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December 16, 2022
Report on recent US international tax developments – 16 December 2022
The United States (US) Senate on 15 December followed House action the prior day and passed a temporary stopgap spending bill that extends government solvency beyond the 16 December midnight deadline to 23 December. The bill now goes to the President for signature. This gives negotiators an additional week to reach agreement on an omnibus spending bill that, at least theoretically, could include a Tax Title. The omnibus negotiators on 13 December announced that they had reached agreement on a deal framework that is supported by Senate Minority Leader Mitch McConnell, suggesting that a final agreement may be possible. If an omnibus agreement is reached before the next deadline, it remains unclear if it will contain tax provisions, and if so, which measures will be included. House Republicans, who will take the majority when Congress convenes on 3 January, are opposed to passage of an omnibus agreement at this time, arguing that they will be in a better position to influence a final spending package in the new year.
The IRS released Revenue Ruling 2022-43 on 13 December, setting forth the final qualified intermediary (QI) withholding agreement entered into under Reg. Section 1.1441-1(e)(5) that applies beginning 1 January 2023 (the 2023 QI agreement). While the QI agreement generally allows certain persons to enter into agreement with the IRS to simplify their withholding-agent obligations (among other things), the 2023 QI Agreement also allows foreign persons to enter into the agreement for purposes of the withholding and reporting required under Internal Revenue Code1 Sections 1446(a) and (f) for their account holders with interests in publicly traded partnerships.
The Internal Revenue Service (IRS) on 9 December issued proposed regulations on the single-entity treatment of consolidated groups for specific purposes. The proposed regulations (REG-113839-22) would treat members of a consolidated group as a single US shareholder in certain situations for purposes of Section 951(a)(2)(B). The proposed rules would affect consolidated groups that own stock in foreign corporations. A Treasury official was quoted as saying the goal is to finalize the proposed regulations before 15 April 2023.
The Financial Crimes Enforcement Network (FinCEN) on 9 December released Notice 2022-1, further extending the filing deadline for certain individuals who previously qualified for an extension of time to file the Report of Foreign Bank and Financial Accounts (FBAR) regarding signature authority under FinCEN Notice 2021-1 and previous guidance. The Notice pertains only to individuals who were initially granted extensions of time to report signature authority under FinCEN Notices 2011-1 and 2011-2 (most recently extended by FinCEN Notice 2021-1). Under the Notice, individuals have until 15 April 2024, to file deferred FBARs, subject to any potential further extension. Any persons not covered by the Notice for 2022 will have until 17 April 2023 — automatically extended six months to 16 October 2023 — to file their FBARs for the 2022 calendar year. In no case is an extension (beyond the automatic six-month extension) available for financial interest filing obligations.
FinCEN on 15 December also released proposed regulations on beneficial ownership. The proposed rules would “implement the strict protocols on security and confidentiality required by the CTA [Corporate Transparency Act] to protect sensitive personally identifiable information reported to FinCEN.”
The OECD2 on 8 December released a consultation document on Amount B of BEPS3 2.0 Pillar One. Amount B is aimed at simplifying and streamlining the transfer pricing of in-country baseline marketing and distribution activities, while ensuring outputs consistent with the arm's-length principle. The consultation document outlines the main design elements of Amount B, focusing on the scope, the pricing methodology, and the current status of discussions concerning an appropriate implementation framework. See EY Global Tax Alert, OECD releases public consultation document on Amount B of Pillar One on baseline marketing and distribution functions, dated 15 December 2022 for details.
In an important BEPS 2.0 development, European Union (EU) Member States on 15 December unanimously adopted a Directive ensuring a global minimum level of taxation for multinational enterprise (MNE) groups and large-scale domestic groups in the EU. The text of the adopted Directive is the version that was published by the Czech EU Presidency on 25 November 2022. EU Member States have until 31 December 2023 to transpose the Directive into national legislation with the rules to be applicable for fiscal years starting on or after 31 December 2023, with the exception of the Under-Taxed Payment Rule (UTPR) which is to be applicable for fiscal years starting on or after 31 December 2024. See EY Global Tax Alert, EU Member States unanimously adopt Directive implementing Pillar Two Global Minimum Tax rules, dated 15 December 2022 for details.
For additional information with respect to this Alert, please contact the following:
Ernst & Young LLP (United States), International Tax and Transaction Services, Washington, DC