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May 16, 2017

Under the House Republican “Blueprint for Tax Reform” (the Blueprint), companies would be able to deduct interest expense against interest income, but no current deduction would be allowed for net interest expense. Any net interest expense would be carried forward indefinitely and allowed as a deduction against net interest income in future years. In addition, the proposed reduction of U.S. tax rates may also reduce the value of U.S. interest deductions. These proposals should impact decisions right now around multinational intercompany financing structures for tech companies, as well as other aspects of their intragroup contractual arrangements.

Until now, the high U.S. corporate income tax rate of 35 percent has created an environment that favors foreign related-party lending to U.S. affiliates, particularly when the loan is advanced from a low-tax jurisdiction. U.S. taxable income may be reduced via an interest deduction and the corresponding interest income may be captured in the lower tax jurisdiction. Alternatively, tax considerations may have made it desirable to incur third-party debt in a U.S. group company, rather than in lower-taxed group companies. The feasibility and/or desirability of these sorts of “earnings stripping” benefits would be greatly diminished by the Blueprint.

So, how are forward-looking companies, particularly in the tech industry, preparing for these potentially dramatic changes? We are seeing a number of them explore the following questions:

1.    Should the debt level of U.S. group companies be reduced and, if so, how?

2.    Should the interest rate be reduced on intragroup debt financing of U.S. group companies?

3.    Can we replace debt financing with other forms of financing arrangements that may yield deductions other than interest expense for the U.S. company (e.g., rent expense on sale / leaseback transactions, royalty expense on intellectual property (IP) licensing transactions)?

4.    Should U.S. group companies make interest-bearing loans to other group companies that can benefit from interest deductions in their countries, thereby creating interest income in the U.S., against which the U.S. company could then deduct its own interest expense (e.g., should a U.S. company be a group finance company)?

5.    Can lost interest deductions be replaced by more aggressive transfer pricing for other intragroup transactions (e.g., the intragroup purchase and/or sale of goods or services)?

All of these questions regarding intragroup transactions have important transfer pricing implications. For most intragroup transactions (other than those rare instances when the comparable uncontrolled price method is the best method), the prevailing transfer pricing theory permits a range of choices for the intercompany transfer price. So, whether the decision relates to the level of U.S. indebtedness, the substitution of interest expense with other types of deductions, or the creation of interest income in the U.S., the after-tax impact of those decisions can be significantly enhanced by proactive transfer pricing planning. This is true regardless of whether the objective is the more traditional one of minimizing taxable income in the U.S., or a new one to increase taxable income in the U.S. (with the offsetting decrease in other countries with higher tax rates) in light of dramatically changed U.S. tax rules. Our international tax and transfer pricing specialists can help your company to determine the most desirable course of action and to substantiate an appropriate / defensible range of choices for intercompany prices that will yield the optimal results.

Authors: Marc Alms, Kieran Taylor and Jeff Gunsel

We’d love to get your thoughts: How would the loss of the interest deduction affect your taxable income position if no modifications were made to your current structure? Does your company have forward-looking ideas related to its intercompany debt structure? Please call or aliguori [at] (email us) and let us know!

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