US Supreme Court Upholds Constitutionality of Repatriation Tax: Key Takeaways for Foreign Corporations

The U.S. Supreme Court’s recent decision in Moore v. United States has definitively upheld the constitutionality of the repatriation tax, a one-time tax on accumulated foreign earnings of U.S. companies under the 2017 Tax Cuts and Jobs Act (TCJA). This landmark ruling has far-reaching implications for foreign corporations and their tax planning strategies, further solidifying the government’s authority to tax unrealized gains.

Understanding the Repatriation Tax (Transition Tax):

The TCJA introduced the repatriation tax (Internal Revenue Code Section 965) as a one-time levy on previously untaxed foreign earnings of U.S. companies held in foreign subsidiaries. The tax was designed to incentivize companies to bring these earnings back to the U.S., thereby boosting domestic investment. However, the tax’s constitutionality was challenged, leading to the Supreme Court’s review in the Moore case.

Key Takeaways from the Moore Decision:

• Constitutionality Affirmed: The Supreme Court definitively upheld the constitutionality of the repatriation tax, rejecting arguments that it violated the due process clause and the prohibition against retroactive taxation.
• Deferral Not a Vested Right: The Court emphasized that the ability to defer U.S. tax on foreign earnings is a statutory privilege, not a constitutional right. This means Congress has the authority to modify or eliminate this privilege through legislation.
• Tax on Unrealized Gains Permitted: Significantly, the ruling affirmed the government’s authority to tax unrealized gains, as the repatriation tax was levied on accumulated earnings that were not yet distributed to the U.S. parent company.
• Impact on TCJA: The ruling solidifies the TCJA’s framework for taxing foreign earnings, providing much-needed certainty for taxpayers and tax professionals.

Planning Considerations for Foreign Corporations:

1. Assess Prior Tax Positions: Companies that took tax positions based on the assumption that the repatriation tax might be overturned should reassess those positions in light of the Moore decision.
2. Review Foreign Earnings: Carefully evaluate your company’s accumulated foreign earnings to determine the potential tax liability under Section 965.
3. Repatriation Strategies: If repatriation of foreign earnings is desired, develop a tax-efficient strategy that considers the potential impact of the repatriation tax on your overall tax burden.
4. Future Tax Planning: As the deferral of U.S. tax on foreign earnings is not a guaranteed right and the taxation of unrealized gains is permissible, consider incorporating this understanding into your long-term tax planning to mitigate future risks.

Additional Technical Considerations:

• Deemed Repatriation: Under Section 965, certain foreign earnings are deemed repatriated, even if not physically brought back to the U.S., triggering the tax liability.
• Foreign Tax Credits: While foreign tax credits may offset some of the repatriation tax liability, their availability and limitations should be carefully analyzed.
• GILTI: The Global Intangible Low-Taxed Income (GILTI) regime, another key provision of the TCJA, interacts with the repatriation tax and requires careful coordination in tax planning.

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