Deducting interest expenses on debt with foreign debtor

In the realm of United States (US) compliance on cross-border transactions, the rules governing interest deductions are complex, particularly when it comes to transactions involving foreign entities. One significant restriction is the inability of corporate business taxpayers to deduct accrued interest on long-term loans to foreign debtors. This limitation is rooted in several key tax principles and regulations designed to prevent tax avoidance and ensure proper income recognition.

The Matching Principle and IRC Section 267(a)(3)

The primary reason for this restriction is the matching principle, as outlined in IRC Section 267(a)(3). This principal mandates that deductions for interest payments to related foreign parties are only allowed when the corresponding income is recognized by the foreign recipient – the cash and not the accrual is paid to the foreign debtor. This rule prevents U.S. taxpayers from accelerating deductions while deferring income recognition by related foreign entities, which could otherwise create a tax advantage.

The Tate & Lyle Case and Its Application to IRC Section 267(a)(3)

The case of Tate & Lyle, Inc. v. Commissioner of Internal Revenue is a significant example of the application of IRC Section 267(a)(3). In this case, Tate & Lyle, Inc., a U.S. corporation, accrued interest on loans from its foreign parent company, Tate & Lyle plc, a UK corporation. The U.S. entity deducted the interest expense in the year it accrued, while the foreign parent did not recognize the interest income until it was actually paid, due to the terms of the U.S.-UK tax treaty which exempted the interest from U.S. taxation.

The IRS disallowed the deduction, citing IRC Section 267(a)(3), which requires that deductions for payments to related foreign parties be deferred until the income is recognized by the foreign recipient. The Tax Court initially ruled in favor of Tate & Lyle, stating that the regulation was invalid as it did not apply the matching principle correctly. However, the Third Circuit Court of Appeals reversed this decision, upholding the validity of the regulation and confirming that the interest deduction should be deferred until the interest was actually paid.

This case underscores the importance of the matching principle in IRC Section 267(a)(3), ensuring that deductions for payments to foreign related parties are only allowed when the corresponding income is recognized, thereby preventing mismatched deductions and income recognition that could lead to tax avoidance.

Interest Deductibility Limitations under Section 163(j)

Another relevant regulation to consider in this space is IRC Section 163(j) per the Tax Cuts and Jobs Act (TCJA) passed in 2017, which limits the deductibility of business interest expenses up to 30% of taxable income. This provision comes into play after the interest expense is deductible for tax purposes per IRC Section 267(a)(3) above. This section imposes a cap on the amount of interest that can be deducted, based on a percentage of the taxpayer’s adjusted taxable income. For multinational corporations, this limitation ensures that interest deductions do not disproportionately reduce U.S. taxable income, especially when dealing with foreign-related parties.

The following are exceptions to the IRC Section 163(j) provision are available:

1. Small Business Exception: Businesses with average annual gross receipts of $27 million or less (adjusted for inflation) over the preceding three years are generally exempt from the Section 163(j) limitation.

2. Electing Real Property Trade or Business: Certain real property trades or businesses can elect to be exempt from the limitation. This includes businesses involved in real estate development, construction, rental, management, leasing, or brokerage.

3. Electing Farming Business: Farming businesses can also elect to be exempt from the Section 163(j) limitation. This includes businesses involved in the cultivation of land, raising or harvesting agricultural or horticultural commodities, and operating nurseries or greenhouses.

4. Regulated Utilities: Certain regulated utility trades or businesses are excluded from the Section 163(j) limitation. These businesses provide essential services such as electricity, water, and sewage disposal

5. Employee Services: The trade or business of providing services as an employee is not considered a trade or business for purposes of Section 163(j), and thus is exempt from the limitation.

Note that before the Tax Cuts and Jobs Act (TCJA) passed in 2017, Section 163(j) primarily targeted interest payments to related foreign parties, limiting deductions if a corporation's debt-to-equity ratio exceeded 1.5 to 1, and capping deductible interest at 50% of adjusted taxable income (ATI). This narrow scope focused on preventing base erosion through excessive interest deductions. Post-TCJA, Section 163(j) expanded significantly, applying to all businesses and limiting interest deductions to 30% of ATI, with a broader definition that initially excluded depreciation and amortization but included them starting in 2022. This change made the limitation more restrictive and applicable to a wider range of businesses rather than just organizations with interest payments to foreign related parties.

Compliance and Documentation Requirements

To comply with these regulations, businesses must maintain thorough documentation of their transactions with foreign entities. This includes detailed records of interest accruals and payments, as well as evidence of cash payments made to foreign debtor. Proper documentation is required for substantiating the timing of deductions and avoiding penalties during IRS audits.

Most importantly, an organization chart is necessary to provide to your tax advisor so that they can maintain proper compliance with the numerous United States (US) international tax forms and transactions that are required to be disclosed on the US tax return. The IRS assesses severe penalties associated with these filings for non-compliance which can range anywhere from $10,000 to $25,000 per form. Additionally, the process to fight these assessments is costly so it best to be proactive and ensure your tax advisor is notified of the company’s worldwide organization chart as well as any changes throughout the year.

Finally, interest payments to a foreign recipient are known as a FDAP type payment and by default is subject to U.S. withholding of 30%. The foreign recipient is required to have a W-8 BEN or W-8 BEN-E on file to facilitate the transaction and possibly take a lower treaty rate on the withholding. This requirement requires:

1) The payor to request a W8 BEN (foreign individuals) or W8 BEN-E (foreign corporation) from the foreign counterparty,

2) The payor to apply a proper withholding tax on the interest payment made and pay that amount to the IRS in a timely manner,

3) The payor to file a form 1042 annual information report along with accompanying reports: 1042-S and 1042-T, reflecting the annual FDAP liabilities being met.

The IRS sees this compliance requirement as the responsibility of the payor rather than the payee due to the fact that the US government has jurisdiction to tax only on the United States based individual/company in the transaction. Because of this, penalties related to non-compliance or late filing of withholding are assessed on the US payor rather than the foreign counterparty.

Impact on Tax Planning

These restrictions significantly impact tax planning strategies for multinational corporations. Businesses must carefully consider the timing of interest payments and income recognition to optimize their tax positions. This often involves coordinating with foreign affiliates to ensure compliance with both U.S. and international tax laws. Tapping a tax advisor to apply prudent modelling with an eye on compliance and tax mitigation is key to placing your company in the most favorable cash tax and compliance position.

Conclusion

The inability of corporate business taxpayers to deduct accrued interest on long-term loans to foreign debtors is a critical yet highly misunderstood aspect of U.S. tax law. Rooted in the matching principle and reinforced by regulations like IRC Sections 267(a)(3), this restriction prevents tax avoidance and ensures proper income recognition. For multinational corporations, a trusted tax advisor should be brought on and equipped with an up-to-date entity organization chart along with clear communication forward on future cross-border debt transactions.

Let us know if you have any questions or require any assistance navigating your cross-border transactions and compliance. You can call us at 305-762-9587 or email us at chad.hagger@hagger-tax.com

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