Proposed source rules for space, ocean, and communications income sweep broadly, set high hurdles for taxpayers.
After briefly reviewing the statutory background of these source rules, this article analyzes the proposed regulations. It begins with the basic definitions and operating provisions for each type of income, and then turns to anti-abuse, taxable income computation, and reporting rules common to both.
The Statutory Framework
Under sections 863(d) and (e), the source of income is determined generally with reference to the residence of the taxpayer. Thus, except as provided in regulations, income from space or ocean activity is U.S. source if derived by a U.S. person and foreign source if derived by a non-U.S. person. Similarly, international communications income of a U.S. person is 50-percent U.S. source and 50-percent foreign source. Unless otherwise provided, international communications income of a non-U.S. person is 100-percent foreign source, except to the extent attributable to a U.S. office or fixed place of business of the foreign person.
The statute broadly defines space or ocean activity to include any activity conducted in space and any activity conducted on or under international waters (as recognized by the United States) or in Antarctica.(1) In contrast, the statute narrowly defines international communications income as all income from the transmission of communications or data from the United States to any foreign country or U.S. possession, or from any foreign country or U.S. possession to the United States. In this article, space or ocean income and international communications income will be referred to as "SPOCI" and "ICI," respectively.
By enacting the residence-based sourcing rules for SPOCI and ICI, Congress sought to limit the ability of U.S. taxpayers to inflate the section 904 limitation fraction by including in the numerator offshore income taxed lightly (or not at all) by any foreign jurisdiction.(2) Pre-1986 Act treatment of SPOCI and ICI as foreign income under the Code's general source-of-income rules permitted taxpayers with excess foreign tax credits to avoid all tax on these categories of income. Unlike SPOCI, Congress viewed ICI as potentially subject to foreign taxes and accordingly provided a 50/ 50 source rule.
Congress was concerned about the use of conduit entities to manipulate the new source rules, and in the 1986 Act amended section 954(f) to include SPOCI within the definition of "foreign base company shipping income." Thus, SPOCI is Subpart F income and falls in the shipping income basket under section 904.(3) Congress gave Treasury authority to prescribe other appropriate anti-conduit rules.
Congress intended that SPOCI include income derived from (1) performance or provision of services in space or on or under the ocean, (2) leasing of equipment for use on or under the ocean (other than for transportation, but including drilling rigs used in international waters) or in space (e.g., spacecraft or satellites), (3) licensing of intangibles for use in space or on or under the ocean, (4) manufacturing of property in space or on or under the ocean, (5) insuring risks on space or ocean activities, and (6) other activities described in regulations. ICI is excluded from the definition of SPOCI. The legislative history states that income from communications within the United States, even if routed through a satellite (wherever located), is not ICI and is entirely U.S. source, whereas income from communications between foreign points is ICI and is entirely foreign source. ICI includes any transmission between two countries of signals, images, sounds, or data transmitted in whole or in part by buried or underwater cable or by satellite.
Congress accorded Treasury authority to treat ICI derived by a foreign person (e.g., a controlled foreign corporation) as domestic source as necessary to prevent manipulation.
The Proposed Regulations
Prop. Reg. [subsections] 1.863-8 and 1.863-9 govern SPOCI and ICI, respectively. The regulations broadly define the activities within their scope, provide presumptive U.S. sourcing in situations that might permit transmutation of source by a U.S. person, and allow foreign taxpayers to alleviate the effects of U.S.-source presumptions under specified circumstances. Ominously, section 482 principles crop up where allocations of gross income are necessary. There are 13 examples illustrating the impact of the SPOCI rules and 12 applying the ICI rules.
The preamble states that the Internal Revenue Service and Treasury worked closely with affected industries in drafting the proposed regulations. With respect to some provisions, however, it appears that Treasury has staked out extreme positions, from which it may have to backtrack or provide less onerous alternatives. Moreover, as acknowledged in the preamble, technology in this area continues to change with such speed that the rules likely will need tweaking now and on a going-forward basis.
Space and Ocean Income Rules
In general. Prop. Reg. [sections] 1.863-8 provides exclusive sourcing rules for SPOCI; other source rules are implicated only to the extent that a material portion of an activity is not space or ocean activity. For purposes of determining SPOCI, the activities of any other person (other than another member of a domestic consolidated group) are excluded. Thus, the taxpayer must engage directly in the space or ocean activity in order to derive SPOCI.(4)
The proposed regulations state that, except as otherwise provided, SPOCI is domestic source for a U.S. person and foreign source for a non-U.S. person.(5) There are several important exceptions and refinements to the basic rule. These are common to both SPOCI and ICI sourcing because they also generally apply to ICI sourcing.
Property Sales. The general residence-based source rules apply for purposes of sourcing income from the sale or production of property in space or on international waters, with the following additions and modifications. A sale is deemed to occur in space or international waters if (1) the property is located there at the time the rights, title, and interest pass to the purchaser, or (2) the property is sold for use in space or international waters.(6) If the taxpayer both produces and sells the property, the income is split 50-50 between production and sale activities.(7) If the taxpayer sells the property outside space or international waters, the income attributable to sales is sourced under Treas. Reg. [sections] 1.863-3(c)(2). Income allocated to production that takes place entirely in space or in international waters is sourced under the general SPOCI rules. Income allocated to production activities outside space or international waters is sourced in accordance with Treas. Reg. [sections] 1.863-3(c)(1).(8)
When the taxpayer undertakes production both in space or international waters and outside space or international waters, the income allocable to production must be further allocated, to the Commissioner's satisfaction, based on the facts and circumstances. Relevant circumstances include functions performed, resources employed, risks assumed, and any other contributions to value. The SPOCI portion is sourced under the general SPOCI rules and the remainder in accordance with Treas. Reg. [sections] 1.863-3(c)(1). Inventory sold on the high seas is sourced in accordance with Treas. Reg. [sections] 1.863-3(c)(2), rather than the SPOCI rules.
Services. A similar pattern applies for services. Prop. Reg. [sections] 1.861-8(d)(2)(ii) provides that when any value-added part of a service transaction is performed in space or on international waters -- whether by personnel, equipment, or otherwise -- the services constitute a space or ocean activity. All income from such services is sourced under the SPOCI rules, except to the extent that the taxpayer can demonstrate that value was added outside space and international waters. The latter portion is sourced under the general rules for services income.(9) Again, the presumption is that any service activity touching space or international waters constitutes SPOCI.
Definitions. In defining the general categories of space or ocean activities, the proposed regulations largely parrot the statute and legislative history. Thus, such activities include any activity conducted in space, such as leasing equipment, licensing technology, producing or processing property, communications activity, and underwriting insurance risks on space or ocean activities.(10) Ocean activities include activities in these same general categories (including leasing of underwater cable) and subsumes any activity performed in Antarctica, leasing of vessels other than for transportation (such as research ships), and the leasing of drilling rigs. Space or ocean activity does not include (1) any activity giving rise to transportation income (which is governed by section 863(c)), (2) any activity with respect to mineral or other natural deposits located within the jurisdiction of the United States or any country (as recognized by the United States), or (3) any activity giving rise to ICI as defined in Prop. Reg. [sections] 1.863-9(d)(3)(ii).(11) The source of SPOCI that is also a communications activity as defined under the ICI rules is determined under those rules.(12)
There is a special exception to the general rules for services. If the only space or ocean activity is facilitation of the taxpayer's own communication as part of the provision or delivery of a service not otherwise constituting a space or ocean activity, the activity is disregarded. Example 3 in Prop. Reg. [sections] 1.863-8(f) -- describing a security company using satellite capacity to monitor its customer's premises -- concludes that the company does not engage in a space activity because the company uses the capacity to further its own communications. (The lessor of the satellite capacity, on the other hand, is engaged in a space activity). Conversely, taxpayer X in Example 2 -- described as an "Internet service provider"-- offers Internet services to personal computer users. X transmits information requested by its customers, using satellite capacity leased from S. Because X's activity in space is not simply the facilitation of its own communications, or part of a "separate service" provided by X, X's activity constitutes space activity in its entirety, and X's income from the activity is sourced under the general SPOCI rules.
This latter example illustrates the surprisingly broad reach of the SPOCI rules. It is not just traditional telecommunications carriers that derive SPOCI (which often will constitute communications income and fall under Prop. Reg. [sections] 1.863-9), but also some content providers. In this case, income attributable to content created outside space would be SPOCI (or possibly ICI).(13)
These examples do not define a service "not otherwise ... in whole or in part a space or ocean activity." Presumably, those services that could be provided by the taxpayer outside space or international waters will not be swept into the SPOCI category when, in delivering the services, the taxpayer transmits its own data or communications through space or on the high seas. But what about services that are highly dependent on the use of satellites, such as a global positioning system provider? Such a business utilizes satellites to facilitate its own transmissions between its control center and vessels or vehicles, but the service itself could not be provided without the satellite network (owned or leased).
The SPOCI definitions obviously sweep very broadly. In the case of some transactions, such as services and certain property sales, taxpayers are permitted to allocate income between space- or ocean-based activities and other activities. In the case of other types of transactions that touch space or international waters, an all-or-nothing approach is the order of the day. For example, it appears that income from leasing satellites or underwater cables constitutes SPOCI even if substantial value-added activities are performed on the ground.(14)
Communications Income Rules
In General. The proposed regulations provide the exclusive source rules for income from "communications activity." Although the statute covers only "international communications income," which is defined as "all income derived from the transmission of communications or data from the U.S. to any foreign country (or possession of the U.S.) or from any foreign country (or possession of the U.S.) to the U.S.,"(15) the proposed regulations capture income from communications activities that are exclusively domestic or exclusively foreign. This is probably a good thing. Since the enactment of section 863(e) in 1986, the proper treatment of exclusively foreign communications income has been uncertain.
In the case of a U.S. person, income from "international communications activity" is 50 percent foreign source and 50-percent domestic source.(16) Subject to certain exceptions, ICI of a foreign person is all foreign source.(17) The source of "U.S. communications income" of any person is domestic.(18) The source of "foreign communications income" of any person is foreign.(19) The source of income of any person from space/ocean communications activity (between two points in space or international waters) must be determined under Prop. Reg. [sections] 1.863-8(d).(20)
Definitions. Communications activity includes only delivery by transmission of communications or data, or the provision of capacity to transmit communications ("communications"). Any provision of content or attendant service, unless de minimis, must be treated as a separate activity.(21) When a transaction consists in part of non-de minimis non-communication activity and in part non-de minimis communications activity, each part must be treated as a separate transaction, and income from the transaction must be allocated to the two parts (again, to the Commissioner's satisfaction based on value-adding factors).(22) In Prop. Reg. [sections] 1.863-9(f), Example 8, a U.S. taxpayer (A) offers local and long-distance phone service, video, and Internet services for a single monthly fee, with a 10-cents-per-minute charge for all long-distance calls, including international calls. A must allocate income to its communications activity and may have ICI (or perhaps foreign communications income), but will have to establish the beginning and end points to escape U.S. sourcing of the income.
Communications income is income derived from communications activity and may be derived indirectly, but in all cases the taxpayer derives communications income only if it is paid to transmit and bears the risk of transmitting, the communications.(23) Under this "paid-to-do" rule, the residence of a contract carrier -- and the actual path taken by the transmission -- is irrelevant. Prop. Reg. [sections] 1.863-9(f), Example 4, illustrates these rules. In the example, TC is paid to transmit from Toronto to Paris. TC pays IC to transmit from New York to Paris. TC has foreign communications because it is paid to transmit between foreign points. IC derives ICI because it is paid to deliver from New York to Paris.
The nature of communications activity -- whether domestic, foreign, or international -- depends on the beginning and ending points of a transmission. The burden is on the taxpayer to establish the two points. Not surprisingly, the consequence of any failure to persuade the Commissioner is classification as domestic source.(24) The preamble notes that it may be difficult to establish originating or ending points in many cases, such as bundled local and long-distance telephone service, and requests comments on how this problem can be addressed. As a practical matter, without changes, U.S. telecom companies are likely to incur additional domestic source communications (absent software capable of tracing individual transmissions).(25) Treasury should consider whether it could achieve its goals by treating SPOCI and communications income as foreign source so long as the taxpayer has no connected assets (for example, a ground station) in the United States.
Income from transmissions between the United States and any foreign country (or U.S. possession) is ICI.(26) Income from transmissions between two U.S. points or a U.S. point and a point in space or international waters is U.S. communications income.(27) Income from transmissions between two points in a foreign country (or U.S. possession) or a point in a foreign country (or U.S. possession) and a point in space or international waters is foreign communications income.(28)
Rules Common to SPOCI and ICI
Aggregation/Bifurcation. The preamble notes, somewhat cryptically, that "[t]axpayers enjoy flexibility in structuring their transactions that will be characterized under existing principles." To ensure that taxpayers do not achieve purposes inconsistent with the statute, the proposed regulations give the Commissioner authority to aggregate or bifurcate transactions.(29) Example 8 in Prop. Reg. [sections] 1.863-8(f) sheds partial light on this provision. In the example, a U.S. company (E) operates satellites that can determine how much heat and light particular plants emit and reflect. E provides F, a U.S. farmer, with a report analyzing the data (considered a service), which E prepares in its U.S. offices. E also sells the data to F as a copyrighted article. The Commissioner may treat the sale of the data and provision of the report as separate transactions. The property sales rules of Prop. Reg. [sections] 1.863-8(b)(4) would apply to the sale of the data, and the services rules of Prop. Reg. [sections] 1.863-8(b)(5) would apply to the report.(30)
Treatment of Foreign Entities and Partnerships. Both Congress and Treasury were concerned that taxpayers could manipulate residence-based sourcing rules by establishing foreign entities, or, in the case of foreign taxpayers, avoid U.S. taxes on elusive forms of income that are attributable to U.S. activities. Accordingly, the proposed regulations include a number of rules intended to prevent end runs around the SPOCI and ICI source rules.
Under Prop. Reg. [sections] 1.863-8(b)(2), if U.S. persons own (directly, indirectly, or constructively) 50 percent or more by vote or value of the stock of a foreign corporation (other than a CFC),(31) all SPOCI is U.S. source. According to the preamble, this rule is designed to obviate the easy ploy of establishing a foreign corporation to achieve foreign sourcing. For example, a 50-50 joint venture with a foreign person otherwise would permit the U.S. taxpayer to avoid both U.S. sourcing and current inclusion of its share of the corporation's SPOCI.
A similar rule applies for ICI. Under Prop. Reg. [sections] 1.861-9(b)(2)(ii)(B), if a foreign corporation (including a CFC) is 50 percent or more owned by vote or value by U.S. persons, all ICI is U.S. source.(32) This rule will likely cause a fair amount of heartburn among affected companies, many of which, despite U.S. ownership or control, have undoubtedly been reporting SPOCI and ICI as foreign source (at least, when expedient). Under this rule, for example, a publicly-traded foreign corporation -- 50 percent of the voting stock or value of which is owned by U.S. investors -- must treat all of its SPOCI or ICI as U.S.-source income. Any foreign corporation having SPOCI or ICI and substantial beneficial U.S. ownership must analyze the entire beneficial shareholding group to determine the source of the income.
If a foreign person (other than a CFC or a foreign corporation described in Prop. Reg. [sections] 1.863-8(b)(2) (SPOCI) or Prop. Reg. [sections] 1.863-9(b)(2)(ii)(B) (ICI)) has a U.S. trade or business, all SPOCI or ICI is presumed to be U.S.-source income.(33) This rule is intended to prevent avoidance of tax on SPOCI or ICI that is attributable to such U.S. trade or business, which income otherwise might constitute non-effectively connected income and escape the U.S. tax net. The proposed regulations allow, however, the taxpayer to avoid domestic-source treatment of such income to the extent it can demonstrate that the income is attributable to value added outside the U.S. or space or international waters.
Examples 12 and 13 (for SPOCI) illustrate these rules. In Example 12, a non-CFC foreign corporation (FP) is engaged in operating satellites. FP has a ground station in the United States, which, according to the example, means that FP is engaged in a U.S. trade or business. FP also has a ground station in a foreign country. Because FP has a U.S. business, all of FP's SPOCI (apparently whether or not related to the ground station) is U.S. source except to the extent that FP proves the income is attributable to foreign activity or assets (such as the foreign- based ground station).
In the case of ICI, if a foreign person not engaged in a U.S. trade or business (other than a 50 percent-owned foreign corporation or a CFC) maintains an office or other fixed place of business in the United States (determined under the principles of section 864(c)(5)), ICI attributable to the office is U.S. source.(34)
Under the U.S. trade or business rule, a foreign corporation with U.S. activity could be subject to U.S. tax on SPOCI that has no connection with the corporation's U.S. activities. A better approach would limit the reach of the U.S. tax net to SPOCI or ICI that is attributable to assets deployed in the United States, as in Example 12. It is not clear that a foreign corporation without any such assets could be considered engaged in a U.S. trade or business that generates SPOCI or ICI.
The general rule for partnerships is that the sourcing provisions apply at the partnership level for U.S. partnerships, and at the partner level for foreign partnerships.(35) An exception, applicable only to ICI, provides that in the case of a domestic partnership in which 50 percent or more of the partnership interests are owned by foreign partners, the source rules apply at the partner level.
The stated purpose for these rules is to prevent the use of partnerships by U.S. persons to circumvent the source rules. The regulations could achieve this goal, however, with a uniform pass-through rule, under which foreign partners of a domestic partnership would be treated in all cases as if they had derived the income directly. As it stands, a foreign person's distributive share of SPOCI of a domestic partnership (or ICI of a domestic partnership in which foreign persons own less than 50 percent) is always U.S. source, even if the partnership has no U.S. business activity. U.S. and foreign persons contemplating a joint venture to engage in communications, space, or ocean activities must carefully consider the effect of their business form and residence on the source of SPOCI and ICI.(36)
Computations, Reporting, and Documentation. There are several circumstances in which the proposed regulations permit the taxpayer to allocate income to covered and non-covered activities (in a manner satisfactory to the Commissioner). The preamble to the proposed regulations contemplates that section 482 principles will apply in making these allocations. Fortunately, Treasury does not seem wedded to this approach and specifically solicits alternatives. In the event that Treasury retains the section 482 principles, this would be an appropriate area to consider establishing advance procedures such as Rev. Proc. 96-53 (relating to advance pricing agreements).(37)
The proposed regulations provide that once the taxpayer has allocated gross income between space and ocean activities and non-space and ocean activities, the taxpayer must allocate and apportion expenses, losses, and other deductions as provided in Treas. Reg. [subsections] 1.861-8 through 1.861-14T.(38) Note that these rules would likely produce different allocations of net income among activities than under a section 482 approach.
Under the proposed regulations, when it comes to allocations of gross income, the taxpayer gets only one bite at the apple. Allocations must be made on a timely filedreturn (as extended). Amended returns do not count, and the proposed regulations specifically deny any relief under Treas. Reg. [sections] 301.9100-1. Taxpayers must maintain, and produce within 30 days after request, contemporaneous documentation that was in existence when the return was filed and which justifies the gross income and expense allocations. Accordingly, taxpayers wishing to treat some portion of transactions covered by the proposed regulations under other source rules, or as non-U.S. source, are under a heavy burden.
The proposed regulations seem to resolve all doubts about income from space, ocean, and communications activity in favor of U.S. source treatment. As a result, income unconnected with any U.S. business activity may be swept into the U.S. tax net. Taxpayers have the opportunity for rebuttal, but must do so at the time the return is filed and are given little in the way of specific guidance. Unless substantially modified, the proposed regulations will trigger U.S. tax where none should apply and breed additional valuation controversies.
(1) Space or ocean activity does not include activity giving rise to transportation income under section 863(c), any activity giving rise to ICI, or any activity with respect to mineral deposits outside U.S. or foreign jurisdiction (as recognized by the United States). I.R.C. [sections] 863(d)(2)(B).
(2) See generally Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1986, 99th Cong., 2d Sess. 932-36 (1987).
(3) I.R.C. [sections] 904(d)(1)(D). Congress did not include ICI in the amendment to section 954(f), and it appears that ICI is not Subpart F income unless it is covered by section 954(e) (foreign base company services income).
(4) Prop. Reg. [sections] 1.863-8(a). The preamble states that this direct-conduct principle is consistent with the approach taken by the source rules for inventory sales in Treas. Reg. [sections] 1.863-3.
(5) Prop. Reg. [sections] 1.863-8(b).
(6) Prop. Reg. [sections] 1.861-8(d)(2)(iii); see Treas. Reg. [sections] 1.861-7(c).
(7) Prop. Reg. [sections] 1.863-8(b)(4)(ii)(A).
(8) Thus, sourcing is based on the location of production assets.
(9) Prop. Reg. [sections] 1.863-8(b)(5).
(10) Prop. Reg. [sections] 1.863-8(d)(1)(i).
(11) Prop. Reg. [sections] 1.863-8(d)(3).
(12) Prop. Reg. [sections] 1.863-8(b)(6).
(13) Although not free from doubt, the taxpayer should be permitted to allocate its income under Prop. Reg. [sections] 1.863-8(b)(5) so that some portion would be sourced under sections 861 and 862. See Prop. Reg. [sections] 1.863-8(b)(5).
(14) See Prop. Reg. [sections] 1.863-8(f), Example 1 (lease of satellite constitutes SPOCI despite land- based activities of lessor).
(15) I.R.C. [sections] 863(e)(2).
(16) Prop. Reg. [sections] 1.863-9(b)(2)(i).
(17) Prop. Reg. [sections] 1.863-9(b)(2)(ii)(A).
(18) Prop. Reg. [sections] 1.863-9(b)(3).
(19) Prop. Reg. [sections] 1.863-9(b)(4).
(20) Prop. Reg. [sections] 1.863-9(b)(5).
(21) Prop. Reg. [sections] 1.863-9(d)(1)(i). The preamble notes that altering a transmission from analog to digital would be disregarded, whereas payment for information or entertainment transmitted electronically would not be communications income. See also Prop. Reg. [sections] 1.863-9(f), Example 11 (provider of Internet access derives communication income; replication of sites to speed up response considered de minimis).
(22) Prop. Reg. [sections] 1.863-9(d)(1)(ii).
(23) Prop. Reg. [sections] 1.863-9(d)(2).
(24) Prop. Reg. [sections] 1.863-9(d)(3), (b)(6).
(25) In Prop. Reg. [sections] 1.863-9(f), Example 7, income from transmitting a call over the Internet between foreign points is treated as domestic source because the taxpayer is unable to show how much of a lump sum fee was paid for this transmission.
(26) Prop. Reg. [sections] 1.863-9(d)(3)(ii).
(27) Prop. Reg. [sections] 1.863-9(d)(3)(iii).
(28) Prop. Reg. [sections] 1.863-9(d)(3)(iv).
(29) Prop. Reg. [subsections] 1.863-8(d)(1)(i) and 1.863-9(d)(1)(ii).
(30) See also Prop. Reg. [sections] 1.863-8(f), Example 5 (programming service no part of which occurs in space and non-de minimis delivery of the service in space treated as separate or combined transactions).
(31) As previously noted, SPOCI of a CFC is foreign base company shipping income.
(32) CFCs are included because, unlike SPOCI, ICI is not Subpart F income.
(33) Prop. Reg. [subsections] 1.863-8(b)(3) and 1.863-9(b)(2)(ii)(D).
(34) Prop. Reg. [sections] 1.863-9(b)(2)(ii)(C).
(35) Prop. Reg. [subsections] 1.863-8(e) and 1.863-9(e).
(36) Of course, the proposed regulations affect only the sourcing of income. Taxation, in the case of a foreign person, depends on the nature of the income, the level of the foreign person's U.S. activity, and the availability of treaty-based relief. It is possible that SPOCI and ICI of a foreign corporation could be subject to both U.S. and foreign taxation, and U.S. shareholders would receive no benefit from foreign taxes paid on SPOCI or ICI deemed under the proposed regulations to be U.S.-source income.
(37) 1996-2 C.B. 395.
(38) Prop. Reg. [subsections] 1.863-8(c) and 1.863-9(c).
SAMUEL M. MARUCA is a partner in the Washington law firm of Miller & Chevalier Chartered and chair of the firm's tax department. Before joining Miller & Chevalier, he practiced law with Zapruder & Odell and Silverstein & Mullen, both in Washington, D.C. Mr. Maruca has written on a variety of tax issues, and is a member of the American Bar Association's Section of Taxation and the International Fiscal Association. He received his undergraduate degree from Yale University and his law degree from Georgetown University Law Center where he served on the staff of the Georgetown Law Journal.
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|Title Annotation:||tax source rules|
|Author:||Maruca, Samuel M.|
|Date:||Mar 1, 2001|
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