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Doing Business in the U.S. ─ U.S. Federal Taxation

Doing Business in the U.S. ─ U.S. Federal Taxation. Devon Bodoh Principal Washington National Tax.

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Doing Business in the U.S. ─ U.S. Federal Taxation

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  1. Doing Business in the U.S. ─ U.S. Federal Taxation • Devon BodohPrincipalWashington National Tax

  2. ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY KPMG TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials.The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser. Notice

  3. Agenda • Basic U.S. Federal Tax Concepts • Taxation of Brazilian Companies Investing in the U.S. • Acquisition Considerations

  4. Basic U.S. Federal Tax Concepts

  5. Basic U.S. Federal Tax ConceptsEntity Classification • What is a corporation? • Generally, a business entity organized under U.S. (federal or state) law, if referred to as “incorporated” or as a “corporation” • Certain foreign entities that are “per se” corporations • What is a partnership? • Generally not a U.S. federal income tax paying entity– income, gain, deduction and loss flow through to the partners • What is a disregarded entity? • Assets, liabilities and activities of a disregarded entity are treated as the assets, liabilities and activities of the disregarded entity’s owner • What is the “Check the Box” regime? • Certain eligible entities (limited liability companies, for example) may elect their entity classification for U.S. federal tax purposes • If no election is made: • If a single-owner, the default classification is as a disregarded entity • If multiple-owners, the default classification is as a partnership

  6. Basic U.S. Federal Tax ConceptsTax Rates • Corporations pay U.S. federal income tax at a 35% rate • Currently, the same rate applies to ordinary income and capital gains • Corporations are also subject to “alternative minimum tax” • Corporations are required to pay quarterly estimated taxes • Corporations are subject to state, local and foreign taxes, based on the location of its assets and activities; rates vary by jurisdiction • Generally entitled to deduct state and local income taxes • Generally entitled to a tax credit for foreign income taxes • Aggregate effective federal, state and local income tax rate for corporations is typically between 38% and 40%

  7. Basic U.S. Federal Tax ConceptsTax Rates (Cont’d) • A corporation and its shareholders are generally treated as separate taxpayers, resulting in double taxation of corporate income • Shareholders generally have two sources of income, gain or loss: • Distributions from the corporation (e.g., dividends) • Dispositions of stock (e.g., capital gain or loss) • Corporate shareholders are generally entitled to a dividends-received deduction (“DRD”) with respect to dividends received from a U.S. corporation • The amount of DRD depends on the level of ownership: • In general, corporate shareholders prefer dividend income (due to DRD) and individual shareholders prefer long term capital gains (due to lower rate (historically) and basis recovery)

  8. Basic U.S. Federal Tax ConceptsConsolidated Groups • What is an affiliated group? • One or more chains of includible corporations connected through stock ownership with a common parent corporation (i.e., 80% of the total voting power and value) • Non-U.S. corporations are not includible corporations • An affiliated group may elect to file a consolidated tax return • The taxable income of all members of an affiliated group is determined on an aggregate basis (i.e., deductions of one member may offset income of another member) P S1 S2

  9. Basic U.S. Federal Tax ConceptsDebt v. Equity • Whether an investment is classified as debt or equity for tax purposes is based on the weighing of a number of factors including • Debt-to-equity ratio of the borrower and • Borrower’s ability to repay the debt based on projected earnings • Consequences of classification as debt or equity: • Interest payments are generally deductible but dividends are not • Withholding taxes may differ

  10. Taxation of Brazilian Companies Investing in the U.S.

  11. Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ U.S. Corporations • U.S. Corporations • Taxable in U.S. on worldwide income • Generally, considered to be a resident in place where created or organized (place of incorporation) • Possibility of “dual residence” status exists • This might occur, for example, if another country determines residence on a different basis (management and control test) • Raises problem of dual consolidated losses

  12. Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Non-U.S. Residents • Non-U.S. residents include business entities organized under laws of foreign country • Gross basis withholding tax (generally 30% rate) on U.S.-source investment income • Net basis tax at graduated rates on income effectively connected with conduct of a U.S. trade or business • A filing with the U.S. taxing authority (a Form 1120-F) is generally required in this circumstance. • Foreign corporations also subject to 30% branch profits tax on remittances from U.S. branch to foreign home office • Special rules for sales of U.S. real property interests (USRPI) • Buyers may be required to withhold 10% of the sales proceeds • General rules subject to treaty modification; however, there is no income tax treaty between the U.S. and Brazil

  13. Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction─ Income Sourcing Rules • Interest – Residence of payor • Dividends – Payor’s place of incorporation • Income from services – Location where services performed • Rent and royalties – Location or place of use of property • Sale of Real Property – Location of property • Sale of Personal Property – Generally, the location of the seller

  14. Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction─ Withholding • Gross Basis Withholding Tax on U.S. Source Investment Income • Generally applies to fixed, determinable, annual or periodical (FDAP) income • Includes interest, dividends, rents, and royalties • Gross basis withholding does not apply to FDAP income to the extent it is effectively connected with a U.S. trade or business (USTB)

  15. Taxation of Brazilian Companies Investing in the U.S. U.S. Taxing Jurisdiction ─ Effectively Connected Income • Net Basis Taxation of Income Effectively Connected to a U.S. Trade or Business • Effectively connected income (ECI) • Generally, U.S. source income of a foreign person engaged in a USTB (other than FDAP income or gain or loss from the sale or exchange of a capital asset) • U.S. source FDAP income may be ECI if (1) the income is derived from an asset used in a U.S. trade or business, or (2) the activities of a U.S. trade or business are a “material factor” in generating the income • In certain limited circumstances, foreign source income may be ECI • U.S. Trade or Business • Generally “facts and circumstances” test • Whether active profit-oriented activities of a foreign person in the United States are “considerable, continuous and regular” • Generally, a low threshold • Activities of agents may be considered • Examples: • Performance of personal services in U.S. is a U.S. trade or business • Trading in stock/securities for taxpayer’s own account is not a U.S. trade or business

  16. Acquisition Considerations ─ Acquisition Through a U.S. Acquirer

  17. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Selected Issues • Deductibility of Interest Payments • Withholding Tax Considerations • Distributions • Consolidated Group Considerations

  18. Acquisition Considerations ─Acquisition Through U.S. Acquirer Sample Transaction • Background: A Brazilian company (“Brazilian Parent”) would like to acquire all of the stock of a publicly traded U.S. corporation (“U.S. Target”) • Step 1: Brazilian Parent forms a new U.S. corporation (“U.S. Acquirer”) • Step 2: U.S. Acquirer borrows the purchase price, US$100, form the U.S. branch of an unrelated Brazilian Bank (the “Loan”) • Step 3: U.S. Acquirer purchases the stock of U.S. Target for US$100 Public Brazilian Bank Brazilian Parent 3 1 U.S. Branch 2 U.S. Target U.S. Acquirer U.S. Target

  19. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Deductibility of Interest ─ Debt v. Equity • General Debt v. Equity Considerations • To deduct interest on the Loan, it must be debt for U.S. tax purposes • Facts and circumstances • Is the borrower thinly capitalized? • In the U.S., a debt-to-equity ratio in excess of 3:1 is evidence of debt • Brazil thin capitalization rules–no greater than 2:1 debt-to-equity ratio • Legal priority of payment • Lender’s right to payment on liquidation • Bifurcating the debt into a junior and senior tranche may minimize the likelihood that all of the interest deductions are denied under debt/equity principles

  20. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Deductibility of Interest ─ Debt Guarantees • Debt Guarantee Considerations • If U.S. Acquirer is a newly formed entity or otherwise undercapitalized, Brazilian Parent may be required to guarantee its obligations under the Loan • This guarantee raises the issue of whether the guarantor is the borrower • Look at debt-to-equity factors (e.g., would borrower be expected to repay the debt without the guarantee?) • A guarantee by Brazilian Parent also possibly implicates the earnings stripping rules: • applies to interest paid to foreign related party where 30% gross basis withholding is not applicable • also applies to interest paid to unrelated party (e.g. US lending bank) where there is a foreign related party “guarantee” • application results in disallowance of interest deduction but only if (1) the corporation’s debt-to-equity ratio (as of the end of the taxable year) exceeds 1.5:1, and (2) the corporation’s total interest deduction (including interest due to unrelated persons) exceeds 50% of the corporation's “adjusted taxable income” (roughly speaking, its cash flow before deducting interest)

  21. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Withholding Tax Considerations • Withholding tax on interest payments made by U.S. Acquirer to a Brazilian bank • U.S. source FDAP income • Since there is no treaty between the U.S. and Brazil, the interest payments would be subject to a 30% withholding tax on the gross amount of the interest payment • However, U.S. Acquirer may be able to avoid withholding tax if the payment is made to a U.S. branch of a Brazilian bank • What if guarantor (i.e., Brazilian Parent) is treated as the borrower? • No withholding tax on interest payments to either a Brazilian bank or a U.S. branch • Conduit Financing Rules - intermediate entities in a financing arrangement may be disregarded if their participation reduces U.S. withholding tax • Conduit financing rules do not apply if financing • Is not pursuant to a tax avoidance plan or • Does not result in lower taxes (as compared to the absence of such entity)

  22. Acquisition Considerations ─Acquisition Through U.S. AcquirerWithholding Tax Considerations (Cont’d) • Assume Brazilian Parent establishes a financing entity (“FinCo”) in a country with a low withholding tax rate on interest payments with both the U.S. and Brazil • If FinCo borrowed money from the Brazilian Bank (Step 1), and then on-lent the funds to U.S. Acquirer (Step 2), the combined withholding tax rate on the back-to-back loans may be less than if U.S. Acquirer had borrowed the money directly from the Brazilian banks • However, conduit financing rules under the U.S. tax laws may prevent such a beneficial result Brazilian Parent Brazilian Bank Public 3 1 FinCo U.S. Target U.S. Acquirer 2 U.S. Target

  23. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Distributions • Under U.S. tax laws, distributions by a corporation to its shareholder are taxable as a dividend to the extent the distributing corporation has earnings and profits (“E&P”) • If the amount of the distribution exceeds the amount of earnings and profits, the distribution is treated, first, as a return of basis and, second, to the extent it exceeds basis, capital gain • Example: • Assume U.S. Target has $50 of E&P, and Brazilian Parent has a US$100 tax basis in its U.S. Target stock • If U.S. Target makes a $200 distribution to Brazilian Parent, US$50 of the distribution will be dividend income to Brazilian Parent • This US$50 dividend will be subject to a 30% withholding tax since there is no treaty between the US and Brazil • Of the remaining US$150 of the distribution, US$100 will reduce Brazilian Parent’s tax basis in the U.S. Target stock to US$0, and US$50 will be treated as capital gain

  24. Acquisition Considerations ─Acquisition Through U.S. AcquirerConsolidated Group Considerations • If Brazilian Parent makes the acquisition through U.S. Acquirer, U.S. Acquirer and U.S. Target may be eligible to form a consolidated group • Since the taxable income of a consolidated group is determined on an aggregate basis U.S. Acquirer’s interest deductions may offset U.S. Target’s taxable income • Distributions from U.S. Target to U.S. Acquirer are not taxable if they belong to the same consolidated group Brazilian Bank Brazilian Parent + US$ 100 U.S. Branch - U.S. Acquirer U.S. Target

  25. Acquisition Considerations ─ Acquisition Through U.S. Acquirer • Consolidated Group Considerations ─ Distributions • If U.S. Target and U.S. Acquirer belong to the same consolidated group, U.S. Acquirer’s E&P will include U.S. Target’s E&P • However, U.S. Acquirer’s E&P will only include U.S. Target’s E&P from the date after the acquisition • Example: • Assume Brazilian Parent acquired U.S. Target through U.S. Acquirer. Assume also that U.S. Target has US$50 of E&P that accrued prior to the acquisition, and Brazilian Parent has a US$100 tax basis in its U.S. Acquirer stock • If U.S. Acquirer makes a US$100 distribution to Brazilian Parent, none of the distribution will be treated as a dividend since U.S. Acquirer will not be treated as having any E&P • The US$100 will reduce Brazilian Parent’s tax basis in U.S. Acquirer stock to US$0 but Brazilian Parent will recognize no gain • This result will occur even if the distribution is funded by a dividend from U.S. Target to U.S. Acquirer (which is tax free under the consolidated return rules)

  26. Acquisition Considerations ─ Direct Acquisition by Brazilian Parent

  27. Acquisition Considerations ─ Direct Acquisition by Brazilian Parent Sample Transaction • Background: Brazilian Parent would like to acquire all of the stock of U.S. Target • Step 1: Brazilian Parent borrows the purchase price, US$100, from an unrelated Brazilian • Step 3: Brazilian Parent purchases the stock of U.S. Target for US$100 Public Brazilian Bank Brazilian Parent 1 2 U.S. Target U.S. Target

  28. Acquisition Considerations ─ Direct Acquisition by Brazilian Parent • Other Considerations • No consolidated group with a foreign parent • Brazilian Parent would therefore only be able to use an available interest deduction to offset its own taxable income (and not the taxable income of U.S. Target) • The historic E&P of U.S. Target is taken into account in determining whether distributions are dividends • Dividend distributions generally subject to 30% withholding tax • No withholding tax on interest payments to either a Brazilian bank or a U.S. branch of a Brazilian Bank

  29. Acquisition Considerations ─ Other Considerations

  30. Acquisition Considerations • Net Operating Losses • Net Operating Losses (NOLs) • May be carried back two years and carried forward 20 years • Limitations on NOL usage • If an ownership change occurs, a corporation’s ability to use its pre-change NOLs and built-in losses to offset post-change taxable income may be limited • Ownership Change: more than 50% change in ownership over a three-year testing period • The ability of a consolidated group to use a member’s NOLs from a pre-consolidated group period of that member to offset income may be limited

  31. Acquisition Considerations • Section 338 Elections • When stock is acquired, the tax basis of the company’s assets do not change • In certain circumstances, a taxpayer can elect to treat a stock acquisition as an asset acquisition, in which case tax basis of the assets change to fair market value • Two types of elections • Section 338(g): Common where seller is non-U.S. taxpayer but otherwise uncommon • Section 338(h)(10): Available in limited circumstances. More common where seller is U.S. taxpayer

  32. Devon M. BodohPrincipal • Professional and Industry Experience • Devon M. Bodoh is the Principal in Charge for Latin American Markets. Within that role, Mr. Bodoh leads the firm’s US-Brazil High Growth Market Practice and leads the Inbound Tax Team for Brazil. In addition, Mr. Bodoh is the co-leader of KPMG’s Washington National Tax International M&A Initiative and a principal in Washington National Tax. • Mr. Bodoh advises clients on cross border mergers, acquisitions, spin-offs, other divisive strategies, restructurings, bankruptcy and non-bankruptcy workouts, the use of net operating losses, foreign tax credits, deficits and other tax attributes, and consolidated return matters. • Prior to joining KPMG, Mr. Bodoh was a partner in the international law firm of Dewey & LeBoeuf LLP. • Publications and Speaking Engagements • Mr. Bodoh is a frequent speaker on subjects in his practice area for various groups, including the Tax Executives Institute, the American Bar Association, the American Law Institute/American Bar Association, the American Institute of Certified Public Accountants, BNA/Center for International Tax Education and the Law Education Institute. • Mr. Bodoh is a former chairperson and vice-chairperson of the American Bar Association's Committee on Affiliated and Related Corporations and is an officer of the American Bar Association's Corporate Tax Committee. • Mr. Bodoh is an adjunct professor at George Mason University School of Law. In addition, Mr. Bodoh is a member of the Dean's Advisory Board for the University of Detroit School of Law. • DEVON M. BODOHPrincipal • Washington National Tax • KPMG LLP • Washington DC Office • 1801 K Street, NWWashington, DC 20006 • Miami Office • 200 South Biscayne BlvdMiami, FL 33131 Tel +1 202-533-5681Fax +1 202-609-8969Cell +1 646-752-9444 • dbodoh@kpmg.com • Function and Specialization • Cross border mergers, acquisitions, spin-offs, divestitures, liquidating and nonliquidating corporate distributions, corporate reorganization, and consolidated returns • Education, Licenses & Certifications • LLM, Taxation, New York University of Law • JD, University of Detroit Mercy School of Law School • BBA, University of Michigan Stephen M. Ross School of Business

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