United States: GILTI In Focus: Recent And Potential Future Developments

Last Updated: September 10 2019
Article by Chris Yan

Introduction: From a Global to a Hybrid Territorial Tax System

The Tax Cuts and Jobs Act of 2017 (TCJA) moved the United States from a global to a hybrid territorial tax system. In doing so, the TCJA eliminated the taxation of repatriated dividends but simultaneously increased the scope of taxation on income earned by controlled foreign corporations. As a result, U.S. residents are required to report income earned by controlled foreign corporations, subject to various exclusions.

The newly enacted Section 951A of the Internal Revenue Code created the global intangible low-taxed income (GILTI) inclusion. Broadly speaking, the inclusion imposes a tax on any returns in excess of 10% of a foreign resident's tangible assets, in order to mitigate some of the base erosion incentives introduced by the new system that allowed U.S. companies to shift profits to foreign subsidiaries in low-tax jurisdictions.

The GILTI regime requires taxpayers to report income earned by intangible assets that are, as a result of their highly mobile nature, ideal vehicles through which corporations can artificially shift the situs of their income to foreign jurisdictions. Determining the applicability and amount of GILTI attributable to a taxpayer operates entirely independently of the presence and value of intangible assets in foreign jurisdictions.

The GILTI regime functions by deeming any income earned in excess of 10% of a foreign subsidiary's tangible asset base as attributable to intangible assets and therefore, taxable domestically. Fortunately, where the TCJA takes with one hand, it gives with the other through accompanying credits and deductions that can drastically reduce or eliminate the tax liability that results from a GILTI inclusion.

GILTI in Focus: Recent and Potential Future Developments

On June 14, 2019, the U.S. Treasury Department and the IRS issued final regulations and a new round of proposed regulations under Section 951A and related provisions of the Code. The regulations resulted in a number of changes that impact the applicability of the regime and recharacterization of constituent elements required for the calculation of GILTI.

GILTI through Partnerships or S corporations: Final Regulations

After some debate, the 2019 Final Regulations opted to treat controlled domestic partnerships as an aggregate of its partners in the same manner as foreign partnerships prior to the final regulations to determine stock ownership for purposes of sections 951 to 964.

Prior to the changes, domestic partnerships were treated as entities for the purposes of qualifying as a U.S. Shareholder of a foreign corporation notwithstanding the fact that it is a pass-through entity. The partnership would include the foreign corporation's Subpart F income and the partners would be required to include their share of the partnership's Subpart F income in their income, even if a partner has less than a 10% interest in the partnership.

Following the changes, a partner in a domestic partnership would have an inclusion percentage proportional to its interest in the partnership for the purposes of qualifying as a U.S. Shareholder. Since an entity is only considered a U.S. Shareholder if it owns 10% or more of a controlled foreign corporation, a minority partner that has less than a 10% interest in the partnership would no longer have any Subpart F or GILTI inclusion by virtue of its minority partnership interest. The same rules apply for S corporations, which also behave as flow-through entities. The aggregate approach is subject to a few exceptions and does not apply for any other purposes of the Internal Revenue Code.

High-Tax Exception: Final Regulations and New Proposed Regulations

Currently, the Final Regulations only include a "high-tax" exception for CFC income that would otherwise be foreign base company income or foreign insurance income under the Subpart F rules. Any high-taxed income that would not otherwise be Subpart F income cannot be excluded from tested income under the high-tax exclusion in the current state of the Regulations.

However, the new set of Proposed Regulations provide for an election that would exclude gross income subject to foreign income tax at an effective rate that is greater than 90% of the maximum U.S. corporate tax rate (which currently sits at 21%). If the election is revoked, then a U.S. shareholder cannot make the election again for 60 months and cannot subsequently revoke the election for another 60 months. The expansion of the High-Tax exception is expected to have wide-ranging implications

Interest Expense and Income: Final Regulations

A U.S. Shareholder's interest expense and interest income is important for the purposes of calculating its Net Deemed Tangible Income Return, which is the excess of 10% of its Qualified Business Asset Investment over the interest expense. A taxpayer's GILTI is calculated by taking the excess of its Net Deemed Tangible Income Return over its Aggregate Tested Income.

The Final Regulations adopted the netting approach suggested in the 2018 Proposed Regulations to determine the amount of interest expense through the incorporation of a new term – specified interest expense, which is defined as the excess of tested interest expense of each CFC over its tested interest income in accordance with the definitions of interest expense and income under section 163(j). The approach applies to each CFC regardless of whether the CFC sustained a tested loss. This is expected to simplify the determination of these amounts by eliminating the complexity associated with a tracing approach.

Technology and Tools to Track Updates

If you're interested in learning more about recent and potential future developments in GILTI and how Tax Foresight's GILTI Navigator can help with quickly estimating your or your client's GILTI tax liability, register for Blue J Legal's upcoming webinar on September 26, 2019 at 10:00 AM EDT, hosted by Abdi Aidid, Blue J Legal's Director of Legal Research and University of Toronto Faculty of Law Adjunct Professor.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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