[Federal Register Volume 64, Number 133 (Tuesday, July 13, 1999)]
[Proposed Rules]
[Pages 37727-37733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17367]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1 and 301

[REG-113909-98]
RIN 1545-AW63


Withdrawal of Guidance Under Subpart F Relating to Partnerships 
and Branches and Issuance of New Guidance Under Subpart F Relating to 
Certain Hybrid Transactions

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Withdrawal; Notice of proposed rulemaking; and notice of public 
hearing.

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SUMMARY: This document withdraws the notice of proposed rulemaking and 
notice of proposed rulemaking by cross-reference to temporary 
regulations that was published in the Federal Register on March 26, 
1998, providing guidance under subpart F relating to partnerships and 
branches. This document contains new proposed regulations relating to 
the treatment under subpart F of certain transactions involving hybrid 
branches. These regulations are necessary to provide guidance on 
transactions relating to such entities. This document also provides 
notice of a public hearing on these proposed regulations.

DATES: Written comments, and outlines of oral comments to be discussed 
at the public hearing scheduled for December 1, 1999, must be received 
by November 10, 1999.

ADDRESSES: Send submissions to: CC:DOM:CORP:R (REG-113909-98), room 
5226, Internal Revenue Service, POB 7604, Ben Franklin Station, 
Washington DC 20044. Submissions may be hand delivered Monday through 
Friday between the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (REG-
113909-98), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue, NW., Washington DC. Alternatively, taxpayers may submit 
comments electronically via the Internet by selecting the ``Tax Regs'' 
option on the IRS Home Page, or by submitting comments directly to the 
IRS Internet site at http://www.irs.ustreas.gov/prod/tax__regs/
regslist.html. The public hearing will be held in room 2615, Internal 
Revenue Building, 1111 Constitution Avenue NW., Washington, DC 20224.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Valerie 
Mark, (202) 622-3840; concerning submissions of comments, the hearing, 
and/or to be placed on the building access list to attend the hearing, 
LaNita Van Dyke (202) 622-7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Background

    On March 23, 1998 (63 FR 14669, March 26, 1998), the IRS issued 
proposed regulations (REG-104537-97) relating to the treatment under 
subpart F of certain partnership and hybrid branch transactions. The 
provisions of the proposed regulations relating to hybrid branch 
transactions were also issued as temporary regulations (TD 8767) (63 FR 
14613, March 26, 1998). Certain members of Congress and taxpayers 
raised concerns about the proposed and temporary regulations relating 
to hybrid branch transactions. On June 19, 1998, the Treasury announced 
in Notice 98-35 (1998-27 I.R.B. 35) that the temporary regulations 
would be removed and that the proposed regulations relating to hybrid 
transactions would be re-proposed with new dates of applicability to 
give Congress the opportunity to consider in greater depth the issues 
raised by hybrid transactions.
    As provided in Notice 98-35, these proposed regulations 
substantially restate the regulations relating to hybrid transactions 
issued in March of 1998. These proposed regulations, however, contain 
certain clarifications requested by taxpayers. Further, as described in 
greater detail below, unlike the effective date rules announced in 
Notice 98-35, these regulations are proposed to be effective only for 
payments made in taxable years commencing after the date that is five 
years after the date of finalization of these regulations. The 
permanent grandfather relief described in Notice 98-35 remains 
unchanged.
    These proposed regulations represent the IRS and Treasury's views 
of how current law should be enforced. Treasury is currently 
undertaking a comprehensive study of subpart F. These proposed 
regulations will not control the results of the study. For example, an 
objective analysis of the policies and goals of subpart F may lead to 
the conclusion that subpart F should be significantly restructured.
    To the extent, however, that Congress does not restructure subpart 
F in a manner that would alter the rules enforced by these regulations, 
Treasury and the IRS believe that these regulations will be necessary 
to preserve the integrity of the current statutory scheme. The use of 
hybrid arrangements, which is greatly facilitated by the ``check-the-
box'' entity classification regulations (Secs. 301.7701-1 through 
301.7701-3), would otherwise give rise to the following inconsistency: 
if sales income is shifted from one CFC to a related CFC in a different 
jurisdiction, subpart F income may arise; if sales income is shifted 
from one CFC to its branch in a different jurisdiction, subpart F 
income may arise; if income is shifted through interest payments from 
one CFC to a related CFC in a different jurisdiction, subpart F income 
may arise; however, if income is shifted through interest payments from 
one CFC to its hybrid branch in a different jurisdiction, subpart F 
income will not arise. This final result does not seem an appropriate 
policy outcome within the framework of current subpart F, and is almost 
certainly inconsistent with the Congressional intent underlying the 
rules being interpreted here.
    Treasury anticipates that taxpayers will comment both on the 
appropriateness of these proposed regulations under current law, and on 
the contents of its subpart F study, including any conclusions that the 
study might draw about potential changes to subpart F. To allow proper 
time to consider all these issues, Treasury and the IRS have 
significantly modified and liberalized the effective date rules set 
forth in Notice 98-35. New regulations regarding the treatment of a 
controlled foreign corporation's distributive share of partnership 
income will be proposed at a later date.

Explanation of Provisions

I. In General

    In these proposed regulations, Treasury and the IRS set forth a 
framework for dealing with issues arising under subpart F (sections 951 
through 964) that relate to the use of certain entities that are 
regarded as fiscally transparent for purposes of U.S. tax law.

II. Hybrid Branches

    Treasury and the IRS understand that certain taxpayers are using 
arrangements involving hybrid branches

[[Page 37728]]

to circumvent the purposes of subpart F. These arrangements generally 
involve the use of deductible payments to reduce the taxable income of 
a CFC under foreign law, thereby reducing that CFC's foreign tax and, 
also under foreign law, the corresponding creation in another entity of 
low-taxed, passive income of the type to which subpart F was intended 
to apply. Because of the structure of these arrangements, however, 
taxpayers take the position that this income is not taxed under subpart 
F. Treasury and the IRS have concluded that use of these hybrid branch 
arrangements is contrary to the policies and rules of subpart F.
    Under these proposed regulations, hybrid branch payments, as 
defined in the regulations, between a CFC and its hybrid branch, or 
between hybrid branches of the CFC may give rise to subpart F income. 
When certain conditions are present, the non-subpart F income of the 
CFC, in the amount of the hybrid branch payment, is recharacterized as 
subpart F income of the CFC. Those conditions include that: the hybrid 
branch payment reduces the foreign tax of the payor; the hybrid branch 
payment would have been foreign personal holding company income if made 
between separate CFCs; and there is a disparity between the effective 
rate of tax on the payment in the hands of the payee and the 
hypothetical rate of tax that would have applied if the payment had 
been taxed in the hands of the payor.
    The proposed regulations would make clear that the CFC and the 
hybrid branch, or the hybrid branches, are treated as separate 
corporations only to recharacterize non-subpart F income as subpart F 
income in the amount of the hybrid branch payment, and to apply the tax 
disparity rule of Sec. 1.954-9(a)(5)(iv). For all other purposes (e.g., 
for purposes of the earnings and profits limitation of section 952), a 
CFC and its hybrid branch, or hybrid branches, would not be treated as 
separate corporations.
    The proposed regulations would provide that the amount 
recharacterized as subpart F income is the gross amount of the hybrid 
branch payment limited by the amount of the CFC's earnings and profits 
attributable to non-subpart F income. This amount is the excess of 
current earnings and profits over subpart F income, determined after 
the application of the rules of sections 954(b) and 952(c) and before 
the application of these proposed regulations. To the extent that the 
full amount required to be recharacterized under this provision cannot 
be recharacterized because it exceeds earnings and profits attributable 
to non-subpart F income, there is no requirement to carry such amounts 
back or forward to another year.
    The proposed regulations would provide that, under certain 
circumstances, the recharacterization rules will also apply to a CFC's 
proportionate share of any hybrid branch payment made between a 
partnership in which the CFC is a partner and a hybrid branch of the 
partnership, or between hybrid branches of such a partnership. When the 
partnership is treated as fiscally transparent by the CFC's taxing 
jurisdiction, the recharacterization rules are applied by treating the 
hybrid branch payment as if it had been made directly between the CFC 
and the hybrid branch, or as though the hybrid branches of the 
partnership had been hybrid branches of the CFC, as applicable. If the 
partnership is treated as a separate entity by the CFC's taxing 
jurisdiction, the recharacterization rules are applied to the 
partnership as if it were a CFC.
    The proposed regulations would provide that income will not be 
recharacterized unless there is a disparity between the effective rate 
at which the hybrid branch payment is taxed to the payee and a 
hypothetical tax rate that measures the tax savings to the payor from 
the deductible payment. This provision is similar to the rule in 
Sec. 1.954-3(b), and adopts the same percentage tests as contained in 
that provision. The regulations also provide a special high tax 
exception applicable to the hybrid branch payment that is similar to 
the one contained in section 954(b)(4).
    For purposes of determining the amount of taxes deemed paid under 
section 960, the amount of non-subpart F income recharacterized as 
subpart F income is treated as attributable to income in separate 
foreign tax credit baskets in proportion to the ratio of non-subpart F 
income in each basket to the total amount of non-subpart F income of 
the CFC for the taxable year.

III. Related Provisions

    These proposed regulations would provide rules, contained in 
Sec. 1.954-1(c)(1)(i)(B), to prevent expenses, including related person 
interest expense that would normally be allocable under section 
954(b)(5) to subpart F income of a CFC, from being allocated to a 
payment from which the expense arises. The allocation limit applies: 
(i) to the extent such payment is included in the subpart F income of 
the CFC; (ii) if the expense arises from any payment between the CFC 
and a hybrid partnership in which the CFC is a partner; and (iii) if 
the payment reduces foreign tax and there is a significant disparity in 
tax rates between the payor and payee jurisdictions.
    These proposed regulations also would address the application of 
the related person exceptions to the foreign personal holding company 
income rules in the context of partnership distributive shares and 
transactions involving hybrid branches. Under section 954(c)(3), 
foreign personal holding company income does not include certain 
interest, dividends, rents and royalties received from related 
corporations. These exceptions apply, in the case of interest and 
dividends, when the related corporate payor is organized in the country 
in which the CFC is organized and uses a substantial part of its assets 
in a trade or business in that country and, in the case of rents and 
royalties, when the rent or royalty payment is made for the use or 
privilege of using property within the CFC's country of incorporation.
    Under these proposed regulations, if the partnership receives an 
item of income that reduces the foreign income tax of the payor, the 
related person exceptions of section 954(c)(3) would apply to exclude 
the income from the foreign personal holding company income of the CFC 
partner only where: the exception would have applied if the CFC earned 
the income directly (testing relatedness and country of incorporation 
at the CFC partner level); and either the partnership is organized and 
operates in the CFC's country of incorporation, the partnership is 
treated as fiscally transparent in the CFC's countries of incorporation 
and operation, or there is no significant disparity between the 
effective rate of tax imposed on the income and the rate of tax that 
would be imposed on the income if earned directly by the CFC partner.
    In addition, these proposed regulations contain rules that would 
apply the related person exceptions to certain payments involving 
hybrid branches. These rules would apply to payments by a CFC to a 
hybrid branch of a related CFC. Under these rules, the related person 
exceptions would apply to exclude the payments from the foreign 
personal holding company income of the recipient CFC only if the 
payment would have qualified for the exception if the hybrid branch had 
been a separate CFC incorporated in the jurisdiction in which the 
payment is subject to tax (other than a withholding tax).

[[Page 37729]]

IV. Request for Comments

    Comments on policy issues that relate to subpart F and deferral, 
generally, including comments on legislative modifications to the 
current rules, and comments solicited on the broad policy issues 
mentioned in Notice 98-35, can be submitted in response to the study 
mentioned above. Treasury and the IRS invite comments on the 
appropriateness of these regulations under the current subpart F rules.

Proposed Effective Date

    These proposed regulations will not be finalized before July 1, 
2000. It is proposed that, when finalized, these regulations would be 
effective only for payments made in taxable years of a controlled 
foreign corporation commencing after the date that is five years after 
the date of finalization of these regulations. These regulations would 
not, however, apply to any payments made under hybrid arrangements 
entered into before June 19, 1998. This exception is permanent so long 
as the arrangement is not substantially modified on or after June 19, 
1998. An illustrative list of events that would and would not 
constitute ``substantial modification'' of an arrangement is included 
in these regulations.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in Executive Order 
12866. Therefore, a regulatory assessment is not required. It has also 
been determined that section 553(b) of the Administrative Procedures 
Act (5 U.S.C. chapter 5) does not apply to these regulations, and, 
because the regulation does not impose a collection of information on 
small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) 
does not apply. Pursuant to section 7805(f) of the Internal Revenue 
Code, this notice of proposed rulemaking will be submitted to the Chief 
Counsel for Advocacy of the Small Business Administration for comment 
on its impact on small business.

Request for Comments

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely to the IRS. The IRS and 
Treasury specifically request comments on the clarity of these proposed 
regulations and how they may be made easier to understand. All comments 
will be available for public inspection and copying.
    A public hearing has been scheduled for December 1, 1999, at 10 
a.m., in room 2615, Internal Revenue Building, 1111 Constitution Avenue 
NW., Washington DC. Due to building security procedures, visitors must 
enter at the 10th Street entrance, located between Constitution and 
Pennsylvania Avenues, NW. In addition, all visitors must present photo 
identification to enter the building. Because of access restrictions, 
visitors will not be admitted beyond the immediate entrance area more 
than 15 minutes before the hearing starts. For information about having 
your name placed on the building access list to attend the hearing, see 
the FOR FURTHER INFORMATION CONTACT section of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing.
    Persons that wish to present oral comments at the hearing must 
submit written comments and an outline of topics to be discussed and 
time to be devoted to each topic (signed original and eight (8) copies) 
by November 10, 1999.
    A period of 10 minutes will be allotted to each person for making 
comments.
    An agenda showing the scheduling of the speakers will be prepared 
after the deadline for receiving outlines has passed. Copies of the 
agenda will be available free of charge at the hearing.
    Drafting Information: The principal author of these regulations is 
Valerie Mark, of the Office of the Associate Chief Counsel 
(International). Other personnel from the IRS and Treasury Department 
also participated in the development of these regulations.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Withdrawal of Notice of Proposed Rulemaking and Proposed Amendments 
to the Regulations

    Accordingly, under the authority of 26 U.S.C. 7805, the notice of 
proposed rulemaking amending 26 CFR parts 1 and 301 that was published 
in the Federal Register on March 26, 1998, 63 FR 14669 (REG-104537-97), 
is withdrawn. In addition, 26 CFR part 1 is proposed to be amended as 
follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for 26 CFR part 1 continues to 
read in part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. In Sec. 1.904-5, paragraph (k)(1) is revised to read as 
follows:


Sec. 1.904-5  Look-through rules as applied to controlled foreign 
corporations and other entities.

* * * * *
    (k) Ordering rules--(1) In general. Income received or accrued by a 
related person to which the look-through rules apply is characterized 
before amounts included from, or paid or distributed by, that person 
and received or accrued by a related person. For purposes of 
determining the character of income received or accrued by a person 
from a related person if the payor or another related person also 
receives or accrues income from the recipient and the look-through 
rules apply to the income in all cases, the rules of paragraph (k)(2) 
of this section apply. Notwithstanding any other provision of this 
section, the principles of Sec. 1.954-1(c)(1)(i) will apply to any 
expense subject to Sec. 1.954-1(c)(1)(i).
* * * * *
    Par. 3. Section 1.954-0 (b) is amended as follows:
    1. The entry for Sec. 1.954-1(c)(1)(i) is revised.
    2. Entries for Sec. 1.954-1(c)(1)(i)(A) through (c)(1)(i)(E) are 
added.
    3. An entry for Sec. 1.954-2(a)(5) is added.
    4. An entry for Sec. 1.954-2(a)(6) is added.
    The revision and additions read as follows:


Sec. 954-0  Introduction.

* * * * *
    (b) * * *

Section 1.954-1  Foreign Base Company Income

* * * * *
    (c) * * *
    (1) * * *
    (i) Deductions.
    (A) Deductions against gross foreign base company income.
    (B) Special rule for deductible payments to certain non-fiscally 
transparent entities.
    (C) Limitations.
    (D) Example.
    (E) Effective date.
* * * * *

Section 1.954-2  Foreign Personal Holding Company Income

    (a) * * *
    (5) Special rules applicable to distributive share of 
partnership income.
    (i) Application of related person exceptions where payment 
reduces foreign tax of payor.
    (ii) Certain other exceptions applicable to foreign personal 
holding company income. [Reserved]
    (iii) Effective date.
    (6) Special rules applicable to exceptions from foreign personal 
holding company income treatment in circumstances involving hybrid 
branches.
    (i) In general.

[[Page 37730]]

    (ii) Exception where no tax reduction or tax disparity.
    (iii) Effective date.
* * * * *

    Par. 4. Section 1.954-1 is amended as follows:
    1. Paragraphs (c)(1)(i) heading and introductory text and 
(c)(1)(i)(A) through (c)(1)(i)(D) are redesignated as paragraphs 
(c)(1)(i)(A) heading and introductory text and (c)(1)(i)(A)(1) through 
(c)(1)(i)(A)(4), respectively.
    2. A heading for paragraph (c)(1)(i) is added.
    3. Paragraphs (c)(1)(i)(B) through (c)(1))(i)(E) are added.
    The additions read as follows:


Sec. 1.954-1  Foreign base company income.

* * * * *
    (c) * * *
    (1) * * *
    (i) Deductions--(A) Deductions against gross foreign base company 
income. * * *
    (B) Special rule for deductible payments to certain non-fiscally 
transparent entities. Notwithstanding any other provision of this 
section, except as provided in paragraph (c)(1)(i)(C) of this section, 
an expense (including a distributive share of any expense) that would 
otherwise be allocable under section 954(b)(5) against the subpart F 
income of a controlled foreign corporation shall not be allocated 
against subpart F income of the controlled foreign corporation 
resulting from the payment giving rise to the expense if--
    (1) Such expense arises from a payment between the controlled 
foreign corporation and a partnership in which the controlled foreign 
corporation is a partner and the partnership is not regarded as 
fiscally transparent, as defined in Sec. 1.954-9(a)(7), by any country 
in which the controlled foreign corporation does business or has 
substantial assets; and
    (2) The payment from which the expense arises would have reduced 
foreign tax, under Sec. 1.954-9(a)(3), and would have fallen within the 
tax disparity rule of Sec. 1.954-9(a)(5)(iv), if those provisions had 
been applicable to the payment.
    (C) Limitations. Paragraph (c)(1)(i)(B) of this section shall not 
apply to the extent that the controlled foreign corporation partner has 
no income against which to allocate the expense, other than its 
distributive share of a payment described in paragraph (c)(1)(i)(B) of 
this section. Similarly, to the extent an expense described in 
paragraph (c)(1)(i)(B) of this section exceeds the controlled foreign 
corporation partner's distributive share of the payment from which the 
expense arises, such excess amount of the expense may reduce subpart F 
income (other than such payment) to which it is properly allocable or 
apportionable under section 954(b)(5).
    (D) Example. The following example illustrates the application of 
paragraphs (c)(1)(i)(B) and (C) of this section:

    Example. CFC, a controlled foreign corporation in Country A, is 
a 70 percent partner in partnership P, located in Country B. Country 
A's tax laws do not classify P as a fiscally transparent entity. The 
rate of tax in country B is 15 percent of the tax rate in country A. 
P loans $100 to CFC at a market rate of interest. In year 1, CFC 
pays P $10 of interest on the loan. The interest payment would have 
caused the recharacterization rules of Sec. 1.954-9 to apply if the 
payment were made between the entities described in Sec. 1.954-
9(a)(2). CFC's distributive share of P's interest income is $7, 
which is foreign personal holding company income to CFC under 
section 954(c). Under paragraph (c)(1)(i)(B) of this section, $7 of 
the $10 interest expense may not be allocated against any of CFC's 
subpart F income. However, to the extent the remaining $3 of 
interest expense is properly allocable to subpart F income of CFC 
other than its distributive share of P's interest income, this 
expense may offset such other subpart F income.

    (E) Effective date. Paragraph (c)(1)(i)(B), (C) and (D) of this 
section shall be applicable for all payments made or accrued in taxable 
years commencing after [date that is 5 years after publication of the 
final regulations in the Federal Register], under hybrid arrangements, 
unless such payments are made pursuant to an arrangement that would 
qualify for permanent relief under Sec. 1.954-9(c)(2) if made between a 
controlled foreign corporation and its hybrid branch, in which case the 
relief afforded under that section shall also be afforded under this 
section.
* * * * *
    Par. 5. In Sec. 1.954-2, paragraphs (a)(5) and (a)(6) are added to 
read as follows:


Sec. 1.954-2  Foreign personal holding company income.

    (a) * * *
    (5) Special rules applicable to distributive share of partnership 
income--(i) Application of related person exceptions where payment 
reduces foreign tax of payor. If a partnership receives an item of 
income that reduced the foreign income tax of the payor (determined 
under the principles of Sec. 1.954-9(a)(3)), to determine the extent to 
which a controlled foreign corporation's distributive share of such 
item of income is foreign personal holding company income, the 
exceptions contained in section 954(c)(3) shall apply only if--
    (A)(1) Any such exception would have applied to exclude the income 
from foreign personal holding company income if the controlled foreign 
corporation had earned the income directly (determined by testing, with 
reference to such controlled foreign corporation, whether an entity is 
a related person, within the meaning of section 954(d)(3), or is 
organized under the laws of, or uses property in, the foreign country 
in which the controlled foreign corporation is created or organized); 
and
    (2) The distributive share of such income is not in respect of a 
payment made by the controlled foreign corporation to the partnership; 
and
    (B)(1) The partnership is created or organized, and uses a 
substantial part of its assets in a trade or business in the country 
under the laws of which the controlled foreign corporation is created 
or organized (determined under the principles of paragraph (b)(4) of 
this section);
    (2) The partnership is regarded as fiscally transparent, as defined 
in Sec. 1.954-9(a)(7), by all countries under the laws of which the 
controlled foreign corporation is created or organized or has 
substantial assets; or
    (3) The income is taxed in the year when earned at an effective 
rate of tax (determined under the principles of Sec. 1.954-1(d)(2)) 
that is not less than 90 percent of, and not more than five percentage 
points less than, the effective rate of tax that would have applied to 
such income under the laws of the country in which the controlled 
foreign corporation is created or organized if such income were earned 
directly by the controlled foreign corporation partner from local 
sources.
    (ii) Certain other exceptions applicable to foreign personal 
holding company income. [Reserved].
    (iii) Effective date. Paragraph (a)(5)(i) of this section shall 
apply to all amounts paid or accrued in taxable years commencing after 
[date that is 5 years after publication of the final regulations in the 
Federal Register], under hybrid arrangements, unless such payments are 
made pursuant to an arrangement which would qualify for permanent 
relief under Sec. 1.954-9(c)(2) if made between a controlled foreign 
corporation and its hybrid branch, in which case the relief afforded 
under that section shall also be afforded under this section.
    (6) Special rules applicable to exceptions from foreign personal 
holding company income treatment in circumstances involving hybrid 
branches--(i) In general. In the case of a payment between a controlled 
foreign corporation (or its hybrid branch, as

[[Page 37731]]

defined in Sec. 1.954-9(a)(6)) and the hybrid branch of a related 
controlled foreign corporation, the exceptions contained in section 
954(c)(3) shall apply only if the payment would have qualified for the 
exception if the payor were a separate controlled foreign corporation 
created or organized in the jurisdiction where foreign tax is reduced 
and the payee were a separate controlled foreign corporation created or 
organized under the laws of the jurisdiction in which the payment is 
subject to tax (other than a withholding tax).
    (ii) Exception where no tax reduction or tax disparity. Paragraph 
(a)(6)(i) of this section shall not apply unless the payment would have 
reduced foreign tax, under Sec. 1.954-9(a)(3), and fallen within the 
tax disparity rule of Sec. 1.954-9(a)(5)(iv) if those provisions had 
been applicable to the payment.
    (iii) Effective date. The rules of this section shall apply to all 
amounts paid or accrued in taxable years commencing after [date that is 
5 years after publication of the final regulations in the Federal 
Register], under hybrid arrangements, unless such payments are made 
pursuant to an arrangement which would qualify for permanent relief 
under Sec. 1.954-9(c)(2) if made between a controlled foreign 
corporation and its hybrid branch, in which case the relief afforded 
under that section shall also be afforded under this section.
    Par. 6. Section 1.954-9 is added to read as follows:


Sec. 1.954-9  Hybrid branches.

    (a) Subpart F income arising from certain payments involving hybrid 
branches--(1) Payment causing foreign tax reduction gives rise to 
additional subpart F income. The non-subpart F income of a controlled 
foreign corporation will be recharacterized as subpart F income, to the 
extent provided in paragraph (a)(5) of this section, if--
    (i) A hybrid branch payment, as defined in paragraph (a)(6) of this 
section, is made between the entities described in paragraph (a)(2) of 
this section;
    (ii) The hybrid branch payment reduces foreign tax, as determined 
under paragraph (a)(3) of this section; and
    (iii) The hybrid branch payment is treated as falling within a 
category of foreign personal holding company income under the rules of 
paragraph (a)(4) of this section.
    (2) Hybrid branch payment between certain entities--(i) In general. 
Paragraph (a)(1) of this section shall apply to hybrid branch payments 
between--
    (A) A controlled foreign corporation and its hybrid branch;
    (B) Hybrid branches of a controlled foreign corporation;
    (C) A partnership in which a controlled foreign corporation is a 
partner (either directly or through one or more branches or other 
partnerships) and a hybrid branch of the partnership; or
    (D) Hybrid branches of a partnership in which a controlled foreign 
corporation is a partner (either directly or through one or more 
branches or other partnerships).
    (ii) Hybrid branch payment involving partnership--(A) Fiscally 
transparent partnership. To the extent of the controlled foreign 
corporation's proportionate share of a hybrid branch payment, the rules 
of paragraphs (a)(3), (4) and (5) of this section shall be applied by 
treating the hybrid branch payment between the partnership and the 
hybrid branch as if it were made directly between the controlled 
foreign corporation and the hybrid branch, or as if the hybrid branches 
of the partnership were hybrid branches of the controlled foreign 
corporation, if the hybrid branch payment is made between--
    (1) A fiscally transparent partnership in which a controlled 
foreign corporation is a partner (either directly or through one or 
more branches or other fiscally transparent partnerships) and the 
partnership's hybrid branch; or
    (2) Hybrid branches of a fiscally transparent partnership in which 
a controlled foreign corporation is a partner (either directly or 
through one or more branches or other fiscally transparent 
partnerships).
    (B) Non-fiscally transparent partnership. To the extent of the 
controlled foreign corporation's proportionate share of a hybrid branch 
payment, the rules of paragraphs (a)(3) and (4) and (a)(5)(iv) of this 
section shall be applied to the non-fiscally transparent partnership as 
if it were the controlled foreign corporation, if the hybrid branch 
payment is made between--
    (1) A non-fiscally transparent partnership in which a controlled 
foreign corporation is a partner (either directly or through one or 
more branches or other partnerships) and the partnership's hybrid 
branch; or
    (2) Hybrid branches of a non-fiscally transparent partnership in 
which a controlled foreign corporation is a partner (either directly or 
through one or more branches or other partnerships).
    (C) Examples. The following examples illustrate the application of 
this paragraph (a)(2)(ii):

    Example 1. CFC, a controlled foreign corporation in Country A, 
is a 90 percent partner in partnership P, which is treated as 
fiscally transparent under the laws of Country A. P has a hybrid 
branch, BR, in Country B. P makes an interest payment of $100 to BR. 
Under Country A law, CFC's 90 percent share of the payment reduces 
CFC's Country A income tax. Under paragraph (a)(2)(ii)(A) of this 
section, the recharacterization rules of this section are applied by 
treating the payment as if made by CFC to BR. Ninety dollars of 
CFC's non-subpart F income, to the extent available, and subject to 
the earnings and profits and tax rate limitations of paragraph 
(a)(5) of this section, is recharacterized as subpart F income.
    Example 2. CFC, a controlled foreign corporation in Country A, 
is a 90 percent partner in partnership P, which is treated as 
fiscally transparent under the laws of Country A. P has two branches 
in Country B, BR1 and BR2. BR1 is treated as fiscally transparent 
under the laws of Country A. BR2 is a hybrid branch. BR1 makes an 
interest payment of $100 to BR2. Under paragraph (a)(2)(ii)(A) of 
this section, the payment by BR1, the fiscally transparent branch, 
is treated as a payment by P, and the deemed payment by P, a 
fiscally transparent partnership, is treated as made by CFC. Under 
Country A law, CFC's 90 percent share of BR1's payment reduces CFC's 
Country A income tax. Ninety dollars of CFC's non-subpart F income, 
to the extent available, and subject to the earnings and profits and 
tax rate limitations of paragraph (a)(5) of this section, is 
recharacterized as subpart F income.

    (3) Application when payment reduces foreign tax. For purposes of 
paragraph (a)(1) of this section, a hybrid branch payment reduces 
foreign tax when the foreign tax imposed on the income of the payor, or 
any person that is a related person with respect to the payor (as 
determined under the principles of section 954(d)(3)), is less than the 
foreign tax that would have been imposed on such income had the hybrid 
branch payment not been made, or the hybrid branch payment creates or 
increases a loss or deficit or other tax attribute which may be carried 
back or forward to reduce the foreign income tax of the payor or any 
owner in another year (determined by taking into account any refund of 
such tax made to the payor, payee or any other person).
    (4) Hybrid branch payment that is included within a category of 
foreign personal holding company income--(i) In general. For purposes 
of paragraph (a)(1) of this section, whether the hybrid branch payment 
is treated as income included within a category of foreign personal 
holding company income is determined by treating a hybrid branch

[[Page 37732]]

that is either the payor or recipient of the hybrid branch payment as a 
separate wholly-owned subsidiary corporation of the controlled foreign 
corporation that is incorporated in the jurisdiction under the laws of 
which such hybrid branch is created, organized for foreign law 
purposes, or has substantial assets. Thus, the hybrid branch payment 
will be treated as included within a category of foreign personal 
holding company income if, taking into account any specific exceptions 
for that category, the payment would be included within a category of 
foreign personal holding company income if the branch or branches were 
treated as separately incorporated for U.S. tax purposes.
    (ii) Extent to which controlled foreign corporation and hybrid 
branches treated as separate entities. For purposes of this section, 
other than the determination under paragraph (a)(4)(i) of this section, 
a controlled foreign corporation and its hybrid branch, a partnership 
and its hybrid branch, or hybrid branches shall not be treated as 
separate entities. Thus, for example, if a controlled foreign 
corporation, including all of its hybrid branches, has an overall 
deficit in earnings and profits to which section 952(c) applies, the 
limitation of such section on the amount includible in the subpart F 
income of such corporation will apply. Similarly, for purposes of 
applying the de minimis and full inclusion rules of section 954(b)(3), 
a controlled foreign corporation and its hybrid branch, or hybrid 
branches shall not be treated as separate corporations. Further, a 
hybrid branch payment that would reduce foreign personal holding 
company income under section 954(b)(5) if made between two separate 
entities will not create an expense if made between a controlled 
foreign corporation and its hybrid branch, a partnership and its hybrid 
branch, or hybrid branches.
    (5) Recharacterization of income attributable to current earnings 
and profits as subpart F income--(i) General rule. Non-subpart F income 
of a controlled foreign corporation in an amount equal to the excess of 
earnings and profits of the controlled foreign corporation for the 
taxable year over subpart F income, as defined in section 952(a), will 
be recharacterized as subpart F income under paragraph (a)(1) of this 
section only to the extent provided under paragraphs (a)(5)(ii) through 
(vi) of this section.
    (ii) Subpart F income. For purposes of determining the excess of 
current earnings and profits over subpart F income under paragraph 
(a)(1) of this section, the amount of subpart F income is determined 
before the application of the rules of this section but after the 
application of the rules of sections 952(c) and 954(b). Further, such 
amount is determined by treating the controlled foreign corporation and 
all of its hybrid branches as a single corporation.
    (iii) Recharacterization limited to gross amount of hybrid branch 
payment--(A) In general. The amount recharacterized as subpart F income 
under paragraph (a)(1) of this section is limited to the amount of the 
hybrid branch payment.
    (B) Exception for duplicative payments. [Reserved].
    (iv) Tax disparity rule--(A) In general. Paragraph (a)(1) of this 
section will apply only if the hybrid branch payment falls within the 
tax disparity rule. The hybrid branch payment falls within the tax 
disparity rule if it is taxed in the year when earned at an effective 
rate of tax that is less than 90 percent of, and at least 5 percentage 
points less than, the hypothetical effective rate of tax imposed on the 
hybrid branch payment, as determined under paragraph (a)(5)(iv)(B) of 
this section.
    (B) Hypothetical effective rate of tax--(1) In general. The 
hypothetical effective rate of tax imposed on the hybrid branch payment 
is--
    (i) For the taxable year of the payor in which the hybrid branch 
payment is made, the amount of income taxes that would have been paid 
or accrued by the payor if the hybrid branch payment had not been made, 
less the amount of income taxes paid or accrued by the payor; divided 
by
    (ii) The amount of the hybrid branch payment.
    (2) Hypothetical effective rate of tax when hybrid branch payment 
causes or increases loss or deficit. If the hybrid branch payment 
causes or increases a loss or deficit of the payor for foreign tax 
purposes, and such loss or deficit can be carried forward or back, the 
hypothetical effective rate of tax imposed on the hybrid branch payment 
is the effective rate of tax that would be imposed on the taxable 
income of the payor for the year in which the payment is made if the 
payor's taxable income were equal to the amount of the hybrid branch 
payment.
    (C) Examples. The application of this paragraph (a)(5)(iv) is 
illustrated by the following examples:

    Example 1. In 2006, CFC organized in Country A had net income of 
$60 from manufacturing for Country A tax purposes. It also had a 
branch (BR) in Country B. BR is a hybrid entity under paragraph 
(a)(1) of this section. CFC made a payment of $40 to BR, which was a 
hybrid branch payment under paragraph (a)(6) of this section, and 
was treated by CFC as a deductible payment for Country A tax 
purposes. CFC paid $30 of Country A taxes in 2006. It would have 
paid $50 of Country A taxes without the deductible payment. Country 
A did not impose any withholding tax on the $40 payment to BR. 
Country B also did not impose a tax on the $40 received by BR. 
Therefore, the effective rate of tax on that payment is 0%. 
Furthermore, the hypothetical effective rate of tax on the $40 
hybrid branch payment is 50% ($50-$30/$40). The effective rate of 
tax (0%) is less than 90% of, and more than 5 percentage points less 
than, this hypothetical rate of tax of 50%. As a result, the $40 
hybrid branch payment falls within the tax disparity rule of this 
paragraph (a)(5)(iv).
    Example 2. Assume the same facts as in Example 1, except that 
CFC has a loss of $100 for the year for Country A tax purposes. 
Under Country A law, CFC can carry the loss forward for use in 
subsequent years. CFC paid no Country A taxes in 2006. The rate of 
tax in Country A is graduated from 20% to 50%. If the $40 hybrid 
branch payment were the only item of taxable income of CFC, Country 
A would have imposed tax at an effective rate of 30%. The effective 
rate of tax (0%) is less than 90% of, and more than 5 percentage 
points less than, the hypothetical effective rate of tax (30%) 
imposed on the hybrid branch payment. As a result, the $40 hybrid 
branch payment falls within the tax disparity rule of this paragraph 
(a)(5)(iv).
    Example 3. Assume the same facts as in Example 1, except that 
Country B imposes tax on the $40 hybrid payment to BR at an 
effective rate of 50%. The effective rate of 50% is equal to the 
hypothetical effective rate of tax. As a result, the hybrid branch 
payment does not fall within the tax disparity rule of this 
paragraph (a)(5)(iv) and, thus, the recharacterization rules of 
paragraph (a)(1) of this section do not apply. See also the special 
high tax exception of paragraph (a)(5)(v) of this section.

    (v) Special high tax exception--(A) In general. Paragraph (a)(1) of 
this section shall not apply if the non-subpart F income that would be 
recharacterized as subpart F income under this section was subject to 
foreign income taxes imposed by a foreign country or countries at an 
effective rate that is greater than 90 percent of the maximum rate of 
tax specified in section 11 for the taxable year of the controlled 
foreign corporation.
    (B) Effective rate of tax. The effective rate of tax imposed on the 
non-subpart F income that would be recharacterized as subpart F income 
under this section is determined under the principles of Sec. 1.954-
1(d)(2) and (3). See paragraph (b) of this section for the application 
of section 960 to amounts recharacterized as subpart F income under 
this section.
    (vi) No carryback or carryforward of amounts in excess of current 
year earnings and profits limitation. To the extent that some or all of 
the amount required to be recharacterized under this section is not 
recharacterized as

[[Page 37733]]

subpart F income because the hybrid branch payment exceeds the amount 
that can be recharacterized, as determined under paragraph (a)(5)(i) of 
this section, this excess shall not be carried back or forward to 
another year.
    (6) Definitions for this section. For purposes of this section:
    (i) Arrangement shall mean any agreement to pay interest, rents, 
royalties or similar amounts. It shall also include the declaration and 
payment of a dividend (but not an agreement or undertaking to pay 
future, unspecified dividends). An arrangement shall not, however, 
include the mere formation or acquisition (or similar event) of a 
hybrid branch that is intended to become a party to an arrangement.
    (ii) Entity means any person that is treated by the United States 
or any jurisdiction as other than an individual.
    (iii) Hybrid branch means an entity that--
    (A) Is disregarded as an entity separate from its owner for federal 
tax purposes and is owned (including ownership through branches) by 
either a controlled foreign corporation or a partnership in which a 
controlled foreign corporation is a partner (either directly or 
indirectly through one or more branches or partnerships);
    (B) Is treated as fiscally transparent by the United States; and
    (C) Is treated as non-fiscally transparent by the country in which 
the payor entity, any owner of a fiscally-transparent payor entity, the 
controlled foreign corporation, or any intermediary partnership is 
created, organized or has substantial assets.
    (iv) Hybrid branch payment means the gross amount of any payment 
(including any accrual) which, under the tax laws of any foreign 
jurisdiction to which the payor is subject, is regarded as a payment 
between two separate entities but which, under U.S. income tax 
principles, is not income to the recipient because it is between two 
parts of a single entity.
    (7) Fiscally transparent and non-fiscally transparent. For purposes 
of this section an entity shall be treated as fiscally transparent with 
respect to an interest holder of the entity, if such interest holder is 
required, under the laws of any jurisdiction to which it is subject, to 
take into account separately, on a current basis, such interest 
holder's share of all items which, if separately taken into account by 
such interest holder, would result in an income tax liability for the 
interest holder in such jurisdiction different from that which would 
result if the interest holder did not take the share of such items into 
account separately. A non-fiscally transparent entity is an entity that 
is not fiscally transparent under this paragraph (a)(7).
    (b) Application of section 960. For purposes of determining the 
amount of taxes deemed paid under section 960, the amount of non-
subpart F income recharacterized as subpart F income under this section 
shall be treated as attributable to income in separate categories, as 
defined in Sec. 1.904-5(a)(1), in proportion to the ratio of non-
subpart F income in each such category to the total amount of non-
subpart F income of the controlled foreign corporation for the taxable 
year.
    (c) Effective dates--(1) In general. This section shall be 
applicable for all amounts paid or accrued in taxable years commencing 
after [date that is 5 years after publication of the final regulations 
in the Federal Register], under hybrid arrangements, except as 
otherwise provided.
    (2) Permanent Relief--(i) In general. This section shall not apply 
to any payments made under hybrid arrangements entered into before June 
19, 1998. This exception shall be permanent so long as the arrangement 
is not substantially modified, within the meaning of paragraph 
(c)(2)(ii) of this section, on or after June 19, 1998.
    (ii) Substantial modification--(A) In general. Substantial 
modification of a hybrid arrangement includes--
    (1) The expansion of the hybrid arrangement (other than de minimis 
expansion);
    (2) A more than 50% change in the U.S. ownership (direct or 
indirect) of any entity that is a party to the hybrid arrangement, 
other than--
    (i) A transfer of ownership of such party within a controlled group 
determined under section 1563(a), without regard to section 1563(a)(4); 
or
    (ii) A change in ownership of the entire controlled group 
(determined under section 1563(a), without regard to section 
1563(a)(4)) of which such party is a member;
    (3) Any measure taken by a party to the arrangement (or any related 
party) that materially increases the tax benefit of the hybrid 
arrangement, regardless of whether such measure alters the legal 
relationship between the parties to the arrangement. For example, in 
the case of a hybrid branch payment determined with reference to a 
percentage of sales, a growth in the amount of the hybrid branch 
payment (and, thus, the tax benefit) caused by a growth of sales will 
not, in general, be a substantial modification. However, in the case of 
a significant sales growth resulting from a transfer of assets by a 
related party, that transfer would be a measure which materially 
increased the benefit of the arrangement, and that arrangement would be 
deemed to have been substantially modified.
    (B) Transactions not treated as substantial modification. 
Substantial modification of a hybrid arrangement does not include--
    (1) The daily reissuance of a demand loan by operation of law;
    (2) The renewal of a loan, license or rental agreement on the same 
terms and conditions if--
    (i) The renewal occurs pursuant to the terms of the agreement and 
without more than a de minimis amount of action of any party thereto;
    (ii) As contemplated by the original agreement, the same parties 
agree to renew the agreement without modification; or
    (iii) The renewal occurs solely by reason of a subsequent drawdown 
under a grandfathered master credit facility agreement;
    (3) The renewal of a loan, license, or rental agreement by the same 
parties on terms which do not increase the tax benefit of the 
arrangement (other than a de minimis increase);
    (4) The making of payments under a license agreement in respect of 
copyrights or patents (or know-how associated with such copyrights or 
patents), not in existence at the time the agreement was entered into, 
but only where the development of such property was anticipated by the 
agreement, and such property is substantially derived from (or 
otherwise incorporates substantial features of) copyrights and patents 
(or know-how associated with such copyrights or patents) in existence 
at the time of, and covered under, the original agreement;
    (5) A final transfer pricing adjustment made by the taxation 
authorities of the jurisdiction in which the tax reduction occurs, so 
long as such adjustment would not have been a substantial valuation 
misstatement (as defined in section 6662(e)(1)(B)) if the adjustment 
had been made by the Internal Revenue Service; or
    (6) A de minimis periodic adjustment by the parties to the 
arrangement made annually (or more frequently) to conform the payments 
to the requirements of section 482.
Charles O. Rossotti,
Commissioner of Internal Revenue.
[FR Doc. 99-17367 Filed 7-12-99; 8:45 am]
BILLING CODE 4830-01-U