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The software regulations and subpart F.

Globalization globalization

Process by which the experience of everyday life, marked by the diffusion of commodities and ideas, is becoming standardized around the world. Factors that have contributed to globalization include increasingly sophisticated communications and transportation
 of economies and explosions in the use and application of computer software have created significant need for global distribution networks for participants in the industry. To address this need, software developers have either acquired established foreign distributors or developed wholly owned foreign distribution networks. The proper U.S. tax treatment of a sale or license of computer programs through a foreign subsidiary is challenging and potentially expensive in cash taxes. A practitioner must consider a variety of aspects and value exchanged in transactions and transfers when assessing transactions in software.

Items include:

* Intangible value inherent in any transfer;

* The wide variety of methods by which the software can be transmitted; and

* The wide-ranging applications and uses of software programs.

U.S. tax treatment is dependent on classification of revenue under Regs. Sec. 1.861-18 (the software regulations), which have been effective since enactment on October October: see month.  2, 1998. Accurate assessment and classification of software revenue coupled with planning are critical to software developers' international tax planning.

Application of the Software Regulations

The software regulations provide for the classification of transactions involving computer programs. The Code and regulations define "software" as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result (Regs. Sec. 1.861-18(a)(3)). Computer software transactions are one of the following revenue types:

* Transfer of copyright rights;

* Transfer of a copyrighted article;

* Provision of services relating to relating to relate prepconcernant

relating to relate prepbezüglich +gen, mit Bezug auf +acc 
 development or modification of a computer program; or

* Provision of know-how relating to computer programming techniques.

Regs. Sec. 1.861-18(c)(l)(i) classifies a transfer of a computer program as a transfer of a copyright right if, as a result of the transaction, a person acquires certain rights. These rights include:

* The right to make copies of the computer program for purposes of distribution to the public by sale or other transfer of ownership or by rental, lease, or lending;

* The right to make a public performance of the computer program; or

* The right to publicly display the computer program (Regs. Secs. 1.861-18(c) (2)(i)-(iv)).

If a person acquires a copy of a computer program but does not acquire any of the copyright rights as defined above, the transfer is classified as a transfer of a copyrighted article under Regs. Sec. 1.861-18(c)(2). Transactions involving computer programs can consist of both the transfer of a copyright right and the transfer of a copyrighted article and in such cases are subject to certain de minimis An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.  rules.

The transfer of a copyright right is a sale or exchange of property if there has been a transfer of all substantial rights in the copyright. A transfer that does not convey substantial rights to the copyright is classified as a license, generating royalty income.

In contrast, the transfer of a copyrighted article is treated as a sale or exchange generating ordinary income if the benefits and burdens of ownership have been transferred. However, transfer of insufficient benefits and burdens of ownership of the copyrighted article converts the income to a lease, generating rental income.

The regulations further provide two important operating rules:

* Neither the form adopted by the parties in a transaction nor the classification of the transaction under copyright law determines the classification of the software transaction for U.S. tax purposes as set forth in Regs. Sec. 1.861-18(a)(1). Rather, the facts and circumstances CIRCUMSTANCES, evidence. The particulars which accompany a fact.
     2. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us, or afar off; they are public or
 of each software transaction will be reviewed in the context of Regs. Secs. 1.861-18(c) and (f) to determine the appropriate classification.

* The medium used to transfer the computer program, whether physical or electronic, should be disregarded dis·re·gard  
tr.v. dis·re·gard·ed, dis·re·gard·ing, dis·re·gards
1. To pay no attention or heed to; ignore.

2. To treat without proper respect or attentiveness.

 when applying the regulations.

Impact of Classification on Subpart F Subpart F

Special category of foreign-source "unearned" income that is currently taxed by the IRS whether or not it is remitted to the US

If a U.S. taxpayer licenses software to customers through a controlled foreign corporation (CFC CFC

See: Controlled foreign corporation
), the U.S. taxpayer, as a shareholder of the CFC, may be required under subpart F (Secs. 951-965) to include all or a portion of the CFC's income in its gross income (as a U.S. income inclusion) in the year earned. If income earned by a CFC is not subject to subpart F, the U.S. shareholder does not incur To become subject to and liable for; to have liabilities imposed by act or operation of law.

Expenses are incurred, for example, when the legal obligation to pay them arises. An individual incurs a liability when a money judgment is rendered against him or her by a court.
 the income inclusion until the foreign earnings are repatriated as an earnings distribution or other intercompany payment for goods or services. The additional specter of subpart F income inclusions makes proper assessment of the income and subpart F application crucial.

Overview of Subpart F

Sec. 951 (a) states that a U.S. shareholder of a CFC shall include in its gross income its pro-rata share of subpart F income. A CFC is defined in Sec. 957(a) as any foreign corporation in which more than 50% of the total combined voting power of all classes of stock or value of stock is owned by U.S. shareholders on any day of the tax year. A U.S. shareholder is defined in Sec. 951 (b) as a U.S. person that owns (directly, indirectly, or constructively under Sec. 958(b)) 10% or more of the total combined voting power of all classes of stock entitled en·ti·tle  
tr.v. en·ti·tled, en·ti·tling, en·ti·tles
1. To give a name or title to.

2. To furnish with a right or claim to something:
 to vote of the foreign corporation.

Subpart F provides several categories of income subject to inclusion. Specific to software situations. Sec. 952(a)(2) foreign base company income comes into play. "Foreign base company income" is defined in Sec. 954 (a) as foreign base company sales in come (FBCSI) and foreign personal holding company in come (FPHCI).

FBCSI is income from the sale of property:

* Purchased from or on behalf of, or sold to or on behalf of, a related person; and

* That is both manufactured and sold for use outside the CFC's country of organization.

* Sec. 954(c) defines FPHCI. It includes items of passive income such as dividends, interest, rents, royalties, and gains from property producing such passive income. If, and only if, the foreign corporation is a CFC for an uninterrupted period of 30 days or more during the tax year, every U.S. shareholder of the CFC who owns stock on the last day of the tax year must include its pro-rata share of the CFC's subpart F income in gross income.

Impact of Classification Under Software Regs. on Treatment Under Subpart F

If, under the software regulations, the transfer of software is treated as a sale of property, the transaction must be analyzed an·a·lyze  
tr.v. an·a·lyzed, an·a·lyz·ing, an·a·lyz·es
1. To examine methodically by separating into parts and studying their interrelations.

2. Chemistry To make a chemical analysis of.

 to determine if the FBCSI rules of Sec. 954 (d) are applicable. If the software regulations classify clas·si·fy  
tr.v. clas·si·fied, clas·si·fy·ing, clas·si·fies
1. To arrange or organize according to class or category.

2. To designate (a document, for example) as confidential, secret, or top secret.
 a transfer as a license or lease (generating royalty or rental income, respectively), the FPHCI rules of Sec. 954(c) apply Each set of rules contains certain exceptions, outlined below, that could prevent the income from constructive dividend constructive dividend

A corporate payment to a stockholder that is characterized by the Internal Revenue Service as a dividend distribution even though the corporation calls it something else.
 treatment in the year earned.

Sale of Software: FBCSI

A transfer of software classified as a sale of property must be assessed for potential FBCSI if the property:

* Is purchased from or on behalf of, or sold to or on behalf of, a related person; and

* Is both manufactured and sold for use outside the CFC's country of organization.

If the income is FBCSI and no exceptions apply, the U.S. shareholders of the CFC are taxed on the net FBCSI in the year earned, regardless of whether the CFC actually distributes its earnings to its U.S. shareholders.

As an example, income from the sale of software created by the U.S. shareholder and then sold to a CFC and sold outside its country of incorporation is FBCSI and is included in the U.S. shareholder's income. If the CFC produces software in its country of incorporation, any sales of such software outside the CFC's country of incorporation would not be FBCSI or subject to current taxation under subpart F, as provided under the manufacturing exception to subpart F in Regs. Sec. 1.954-3(a)(4). Note that under Regs. Sec. 1.954-3(b), an "exception to the exception" may apply (and the income from a sale of software could be treated as FBCSI) if a branch of the CFC writes the software and the branch is located in a jurisdiction with a substantially lower income tax rate than that of the CFC's country of incorporation.

There is an important caveat to the manufacturing exception that one must carefully consider regarding how the regulations define "manufacturing" in Regs. Secs. 1.954-3(a)(ii)-(iii) and correctly apply the definition to the taxpayer's current activities. Application of the exception applies when the selling corporation (CFC) has substantially transformed the property prior to sale. Where the purchased part is a component of the sold product, the subsequent sale will be treated as a sale of a manufactured product if the operations conducted by the selling corporation (CFC) in connection with the product are substantial in nature and are considered to constitute the manufacture of a product, based on the facts and circumstances. But if property conversion costs (direct labor and factory burden) of the CFC account for 20% or more of the total cost of sales, the CFC is deemed to sell a manufactured product. Packaging, repackaging, labeling, or minor assembly will not constitute manufacturing in any event. Based on these rules, it would appear that the replication In database management, the ability to keep distributed databases synchronized by routinely copying the entire database or subsets of the database to other servers in the network.

There are various replication methods.
 of the software to a new disk (for example) would not be a substantial transformation of the product.

In addition to the manufacturing exception, there is a high-tax exception in which the sale of the product will not generate FBCSI if the CFC is incorporated in a country that has an income tax rate greater than or equal to 90% of the U.S. tax rate outlined in Sec. 11 (Sec. 954(b)(4)). In addition, a de minimis rule may apply in which a CFC's gross income that would otherwise be foreign base company income will not be treated as such if it is less than the smaller of 5% of the total CFC gross income or $1 million (Sec. 954(b)(3)).

License of Software: FPHCI (Royalty)

If, under the software regulations, the transfer of software is characterized char·ac·ter·ize  
tr.v. character·ized, character·iz·ing, character·iz·es
1. To describe the qualities or peculiarities of: characterized the warden as ruthless.

 as a license by the CFC to its customer, the CFC is treated as receiving royalty income, which is FPHCI. Absent an applicable exception, such income would be constructively distributed to the U.S. shareholder(s) under the subpart F rules.

However, Sec. 954(c)(2) provides an active royalty exception, which states that royalty income is not FPHCI if it is received from an unrelated person and derived in the CFC's active conduct of a trade or business. If the CFC earns royalties from licensing property that it has developed, created, or produced or has acquired and added substantial value to, it is not FPHCI (provided that the CFC is regularly engaged in the development, creation, or production of, or in the acquisition of and addition of substantial value to, property of this kind) (see Regs. Sec. 1.954-2(d)(1)(i)). In addition, even if the CFC does not develop, create, or produce property it sells, such royalties are not FPHCI if the CFC derives royalties from licensing property that is licensed as a result of the CFC's performance of marketing functions. This assumes that the CFC regularly engages in such marketing of the licensed property and that those marketing functions are substantial in relation to the amount of royalties derived from the licensing of the property (see Regs. Sec. 1.954-2(d)(1)(ii)).

Lease of Software: FPHCI (Rent)

If, under the software regulations, the transfer of software is characterized as a lease by the CFC to its customer, the CFC is treated as receiving rental income, which is FPHCI. Absent an applicable exception, that income would be constructively distributed to the U.S. shareholder(s) under the subpart F rules.

Under Sec. 954(c)(2), rental income received from an unrelated person and derived in the active conduct of a trade or business is not FPHCI. Regs. Sec. 1.954-2(c) states that rent will be considered to be derived in the active conduct of a trade or business if it is derived from the CFC (lessor One who rents real property or Personal Property to another.

A lessor of land is a landlord. Cross-references

Landlord and Tenant.

lessor n. the owner of real property who rents it to a lessee pursuant to a written lease.
) leasing property that the CFC has manufactured or produced, or has acquired and added substantial value to, but only if the CFC is regularly engaged in the manufacture, or the acquisition of and addition of substantial value to, property of such kind. Nevertheless, if the CFC does not manufacture a product, such rental income may be considered to be derived in the active conduct of a trade or business if the CFC leases property as a result of marketing functions performed by the CFC. The CFC, through its own staff located in a foreign country, must maintain and operate an organization in that country that is regularly engaged in the business of marketing and servicing the leased property and that is substantial in relation to the amount of rent derived from the leasing of the property.


The classification of income from software transactions made by a CFC under the software regulations can have a significant impact on the treatment of such income to the CFC's U.S. shareholder. Proper classification of the income is critical to determining how the income will be treated under various provisions of subpart Noun 1. subpart - a part of a part
component part, part, portion, component, constituent - something determined in relation to something that includes it; "he wanted to feel a part of something bigger than himself"; "I read a portion of the manuscript"; "the
 F--as either FBCSI or FPHCI--and what exceptions to subpart F treatment may be available to the taxpayer.

From Jonathan Jonathan (jŏn`əthən) [short for Jehonathan, Heb.,=Yahweh has given].

1 In the Bible, Saul's son and David's friend, both killed at the battle of Mt. Gilboa. David showed kindness to his son Mephibosheth.
 Hobbs, CPA (Computer Press Association, Landing, NJ) An earlier membership organization founded in 1983 that promoted excellence in computer journalism. Its annual awards honored outstanding examples in print, broadcast and electronic media. The CPA disbanded in 2000. , and Adam Tritabaugh, CPA, MST See micro systems technology. , Minneapolis, MN

Editor: Rick Klahsen, CPA
COPYRIGHT 2010 American Institute of CPA's
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Author:Klahsen, Rick
Publication:The Tax Adviser
Date:Apr 1, 2010
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