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On October 9, 2024, the United States (US) Department of Treasury (Treasury) and the Internal Revenue Service (IRS) released final regulations under IRC Section 367(d) (T.D. 9994; Final Regulations) on certain repatriations of intangible property (IP). The Final Regulations, which are applicable to IP repatriations occurring on or after October 10, 2024, are generally consistent with the proposed regulations published on May 3, 2023 (Proposed Regulations). For more on the Proposed Regulations, see Tax Alert 2023-0843.

Detailed discussion

Background

Under IRC Section 367(d), when a US person transfers IP to a transferee foreign corporation (TFC) in an exchange under IRC Section 351 or 361, the transfer is treated as a deemed sale by the US transferor to the TFC in exchange for payments that are contingent upon the productivity, use, or disposition of the IP over its useful life.

Previously, regulations under IRC Section 367(d) provided that when a TFC subsequently transferred the IP to a related person, the US transferor was still required to recognize income under IRC Section 367(d). However, neither IRC Section 367(d) nor the regulations thereunder specifically addressed the implications of a repatriation of IP from a TFC (or another related foreign corporation to which the TFC transferred the IP following the original outbound transfer) to a related US person, raising the question as to whether the application of IRC Section 367(d) terminated or continued following a subsequent repatriation of the IP.

The Proposed Regulations introduced a generally taxpayer-favorable rule that would allow the application of IRC Section 367(d) to terminate for certain IP repatriations, removing uncertainty for taxpayers seeking to repatriate IP. As described below, the Final Regulations largely adopt the Proposed Regulations.

Final Regulations

Termination of IRC Section 367(d) inclusions

Under the Final Regulations, continuing annual IRC Section 367(d) inclusions are terminated if:

1. The TFC repatriates the outbounded IP to a "qualified domestic person" (QDP) and
2. The US transferor complies with the necessary reporting requirements under Treas. Reg. Section 1.6038B-1(d)(2)(iv).

A QDP may be the original US transferor, a successor US transferor (individual or corporation) subject to US federal income tax, or a related US person (individual or corporation) subject to US federal income tax. If the IP is initially repatriated to a US person that then transfers it in a related transaction (or transactions), the initial recipient is only considered a QDP if the ultimate recipient qualifies as well.

Gain recognized by US transferor

Upon an IP repatriation, a US transferor must recognize an IRC Section 367(d) inclusion for the portion of the tax year during which the IP was owned by the TFC.

In addition, a US transferor may recognize gain upon an IP repatriation, the amount of which depends on whether the IP is "transferred basis property" to the QDP. Property is "transferred basis property" if the property's basis is determined (in whole or in part) by reference to the transferor's basis (e.g., property repatriated in a nonrecognition transaction). If the IP is transferred basis property, the amount of gain recognized by the US transferor is the same as the amount the TFC would have recognized in the transaction if its adjusted basis were the US transferor's original basis in the IP. If the IP is not transferred basis property, the amount of gain recognized by the US transferor is the difference between the IP's fair market value as of the date of repatriation and the US transferor's former basis.

QDP's basis in repatriated IP

A QDP's basis in repatriated IP depends on whether the IP is transferred basis property. If it is, the QDP's basis is the lesser of the US transferor's original basis or the TFC's adjusted basis immediately before repatriation, plus the greater of any gain recognized by the US transferor or the TFC as a result of the repatriation. If the IP is not transferred basis property, the QDP's basis is the IP's fair market value as of the date of repatriation.

IP transfers to or from foreign branches

Treas. Reg. Section 1.904-4(f)(2)(iv)(D) generally provides that the principles of IRC Sections 367(d) and 482 apply to adjust foreign branch income when IP is transferred in a disregarded transaction to or from a foreign branch. Under the Final Regulations, if there are multiple transfers of the same IP, each subsequent transfer is evaluated independently from any other preceding or subsequent transaction and does not terminate the application of IRC Section 367(d) for purposes of determining the amount of income attributable to the foreign branch(es) under Treas. Reg. Section 1.904-4(f)(2)(iv)(D).

Considerations not addressed

The Final Regulations do not adopt certain recommendations made by commenters to the Proposed Regulations, including the extension of the QDP definition to certain partnerships and S corporations.

In addition, neither the Proposed nor Final Regulations address the appropriate treatment of a TFC's adjusted basis in IP subject to IRC Section 367(d) while IRC Section 367(d) applies. Treasury and the IRS noted that addressing this issue implicates broader issues under IRC Section 367(d) and as such, was outside the scope of the Final Regulations. The Final Regulations do not address situations in which repatriations are preceded by certain transfers of IP subject to IRC Section 367(d) between foreign corporations (which could result in double taxation of the same income under IRC Section 951A and the IRC Section 367(d) rules). As noted in the preamble, although there may be significant potential interactions between IRC Section 367(d) and other provisions of the Code and regulations, Treasury and the IRS determined that coordinating these potential disparities is outside the scope of the Final Regulations.

Applicability Dates

The Final Regulations apply to subsequent dispositions of IP occurring on or after October 10, 2024. For subsequent dispositions of IP occurring before October 10, 2024, the guidance in Treas. Reg. Section 1.367(d)-1T applies.

Implications

The Final Regulations facilitate the subsequent repatriation of previously outbounded IP by providing certainty on the termination of the annual IRC Section 367(d) inclusions, provided certain conditions are met. These changes may encourage companies to re-evaluate their IP strategies in light of the ever-evolving international tax landscape.

While the Final Regulations are a welcome development for US multinationals, there remain areas of uncertainty Treasury and the IRS have yet to address. As highlighted above, in an effort to keep the scope of the Final Regulations narrow, Treasury and the IRS have left certain issues to be addressed in potential subsequent guidance. Taxpayers should be particularly aware of situations involving IP transfers where uncertainty regarding double taxation may still exist.