§959 — Exclusion from gross income of previously taxed earnings and profits
7 cases·2 followed·2 distinguished·1 criticized·2 cited—29% support
Statute Text — 26 U.S.C. §959
For purposes of this chapter, the earnings and profits of a foreign corporation attributable to amounts which are, or have been, included in the gross income of a United States shareholder under section 951(a) shall not, when—
such amounts are distributed to, or
such amounts would, but for this subsection, be included under section 951(a)(1)(B) in the gross income of,
such shareholder (or any other United States person who acquires from any person any portion of the interest of such United States shareholder in such foreign corporation, but only to the extent of such portion, and subject to such proof of the identity of such interest as the Secretary may by regulations prescribe) directly or indirectly through a chain of ownership described under section 958(a), be again included in the gross income of such United States shareholder (or of such other United States person). The rules of subsection (c) shall apply for purposes of paragraph (1) of this subsection and the rules of subsection (f) shall apply for purposes of paragraph (2) of this subsection.
For purposes of section 951(a), the earnings and profits of a controlled foreign corporation attributable to amounts which are, or have been, included in the gross income of a United States shareholder under section 951(a), shall not, when distributed through a chain of ownership described under section 958(a), be also included in the gross income of another controlled foreign corporation in such chain for purposes of the application of section 951(a) to such other controlled foreign corporation with respect to such United States shareholder (or to any other United States shareholder who acquires from any person any portion of the interest of such United States shareholder in the controlled foreign corporation, but only to the extent of such portion, and subject to such proof of identity of such interest as the Secretary may prescribe by regulations).
For purposes of subsections (a) and (b), section 316(a) shall be applied by applying paragraph (2) thereof, and then paragraph (1) thereof—
first to the aggregate of—
earnings and profits attributable to amounts included in gross income under section 951(a)(1)(B) (or which would have been included except for subsection (a)(2) of this section), and
earnings and profits attributable to amounts included in gross income under section 951(a)(1)(C) (or which would have been included except for subsection (a)(3) of this section),
with any distribution being allocated between earnings and profits described in subparagraph (A) and earnings and profits described in subparagraph (B) proportionately on the basis of the respective amounts of such earnings and profits,
then to earnings and profits attributable to amounts included in gross income under section 951(a)(1)(A) (but reduced by amounts not included under subparagraph (B) or (C) of section 951(a)(1) because of the exclusions in paragraphs (2) and (3) of subsection (a) of this section), and
then to other earnings and profits.
References in this subsection to section 951(a)(1)(C) and subsection (a)(3) shall be treated as references to such provisions as in effect on the day before the date of the enactment of the Small Business Job Protection Act of 1996.
Any distribution excluded from gross income under subsection (a) shall be treated, for purposes of this chapter, as a distribution which is not a dividend; except that such distributions shall immediately reduce earnings and profits.
For purposes of this section and section 960(c), any amount included in the gross income of any person as a dividend by reason of subsection (a) or (f) of section 1248 shall be treated as an amount included in the gross income of such person (or, in any case to which section 1248(e) applies, of the domestic corporation referred to in section 1248(e)(2)) under section 951(a)(1)(A).
For purposes of this section, amounts that would be included under subparagraph (B) of section 951(a)(1) (determined without regard to this section) shall be treated as attributable first to earnings described in subsection (c)(2), and then to earnings described in subsection (c)(3).
In applying this section, actual distributions shall be taken into account before amounts that would be included under section 951(a)(1)(B) (determined without regard to this section).
Treasury Regulations
- Treas. Reg. §Treas. Reg. §1.959-1 Exclusion from gross income of United States persons of previously taxed earnings and profits
- Treas. Reg. §Treas. Reg. §1.959-1(a) In general.
- Treas. Reg. §Treas. Reg. §1.959-1(b) Actual distributions to United States persons.
- Treas. Reg. §Treas. Reg. §1.959-1(c) Excludable investment of earnings in United States property.
- Treas. Reg. §Treas. Reg. §1.959-1(d) Application of exclusions to shareholder's successor in interest.
- Treas. Reg. §Treas. Reg. §1.959-2 Exclusion from gross income of controlled foreign corporations of previously taxed earnings and profits
- Treas. Reg. §Treas. Reg. §1.959-2(a) Applicable rule.
- Treas. Reg. §Treas. Reg. §1.959-2(b) Illustration.
- Treas. Reg. §Treas. Reg. §1.959-3 Allocation of distributions to earnings and profits of foreign corporations
- Treas. Reg. §Treas. Reg. §1.959-3(a) In general.
- Treas. Reg. §Treas. Reg. §1.959-3(b) Applicability of section 316(a).
- Treas. Reg. §Treas. Reg. §1.959-3(c) Treatment of deficits in earnings and profits.
- Treas. Reg. §Treas. Reg. §1.959-3(d) Treatment of certain foreign taxes.
- Treas. Reg. §Treas. Reg. §1.959-3(e) Determination of foreign tax credit.
- Treas. Reg. §Treas. Reg. §1.959-3(f) Illustration.
- Treas. Reg. §Treas. Reg. §1.959-4 Distributions to United States persons not counting as dividends
7 Citing Cases
Petitioners have stipulated that the PTI limitation does not apply here because no portion ofthe E&P attributable to the $21,055,123 debt cancel- lation was previously included in their gross income under subpart F.
- 18 - Congress accomplished this limitation by providing that any section 956 inclusion must be reduced by previously taxed income (PTI) under section 959(c)(1)(A). Petitioner concedes that, except with respect to $2,184,843 oftrade receivables, s_ee supra p. 9, the PTI limitation ofsection 959(c)(1)(A) does not apply because petitioner has not previously included any amount in income on account ofthe CFCs' investments in United States property.
by the amount included in the shareholder’s gross income under section 951. Section 961(b), however, provides that the basis of such stock shall be reduced by the amount actually received and excluded from gross income of the U.S. shareholder under section 959. Schlegel Corporation included $675,227 of interest income - 39 - from Schlegel GmbH in its gross income for 1988 pursuant to section 951. Basis, therefore, depends upon whether this amount was actually distributed to Schlegel Corporation