Final regulations under IRC section 6403 require disclosures of the beneficial owners of the entity and individuals who have filed an application with specified governmental authorities to create the entity or register it to do business in the United States to FinCEN.  The final regulations become effective January 1, 2024 requiring many corporations, limited liability companies, and other entities created in or registered to do business in the United States to report beneficial ownership information.

These requirements are intended to help prevent and combat money laundering, terrorist financing, corruption, tax fraud, and other illicit activity, while minimizing the burden on entities doing business in the United States.

Prior to adopting the final regulations, it was possible for individuals to use entities such as corporations, trusts, or partnership to hide their ownership of foreign bank accounts.  However, under the new beneficial ownership information reporting requirement for FBAR (Foreign Bank Account Report), the FinCEN requires that individuals disclose beneficial ownership information for these entities.  This means that applicable entities must provide information about any person who owns or controls the entity, including their name, address, and identification number, if applicable.  The purpose of this requirement is to increase transparency and prevent individuals from using entities to hide their ownership of foreign bank accounts.

Under the final regulations, a beneficial owner includes any individual who, directly or indirectly, either exercises substantial control over a reporting company, or owns or controls at least 25% of the ownership interests of a reporting company.  The terms substantial control and beneficial owner further defined in the final regulations.

2022-21020.pdf (federalregister.gov)

CARES(Coronavirus Aid, Relief, and Economic Security) 법에 따라 2020년에 설립된 ERC는 2020년 3월 13일부터 2021년 12월 31일 사이의 기간 동안 COVID-19 팬데믹으로 인해 운영을 중단했거나 수입이 크게 감소한 사업체 중 직원에게 급여를 지급한 사업체에 한해 환급이 가능한 세금 크레딧이다.

IRS는 2023년 3월 7일에 발행된 IR-2023-40에서 고용주 및 사업체들에게 세금 공제 자격이 없음에도 불구하고 직원 유지 크레딧(ERC)을 청구하도록 조언하는 제3자(3rd party)를 경계하라는 경고를 다시 발행했다. 일부 제3자는 세액공제에 대한 납세자 자격 및 계산과 관련하여 부적절한 조치 및 입장을 취하고 있다.

이러한 제3자는 환급 금액에 따라 큰 선불 또는 성공보수형 수수료를 부과할 뿐 아니라 사업체의 연방 소득세 신고서(Federal income tax return)에 청구된 임금 공제(Wage deduction)가 세액 공제 금액만큼 감소되어야 한다는 사실을 사업체 및 납세자에게 알리지 않을 수 있다.

따라서, 사업체는 비약적인 절세를 약속하는 허위광고 및 접근을 주의할 것을 권장한다. 납세자(사업체)는 항상 세금 신고서에 보고 및 기록된 정보에 대한 책임이 있다. ERC를 부적절하게 청구하게 될 경우 납세자는 과징금 및 이자와 함께 공제액을 상환해야 한다.

추가적으로 IRS 범죄 수사부와 법무부는 범죄 수사를 시작했으며 과도하거나 부적절한 ERC의 발기인 및 기타 조력자에 대한 기소를 시작하였다.

ERC의 혜택을 받았지만 자격 또는 청구 금액에 대해 확신이 없는 경우 세무 고문이나 변호사와 상의하여 자격 및 크레딧 금액 결정에 사용된 계산에 대한 검토가 필요하다. ERC 크레딧을 청구할 때 오류나 부적절한 조치가 있다고 판단할 경우, 수정 보고서 또는 IRS에 자발적으로 신고하여 리스크를 manage 하는 걸 고려할 필요가 있다.

The Financial Accounting Standards Board (“FASB”) issued an exposure draft of a proposed accounting standards update that would require targeted improvements to income tax disclosures in financial statement report (the “Proposed ASU”).  The Proposed ASU addresses investor requests for more transparency about income tax information through improvements to income tax disclosures primarily related to the rate reconciliation, income taxes paid information and disaggregated disclosure of income and tax expense by jurisdictions.  Here is summary of the changes contained in the Proposed ASU:

Income Taxes Paid

The Proposed ASU would require that all entities disclose the amount of income taxes paid disaggregated by individual jurisdictions in which income taxes paid on both an interim and annual basis.

Rate Reconciliation

The Proposed ASU would require public business entities on an annual basis disclose specific categories in the rate reconciliation and provide additional information for reconciling items that meet a quantitative threshold (if the effect of those reconciling items is equal to or greater than 5 percent of the statutory tax (that is, pretax income or loss multiplied by the applicable statutory tax rate).  The specific categories include state and local income tax; foreign tax effects; enactment of new tax laws; effect of cross-border tax laws; tax credits; valuation allowance; nontaxable or nondeductible items; and change in unrecognized tax benefits.

For entities other than public business entities, the Proposed ASU would require qualitative disclosure about specific categories of items and individual jurisdictions that result in a significant difference between the statutory tax rate and the effective tax rate.

Disaggregated Disclosure

The Proposed ASU would require all entities to disclose pretax income (or loss) from continuing operations disaggregated between domestic and foreign jurisdictions and disclose income tax expense (or benefit) from continuing operations, disaggregated by federal, state, and foreign taxes.

Transition and Effective Date

The Proposed ASU would be applied on a retrospective basis, that is, as of beginning of the earliest period presented in the financial statements.  The effective date of the Proposed ASU would be determined after the FASB considers stakeholder feedback.

To read the exposure draft of the Proposed ASU, please clink the link below:

Proposed Accounting Standards Update—Income Taxes (Topic 740): Improvements to Income Tax Disclosures (fasb.org)

President Joe Biden released his annual budget Thursday, outlining his policy priorities for the year ahead. Biden's FY 2024 budget proposes to increase taxes for corporations and individuals with incomes above $400,000 as part of a plan intended to reduce federal budget deficits. Specifically, the budget proposes to increase the US corporate income tax rate from 21% to 28%, and to raise the tax rate on the foreign earnings of US multinational corporations from 10.5% to 21% while adopting an undertaxed profits rule.

For individuals, the budget proposes measures including increasing the top individual ordinary income tax rate from 37% to 39.6%, taxing capital gains income for high earners at ordinary rates, and imposing a 25% "minimum income tax on the wealthiest taxpayers." The budget also calls for higher Medicare health insurance taxes for individuals with incomes above $400,000 as part of a plan that seeks to avert the projected insolvency by 2028 of the Medicare hospital insurance trust fund.

President Biden's proposal seeks to increase revenue and reduce spending in order to put the federal government on a more sustainable fiscal path. However, given Republican control of the House of Representatives, it is unlikely that these proposals will be enacted without bipartisan support.

Question:  why not reduce wasteful government spending instead of increasing taxes?

The IRS released IR-2023-33 (the “Notice”) providing a tax relief for taxpayers who live in disaster areas in Alabama, California, and Georgia postponing the due date of 2022 income tax returns for individuals, various businesses and tax-exempt entities until October 16, 2023.  The relief also includes postponing the due of the fourth quart of 2022 estimated tax payment, the first through third quarter of 2023 estimated tax payments, and quarterly payroll and excise tax returns normally due on January 31, April 30, and July 31 until October 16, 2023.

The IRS automatically provides filing and penalty relief to any taxpayer in the disaster area.  If an affected taxpayer receives a late filing or late payment penalty notice from the IRS for the related returns and payments, the taxpayer can call the number on the Notice to have the penalty abated.

Additionally, individuals and businesses in a federally declared area who suffered uninsured or unreimbursed disaster-related losses can choose to claim them on either the return for the year of loss or 2022 tax return.

The official announcement of the IRS tax relief for disaster are taxpayer can be bound in the below link:

IRS: May 15 tax deadline extended to Oct. 16 for disaster area taxpayers in California, Alabama and Georgia | Internal Revenue Service

Taxpayers who live in the affected areas should check the Notice and consult with a tax advisor for more information.

The Superfund excise tax is imposed by section 4661 of the Internal Revenue Code (IRC) on the sale or use of certain chemicals and petroleum products. The tax is designed to fund the cleanup of hazardous waste sites under the Superfund program.

If a US company has a maquiladora subsidiary (a manufacturing operation in Mexico that is owned and operated by a foreign company), it may still be subject to the Superfund excise tax if it produces or uses certain chemicals and petroleum products that are subject to the tax.

Section 4672 of the IRC provides that the Superfund excise tax is imposed on the sale or use of taxable chemicals and petroleum products by the manufacturer, producer, or importer of the products. Therefore, if the US company or its maquiladora subsidiary is the manufacturer, producer, or importer of the taxable chemicals and petroleum products, it may be subject to the Superfund excise tax.

It's important to note that the Superfund excise tax applies to specific chemicals and petroleum products that are listed in the IRC. The list includes a range of chemicals and petroleum products, such as crude oil, gasoline, diesel fuel, and certain chemicals used in manufacturing processes.

If you believe your company may be subject to the Superfund excise tax, it's best to consult with a tax professional who can provide guidance specific to your situation.

Under revised IRC Section 174, R&E expenses incurred in tax years beginning after December 31, 2021 must be capitalized and amortized over 5 years (or 15 years if the research is performed outside of the United States).  A taxpayer’s change in treatment of R&E expenses is a change in method of accounting requiring the Commissioner’s consent.  However, Rev. Proc. 2023-8 provides automatic consent for the change and a streamlined procedure if the accounting method change is made for the first effective year.  Taxpayers making a change for the tax year following the first effective year will not be entitled to the streamlined procedure and an audit protection is not provided.

Taxpayers making the change in the first effective tax year must use cut-off method to apply the new method and provide statement providing required information per the Rev. Proc. 2023-8, including:

(A) the name and employer identification number or social security number, as applicable, of the applicant that has paid or incurred specified research or experimental expenditures after December 31, 2021;

(B) the beginning and ending dates of the first taxable year in which the change to the required § 174 method takes effect for the applicant (year of change);

(C) the designated automatic accounting method change number for this change (DCN 265);

(D) a description of the type of expenditures included as specified research or experimental expenditures;

(E) the amount of specified research or experimental expenditures paid or incurred by the applicant during the year of change; and

(F) a declaration that the applicant is changing the method of accounting for specified research or experimental expenditures to capitalize such expenditures to a specified research or experimental capital account, and amortize such amount over either a 5-year period for domestic research or 15-year period for foreign research (as applicable) beginning with the mid-point of the taxable year in which such expenditures are paid or incurred in accordance with the method permitted under § 174 for the year of change. Also, the declaration must state that the applicant is making the change on a cut-off basis.

Social Security Taxable Income Increase

In 2023, individuals will be subject to Social Security tax on employment earnings up to $160,200 annually.  The amount, an increase from $147,000 in 2022, I the wage base limit that subjects to earnings subject to OASDI tax.  The employee and the employers each will pay up to $9,932 of Social Security tax in 2023.

Per Diem Rate Increase

IRS issued Notice 2022-44 increasing special per diem rates by which taxpayers may substantiate ordinary and necessary business expenses of travel away from home, which is effective October 1, 2022.   The rate for travel to high-cost localities within the continental United States is $297.  The rate for travel to non-high-cost localities will be $204.  The portion of the rates treated as paid for meals for purpose of IRC section 274(n) is $74 and $64 for high-cost localities and all other localities, respectively.   2022-2023 Special Per Diem Rates (irs.gov)

FinCEN Reporting For Beneficial Ownership Information

Treasury Department issued final regulations requiring certain entities to file with FinCEN reports that identify the beneficial owners of the entity.  Under the final regulations, a beneficial owner includes any individual who, directly or indirectly, either exercise substantial control over a reporting company, or owns or controls at least 25% of the ownership interests of the a reporting company.

The final regulations provide technical definition of the terms “substantial control” and “ownership interest.”  Taxpayers should consult with their tax advisors to understand the nature and breath of their potential reporting obligations per the final regulations.

A broad range of tax and information returns for 2019 and 2020 tax years will receive automatic relief from failure-to-file penalties, under Notice 2022-36 released by the IRS. The estimated 1.6 million taxpayers who have already paid these penalties will automatically receive an estimated $1.2 billion in refunds or credits. Taxpayers do not need to request this relief, and the IRS said it will pay most of the refunds or apply credits by the end of next month. However, any return still unfiled for the two tax years must be filed by Sept. 30, 2022, to be eligible for the relief.

Tax returns eligible for the relief include specified returns in the Form 1040, 1041, and 1120 series. Also eligible are Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return; Form 990-PF, Return of Private Foundation or Section 4947(a)(1) Trust Treated as Private Foundation; and Form 990-T, Exempt Organization Business Income Tax Return (and Proxy Tax Under Section 6033(e). In addition, Form 1065, U.S. Return of Partnership Income, and Form 1120-S, U.S. Income Tax Return for an S Corporation, may have penalties forgiven for failure to timely file and for failure to show required information.

The notice also covers certain international information returns, such as Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations, and Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business, attached only to Forms 1065 and 1120. However, it does not provide relief for taxpayers filing returns with certain international information returns, e.g., Form 5471, attached to returns other than Forms 1065 and 1120, such as Form 1040 or 1041.

Please see the Notice 2022-36 for further detail.

The US Senate passed a Democrat proposed bill, called the Inflation Reduction Act (the “Act”).   The Act will head to Democratic controlled House for a vote and is expected to be enacted into law.  Contrary to the name of the Act, it includes provision for a massive spending on investments into green energy and Medicare.  There are two notable provisions included in the Act that may have an impact to multinational corporations:

IRS Expansion

The Act allots $80 billion additional funding for the IRS over 10 years and the majority of the fund will be used to hire 87,000 new agents to improve tax enforcement.    The government believes there is an estimated $1 trillion leakage in tax collections every year.  The Democrats projects that enhancing IRS funding would add an extra $127 billion in federal revenue over the next decade by hiring more tax enforcers to limit tax evasions by taxpayers.

Businesses can expect an increased risk of audit selection and enforcement effort by IRS.

Alternative minimum tax on corporate book income

The Act includes the new alternative minimum tax on corporate book income (“AMT”) imposing a 15% minimum tax on “applicable financial statement income” for an “applicable corporation” effective for tax years beginning after December 31, 2022.

“Applicable financial statement income” generally is a financial statement income computed based GAAP or IFRS, reported to the SEC, or otherwise used for reporting to shareholders or credit purposes.

An “applicable corporation” is a C-corporation with a three-year average of adjusted financial statement income of $1 billion or more.  A corporation that is a member of an international financial reporting group with a foreign parent must include the financial income of all foreign members of the group in applying the $1 billion test, but is an applicable corporation only if its three-year average financial income of US members and foreign subsidiaries of US members, exceed $100 million.  IRC section 52(a) or (b) applies in determining aggregation rule.

Multinational corporation with a foreign parent should consult with their tax service advisor for the application and the potential impact in advance.