United States: Coming To Terms With BEAT: Unique Challenges For Asset Managers

The impact of the new Base Erosion and Anti-Abuse Tax (BEAT) implemented under the Tax Cuts and Jobs Act (TCJA) in 2018 is coming into focus for asset management firms that just closed out their first tax year under these new U.S. tax rules. Proposed regulations were issued on December 13, 20181 , and companies now have more information to determine how their global transfer pricing policies may be triggering the new tax. 

The BEAT generally applies to taxpayers meeting the following criteria:

  • Total average annual gross receipts for the affiliated group exceed $500 million over the prior three-year period2 ; and 
  • Deductions in the U.S. for intercompany payments for services, interest, certain property/assets and royalties are greater than 3% of total deductions. 
    • For banks and registered securities dealers, the threshold is 2%. 

The BEAT is in addition to the taxpayer's regular tax liability. If the above criteria are met, an additional 10% tax (previously 5% in 2018) is applied to the excess of a taxpayer's modified taxable income over its regular tax liability, where modified taxable income is defined by the disallowance for deductions for base erosion payments. 

In general, the BEAT penalizes large companies that have significant outbound payments to foreign related parties and targets payments for items such as services, royalties and interest rather than product purchases or other Cost of Goods Sold (COGS)-related items.

Asset management firms tend to run their global business in a highly integrated manner and can be significantly penalized by BEAT as a result of the intercompany transactions that come with integrated structures. For example, portfolio managers may draw upon research performed around the world to make product decisions, and customer relationships may be located in countries different from where trading and execution take place. In addition, many asset management firms have portions of their business that cause them to fall under rules specific to banks and registered securities dealers, which subject them to harsher consequences. Such companies have lower thresholds for triggering the BEAT in the first place (2% instead of 3%) and their "BEAT-able" transactions attract more tax (e.g., they pay 11% instead of 10% in 2019). 

Another challenge relates to tracking and estimation. Many companies have difficulty estimating their BEAT-able payments because they may not have needed to track transactions in the way that the BEAT rules now require. However, complexity of related party transactions for asset management firms has arguably made the task more difficult for this industry. For example, companies that have implemented global profit splits to accommodate their highly integrated business do not yet have certainty within the proposed regulations about how their profit split allocations will be treated under the BEAT. This can be a material issue when a company uses a U.S. entity as the "header" for executing profit split allocations. Should such allocations be treated as outbound payments for services and therefore BEAT-able? Or should they be treated as allocations of income and not subject to the BEAT? The New York State Bar Association released a report  that highlights this issue, and requests more guidance on profit split allocations.  

Finally, navigating certain exemptions from BEAT may be more challenging for asset managers than for other companies. The proposed BEAT regulations issued in December of 2018 were helpful in that they provided detailed guidance on certain exempt outbound payments. One category of exempted payments is for services that may qualify for the services cost method (SCM) under 1.482-9(b)4. In order to qualify for the SCM exemption, one of the following criteria need to be met: 

The activity is a specified covered service listed on Rev. Proc. 2007-13.
The service is a low margin covered service where the median markup on total services costs for comparable service providers is less than or equal to 7%. 

Asset management firms may have not paid much attention to which services were eligible for the SCM method before BEAT if the election to charge a service at cost was immaterial to them. However, under BEAT, eligibility for the SCM may become much more important. Tracking such services will be a tedious exercise for many asset management firms. In addition, the SCM exemption cannot be met where the service is an "excluded activity," per 1.482-9(b). Certain items on the list of excluded activities may be hard to interpret for asset management firms. For example, one excluded activity is "research, development or experimentation." Does this include equity research? Another item is "reselling, distribution, acting as a sales or purchasing agent, or acting under a commission or other similar arrangement." Some asset management firms may apply the label "distribution" to a broad set of activities, including marketing. Should such services be excluded? The item "financial transactions" has similar issues.

For any asset manager considering its BEAT exposure and eligibility for the SCM exemption, a detailed functional analysis should be considered. Intercompany and third-party contracts should also be reviewed to understand how the company has categorized its transactions and to ensure consistency. 

In general, asset management companies can benefit from a transfer pricing review in 2019 to ensure their global policies are meeting all of their objectives including with regard to BEAT. The rate increase from 5% in 2018 to 10% in 2019 is likely to prove consequential, so efforts this year will be well placed to have significant impacts in the near future.

1 https://www.irs.gov/newsroom/irs-issues-proposed-regulations-on-key-new-international-provision-the-base-erosion-and-anti-abuse-tax 
2 The relevant three-year period is that which immediately precedes the current year. 
3 http://www.nysba.org/Sections/Tax/Tax_Section_Reports/Tax_Section_Reports_2019/1409_Report.html
4 The business judgment rule in 1.482-9(b)(5) is ignored for purposes of the BEAT exemption

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions