “considerable, continuous, and regular.”
If a foreign corporation is a partner in a U.S. partnership, the foreign corporation will be treated as engaged in a U.S. ...
“Fixed or determinable annual or periodical (FDAP) ” income (such as interest, dividends, rents and royalties) is effectiv...
the income is derived from assets used in the conduct of such business; or
the activities of the business were a material factor in the realization of the income.
Certain foreign source income is treated as effectively connected if the foreign corporation has an office or fixed place ...
The business profits attributed to the permanent establishment are those it would make if it were a distinct and separate ...
 A “permanent establishment” generally includes:
a place of management;
a branch;
an office;
a factory;
a workshop; or
a mine, oil or gas well, or quarry.
The term “permanent establishment generally does not include facilities used solely for storage, display or delivery.”</li...
U.S. treaties generally reduce the withholding rate on dividends to 15%.  In cases where the recipient foreign corporation...
The U.S. also imposes a 30% withholding tax on certain U.S. source interest paid to foreign corporations.  The interest wi...
interest on bank loans; and
interest on loans from 10% percent shareholders .
U.S. treaties can reduce the withholding rate on interest to 0%.</li></li></ul><li>Miami Office<br />Waterford Business Pa...
For purposes of applying a reduction in the rate of, or exemption from, U.S. tax provided by a tax treaty, on non-effectiv...
This is designed to address the issue of “treaty shopping,” i.e., the use or establishment of a company in a jurisdiction ...
A conduit arrangement exists when the resident of one country entitled to benefits under the treaty pays all, or substanti...
These treaty provisions complement the “conduit financing” regulations under Section 881.</li></li></ul><li>Miami Office<b...
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Inbound Investments - Limitation on Treaty Benefits Germany

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Inbound Investments - Limitation on Treaty Benefits Germany

  1. 1. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />Inbound Investments -- <br />Limitation on Treaty Benefits<br />Presented in Berlin, Germany<br />June 27, 2008<br />Jerry E. Ogle, CPA<br />
  2. 2. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />Our Practice<br />Ogle International Tax Advisors specialize in advising multi-national companies and high net worth individuals on U.S. international tax matters.  Our clients include both public and privately held businesses. We also assist other regional CPA and Law firms who do not have expertise in U.S. international tax.  <br />Our firm’s staff includes both CPAs and attorneys. Our U.S. international tax services include: export tax incentives, structuring of foreign investments (outbound), repatriation strategies, structuring of U.S. investments (inbound), mergers & acquisitions, transfer pricing and planning for high net worth individuals. <br />In the area of structuring both inbound and outbound investments, our firm works closely with tax advisors in the relevant foreign country to achieve global tax minimization objectives for all jurisdictions impacted by an investment.<br />We have significant experience covering a broad range of industries and countries.<br />Ogle International Tax Advisors can customize an international tax planning program tailored to your company&apos;s specific requirements. Our spectrum of international tax services can provide assistance in the areas of:<br /><ul><li>Foreign business investments - </li></ul>structure active business <br /> investments in offshore <br /> subsidiaries to minimize U.S. and <br /> host country taxation; Analyze <br /> the U.S. CFC and PFIC rules for <br /> individual investors.<br /><ul><li>Offshore profits importing- </li></ul>plan for the repatriation of active <br /> foreign profits.<br /><ul><li>Foreign tax systems- </li></ul>analyze host country deductions, <br /> exemptions, and incentives, <br /> including foreign tax credits with <br /> host country tax advisors. <br />
  3. 3. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />Agenda<br />Taxation of U.S. Business Operations of a Foreign Corporation<br /> a) Forms of doing business<br /> b) Engaged in U.S. trade or business<br /> c) Effectively connected income<br /> d) Permanent establishment<br />Taxation of Income Not Connected with U.S. Business<br />Withholding tax and treaty relief<br />Section 894<br />Conduit arrangements<br />Branch Profits Tax<br />Qualification for Treaty Benefits<br />
  4. 4. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />Agenda (continued)<br />Limitation on Benefits<br />Residence<br />Qualified persons<br />Derivative benefits clauses<br />Active business clauses<br />Branch profits tax<br />Fiscally Transparent Entities<br />Section 894(c)<br />Domestic reverse hybrid entities<br />Treaty provisions<br />OECD report on partnerships<br />Key Filing Requirements<br />Questions<br />
  5. 5. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />I. Taxation of U.S. Business Operations<br /> of a Foreign Corporation <br /><ul><li>A foreign corporation wishing to conduct business operations in the U.S. can structure its investment in several ways including:
  6. 6. a subsidiary, treated as a corporation for U.S. purposes;
  7. 7. an LLC, treated as fiscally transparent;
  8. 8. an LLP, treated as fiscally transparent; or
  9. 9. a direct investment, treated as a branch.
  10. 10. A U.S. subsidiary will be taxed on its earnings under the usual corporate tax rules.
  11. 11. A partnership or branch “engaged in trade or business within the United States” is taxable on its income that is “effectively connected income (ECI)” with that trade or business . </li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />I. Taxation of U.S. Business Operations<br /> of a Foreign Corporation <br /><ul><li>Whether a foreign corporation is engaged in a U.S. trade or business depends on the nature and extent of its economic activity.
  12. 12. The activities must be “considerable, continuous, and regular.”
  13. 13. If a foreign corporation is a partner in a U.S. partnership, the foreign corporation will be treated as engaged in a U.S. trade or business if the partnership is so engaged.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />I. Taxation of U.S. Business Operations<br /> of a Foreign Corporation <br /><ul><li>Once a foreign corporation is engaged in a U.S. trade or business, the Code and regulations provide detailed rules as to when income is effectively connected with a U.S. trade or business. Generally, to be ECI, the income must be U.S. Sourced.
  14. 14. “Fixed or determinable annual or periodical (FDAP) ” income (such as interest, dividends, rents and royalties) is effectively connected with a U.S. trade or business if:
  15. 15. the income is derived from assets used in the conduct of such business; or
  16. 16. the activities of the business were a material factor in the realization of the income.
  17. 17. Certain foreign source income is treated as effectively connected if the foreign corporation has an office or fixed place of business in the U.S. to which the income is attributable.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />I. Taxation of U.S. Business Operations<br /> of a Foreign Corporation <br /><ul><li>Most income tax treaties limit the taxation of business profits by the source state to circumstances where the foreign corporation has a “permanent establishment” in that state.
  18. 18. The business profits attributed to the permanent establishment are those it would make if it were a distinct and separate enterprise.
  19. 19. A “permanent establishment” generally includes:
  20. 20. a place of management;
  21. 21. a branch;
  22. 22. an office;
  23. 23. a factory;
  24. 24. a workshop; or
  25. 25. a mine, oil or gas well, or quarry.
  26. 26. The term “permanent establishment generally does not include facilities used solely for storage, display or delivery.”</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>The U.S. imposes a 30% withholding tax on U.S. source FDAP that is not ECI. FDAP generally includes dividends, interest, rents, and royalties.
  27. 27. U.S. treaties generally reduce the withholding rate on dividends to 15%. In cases where the recipient foreign corporation owns at least 10% of the voting power of the company paying the dividends, the rate generally is reduced to 5%. The U.S.-U.K. Treaty reduces the rate to 0% in the case of dividends to parents holding at least 80% of the voting power of the payor.
  28. 28. The U.S. also imposes a 30% withholding tax on certain U.S. source interest paid to foreign corporations. The interest withholding tax only applies to interest that does not qualify as “portfolio interest” including:
  29. 29. interest on bank loans; and
  30. 30. interest on loans from 10% percent shareholders .
  31. 31. U.S. treaties can reduce the withholding rate on interest to 0%.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>For foreign corporations engaged in a U.S. trade or business, section 894(b) segregates the treatment of income not effectively connected with that trade or business from income associated with its business operations (i.e. relief from the pre 1966 “force of attraction” principle).
  32. 32. For purposes of applying a reduction in the rate of, or exemption from, U.S. tax provided by a tax treaty, on non-effectively connected income, a foreign corporation that is engaged in U.S. trade or business through a permanent establishment is deemed not to have a permanent establishment in the U.S.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>Treaties may limit the availability of reduced withholding tax rates on dividends, interest and other payments in the case of “conduit arrangements.”
  33. 33. This is designed to address the issue of “treaty shopping,” i.e., the use or establishment of a company in a jurisdiction with a favorable treaty in order to secure unintended benefits.
  34. 34. A conduit arrangement exists when the resident of one country entitled to benefits under the treaty pays all, or substantially all, of the income it receives to a person who is not a resident of either country party to the treaty and the ultimate recipient would not have been entitled to equivalent benefits under its treaty with the source state.
  35. 35. These treaty provisions complement the “conduit financing” regulations under Section 881.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>The regulations permit the IRS to disregard the participation of a “conduit entity” in a “conduit financing arrangement.” In such a case, the participation of the conduit entity also is disregarded for purposes of applying relevant income tax treaties. Consequently, the conduit entity cannot claim benefits under the treaty between its country of residence and the U.S.
  36. 36. A “financing arrangement” is a series of transactions by which one person advances money or property to another person through one or more intermediate entities.
  37. 37. Financing transactions include:
  38. 38. debt;
  39. 39. certain types of redeemable stock; and
  40. 40. leases or licenses.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>An intermediary is treated as a conduit entity which may be disregarded if:
  41. 41. the participation of the intermediate entity reduces the tax imposed by section 881; and
  42. 42. the participation of the intermediate entity is pursuant to a tax avoidance plan and either</li></ul>the intermediate entity is related to the financing entity or financed entity; or<br />the intermediate entity would not have participated in the financing arrangement on substantially the same terms but for the fact that the financing entity engaged in a financing transaction with the intermediate entity.<br />
  43. 43. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />II. Taxation of Income Not Connected<br /> with U.S. Business<br /><ul><li>In determining whether there is a tax avoidance plan, the district director will consider:
  44. 44. whether there is a significant reduction in tax;
  45. 45. the intermediate entity’s independent ability to make the advance;
  46. 46. the time period between the financing transactions; and
  47. 47. whether the transactions are in the ordinary course of business.
  48. 48. It is presumed that the intermediate entity’s participation is not pursuant to a tax avoidance plan if that entity performs “significant financing activities.” </li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />III. Branch Profits Tax<br /><ul><li>In order to put foreign corporations that engage in business in the U.S. through a branch or partnership on equal footing with those that invest through subsidiaries, the U.S. imposes a “branch profits tax” under section 884.
  49. 49. The branch profits tax is set at 30% of the “dividend equivalent amount” or DEA.
  50. 50. The DEA equals the foreign corporation’s effectively connected earnings for the year, (ii) reduced by the increase in its “U.S. net equity” or (iii) increased by the decrease in its “U.S net equity.”
  51. 51. In other words, profits that are not reinvested in the U.S. are treated as if they were dividends.
  52. 52. Special rules trigger the branch profits tax when a branch is incorporated. However, an election is available if timely filed to defer the triggering of the tax when incorporating into a domestic corporation.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />III. Branch Profits Tax<br /><ul><li>Certain U.S. treaties provide relief for the branch profits tax.
  53. 53. For example, under the U.S.-U.K. Treaty, the parties may impose such a tax only on business profits attributable to a permanent establishment that represents the “dividend equivalent amount.”
  54. 54. The rate of tax cannot exceed that imposed on dividends under the Treaty.
  55. 55. The Treaty also bars the application of the branch profits tax with respect to certain entities including:
  56. 56. companies that were engaged in business activities attributable to the permanent establishment prior to October 1, 1998; and
  57. 57. certain publicly traded companies.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />IV. Qualification for Treaty Benefits<br /><ul><li>Income tax treaties normally contain detailed descriptions of what persons qualify as “residents” who are eligible to claim benefits.
  58. 58. Under the U.S.-U.K. Treaty, for example, a resident is defined as “any person who, under the laws of that State, is “liable to tax” therein by reason of his domicile, residence, citizenship, place of management, place of incorporation, or any other criterion of a similar nature.”
  59. 59. However, the U.S.-U.K. Treaty goes on to limit this definition: A resident does not include a person who is only liable to tax in a State “in respect of income from sources in that State or of profits attributable to a permanent establishment in that State.”</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>A key element in income tax treaties is the Limitation on Benefits (“LOB”) article. This limits the application of the treaty as to persons who qualify as residents and is a major element in the anti-treaty shopping regime.
  60. 60. A detailed reading of this article usually is a critical element in determining the applicability of treaty benefits in inbound investment situations.
  61. 61. We will use the LOB provision of the U.S.-U.K Treaty as an example.
  62. 62. In order to qualify for treaty benefits, a resident needs to be a “qualified person.”
  63. 63. The following discussion includes many of the key LOB provisions, but is not exhaustive.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>The definition of “qualified person” includes:
  64. 64. An individual;
  65. 65. A qualified governmental entity; or
  66. 66. A company if: </li></ul>the principal class of its shares is listed on certain exchanges ; or<br />at least 50% of its shares (by vote and value) are owned directly or indirectly by five or fewer companies whose shares are so traded.<br />
  67. 67. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>The definition of “qualified person” also includes a person other than an individual if :
  68. 68. certain other qualified persons own directly or indirectly 50% of the shares or beneficial interests (by vote and value); and
  69. 69. less than 50% of that person’s gross income is paid to persons who are not residents of either contracting state in the form of deductible payments (excluding arm’s length payments in the ordinary course of business) .
  70. 70. This last element is frequently referred to as a “base erosion” test. </li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>Under the “derivative benefits” clause, a company that is a resident of a treaty country will be a qualified person if:
  71. 71. at least 95% of its shares are owned, directly or indirectly, seven or fewer “equivalent beneficiaries”; and
  72. 72. it satisfies a 50% base erosion test.
  73. 73. Generally, an “equivalent beneficiary” is a resident of a country which is part of the EU, EEA or NAFTA if that resident :
  74. 74. would be entitled to the benefits of a comprehensive income tax treaty; and
  75. 75. under such treaty, it would be entitled to a rate of tax on dividends, interest and royalties at least as low as the one being claimed under the U.S.-U.K. Treaty .</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>Under the “active business” clause, a resident of a country party to the treaty will qualify if:
  76. 76. such person is engaged in the active conduct of a trade or business in its country of residence; and
  77. 77. the income derived from the other jurisdiction is “derived in connection with, or is incidental to, that trade or business.”
  78. 78. The trade or business activity conducted by the person in its state of residence must be “substantial” in relation to the trade or business activity in the state where the income arises.
  79. 79. Activities conducted by a partnership in which a person is a partner are deemed to be conducted by such person.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li>Section 884 imposes specific restrictions on the ability of taxpayers to use treaties to reduce the branch profits tax.
  80. 80. If a foreign corporation is subject to the branch profits tax, it will only be eligible for treaty benefits with respect to that tax if (i) the treaty is an income tax treaty and (ii) the foreign corporation is a “qualified resident” of the foreign country.
  81. 81. If the foreign corporation is a qualified resident, then the rate of tax will be (i) the rate on branch profits if specified or (ii) the rate specified for dividends.
  82. 82. A foreign corporation resident in a foreign country is a “qualified resident” of a foreign country unless:
  83. 83. 50% or more (by value) of its stock is owned by individuals who are not residents of that country or the U.S.; or
  84. 84. 50% or more of its income is used to meet liabilities to persons who are not residents of that country or the U.S.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Limitations on TreatyBenefits<br /><ul><li> A foreign corporation will be a qualified resident if:
  85. 85. its stock is primarily and regularly traded on an established securities market in the foreign country; or
  86. 86. it is wholly owned (directly or indirectly) by another foreign corporation organized in such foreign country and the stock of that corporation is so traded.
  87. 87. A corporation resident in a foreign country is treated as a qualified resident if it is wholly owned (directly or indirectly) by a U.S. corporation and the stock of that corporation is publicly traded on an established U.S. securities market.
  88. 88. This statutory test is only relevant if the LOB provision of the Treaty entered into force before Dec. 31, 1986. LOB provisions entered after that date essentially have duplicate requirements.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>Difficult issues in determining eligibility for treaty benefits arises from the use of fiscally transparent entities such as partnerships.
  89. 89. The issues have been amplified by the availability of the “check-the-box” election.
  90. 90. The issues are treated under both the Code and under certain provisions of the treaties themselves and their associated explanations.
  91. 91. Section 894 and the regulations thereunder deal with both general eligibility issues and specific issues relating to “reverse hybrid entities.” (This was a result of a Canadian debt structure that provided a degree of double non taxation).</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>Under section 894(c), a foreign person is not entitled to a reduced rate of withholding under a treaty provision if the item of income is derived through a fiscally transparent entity and if:
  92. 92. the item is not treated by the foreign country as income of that person;
  93. 93. the treaty does not contain a provision addressing the applicability of the treaty in the case of income derived through such a fiscally transparent entity; and
  94. 94. the foreign country does not impose tax on the distribution of the income from such entity to such person.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>The regulations under 894 clarify that income is eligible for reduced withholding rates only if the item of income is derived by a resident of the applicable treaty jurisdiction.
  95. 95. The income may be derived either by the entity receiving the income or by the interest holders in the entity.
  96. 96. Income is treated as derived by the entity only if it is not fiscally transparent under the laws of the entity’s jurisdiction.
  97. 97. Income is treated as derived by the interest holder only if the interest holder is not fiscally transparent in its jurisdiction and the entity is considered to be fiscally transparent.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>The regulations under 894 deal extensively with the eligibility of payments to and from “domestic reverse hybrid entities” for treaty benefits.
  98. 98. A domestic reverse hybrid entity is a U.S. entity that is not fiscally transparent for U.S. purposes, but is fiscally transparent under the laws of the interest holder’s jurisdiction.
  99. 99. An example would be a U.S. limited partnership that has elected to be treated as a corporation for U.S. tax purposes.
  100. 100. An item of income paid by a domestic reverse hybrid entity has the character of such item under U.S. law.
  101. 101. The regulations contain a specific rule preventing a domestic reverse hybrid that receives a dividend from a related domestic entity from treating a related payment to the foreign interest holder as interest.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>Certain U.S. treaties contain specific provisions regarding fiscally transparent entities other than in the domestic reverse hybrid context.
  102. 102. For example, the U.S.-U.K. Treaty states:</li></ul> “An item of income, profit or gain derived through a person that is fiscally transparent under the laws of either Contracting State shall be considered to be derived by a resident of a Contracting State to the extent that the item is treated for purposes of the taxation law of such Contracting State as the income, profit or gain of a resident.”<br />
  103. 103. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VI. Fiscally Transparent Entities<br /><ul><li>The Technical Explanation to the Treaty explains this provision as follows:</li></ul> “For example, income from U.S. sources received by an entity organized under the laws of the United States, which is treated for U.K. purposes as a corporation and is owned by a U.K. shareholder who is a U.K. resident for U.K. tax purposes, is not considered derived by the shareholder of that corporation even if, under the tax laws of the United States, the entity is treated as fiscally transparent. Rather, for purposes of the treaty, the income is treated as derived by the U.S. entity.”<br /><ul><li>Thus, when income is derived by a foreign person through a U.S. fiscally transparent entity such as an LLC, whether treaty benefits are available will depend upon an interpretation of foreign law. If the foreign country treats the LLC as an entity subject to tax, treaty benefit should not be available. An LLP or U.S. corporation will likely be effective planning alternatives for this issue.</li></li></ul><li>Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />V. Fiscally Transparent Entities<br /><ul><li>This provision adopts the approach to fiscally transparent entities recommended in the OECD’s 1999 report on Application of the OECD Model Tax Convention to Partnerships.
  104. 104. That report contains the following insightful passage on treaty eligibility:</li></ul>“One broadly based approach would be to recognise as implicit in the structure of the Convention the principle that the source State, in applying the Convention where partnerships are involved, should take into account, as part of the factual context in which the Convention is to be applied, the way in which an item of income arising in its jurisdiction is treated in the jurisdiction of the taxpayer claiming benefits of the treaty as a resident. If that State “flows through” the income to the partner, then the partner should be considered liable to tax and entitled to the benefits of the Convention of the State of which he is a resident. It may be observed, in that respect, that a partner is still to be considered liable to tax on the income which “flows through” to him where, in the State of residence, tax is not imposed on that income by virtue of, e.g., a participation exemption in the case of dividends or the application of the exemption method for the relief of double taxation in the case of income attributable to a permanent establishment. On the other hand, if the income, though allocated to the taxpayer under the laws of the source State, is not similarly allocated for purposes of determining the liability to tax on that item of income in the State of residence of the taxpayer claiming the benefits of the Convention, then the source State should not grant benefits under the Convention. In these latter circumstances, the underlying factual premise on which the allocation of taxing rights is based, that is, that the source State is only obliged to reduce its domestic law claim where the income in question is potentially liable to tax in the hands of a resident of the treaty partner, is simply not present.<br />
  105. 105. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />VII. Key Filing Requirements<br />
  106. 106. Biography<br />Jerry E. Ogle , CPA is founder of the firm. He started his career with Deloitte & Touche, LLP. During his tenure at Deloitte, he worked as a tax advisor to various public & private companies. His clients included PepsiCo, Inc. and Interactive Cable Systems, Inc. (Joint Venture that included MCI Communications, Inc., Michael Milken, and Andersen News).<br />He left Deloitte as a Senior Tax Advisor to join his then client PepsiCo, Inc. He joined the Pepsi Team as a Manager of International Tax Planning. During his tenure at Pepsi, he was responsible for working with the financial and business planners to ensure global minimization objectives were met with respect to Pepsi’s expanding and changing business environment. He led significant international planning projects in the UK, Belgium, France, Mexico, and China. He developed strong working relationships with Divisional Presidents and CFOs. He provided guidance to the Divisional Controller’s group on the proper recording of tax expenses and cash flow impacts. <br />Since founding Ogle International Tax Advisors in 2000, he has assisted clients domestically and abroad primarily with U.S. international tax planning. He represents members of the Fortune 500 as well mid-sized regional businesses. His clients include manufacturers, distributors, food processors, developers, resorts, restaurant chains, service providers, and high net worth individuals.<br />Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />
  107. 107. Biography<br />Professional Affiliations:<br /><ul><li>American Institute of Certified Public </li></ul> Accountants (AICPA) - Tax Section Member<br /><ul><li>Florida Institute of Certified Public Accountants</li></ul> - International Tax Committee<br /><ul><li>Member of the Business Advisory </li></ul> Council and serves as a Senior Florida <br /> Delegate for the National Republican<br /> Congressional Committee<br /><ul><li>Treasurer of Sarasota Sister Cities Association
  108. 108. Ambassador – International Business Council of </li></ul> Sarasota<br /><ul><li>Treasurer of Harvest United Methodist Church
  109. 109. Guest Columnist with Tampa Bay </li></ul> Business Journal for International Tax <br /> Matters<br />Educational background:<br /><ul><li>Master’s Degree in Accounting – Concentration </li></ul> in Taxation Cum Laude, University of South <br /> Florida. <br /><ul><li>Bachelor’s Degree in Accounting - Minor in </li></ul> International Economics Summa Cum Laude, <br /> University of South Florida. <br /><ul><li>Placed 2nd in Florida and in the top 100 in </li></ul> America on first sitting for the National CPA <br /> Exam. <br /><ul><li>Biography published in the 17th and 18th </li></ul> annual edition of The National Dean&apos;s List for <br /> placing in the top 1/2 of 1% academically in our <br /> nation&apos;s universities.<br />Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />
  110. 110. Miami Office<br />Waterford Business Park<br />Miami, Florida 33126<br />(T) 305.671.3179 (F) 305.402.0552<br />Corporate Office<br />8130 Lakewood Main St, Suite 208<br />Bradenton, Florida 34202<br />(T) 941.361.1147 (F) 941.827.9929<br />For more information on our services<br />Please contact us at our offices <br />or visit us at our website<br />www.ogleintltax.com<br />Contact Us<br />Corporate Office<br />8130 Lakewood Main Street, Suite 208<br />Bradenton, Fl 34202<br />T: 941.361.1147<br />F: 941.827.9929<br />Email:jerry@ogleintltax.com<br />WWW.OGLEINTLTAX.COM<br />Miami Office<br />Waterford Business Park<br />Miami, Fl 33126<br />T: 305.671.3179<br />F: 305.402.0552<br />

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