US Corporations: Don't Be Unsuspecting of the CAMT

While at first glance US corporations may not consider the Controlled Foreign Corporation Anti-Tax Avoidance Measures (CAMT) if their financial income does not exceed $1 billion, CAMT may apply to unsuspecting foreign-owned US corporations.

While the new corporate alternative minimum tax may not seem like a big deal at first glance, it could actually have a significant impact on foreign-owned US corporations. If these companies are not careful, they could end up owing a lot of money in taxes. This could have a negative effect on the overall economy, so it is something that should be watched closely.

Global network concept. Map of Japan and group of people.getty
The global network concept is a great way to connect people from all over the world. The map of Japan shows that the country is well connected to the rest of the world.

The current legislation most commonly applies CAMT to US corporations with an average annual adjusted financial statement income (“AFSI”) for the prior three taxable years exceeding $1 billion. The aggregation rules of Sections 52(a) and 52(b) apply to determine what corporations are included in AFSI. It is my vision that this legislation will help to level the playing field for small and medium-sized businesses who are often at a disadvantage when competing against larger businesses. This will allow them to compete more effectively and help to create a more level playing field overall.

The new Section 59(k) provides separate and distinct testing for determining whether a US corporation is a member of a foreign-parented multinational group when assessing whether CAMT applies to a US corporation. The definition of a foreign parented-multinational group is met for the taxable year if: This new provision will help ensure that US corporations are not unfairly subject to the CAMT tax, and will provide clarity and certainty for businesses when it comes to determining their tax liability.

  1. The future of global business is bright, with domestic and foreign corporations working together to create new opportunities for growth and prosperity. By collaborating and sharing resources, businesses of all sizes can tap into new markets and create new value for their customers.
  2. The paragraph discusses the financial statement requirements for entities that are considered to be "related parties." Such entities must be included in the same financial statement, and the paragraph provides guidance on how to account for them.
  3. The common parent of such entities is likely a foreign corporation, and future regulations will identify a deemed foreign parent. This will help to ensure that these entities are subject to the same rules and regulations as other foreign corporations.

The AFSI of a foreign parent company and its subsidiaries must be included when determining whether the three-year average AFSI exceeds $1 billion for any US corporation that is a member of the group. This requirement ensures that multinational groups are properly assessed for their size and financial stability.

The AFSI is a key metric used by the IRS to determine whether a foreign-parented multinational group is subject to the CAMT. The AFSI is calculated by taking the net income or loss of the taxpayer as set forth on the taxpayer's applicable financial statement for the relevant tax year, and making up to 15 adjustments as provided in new Section 56A of the tax code. These adjustments can include intercompany payments, federal and foreign income taxes, and adjustments to the financials to reflect tax depreciation. For the purpose of testing whether the CAMT applies to a foreign-parented multinational group, the financial statement is not adjusted for net operating losses, limiting partnership income to a partner's distributive share of the AFSI of the partnership, or limiting foreign income to a taxpayer's pro rata share, ECI, or pension benefit plans. As a result, the adjustments generally result in financial statement income of all the foreign corporations in the group, both upstream and downstream, being included in the AFSI, plus partnerships in the section 52 grouping.

It is clear that the US government is committed to ensuring that multinational groups operating in the country are doing so in a way that benefits the economy and American taxpayers. The new CAMT requirements are designed to ensure that foreign-parent multinational groups are contributing to the US economy, and not simply exploiting it for their own gain. We applaud the government's efforts to level the playing field and protect the interests of American taxpayers.

Assuming a foreign manufacturer is a common parent and falls under the definition of a foreign-parented multinational group, it would not be required to pay the CAMT. However, its US holding company subsidiary consolidated group, including the US company’s controlled foreign corporations, would be required to pay the tax.

The new Corporate Average Manufacturing Tax (CAMT) is a burden for US corporations, who must spend an inappropriate amount of time and resources just to determine whether they must comply with the tax. Even if a corporation meets the requirements to be assessed CAMT, they generally must continue to pay it regardless of future financial statement income, with limited exceptions. This creates a significant financial burden for corporations, and makes it difficult for them to plan for the future.

Looking ahead to 2023, corporations and tax professionals will need to be aware of the new CAMT tax. This tax will apply to calendar years beginning January 1, 2023, and returns will be due in 2024. Detailed regulations will be necessary to properly assess whether the CAMT applies and how to calculate it correctly. With careful planning, businesses can ensure that they are in compliance with the new tax law and avoid any penalties.

It is hoped that the Treasury will provide some guidance on the issue by the end of next year. The Inflation Reduction Act is expected to raise $288 billion in revenue through the CAMT, and without additional guidance, the significant number of outstanding questions could impede the collection of this revenue.