USC Subpart A

in effect

26 U.S.C. § 901 Taxes of foreign countries and of possessions of United States

(a) Allowance of creditIf the taxpayer chooses to have the benefits of this subpart, the tax imposed by this chapter shall, subject to the limitation of section 904, be credited with the amounts provided in the applicable paragraph of subsection (b) plus, in the case of a corporation, the taxes deemed to have been paid under section 960. Such choice for any taxable year may be made or changed at any time before the expiration of the period prescribed for making a claim for credit or refund of the tax imposed by this chapter for such taxable year. The credit shall not be allowed against any tax treated as a tax not imposed by this chapter under section 26(b). (b) Amount allowedSubject to the limitation of section 904, the following amounts shall be allowed as the credit under subsection (a):(1) Citizens and domestic corporationsIn the case of a citizen of the United States and of a domestic corporation, the amount of any income, war profits, and excess profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States; and (2) Resident of the United States or Puerto RicoIn the case of a resident of the United States and in the case of an individual who is a bona fide resident of Puerto Rico during the entire taxable year, the amount of any such taxes paid or accrued during the taxable year to any possession of the United States; and (3) Alien resident of the United States or Puerto RicoIn the case of an alien resident of the United States and in the case of an alien individual who is a bona fide resident of Puerto Rico during the entire taxable year, the amount of any such taxes paid or accrued during the taxable year to any foreign country; and (4) Nonresident alien individuals and foreign corporationsIn the case of any nonresident alien individual not described in section 876 and in the case of any foreign corporation, the amount determined pursuant to section 906; and (5) Partnerships and estatesIn the case of any person described in paragraph (1), (2), (3), or (4), who is a member of a partnership or a beneficiary of an estate or trust, the amount of his proportionate share of the taxes (described in such paragraph) of the partnership or the estate or trust paid or accrued during the taxable year to a foreign country or to any possession of the United States, as the case may be. Under rules or regulations prescribed by the Secretary, in the case of any foreign trust of which the settlor or another person would be treated as owner of any portion of the trust under subpart E but for section 672(f), the allocable amount of any income, war profits, and excess profits taxes imposed by any foreign country or possession of the United States on the settlor or such other person in respect of trust income. (c) Similar credit required for certain alien residentsWhenever the President finds that—(1) a foreign country, in imposing income, war profits, and excess profits taxes, does not allow to citizens of the United States residing in such foreign country a credit for any such taxes paid or accrued to the United States or any foreign country, as the case may be, similar to the credit allowed under subsection (b)(3), (2) such foreign country, when requested by the United States to do so, has not acted to provide such a similar credit to citizens of the United States residing in such foreign country, and (3) it is in the public interest to allow the credit under subsection (b)(3) to citizens or subjects of such foreign country only if it allows such a similar credit to citizens of the United States residing in such foreign country, the President shall proclaim that, for taxable years beginning while the proclamation remains in effect, the credit under subsection (b)(3) shall be allowed to citizens or subjects of such foreign country only if such foreign country, in imposing income, war profits, and excess profits taxes, allows to citizens of the United States residing in such foreign country such a similar credit. (d) Treatment of dividends from a DISC or former DISCFor purposes of this subpart, dividends from a DISC or former DISC (as defined in section 992(a)) shall be treated as dividends from a foreign corporation to the extent such dividends are treated under part I as income from sources without the United States. (e) Foreign taxes on mineral income(1) Reduction in amount allowedNotwithstanding subsection (b), the amount of any income, war profits, and excess profits taxes paid or accrued during the taxable year to any foreign country or possession of the United States with respect to foreign mineral income from sources within such country or possession which would (but for this paragraph) be allowed under such subsection shall be reduced by the amount (if any) by which—(A) the amount of such taxes (or, if smaller, the amount of the tax which would be computed under this chapter with respect to such income determined without the deduction allowed under section 613), exceeds (B) the amount of the tax computed under this chapter with respect to such income. (2) Foreign mineral income definedFor purposes of paragraph (1), the term “foreign mineral income” means income derived from the extraction of minerals from mines, wells, or other natural deposits, the processing of such minerals into their primary products, and the transportation, distribution, or sale of such minerals or primary products. Such term includes, but is not limited to 11 So in original. Probably should be followed by a comma. that portion of the taxpayer’s distributive share of the income of partnerships attributable to foreign mineral income. (f) Certain payments for oil or gas not considered as taxesNotwithstanding subsection (b) and section 960, the amount of any income, or profits, and excess profits taxes paid or accrued during the taxable year to any foreign country in connection with the purchase and sale of oil or gas extracted in such country is not to be considered as tax for purposes of section 275(a) and this section if—(1) the taxpayer has no economic interest in the oil or gas to which section 611(a) applies, and (2) either such purchase or sale is at a price which differs from the fair market value for such oil or gas at the time of such purchase or sale. (g) Certain taxes paid with respect to distributions from possessions corporations(1) In generalFor purposes of this chapter, any tax of a foreign country or possession of the United States which is paid or accrued with respect to any distribution from a corporation—(A) to the extent that such distribution is attributable to periods during which such corporation is a possessions corporation, and (B)(i) if a dividends received deduction is allowable with respect to such distribution under part VIII of subchapter B, or (ii) to the extent that such distribution is received in connection with a liquidation or other transaction with respect to which gain or loss is not recognized, shall not be treated as income, war profits, or excess profits taxes paid or accrued to a foreign country or possession of the United States, and no deduction shall be allowed under this title with respect to any amount so paid or accrued. (2) Possessions corporationFor purposes of paragraph (1), a corporation shall be treated as a possessions corporation for any period during which an election under section 936 (as in effect on the day before the date of the enactment of the Tax Technical Corrections Act of 2018) applied to such corporation, during which section 931 (as in effect on the day before the date of the enactment of the Tax Reform Act of 1976) applied to such corporation, or during which section 957(c) (as in effect on the day before the date of the enactment of the Tax Reform Act of 1986) applied to such corporation. [(h) Repealed. Pub. L. 110–172, § 11(g)(9), Dec. 29, 2007, 121 Stat. 2490] (i) Taxes used to provide subsidiesAny income, war profits, or excess profits tax shall not be treated as a tax for purposes of this title to the extent—(1) the amount of such tax is used (directly or indirectly) by the country imposing such tax to provide a subsidy by any means to the taxpayer, a related person (within the meaning of section 482), or any party to the transaction or to a related transaction, and (2) such subsidy is determined (directly or indirectly) by reference to the amount of such tax, or the base used to compute the amount of such tax. (j) Denial of foreign tax credit, etc., with respect to certain foreign countries(1) In generalNotwithstanding any other provision of this part—(A) no credit shall be allowed under subsection (a) for any income, war profits, or excess profits taxes paid or accrued (or deemed paid under section 960) to any country if such taxes are with respect to income attributable to a period during which this subsection applies to such country, and (B) subsections (a), (b), and (c) of section 904 and section 960 shall be applied separately with respect to income attributable to such a period from sources within such country. (2) Countries to which subsection applies(A) In generalThis subsection shall apply to any foreign country—(i) the government of which the United States does not recognize, unless such government is otherwise eligible to purchase defense articles or services under the Arms Export Control Act, (ii) with respect to which the United States has severed diplomatic relations, (iii) with respect to which the United States has not severed diplomatic relations but does not conduct such relations, or (iv) which the Secretary of State has, pursuant to section 6(j) 22 See References in Text note below. of the Export Administration Act of 1979, as amended, designated as a foreign country which repeatedly provides support for acts of international terrorisms. (B) Period for which subsection appliesThis subsection shall apply to any foreign country described in subparagraph (A) during the period—(i) beginning on the later of—(I) January 1, 1987, or (II) 6 months after such country becomes a country described in subparagraph (A), and (ii) ending on the date the Secretary of State certifies to the Secretary of the Treasury that such country is no longer described in subparagraph (A). (3) Taxes allowed as a deduction, etc.Sections 275 and 78 shall not apply to any tax which is not allowable as a credit under subsection (a) by reason of this subsection. (4) RegulationsThe Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this subsection, including regulations which treat income paid through 1 or more entities as derived from a foreign country to which this subsection applies if such income was, without regard to such entities, derived from such country. (5) Waiver of denial(A) In generalParagraph (1) shall not apply with respect to taxes paid or accrued to a country if the President—(i) determines that a waiver of the application of such paragraph is in the national interest of the United States and will expand trade and investment opportunities for United States companies in such country; and (ii) reports such waiver under subparagraph (B). (B) ReportNot less than 30 days before the date on which a waiver is granted under this paragraph, the President shall report to Congress—(i) the intention to grant such waiver; and (ii) the reason for the determination under subparagraph (A)(i). (k) Minimum holding period for certain taxes on dividends(1) Withholding taxes(A) In generalIn no event shall a credit be allowed under subsection (a) for any withholding tax on a dividend with respect to stock in a corporation if—(i) such stock is held by the recipient of the dividend for 15 days or less during the 31-day period beginning on the date which is 15 days before the date on which such share becomes ex-dividend with respect to such dividend, or (ii) to the extent that the recipient of the dividend is under an obligation (whether pursuant to a short sale or otherwise) to make related payments with respect to positions in substantially similar or related property. (B) Withholding taxFor purposes of this paragraph, the term “withholding tax” includes any tax determined on a gross basis; but does not include any tax which is in the nature of a prepayment of a tax imposed on a net basis. (2) Deemed paid taxesIn the case of income, war profits, or excess profits taxes deemed paid under section 853 or 960 through a chain of ownership of stock in 1 or more corporations, no credit shall be allowed under subsection (a) for such taxes if—(A) any stock of any corporation in such chain (the ownership of which is required to obtain credit under subsection (a) for such taxes) is held for less than the period described in paragraph (1)(A)(i), or (B) the corporation holding the stock is under an obligation referred to in paragraph (1)(A)(ii). (3) 45-day rule in the case of certain preference dividendsIn the case of stock having preference in dividends and dividends with respect to such stock which are attributable to a period or periods aggregating in excess of 366 days, paragraph (1)(A)(i) shall be applied—(A) by substituting “45 days” for “15 days” each place it appears, and (B) by substituting “91-day period” for “31-day period”. (4) Exception for certain taxes paid by securities dealers(A) In generalParagraphs (1) and (2) shall not apply to any qualified tax with respect to any security held in the active conduct in a foreign country of a business as a securities dealer of any person—(i) who is registered as a securities broker or dealer under section 15(a) of the Securities Exchange Act of 1934, (ii) who is registered as a Government securities broker or dealer under section 15C(a) of such Act, or (iii) who is licensed or authorized in such foreign country to conduct securities activities in such country and is subject to bona fide regulation by a securities regulating authority of such country. (B) Qualified taxFor purposes of subparagraph (A), the term “qualified tax” means a tax paid to a foreign country (other than the foreign country referred to in subparagraph (A)) if—(i) the dividend to which such tax is attributable is subject to taxation on a net basis by the country referred to in subparagraph (A), and (ii) such country allows a credit against its net basis tax for the full amount of the tax paid to such other foreign country. (C) RegulationsThe Secretary may prescribe such regulations as may be appropriate to carry out this paragraph, including regulations to prevent the abuse of the exception provided by this paragraph and to treat other taxes as qualified taxes. (5) Certain rules to applyFor purposes of this subsection, the rules of paragraphs (3) and (4) of section 246(c) shall apply. (6) Treatment of bona fide salesIf a person’s holding period is reduced by reason of the application of the rules of section 246(c)(4) to any contract for the bona fide sale of stock, the determination of whether such person’s holding period meets the requirements of paragraph (2) with respect to taxes deemed paid under section 960 shall be made as of the date such contract is entered into. (7) Taxes allowed as deduction, etc.Sections 275 and 78 shall not apply to any tax which is not allowable as a credit under subsection (a) by reason of this subsection. (l) Minimum holding period for withholding taxes on gain and income other than dividends etc.(1) In generalIn no event shall a credit be allowed under subsection (a) for any withholding tax (as defined in subsection (k)) on any item of income or gain with respect to any property if—(A) such property is held by the recipient of the item for 15 days or less during the 31-day period beginning on the date which is 15 days before the date on which the right to receive payment of such item arises, or (B) to the extent that the recipient of the item is under an obligation (whether pursuant to a short sale or otherwise) to make related payments with respect to positions in substantially similar or related property. This paragraph shall not apply to any dividend to which subsection (k) applies. (2) Exception for taxes paid by dealers(A) In generalParagraph (1) shall not apply to any qualified tax with respect to any property held in the active conduct in a foreign country of a business as a dealer in such property. (B) Qualified taxFor purposes of subparagraph (A), the term “qualified tax” means a tax paid to a foreign country (other than the foreign country referred to in subparagraph (A)) if—(i) the item to which such tax is attributable is subject to taxation on a net basis by the country referred to in subparagraph (A), and (ii) such country allows a credit against its net basis tax for the full amount of the tax paid to such other foreign country. (C) DealerFor purposes of subparagraph (A), the term “dealer” means—(i) with respect to a security, any person to whom paragraphs (1) and (2) of subsection (k) would not apply by reason of paragraph (4) thereof, and (ii) with respect to any other property, any person with respect to whom such property is described in section 1221(a)(1). (D) RegulationsThe Secretary may prescribe such regulations as may be appropriate to carry out this paragraph, including regulations to prevent the abuse of the exception provided by this paragraph and to treat other taxes as qualified taxes. (3) ExceptionsThe Secretary may by regulation provide that paragraph (1) shall not apply to property where the Secretary determines that the application of paragraph (1) to such property is not necessary to carry out the purposes of this subsection. (4) Certain rules to applyRules similar to the rules of paragraphs (5), (6), and (7) of subsection (k) shall apply for purposes of this subsection. (5) Determination of holding periodHolding periods shall be determined for purposes of this subsection without regard to section 1235 or any similar rule. (m) Denial of foreign tax credit with respect to foreign income not subject to United States taxation by reason of covered asset acquisitions(1) In generalIn the case of a covered asset acquisition, the disqualified portion of any foreign income tax determined with respect to the income or gain attributable to the relevant foreign assets—(A) shall not be taken into account in determining the credit allowed under subsection (a), and (B) in the case of a foreign income tax paid by a foreign corporation, shall not be taken into account for purposes of section 960. (2) Covered asset acquisitionFor purposes of this section, the term “covered asset acquisition” means—(A) a qualified stock purchase (as defined in section 338(d)(3)) to which section 338(a) applies, (B) any transaction which—(i) is treated as an acquisition of assets for purposes of this chapter, and (ii) is treated as the acquisition of stock of a corporation (or is disregarded) for purposes of the foreign income taxes of the relevant jurisdiction, (C) any acquisition of an interest in a partnership which has an election in effect under section 754, and (D) to the extent provided by the Secretary, any other similar transaction. (3) Disqualified portionFor purposes of this section—(A) In generalThe term “disqualified portion” means, with respect to any covered asset acquisition, for any taxable year, the ratio (expressed as a percentage) of—(i) the aggregate basis differences (but not below zero) allocable to such taxable year under subparagraph (B) with respect to all relevant foreign assets, divided by (ii) the income on which the foreign income tax referred to in paragraph (1) is determined (or, if the taxpayer fails to substantiate such income to the satisfaction of the Secretary, such income shall be determined by dividing the amount of such foreign income tax by the highest marginal tax rate applicable to such income in the relevant jurisdiction). (B) Allocation of basis differenceFor purposes of subparagraph (A)(i)—(i) In generalThe basis difference with respect to any relevant foreign asset shall be allocated to taxable years using the applicable cost recovery method under this chapter. (ii) Special rule for disposition of assetsExcept as otherwise provided by the Secretary, in the case of the disposition of any relevant foreign asset—(I) the basis difference allocated to the taxable year which includes the date of such disposition shall be the excess of the basis difference with respect to such asset over the aggregate basis difference with respect to such asset which has been allocated under clause (i) to all prior taxable years, and (II) no basis difference with respect to such asset shall be allocated under clause (i) to any taxable year thereafter. (C) Basis difference(i) In generalThe term “basis difference” means, with respect to any relevant foreign asset, the excess of—(I) the adjusted basis of such asset immediately after the covered asset acquisition, over (II) the adjusted basis of such asset immediately before the covered asset acquisition. (ii) Built-in loss assetsIn the case of a relevant foreign asset with respect to which the amount described in clause (i)(II) exceeds the amount described in clause (i)(I), such excess shall be taken into account under this subsection as a basis difference of a negative amount. (iii) Special rule for section 338 electionsIn the case of a covered asset acquisition described in paragraph (2)(A), the covered asset acquisition shall be treated for purposes of this subparagraph as occurring at the close of the acquisition date (as defined in section 338(h)(2)). (4) Relevant foreign assetsFor purposes of this section, the term “relevant foreign asset” means, with respect to any covered asset acquisition, any asset (including any goodwill, going concern value, or other intangible) with respect to such acquisition if income, deduction, gain, or loss attributable to such asset is taken into account in determining the foreign income tax referred to in paragraph (1). (5) Foreign income taxFor purposes of this section, the term “foreign income tax” means any income, war profits, or excess profits tax paid or accrued to any foreign country or to any possession of the United States. (6) Taxes allowed as a deduction, etc.Sections 275 and 78 shall not apply to any tax which is not allowable as a credit under subsection (a) by reason of this subsection. (7) RegulationsThe Secretary may issue such regulations or other guidance as is necessary or appropriate to carry out the purposes of this subsection, including to exempt from the application of this subsection certain covered asset acquisitions, and relevant foreign assets with respect to which the basis difference is de minimis. (n) Cross reference(1) For deductions of income, war profits, and excess profits taxes paid to a foreign country or a possession of the United States, see sections 164 and 275. (2) For right of each partner to make election under this section, see section 703(b). (3) For right of estate or trust to the credit for taxes imposed by foreign countries and possessions of the United States under this section, see section 642(a). (4) For reduction of credit for failure of a United States person to furnish certain information with respect to a foreign corporation or partnership controlled by him, see section 6038.

26 U.S.C. § 903 Credit for taxes in lieu of income, etc., taxes

For purposes of this part and of sections 164(a) and 275(a), the term “income, war profits, and excess profits taxes” shall include a tax paid in lieu of a tax on income, war profits, or excess profits otherwise generally imposed by any foreign country or by any possession of the United States.

26 U.S.C. § 904 Limitation on credit

(a) LimitationThe total amount of the credit taken under section 901(a) shall not exceed the same proportion of the tax against which such credit is taken which the taxpayer’s taxable income from sources without the United States (but not in excess of the taxpayer’s entire taxable income) bears to his entire taxable income for the same taxable year. (b) Taxable income for purpose of computing limitation(1) Personal exemptionsFor purposes of subsection (a), the taxable income in the case of an individual, estate, or trust shall be computed without any deduction for personal exemptions under section 151 or 642(b). (2) Capital gainsFor purposes of this section—(A) In generalTaxable income from sources outside the United States shall include gain from the sale or exchange of capital assets only to the extent of foreign source capital gain net income. (B) Special rules where capital gain rate differentialIn the case of any taxable year for which there is a capital gain rate differential—(i) in lieu of applying subparagraph (A), the taxable income from sources outside the United States shall include gain from the sale or exchange of capital assets only in an amount equal to foreign source capital gain net income reduced by the rate differential portion of foreign source net capital gain, (ii) the entire taxable income shall include gain from the sale or exchange of capital assets only in an amount equal to capital gain net income reduced by the rate differential portion of net capital gain, and (iii) for purposes of determining taxable income from sources outside the United States, any net capital loss (and any amount which is a short-term capital loss under section 1212(a)) from sources outside the United States to the extent taken into account in determining capital gain net income for the taxable year shall be reduced by an amount equal to the rate differential portion of the excess of net capital gain from sources within the United States over net capital gain. (C) Coordination with capital gains ratesThe Secretary may by regulations modify the application of this paragraph and paragraph (3) to the extent necessary to properly reflect any capital gain rate differential under section 1(h) and the computation of net capital gain. (3) DefinitionsFor purposes of this subsection—(A) Foreign source capital gain net incomeThe term “foreign source capital gain net income” means the lesser of—(i) capital gain net income from sources without the United States, or (ii) capital gain net income. (B) Foreign source net capital gainThe term “foreign source net capital gain” means the lesser of—(i) net capital gain from sources without the United States, or (ii) net capital gain. (C) Section 1231 gainsThe term “gain from the sale or exchange of capital assets” includes any gain so treated under section 1231. (D) Capital gain rate differentialThere is a capital gain rate differential for any year if subsection (h) of section 1 applies to such taxable year. (E) Rate differential portionThe rate differential portion of foreign source net capital gain, net capital gain, or the excess of net capital gain from sources within the United States over net capital gain, as the case may be, is the same proportion of such amount as—(i) the excess of—(I) the highest rate of tax set forth in subsection (a), (b), (c), (d), or (e) of section 1 (whichever applies), over (II) the alternative rate of tax determined under section 1(h), bears to (ii) that rate referred to in subclause (I). (4) Treatment of dividends for which deduction is allowed under section 245AFor purposes of subsection (a), in the case of a domestic corporation which is a United States shareholder with respect to a specified 10-percent owned foreign corporation, such shareholder’s taxable income from sources without the United States (and entire taxable income) shall be determined without regard to—(A) the foreign-source portion of any dividend received from such foreign corporation, and (B) any deductions properly allocable or apportioned to—(i) income (other than amounts includible under section 951(a)(1) or 951A(a)) with respect to stock of such specified 10-percent owned foreign corporation, or (ii) such stock to the extent income with respect to such stock is other than amounts includible under section 951(a)(1) or 951A(a). Any term which is used in section 245A and in this paragraph shall have the same meaning for purposes of this paragraph as when used in such section. (5) Deductions treated as allocable to foreign source net CFC tested incomeSolely for purposes of the application of subsection (a) with respect to amounts described in subsection (d)(1)(A), the taxpayer’s taxable income from sources without the United States shall be determined by allocating and apportioning—(A) any deduction allowed under section 250(a)(1)(B) (and any deduction allowed under section 164(a)(3) for taxes imposed on amounts described in section 250(a)(1)(B)) to such income, (B) no amount of interest expense or research and experimental expenditures to such income, and (C) any other deduction to such income only if such deduction is directly allocable to such income. Any amount or deduction which would (but for subparagraphs (B) and (C)) have been allocated or apportioned to such income shall only be allocated or apportioned to income which is from sources within the United States. (6) Source rules for certain inventory produced in the United States and sold through foreign branchesFor purposes of this section, if a United States person maintains an office or other fixed place of business in a foreign country (determined under rules similar to the rules of section 864(c)(5)), the portion of income which—(A) is from the sale or exchange outside the United States of inventory property (within the meaning of section 865(i)(1))—(i) which is produced in the United States, (ii) which is for use outside the United States, and (iii) to which the third sentence of section 863(b) applies, and (B) is attributable (determined under rules similar to the rules of section 864(c)(5)) to such office or other fixed place of business, shall be treated as from sources without the United States, except that the amount so treated shall not exceed 50 percent of the income from the sale or exchange of such inventory property. (c) Carryback and carryover of excess tax paidAny amount by which all taxes paid or accrued to foreign countries or possessions of the United States for any taxable year for which the taxpayer chooses to have the benefits of this subpart exceed the limitation under subsection (a) shall be deemed taxes paid or accrued to foreign countries or possessions of the United States in the first preceding taxable year and in any of the first 10 succeeding taxable years, in that order and to the extent not deemed taxes paid or accrued in a prior taxable year, in the amount by which the limitation under subsection (a) for such preceding or succeeding taxable year exceeds the sum of the taxes paid or accrued to foreign countries or possessions of the United States for such preceding or succeeding taxable year and the amount of the taxes for any taxable year earlier than the current taxable year which shall be deemed to have been paid or accrued in such preceding or subsequent taxable year (whether or not the taxpayer chooses to have the benefits of this subpart with respect to such earlier taxable year). Such amount deemed paid or accrued in any year may be availed of only as a tax credit and not as a deduction and only if the taxpayer for such year chooses to have the benefits of this subpart as to taxes paid or accrued for that year to foreign countries or possessions of the United States. This subsection shall not apply to taxes paid or accrued with respect to amounts described in subsection (d)(1)(A). (d) Separate application of section with respect to certain categories of income(1) In generalThe provisions of subsections (a), (b), and (c) and sections 902,11 See References in Text note below. 907, and 960 shall be applied separately with respect to—(A) any amount includible in gross income under section 951A (other than passive category income), (B) foreign branch income, (C) passive category income, and (D) general category income. (2) Definitions and special rulesFor purposes of this subsection—(A) Categories(i) Passive category incomeThe term “passive category income” means passive income and specified passive category income. (ii) General category incomeThe term “general category income” means income other than income described in paragraph (1)(A), foreign branch income, and passive category income. (B) Passive income(i) In generalExcept as otherwise provided in this subparagraph, the term “passive income” means any income received or accrued by any person which is of a kind which would be foreign personal holding company income (as defined in section 954(c)). (ii) Certain amounts includedExcept as provided in clause (iii), subparagraph (E)(ii), or paragraph (3)(H), the term “passive income” includes any amount includible in gross income under section 1293 (relating to certain passive foreign investment companies). (iii) ExceptionsThe term “passive income” shall not include—(I) any export financing interest, and (II) any high-taxed income. (iv) Clarification of application of section 864(d)(6)In determining whether any income is of a kind which would be foreign personal holding company income, the rules of section 864(d)(6) shall apply only in the case of income of a controlled foreign corporation. (v) Specified passive category incomeThe term “specified passive category income” means—(I) dividends from a DISC or former DISC (as defined in section 992(a)) to the extent such dividends are treated as income from sources without the United States, and (II) distributions from a former FSC (as defined in section 922) out of earnings and profits attributable to foreign trade income (within the meaning of section 923(b)) or interest or carrying charges (as defined in section 927(d)(1)) derived from a transaction which results in foreign trade income (as defined in section 923(b)). Any reference in subclause (II) to section 922, 923, or 927 shall be treated as a reference to such section as in effect before its repeal by the FSC Repeal and Extraterritorial Income Exclusion Act of 2000. (C) Treatment of financial services income and companies(i) In generalFinancial services income shall be treated as general category income in the case of—(I) a member of a financial services group, and (II) any other person if such person is predominantly engaged in the active conduct of a banking, insurance, financing, or similar business. (ii) Financial services groupThe term “financial services group” means any affiliated group (as defined in section 1504(a) without regard to paragraphs (2) and (3) of section 1504(b)) which is predominantly engaged in the active conduct of a banking, insurance, financing, or similar business. In determining whether such a group is so engaged, there shall be taken into account only the income of members of the group that are—(I) United States corporations, or (II) controlled foreign corporations in which such United States corporations own, directly or indirectly, at least 80 percent of the total voting power and value of the stock. (iii) Pass-thru entitiesThe Secretary shall by regulation specify for purposes of this subparagraph the treatment of financial services income received or accrued by partnerships and by other pass-thru entities which are not members of a financial services group. (D) Financial services income(i) In generalExcept as otherwise provided in this subparagraph, the term “financial services income” means any income which is received or accrued by any person predominantly engaged in the active conduct of a banking, insurance, financing, or similar business, and which is—(I) described in clause (ii), or (II) passive income (determined without regard to subparagraph (B)(iii)(II)). (ii) General description of financial services incomeIncome is described in this clause if such income is—(I) derived in the active conduct of a banking, financing, or similar business, (II) derived from the investment by an insurance company of its unearned premiums or reserves ordinary and necessary for the proper conduct of its insurance business, or (III) of a kind which would be insurance income as defined in section 953(a) determined without regard to those provisions of paragraph (1)(A) of such section which limit insurance income to income from countries other than the country in which the corporation was created or organized. (E) Noncontrolled section 902 corporation(i) Noncontrolled 10-percent owned foreign corporationThe term “noncontrolled 10-percent owned foreign corporation” means any foreign corporation which is—(I) a specified 10-percent owned foreign corporation (as defined in section 245A(b)), or (II) a passive foreign investment company (as defined in section 1297(a)) with respect to which the taxpayer meets the stock ownership requirements of section 902(a) (or, for purposes of applying paragraphs (3) and (4), the requirements of section 902(b)). A controlled foreign corporation shall not be treated as a noncontrolled 10-percent owned foreign corporation with respect to any distribution out of its earnings and profits for periods during which it was a controlled foreign corporation. Any reference to section 902 in this clause shall be treated as a reference to such section as in effect before its repeal. (ii) Treatment of inclusions under section 1293If any foreign corporation is a noncontrolled 10-percent owned foreign corporation with respect to the taxpayer, any inclusion under section 1293 with respect to such corporation shall be treated as a dividend from such corporation. (F) High-taxed incomeThe term “high-taxed income” means any income which (but for this subparagraph) would be passive income if the sum of—(i) the foreign income taxes paid or accrued by the taxpayer with respect to such income, and (ii) the foreign income taxes deemed paid by the taxpayer with respect to such income under section 902 1 or 960, exceeds the highest rate of tax specified in section 1 or 11 (whichever applies) multiplied by the amount of such income (determined with regard to section 78). For purposes of the preceding sentence, the term “foreign income taxes” means any income, war profits, or excess profits tax imposed by any foreign country or possession of the United States. (G) Export financing interestFor purposes of this paragraph, the term “export financing interest” means any interest derived from financing the sale (or other disposition) for use or consumption outside the United States of any property—(i) which is manufactured, produced, grown, or extracted in the United States by the taxpayer or a related person, and (ii) not more than 50 percent of the fair market value of which is attributable to products imported into the United States. For purposes of clause (ii), the fair market value of any property imported into the United States shall be its appraised value, as determined by the Secretary under section 402 of the Tariff Act of 1930 (19 U.S.C. 1401a) in connection with its importation. (H) Treatment of income tax base differences(i) In generalIn the case of taxable years beginning after December 31, 2006, tax imposed under the law of a foreign country or possession of the United States on an amount which does not constitute income under United States tax principles shall be treated as imposed on income described in paragraph (1)(D). (ii) Special rule for years before 2007(I) In generalIn the case of taxes paid or accrued in taxable years beginning after December 31, 2004, and before January 1, 2007, a taxpayer may elect to treat tax imposed under the law of a foreign country or possession of the United States on an amount which does not constitute income under United States tax principles as tax imposed on income described in subparagraph (C) or (I) of paragraph (1). (II) Election irrevocableAny such election shall apply to the taxable year for which made and all subsequent taxable years described in subclause (I) unless revoked with the consent of the Secretary. (I) Related personFor purposes of this paragraph, the term “related person” has the meaning given such term by section 954(d)(3), except that such section shall be applied by substituting “the person with respect to whom the determination is being made” for “controlled foreign corporation” each place it appears. (J) Foreign branch income(i) In generalThe term “foreign branch income” means the business profits of such United States person which are attributable to 1 or more qualified business units (as defined in section 989(a)) in 1 or more foreign countries. For purposes of the preceding sentence, the amount of business profits attributable to a qualified business unit shall be determined under rules established by the Secretary. (ii) ExceptionSuch term shall not include any income which is passive category income. (K) Transitional rules for 2007 changesFor purposes of paragraph (1)—(i) taxes carried from any taxable year beginning before January 1, 2007, to any taxable year beginning on or after such date, with respect to any item of income, shall be treated as described in the subparagraph of paragraph (1) in which such income would be described were such taxes paid or accrued in a taxable year beginning on or after such date, and (ii) the Secretary may by regulations provide for the allocation of any carryback of taxes with respect to income from a taxable year beginning on or after January 1, 2007, to a taxable year beginning before such date for purposes of allocating such income among the separate categories in effect for the taxable year to which carried. (3) Look-thru in case of controlled foreign corporations(A) In generalExcept as otherwise provided in this paragraph, dividends, interest, rents, and royalties received or accrued by the taxpayer from a controlled foreign corporation in which the taxpayer is a United States shareholder shall not be treated as passive category income. (B) Subpart F inclusionsAny amount included in gross income under section 951(a)(1)(A) shall be treated as passive category income to the extent the amount so included is attributable to passive category income. (C) Interest, rents, and royaltiesAny interest, rent, or royalty which is received or accrued from a controlled foreign corporation in which the taxpayer is a United States shareholder shall be treated as passive category income to the extent it is properly allocable (under regulations prescribed by the Secretary) to passive category income of the controlled foreign corporation. (D) DividendsAny dividend paid out of the earnings and profits of any controlled foreign corporation in which the taxpayer is a United States shareholder shall be treated as passive category income in proportion to the ratio of—(i) the portion of the earnings and profits attributable to passive category income, to (ii) the total amount of earnings and profits. (E) Look-thru applies only where subpart F appliesIf a controlled foreign corporation meets the requirements of section 954(b)(3)(A) (relating to de minimis rule) for any taxable year, for purposes of this paragraph, none of its foreign base company income (as defined in section 954(a) without regard to section 954(b)(5)) and none of its gross insurance income (as defined in section 954(b)(3)(C)) for such taxable year shall be treated as passive category income, except that this sentence shall not apply to any income which (without regard to this sentence) would be treated as financial services income. Solely for purposes of applying subparagraph (D), passive income of a controlled foreign corporation shall not be treated as passive category income if the requirements of section 954(b)(4) are met with respect to such income. (F) Coordination with high-taxed income provisions(i) In determining whether any income of a controlled foreign corporation is passive category income, subclause (II) of paragraph (2)(B)(iii) shall not apply. (ii) Any income of the taxpayer which is treated as passive category income under this paragraph shall be so treated notwithstanding any provision of paragraph (2); except that the determination of whether any amount is high-taxed income shall be made after the application of this paragraph. (G) DividendFor purposes of this paragraph, the term “dividend” includes any amount included in gross income in section 951(a)(1)(B). Any amount included in gross income under section 78 to the extent attributable to amounts included in gross income in section 951(a)(1)(A) shall not be treated as a dividend but shall be treated as included in gross income under section 951(a)(1)(A). (H) Look-thru applies to passive foreign investment company inclusionIf—(i) a passive foreign investment company is a controlled foreign corporation, and (ii) the taxpayer is a United States shareholder in such controlled foreign corporation, any amount included in gross income under section 1293 shall be treated as income in a separate category to the extent such amount is attributable to income in such category. (4) Look-thru applies to dividends from noncontrolled 10-percent owned foreign corporations(A) In generalFor purposes of this subsection, any dividend from a noncontrolled 10-percent owned foreign corporation with respect to the taxpayer shall be treated as income described in a subparagraph of paragraph (1) in proportion to the ratio of—(i) the portion of earnings and profits attributable to income described in such subparagraph, to (ii) the total amount of earnings and profits. (B) Earnings and profits of controlled foreign corporationsIn the case of any distribution from a controlled foreign corporation to a United States shareholder, rules similar to the rules of subparagraph (A) shall apply in determining the extent to which earnings and profits of the controlled foreign corporation which are attributable to dividends received from a noncontrolled 10-percent owned foreign corporation may be treated as income in a separate category. (C) Special rulesFor purposes of this paragraph—(i) Earnings and profits(I) In generalThe rules of section 316 shall apply. (II) RegulationsThe Secretary may prescribe regulations regarding the treatment of distributions out of earnings and profits for periods before the taxpayer’s acquisition of the stock to which the distributions relate. (ii) Inadequate substantiationIf the Secretary determines that the proper subparagraph of paragraph (1) in which a dividend is described has not been substantiated, such dividend shall be treated as income described in paragraph (1)(C). (iii) Coordination with high-taxed income provisionsRules similar to the rules of paragraph (3)(F) shall apply for purposes of this paragraph. (iv) Look-thru with respect to carryover of creditRules similar to subparagraph (A) also shall apply to any carryforward under subsection (c) from a taxable year beginning before January 1, 2003, of tax allocable to a dividend from a noncontrolled 10-percent owned foreign corporation with respect to the taxpayer. The Secretary may by regulations provide for the allocation of any carryback of tax allocable to a dividend from a noncontrolled 10-percent owned foreign corporation from a taxable year beginning on or after January 1, 2003, to a taxable year beginning before such date for purposes of allocating such dividend among the separate categories in effect for the taxable year to which carried. (5) Controlled foreign corporation; United States shareholderFor purposes of this subsection—(A) Controlled foreign corporationThe term “controlled foreign corporation” has the meaning given such term by section 957 (taking into account section 953(c)). (B) United States shareholderThe term “United States shareholder” has the meaning given such term by section 951(b) (taking into account section 953(c)). (6) Separate application to items resourced under treaties(A) In generalIf—(i) without regard to any treaty obligation of the United States, any item of income would be treated as derived from sources within the United States, (ii) under a treaty obligation of the United States, such item would be treated as arising from sources outside the United States, and (iii) the taxpayer chooses the benefits of such treaty obligation, subsections (a), (b), and (c) of this section and sections 907 and 960 shall be applied separately with respect to each such item. (B) Coordination with other provisionsThis paragraph shall not apply to any item of income to which subsection (h)(10) or section 865(h) applies. (C) RegulationsThe Secretary may issue such regulations or other guidance as is necessary or appropriate to carry out the purposes of this paragraph, including regulations or other guidance which provides that related items of income may be aggregated for purposes of this paragraph. (7) RegulationsThe Secretary shall prescribe such regulations as may be necessary or appropriate for the purposes of this subsection, including regulations—(A) for the application of paragraph (3) and subsection (f)(5) in the case of income paid (or loans made) through 1 or more entities or between 2 or more chains of entities, (B) preventing the manipulation of the character of income the effect of which is to avoid the purposes of this subsection, and (C) providing that rules similar to the rules of paragraph (3)(C) shall apply to interest, rents, and royalties received or accrued from entities which would be controlled foreign corporations if they were foreign corporations. [(e) Repealed. Pub. L. 101–508, title XI, § 11801(a)(31), Nov. 5, 1990, 104 Stat. 1388–521] (f) Recapture of overall foreign loss(1) General ruleFor purposes of this subpart, in the case of any taxpayer who sustains an overall foreign loss for any taxable year, that portion of the taxpayer’s taxable income from sources without the United States for each succeeding taxable year which is equal to the lesser of—(A) the amount of such loss (to the extent not used under this paragraph in prior taxable years), or (B) 50 percent (or such larger percent as the taxpayer may choose) of the taxpayer’s taxable income from sources without the United States for such succeeding taxable year, shall be treated as income from sources within the United States (and not as income from sources without the United States). (2) Overall foreign loss definedFor purposes of this subsection, the term “overall foreign loss” means the amount by which the gross income for the taxable year from sources without the United States (whether or not the taxpayer chooses the benefits of this subpart for such taxable year) for such year is exceeded by the sum of the deductions properly apportioned or allocated thereto, except that there shall not be taken into account—(A) any net operating loss deduction allowable for such year under section 172(a), and (B) any—(i) foreign expropriation loss for such year, as defined in section 172(h) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990), or (ii) loss for such year which arises from fire, storm, shipwreck, or other casualty, or from theft, to the extent such loss is not compensated for by insurance or otherwise. (3) Dispositions(A) In generalFor purposes of this chapter, if property which has been used predominantly without the United States in a trade or business is disposed of during any taxable year—(i) the taxpayer, notwithstanding any other provision of this chapter (other than paragraph (1)), shall be deemed to have received and recognized taxable income from sources without the United States in the taxable year of the disposition, by reason of such disposition, in an amount equal to the lesser of the excess of the fair market value of such property over the taxpayer’s adjusted basis in such property or the remaining amount of the overall foreign losses which were not used under paragraph (1) for such taxable year or any prior taxable year, and (ii) paragraph (1) shall be applied with respect to such income by substituting “100 percent” for “50 percent”. In determining for purposes of this subparagraph whether the predominant use of any property has been without the United States, there shall be taken into account use during the 3-year period ending on the date of the disposition (or, if shorter, the period during which the property has been used in the trade or business). (B) Disposition defined and special rules(i) For purposes of this subsection, the term “disposition” includes a sale, exchange, distribution, or gift of property whether or not gain or loss is recognized on the transfer. (ii) Any taxable income recognized solely by reason of subparagraph (A) shall have the same characterization it would have had if the taxpayer had sold or exchanged the property. (iii) The Secretary shall prescribe such regulations as he may deem necessary to provide for adjustments to the basis of property to reflect taxable income recognized solely by reason of subparagraph (A). (C) ExceptionsNotwithstanding subparagraph (B), the term “disposition” does not include—(i) a disposition of property which is not a material factor in the realization of income by the taxpayer, or (ii) a disposition of property to a domestic corporation in a distribution or transfer described in section 381(a). (D) Application to certain dispositions of stock in controlled foreign corporation(i) In generalThis paragraph shall apply to an applicable disposition in the same manner as if it were a disposition of property described in subparagraph (A), except that the exception contained in subparagraph (C)(i) shall not apply. (ii) Applicable dispositionFor purposes of clause (i), the term “applicable disposition” means any disposition of any share of stock in a controlled foreign corporation in a transaction or series of transactions if, immediately before such transaction or series of transactions, the taxpayer owned more than 50 percent (by vote or value) of the stock of the controlled foreign corporation. Such term shall not include a disposition described in clause (iii) or (iv), except that clause (i) shall apply to any gain recognized on any such disposition. (iii) Exception for certain exchanges where ownership percentage retainedA disposition shall not be treated as an applicable disposition under clause (ii) if it is part of a transaction or series of transactions—(I) to which section 351 or 721 applies, or under which the transferor receives stock in a foreign corporation in exchange for the stock in the controlled foreign corporation and the stock received is exchanged basis property (as defined in section 7701(a)(44)), and (II) immediately after which, the transferor owns (by vote or value) at least the same percentage of stock in the controlled foreign corporation (or, if the controlled foreign corporation is not in existence after such transaction or series of transactions, in another foreign corporation stock in 22 So in original. which was received by the transferor in exchange for stock in the controlled foreign corporation) as the percentage of stock in the controlled foreign corporation which the taxpayer owned immediately before such transaction or series of transactions. (iv) Exception for certain asset acquisitionsA disposition shall not be treated as an applicable disposition under clause (ii) if it is part of a transaction or series of transactions in which the taxpayer (or any member of an affiliated group of corporations filing a consolidated return under section 1501 which includes the taxpayer) acquires the assets of a controlled foreign corporation in exchange for the shares of the controlled foreign corporation in a liquidation described in section 332 or a reorganization described in section 368(a)(1). (v) Controlled foreign corporationFor purposes of this subparagraph, the term “controlled foreign corporation” has the meaning given such term by section 957. (vi) Stock ownershipFor purposes of this subparagraph, ownership of stock shall be determined under the rules of subsections (a) and (b) of section 958. (4) Accumulation distributions of foreign trustFor purposes of this chapter, in the case of amounts of income from sources without the United States which are treated under section 666 (without regard to subsections (b) and (c) thereof if the taxpayer chose to take a deduction with respect to the amounts described in such subsections under section 667(d)(1)(B)) as having been distributed by a foreign trust in a preceding taxable year, that portion of such amounts equal to the amount of any overall foreign loss sustained by the beneficiary in a year prior to the taxable year of the beneficiary in which such distribution is received from the trust shall be treated as income from sources within the United States (and not income from sources without the United States) to the extent that such loss was not used under this subsection in prior taxable years, or in the current taxable year, against other income of the beneficiary. (5) Treatment of separate limitation losses(A) In generalThe amount of the separate limitation losses for any taxable year shall reduce income from sources within the United States for such taxable year only to the extent the aggregate amount of such losses exceeds the aggregate amount of the separate limitation incomes for such taxable year. (B) Allocation of lossesThe separate limitation losses for any taxable year (to the extent such losses do not exceed the separate limitation incomes for such year) shall be allocated among (and operate to reduce) such incomes on a proportionate basis. (C) Recharacterization of subsequent incomeIf—(i) a separate limitation loss from any income category (hereinafter in this subparagraph referred to as “the loss category”) was allocated to income from any other category under subparagraph (B), and (ii) the loss category has income for a subsequent taxable year, such income (to the extent it does not exceed the aggregate separate limitation losses from the loss category not previously recharacterized under this subparagraph) shall be recharacterized as income from such other category in proportion to the prior reductions under subparagraph (B) in such other category not previously taken into account under this subparagraph. Nothing in the preceding sentence shall be construed as recharacterizing any tax. (D) Special rules for losses from sources in the United StatesAny loss from sources in the United States for any taxable year (to the extent such loss does not exceed the separate limitation incomes from such year) shall be allocated among (and operate to reduce) such incomes on a proportionate basis. This subparagraph shall be applied after subparagraph (B). (E) DefinitionsFor purposes of this paragraph—(i) Income categoryThe term “income category” means each separate category of income described in subsection (d)(1). (ii) Separate limitation incomeThe term “separate limitation income” means, with respect to any income category, the taxable income from sources outside the United States, separately computed for such category. (iii) Separate limitation lossThe term “separate limitation loss” means, with respect to any income category, the loss from such category determined under the principles of section 907(c)(4)(B). (F) DispositionsIf any separate limitation loss for any taxable year is allocated against any separate limitation income for such taxable year, except to the extent provided in regulations, rules similar to the rules of paragraph (3) shall apply to any disposition of property if gain from such disposition would be in the income category with respect to which there was such separate limitation loss. (g) Recharacterization of overall domestic loss(1) General ruleFor purposes of this subpart and section 936,1 in the case of any taxpayer who sustains an overall domestic loss for any taxable year beginning after December 31, 2006, that portion of the taxpayer’s taxable income from sources within the United States for each succeeding taxable year which is equal to the lesser of—(A) the amount of such loss (to the extent not used under this paragraph in prior taxable years), or (B) 50 percent of the taxpayer’s taxable income from sources within the United States for such succeeding taxable year, shall be treated as income from sources without the United States (and not as income from sources within the United States). (2) Overall domestic lossFor purposes of this subsection—(A) In generalThe term “overall domestic loss” means—(i) with respect to any qualified taxable year, the domestic loss for such taxable year to the extent such loss offsets taxable income from sources without the United States for the taxable year or for any preceding qualified taxable year by reason of a carryback, and (ii) with respect to any other taxable year, the domestic loss for such taxable year to the extent such loss offsets taxable income from sources without the United States for any preceding qualified taxable year by reason of a carryback. (B) Domestic lossFor purposes of subparagraph (A), the term “domestic loss” means the amount by which the gross income for the taxable year from sources within the United States is exceeded by the sum of the deductions properly apportioned or allocated thereto (determined without regard to any carryback from a subsequent taxable year). (C) Qualified taxable yearFor purposes of subparagraph (A), the term “qualified taxable year” means any taxable year for which the taxpayer chose the benefits of this subpart. (3) Characterization of subsequent income(A) In generalAny income from sources within the United States that is treated as income from sources without the United States under paragraph (1) shall be allocated among and increase the income categories in proportion to the loss from sources within the United States previously allocated to those income categories. (B) Income categoryFor purposes of this paragraph, the term “income category” has the meaning given such term by subsection (f)(5)(E)(i). (4) Coordination with subsection (f)The Secretary shall prescribe such regulations as may be necessary to coordinate the provisions of this subsection with the provisions of subsection (f). (5) Election to increase percentage of taxable income treated as foreign source(A) In generalIf any pre-2018 unused overall domestic loss is taken into account under paragraph (1) for any applicable taxable year, the taxpayer may elect to have such paragraph applied to such loss by substituting a percentage greater than 50 percent (but not greater than 100 percent) for 50 percent in subparagraph (B) thereof. (B) Pre-2018 unused overall domestic lossFor purposes of this paragraph, the term “pre-2018 unused overall domestic loss” means any overall domestic loss which—(i) arises in a qualified taxable year beginning before January 1, 2018, and (ii) has not been used under paragraph (1) for any taxable year beginning before such date. (C) Applicable taxable yearFor purposes of this paragraph, the term “applicable taxable year” means any taxable year of the taxpayer beginning after December 31, 2017, and before January 1, 2028. (h) Source rules in case of United States-owned foreign corporations(1) In generalThe following amounts which are derived from a United States-owned foreign corporation and which would be treated as derived from sources outside the United States without regard to this subsection shall, for purposes of this section, be treated as derived from sources within the United States to the extent provided in this subsection:(A) Any amount included in gross income under—(i) section 951(a) (relating to amounts included in gross income of United States shareholders), or (ii) section 1293 (relating to current taxation of income from qualified funds). (B) Interest. (C) Dividends. (2) Subpart F and passive foreign investment company inclusionsAny amount described in subparagraph (A) of paragraph (1) shall be treated as derived from sources within the United States to the extent such amount is attributable to income of the United States-owned foreign corporation from sources within the United States. (3) Certain interest allocable to United States source incomeAny interest which—(A) is paid or accrued by a United States-owned foreign corporation during any taxable year, (B) is paid or accrued to a United States shareholder (as defined in section 951(b)) or a related person (within the meaning of section 267(b)) to such a shareholder, and (C) is properly allocable (under regulations prescribed by the Secretary) to income of such foreign corporation for the taxable year from sources within the United States, shall be treated as derived from sources within the United States. (4) Dividends(A) In generalThe United States source ratio of any dividend paid or accrued by a United States-owned foreign corporation shall be treated as derived from sources within the United States. (B) United States source ratioFor purposes of subparagraph (A), the term “United States source ratio” means, with respect to any dividend paid out of the earnings and profits for any taxable year, a fraction—(i) the numerator of which is the portion of the earnings and profits for such taxable year from sources within the United States, and (ii) the denominator of which is the total amount of earnings and profits for such taxable year. (5) Exception where United States-owned foreign corporation has small amount of United States source incomeParagraph (3) shall not apply to interest paid or accrued during any taxable year (and paragraph (4) shall not apply to any dividends paid out of the earnings and profits for such taxable year) if—(A) the United States-owned foreign corporation has earnings and profits for such taxable year, and (B) less than 10 percent of such earnings and profits is attributable to sources within the United States. For purposes of the preceding sentence, earnings and profits shall be determined without any reduction for interest described in paragraph (3) (determined without regard to subparagraph (C) thereof). (6) United States-owned foreign corporationFor purposes of this subsection, the term “United States-owned foreign corporation” means any foreign corporation if 50 percent or more of—(A) the total combined voting power of all classes of stock of such corporation entitled to vote, or (B) the total value of the stock of such corporation, is held directly (or indirectly through applying paragraphs (2) and (3) of section 958(a) and paragraph (4) of section 318(a)) by United States persons (as defined in section 7701(a)(30)). (7) DividendFor purposes of this subsection, the term “dividend” includes any gain treated as a dividend under section 1248. (8) Coordination with subsection (f)This subsection shall be applied before subsection (f). (9) Treatment of certain domestic corporationsIn the case of any dividend treated as not from sources within the United States under section 861(a)(2)(A), the corporation paying such dividend shall be treated for purposes of this subsection as a United States-owned foreign corporation. (10) Coordination with treaties(A) In generalIf—(i) any amount derived from a United States-owned foreign corporation would be treated as derived from sources within the United States under this subsection by reason of an item of income of such United States-owned foreign corporation, (ii) under a treaty obligation of the United States (applied without regard to this subsection and by treating any amount included in gross income under section 951(a)(1) as a dividend), such amount would be treated as arising from sources outside the United States, and (iii) the taxpayer chooses the benefits of this paragraph, this subsection shall not apply to such amount to the extent attributable to such item of income (but subsections (a), (b), and (c) of this section and sections 907 and 960 shall be applied separately with respect to such amount to the extent so attributable). (B) Special ruleAmounts included in gross income under section 951(a)(1) shall be treated as a dividend under subparagraph (A)(ii) only if dividends paid by each corporation (the stock in which is taken into account in determining whether the shareholder is a United States shareholder in the United States-owned foreign corporation), if paid to the United States shareholder, would be treated under a treaty obligation of the United States as arising from sources outside the United States (applied without regard to this subsection). (11) RegulationsThe Secretary shall prescribe such regulations as may be necessary or appropriate for purposes of this subsection, including—(A) regulations for the application of this subsection in the case of interest or dividend payments through 1 or more entities, and (B) regulations providing that this subsection shall apply to interest paid or accrued to any person (whether or not a United States shareholder). (i) Limitation on use of deconsolidation to avoid foreign tax credit limitationsIf 2 or more domestic corporations would be members of the same affiliated group if—(1) section 1504(b) were applied without regard to the exceptions contained therein, and (2) the constructive ownership rules of section 1563(e) applied for purposes of section 1504(a), the Secretary may by regulations provide for resourcing the income of any of such corporations or for modifications to the consolidated return regulations to the extent that such resourcing or modifications are necessary to prevent the avoidance of the provisions of this subpart. (j) Certain individuals exempt(1) In generalIn the case of an individual to whom this subsection applies for any taxable year—(A) the limitation of subsection (a) shall not apply, (B) no taxes paid or accrued by the individual during such taxable year may be deemed paid or accrued under subsection (c) in any other taxable year, and (C) no taxes paid or accrued by the individual during any other taxable year may be deemed paid or accrued under subsection (c) in such taxable year. (2) Individuals to whom subsection appliesThis subsection shall apply to an individual for any taxable year if—(A) the entire amount of such individual’s gross income for the taxable year from sources without the United States consists of qualified passive income, (B) the amount of the creditable foreign taxes paid or accrued by the individual during the taxable year does not exceed $300 ($600 in the case of a joint return), and (C) such individual elects to have this subsection apply for the taxable year. (3) DefinitionsFor purposes of this subsection—(A) Qualified passive incomeThe term “qualified passive income” means any item of gross income if—(i) such item of income is passive income (as defined in subsection (d)(2)(B) without regard to clause (iii) thereof), and (ii) such item of income is shown on a payee statement furnished to the individual. (B) Creditable foreign taxesThe term “creditable foreign taxes” means any taxes for which a credit is allowable under section 901; except that such term shall not include any tax unless such tax is shown on a payee statement furnished to such individual. (C) Payee statementThe term “payee statement” has the meaning given to such term by section 6724(d)(2). (D) Estates and trusts not eligibleThis subsection shall not apply to any estate or trust. (k) Cross referencesFor increase of limitation under subsection (a) for taxes paid with respect to amounts received which were included in the gross income of the taxpayer for a prior taxable year as a United States shareholder with respect to a controlled foreign corporation, see section 960(c).

26 U.S.C. § 905 Applicable rules

(a) Year in which credit takenThe credits provided in this subpart may, at the option of the taxpayer and irrespective of the method of accounting employed in keeping his books, be taken in the year in which the taxes of the foreign country or the possession of the United States accrued, subject, however, to the conditions prescribed in subsection (c). If the taxpayer elects to take such credits in the year in which the taxes of the foreign country or the possession of the United States accrued, the credits for all subsequent years shall be taken on the same basis, and no portion of any such taxes shall be allowed as a deduction in the same or any succeeding year. (b) Proof of creditsThe credits provided in this subpart shall be allowed only if the taxpayer establishes to the satisfaction of the Secretary—(1) the total amount of income derived from sources without the United States, determined as provided in part I, (2) the amount of income derived from each country, the tax paid or accrued to which is claimed as a credit under this subpart, such amount to be determined under regulations prescribed by the Secretary, and (3) all other information necessary for the verification and computation of such credits. (c) Adjustments to accrued taxes(1) In generalIf—(A) accrued taxes when paid differ from the amounts claimed as credits by the taxpayer, (B) accrued taxes are not paid before the date 2 years after the close of the taxable year to which such taxes relate, or (C) any tax paid is refunded in whole or in part, the taxpayer shall notify the Secretary, who shall redetermine the amount of the tax for the year or years affected. (2) Special rule for taxes not paid within 2 years(A) In generalExcept as provided in subparagraph (B), in making the redetermination under paragraph (1), no credit shall be allowed for accrued taxes not paid before the date referred to in subparagraph (B) of paragraph (1). (B) Taxes subsequently paidAny such taxes if subsequently paid—(i) shall be taken into account for the taxable year to which such taxes relate, and (ii) shall be translated as provided in section 986(a)(2)(A). (3) AdjustmentsThe amount of tax (if any) due on any redetermination under paragraph (1) shall be paid by the taxpayer on notice and demand by the Secretary, and the amount of tax overpaid (if any) shall be credited or refunded to the taxpayer in accordance with subchapter B of chapter 66 (section 6511 et seq.). (4) Bond requirementsIn the case of any tax accrued but not paid, the Secretary, as a condition precedent to the allowance of the credit provided in this subpart, may require the taxpayer to give a bond, with sureties satisfactory to and approved by the Secretary, in such sum as the Secretary may require, conditioned on the payment by the taxpayer of any amount of tax found due on any such redetermination. Any such bond shall contain such further conditions as the Secretary may require. (5) Other special rulesIn any redetermination under paragraph (1) by the Secretary of the amount of tax due from the taxpayer for the year or years affected by a refund, the amount of the taxes refunded for which credit has been allowed under this section shall be reduced by the amount of any tax described in section 901 imposed by the foreign country or possession of the United States with respect to such refund; but no credit under this subpart, or deduction under section 164, shall be allowed for any taxable year with respect to any such tax imposed on the refund. No interest shall be assessed or collected on any amount of tax due on any redetermination by the Secretary, resulting from a refund to the taxpayer, for any period before the receipt of such refund, except to the extent interest was paid by the foreign country or possession of the United States on such refund for such period.

26 U.S.C. § 906 Nonresident alien individuals and foreign corporations

(a) Allowance of creditA nonresident alien individual or a foreign corporation engaged in trade or business within the United States during the taxable year shall be allowed a credit under section 901 for the amount of any income, war profits, and excess profits taxes paid or accrued during the taxable year to any foreign country or possession of the United States with respect to income effectively connected with the conduct of a trade or business within the United States. (b) Special rules(1) For purposes of subsection (a) and for purposes of determining the deductions allowable under sections 873(a) and 882(c), in determining the amount of any tax paid or accrued to any foreign country or possession there shall not be taken into account any amount of tax to the extent the tax so paid or accrued is imposed with respect to income from sources within the United States which would not be taxed by such foreign country or possession but for the fact that—(A) in the case of a nonresident alien individual, such individual is a citizen or resident of such foreign country or possession, or (B) in the case of a foreign corporation, such corporation was created or organized under the law of such foreign country or possession or is domiciled for tax purposes in such country or possession. (2) For purposes of subsection (a), in applying section 904 the taxpayer’s taxable income shall be treated as consisting only of the taxable income effectively connected with the taxpayer’s conduct of a trade or business within the United States. (3) The credit allowed pursuant to subsection (a) shall not be allowed against any tax imposed by section 871(a) (relating to income of nonresident alien individual not connected with United States business) or 881 (relating to income of foreign corporations not connected with United States business). [(4), (5) Repealed. Pub. L. 115–97, title I, § 14301(c)(23), Dec. 22, 2017, 131 Stat. 2223.] (6) No credit shall be allowed under this section against the tax imposed by section 884.

26 U.S.C. § 907 Special rules in case of foreign oil and gas income

(a) Reduction in amount allowed as foreign tax under section 901In applying section 901, the amount of any foreign oil and gas taxes paid or accrued (or deemed to have been paid) during the taxable year which would (but for this subsection) be taken into account for purposes of section 901 shall be reduced by the amount (if any) by which the amount of such taxes exceeds the product of—(1) the amount of the combined foreign oil and gas income for the taxable year, (2) multiplied by—(A) in the case of a corporation, the percentage which is equal to the highest rate of tax specified under section 11(b), or (B) in the case of an individual, a fraction the numerator of which is the tax against which the credit under section 901(a) is taken and the denominator of which is the taxpayer’s entire taxable income. (b) Combined foreign oil and gas income; foreign oil and gas taxesFor purposes of this section—(1) Combined foreign oil and gas incomeThe term “combined foreign oil and gas income” means, with respect to any taxable year, the sum of—(A) foreign oil and gas extraction income, and (B) foreign oil related income. (2) Foreign oil and gas taxesThe term “foreign oil and gas taxes” means, with respect to any taxable year, the sum of—(A) oil and gas extraction taxes, and (B) any income, war profits, and excess profits taxes paid or accrued (or deemed to have been paid or accrued under section 960) during the taxable year with respect to foreign oil related income (determined without regard to subsection (c)(4)) or loss which would be taken into account for purposes of section 901 without regard to this section. (c) Foreign income definitions and special rulesFor purposes of this section—(1) Foreign oil and gas extraction incomeThe term “foreign oil and gas extraction income” means the taxable income derived from sources without the United States and its possessions from—(A) the extraction (by the taxpayer or any other person) of minerals from oil or gas wells, or (B) the sale or exchange of assets used by the taxpayer in the trade or business described in subparagraph (A). Such term does not include any dividend or interest income which is passive income (as defined in section 904(d)(2)(A)). (2) Foreign oil related incomeThe term “foreign oil related income” means the taxable income derived from sources outside the United States and its possessions from—(A) the processing of minerals extracted (by the taxpayer or by any other person) from oil or gas wells into their primary products, (B) the transportation of such minerals or primary products, (C) the distribution or sale of such minerals or primary products, (D) the disposition of assets used by the taxpayer in the trade or business described in subparagraph (A), (B), or (C), or (E) the performance of any other related service. Such term does not include any dividend or interest income which is passive income (as defined in section 904(d)(2)(A)). (3) Dividends, interest, partnership distribution, etc.The term “foreign oil and gas extraction income” and the term “foreign oil related income” include—(A) interest, to the extent the category of income of such interest is determined under section 904(d)(3), (B) amounts with respect to which taxes are deemed paid under section 960, and (C) the taxpayer’s distributive share of the income of partnerships, to the extent such dividends, interest, amounts, or distributive share is attributable to foreign oil and gas extraction income, or to foreign oil related income, as the case may be; except that interest described in subparagraph (A) shall not be taken into account in computing foreign oil and gas extraction income but shall be taken into account in computing foreign oil-related income. (4) Recapture of foreign oil and gas losses by recharacterizing later combined foreign oil and gas income(A) In generalThe combined foreign oil and gas income of a taxpayer for a taxable year (determined without regard to this paragraph) shall be reduced—(i) first by the amount determined under subparagraph (B), and (ii) then by the amount determined under subparagraph (C). The aggregate amount of such reductions shall be treated as income (from sources without the United States) which is not combined foreign oil and gas income. (B) Reduction for pre-2009 foreign oil extraction lossesThe reduction under this paragraph shall be equal to the lesser of—(i) the foreign oil and gas extraction income of the taxpayer for the taxable year (determined without regard to this paragraph), or (ii) the excess of—(I) the aggregate amount of foreign oil extraction losses for preceding taxable years beginning after December 31, 1982, and before January 1, 2009, over (II) so much of such aggregate amount as was recharacterized under this paragraph (as in effect before and after the date of the enactment of the Energy Improvement and Extension Act of 2008) for preceding taxable years beginning after December 31, 1982. (C) Reduction for post-2008 foreign oil and gas lossesThe reduction under this paragraph shall be equal to the lesser of—(i) the combined foreign oil and gas income of the taxpayer for the taxable year (determined without regard to this paragraph), reduced by an amount equal to the reduction under subparagraph (A) for the taxable year, or (ii) the excess of—(I) the aggregate amount of foreign oil and gas losses for preceding taxable years beginning after December 31, 2008, over (II) so much of such aggregate amount as was recharacterized under this paragraph for preceding taxable years beginning after December 31, 2008. (D) Foreign oil and gas loss defined(i) In generalFor purposes of this paragraph, the term “foreign oil and gas loss” means the amount by which—(I) the gross income for the taxable year from sources without the United States and its possessions (whether or not the taxpayer chooses the benefits of this subpart for such taxable year) taken into account in determining the combined foreign oil and gas income for such year, is exceeded by (II) the sum of the deductions properly apportioned or allocated thereto. (ii) Net operating loss deduction not taken into accountFor purposes of clause (i), the net operating loss deduction allowable for the taxable year under section 172(a) shall not be taken into account. (iii) Expropriation and casualty losses not taken into accountFor purposes of clause (i), there shall not be taken into account—(I) any foreign expropriation loss (as defined in section 172(h) (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990)) for the taxable year, or (II) any loss for the taxable year which arises from fire, storm, shipwreck, or other casualty, or from theft, to the extent such loss is not compensated for by insurance or otherwise. (iv) Foreign oil extraction lossFor purposes of subparagraph (B)(ii)(I), foreign oil extraction losses shall be determined under this paragraph as in effect on the day before the date of the enactment of the Energy Improvement and Extension Act of 2008. (5) Oil and gas extraction taxesThe term “oil and gas extraction taxes” means any income, war profits, and excess profits tax paid or accrued (or deemed to have been paid under section 960) during the taxable year with respect to foreign oil and gas extraction income (determined without regard to paragraph (4)) or loss which would be taken into account for purposes of section 901 without regard to this section. (d) Disregard of certain posted prices, etc.For purposes of this chapter, in determining the amount of taxable income in the case of foreign oil and gas extraction income, if the oil or gas is disposed of, or is acquired other than from the government of a foreign country, at a posted price (or other pricing arrangement) which differs from the fair market value for such oil or gas, such fair market value shall be used in lieu of such posted price (or other pricing arrangement). [(e) Repealed. Pub. L. 101–508, title XI, § 11801(a)(32), Nov. 5, 1990, 104 Stat. 1388–521] (f) Carryback and carryover of disallowed credits(1) In generalIf the amount of the foreign oil and gas taxes paid or accrued during any taxable year exceeds the limitation provided by subsection (a) for such taxable year (hereinafter in this subsection referred to as the “unused credit year”), such excess shall be deemed to be foreign oil and gas taxes paid or accrued in the first preceding taxable year and in any of the first 10 succeeding taxable years, in that order and to the extent not deemed tax paid or accrued in a prior taxable year by reason of the limitation imposed by paragraph (2). Such amount deemed paid or accrued in any taxable year may be availed of only as a tax credit and not as a deduction and only if the taxpayer for such year chooses to have the benefits of this subpart as to taxes paid or accrued for that year to foreign countries or possessions. (2) LimitationThe amount of the unused foreign oil and gas taxes which under paragraph (1) may be deemed paid or accrued in any preceding or succeeding taxable year shall not exceed the lesser of—(A) the amount by which the limitation provided by subsection (a) for such taxable year exceeds the sum of—(i) the foreign oil and gas taxes paid or accrued during such taxable year, plus (ii) the amounts of the foreign oil and gas taxes which by reason of this subsection are deemed paid or accrued in such taxable year and are attributable to taxable years preceding the unused credit year; or (B) the amount by which the limitation provided by section 904 for such taxable year exceeds the sum of—(i) the taxes paid or accrued (or deemed to have been paid under section 960) to all foreign countries and possessions of the United States during such taxable year, (ii) the amount of such taxes which were deemed paid or accrued in such taxable year under section 904(c) and which are attributable to taxable years preceding the unused credit year, plus (iii) the amount of the foreign oil and gas taxes which by reason of this subsection are deemed paid or accrued in such taxable year and are attributable to taxable years preceding the unused credit year. (3) Special rules(A) In the case of any taxable year which is an unused credit year under this subsection and which is an unused credit year under section 904(c), the provisions of this subsection shall be applied before section 904(c). (B) For purposes of determining the amount of taxes paid or accrued in any taxable year which may be deemed paid or accrued in a preceding or succeeding taxable year under section 904(c), any tax deemed paid or accrued in such preceding or succeeding taxable year under this subsection shall be considered to be tax paid or accrued in such preceding or succeeding taxable year. (4) Transition rules for pre-2009 and 2009 disallowed credits(A) Pre-2009 creditsIn the case of any unused credit year beginning before January 1, 2009, this subsection, as in effect on the day before the date of the enactment of the Energy Improvement and Extension Act of 2008, shall apply to unused oil and gas extraction taxes carried from such unused credit year to a taxable year beginning after December 31, 2008. (B) 2009 creditsIn the case of any unused credit year beginning in 2009, the amendments made to this subsection by the Energy Improvement and Extension Act of 2008 shall be treated as being in effect for any preceding year beginning before January 1, 2009, solely for purposes of determining how much of the unused foreign oil and gas taxes for such unused credit year may be deemed paid or accrued in such preceding year.

26 U.S.C. § 908 Reduction of credit for participation in or cooperation with an international boycott

(a) In generalIf a person, or a member of a controlled group (within the meaning of section 993(a)(3)) which includes such person, participates in or cooperates with an international boycott during the taxable year (within the meaning of section 999(b)), the amount of the credit allowable under section 901 to such person, or under section 960 to United States shareholders of such person, for foreign taxes paid during the taxable year shall be reduced by an amount equal to the product of—(1) the amount of the credit which, but for this section, would be allowed under section 901 for the taxable year, multiplied by (2) the international boycott factor (determined under section 999). (b) Application with sections 275(a)(4) and 78Section 275(a)(4) and section 78 shall not apply to any amount of taxes denied credit under subsection (a).

26 U.S.C. § 909 Suspension of taxes and credits until related income taken into account

(a) In generalIf there is a foreign tax credit splitting event with respect to a foreign income tax paid or accrued by the taxpayer, such tax shall not be taken into account for purposes of this title before the taxable year in which the related income is taken into account under this chapter by the taxpayer. (b) Special rules with respect to specified 10-percent owned foreign corporationsIf there is a foreign tax credit splitting event with respect to a foreign income tax paid or accrued by a specified 10-percent owned foreign corporation (as defined in section 245A(b) without regard to paragraph (2) thereof), such tax shall not be taken into account—(1) for purposes of section 960, or (2) for purposes of determining earnings and profits under section 964(a), before the taxable year in which the related income is taken into account under this chapter by such specified 10-percent owned foreign corporation or a domestic corporation which is a United States shareholder with respect to such specified 10-percent owned foreign corporation. (c) Special rulesFor purposes of this section—(1) Application to partnerships, etc. In the case of a partnership, subsections (a) and (b) shall be applied at the partner level. Except as otherwise provided by the Secretary, a rule similar to the rule of the preceding sentence shall apply in the case of any S corporation or trust. (2) Treatment of foreign taxes after suspensionIn the case of any foreign income tax not taken into account by reason of subsection (a) or (b), except as otherwise provided by the Secretary, such tax shall be so taken into account in the taxable year referred to in such subsection (other than for purposes of section 986(a)) as a foreign income tax paid or accrued in such taxable year. (d) DefinitionsFor purposes of this section—(1) Foreign tax credit splitting eventThere is a foreign tax credit splitting event with respect to a foreign income tax if the related income is (or will be) taken into account under this chapter by a covered person. (2) Foreign income taxThe term “foreign income tax” means any income, war profits, or excess profits tax paid or accrued to any foreign country or to any possession of the United States. (3) Related incomeThe term “related income” means, with respect to any portion of any foreign income tax, the income (or, as appropriate, earnings and profits) to which such portion of foreign income tax relates. (4) Covered personThe term “covered person” means, with respect to any person who pays or accrues a foreign income tax (hereafter in this paragraph referred to as the “payor”)—(A) any entity in which the payor holds, directly or indirectly, at least a 10 percent ownership interest (determined by vote or value), (B) any person which holds, directly or indirectly, at least a 10 percent ownership interest (determined by vote or value) in the payor, (C) any person which bears a relationship to the payor described in section 267(b) or 707(b), and (D) any other person specified by the Secretary for purposes of this paragraph. (e) RegulationsThe Secretary may issue such regulations or other guidance as is necessary or appropriate to carry out the purposes of this section, including regulations or other guidance which provides—(1) appropriate exceptions from the provisions of this section, and (2) for the proper application of this section with respect to hybrid instruments.