The Supreme Court on May 20 ruled in PPL Corp. v.
Commissioner that the one-time "windfall tax"
imposed by the United Kingdom in 1997 had a predominant character
of a "classic excess profits tax" and thus could be used
in computing the foreign tax credit under Section 901.
Between 1984 and 1996, the UK parliament began privatizing
government-owned companies and sold shares in them in an initial
offering. PPL Corporation became a 25% owner of one of those
companies, South Western Electricity plc. In 1997, a new political
party came to power and imposed a 23% windfall tax on the
privatized companies, which by then had become wildly profitable.
The tax was based on a formulary approach designed to capture
excess profits resulting from the privatization.
South Western Electricity's windfall tax burden was
£90.4 million. In its 1997 federal income tax return, PPL
claimed a credit under Section 901 for its portion of the tax. The
IRS rejected the claim.
The Tax Court held that the windfall tax was creditable and had
the predominant character of a U.S. income tax in that it passed
the realization, gross receipts and net income requirements of reg.
The IRS appealed to the Third Circuit Court of Appeals and won,
with the court holding that the windfall tax did not pass the gross
receipts requirement. Around the same time, however, the Fifth
Circuit heard an appeal in a companion case and sided with the
taxpayer, setting up a Supreme Court challenge.
Supreme Court's reasoning
The Supreme Court, in a unanimous opinion authored by Justice
Clarence Thomas, analyzed the nature of the tax under reg. section
1.901-2 and held that the windfall tax met the requirements for
creditability, because the tax essentially functioned as an excess
profits tax. Under Section 901(b)(1), taxes paid to a foreign
country by a domestic corporation on income, war profits and excess
profits is creditable.
The Court ruled that was substantively a 51.71% tax on profits
above a certain threshold and that the predominant nature of the
tax was based on the net income.
The Court reiterated that the correct analysis in determining
creditability under Section 901 is to evaluate the economic effect
of the tax, not its characterization by the foreign government.
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The favoured tax status of foreigners planning not to stay in the UK on a long term basis (so called 'non-doms') became a hot topic in the run up to the UK General Election in May 2015, and one of George Osborne's early acts as Chancellor was to announce changes to the regime.
Many are aware that the principal income tax consequences of
expatriation are usually immediate – under the
‘mark-to-market' regime, a ‘covered
expatriate' is generally deemed to sell all of his property,
regardless of its location, on the day before he ceases to be
taxable as a US resident.
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