Treasury's Foreign Tax Credit Proposal Presents Downstream Risks
The Department of the Treasury proposed regulations on November 18 responding to concerns about the creditability of royalty withholding taxes under foreign tax credit regulations finalized in January 2022. To qualify for relief under the proposed rules, taxpayers will need to analyze and potentially amend existing royalty license agreements. In this article, Jeffrey Tebbs and Caroline Reaves highlight the significant risks that taxpayers should consider when analyzing or adapting their license arrangements. The authors conclude that while the proposed regulations offer welcome relief on royalty withholding taxes, it will be challenging for taxpayers to rely on the "single-country license" exception. The application of the "separately stated" rule to all but the simplest arrangements may not be clear, with the potential result that the same withholding tax is creditable to certain taxpayers but not others. Taxpayers are encouraged to evaluate their existing arrangements and submit comments by January 23, 2023, to address these issues and any others identified.