§ 1.1502-4 - Consolidated foreign tax credit.

§ 1.1502-4 Consolidated foreign tax credit.

Cross Reference

Link to an amendment published at 85 FR 72072, Nov. 12, 2020.

(a) In general. The foreign tax credit under section 901 for taxes paid or accrued to any foreign country or possession of the United States shall be is allowed to the group only if the common parent corporation agent for the group (as defined in § 1.1502-77(a)) chooses to use such the credit in the computation of the consolidated tax liability of the group for the consolidated return year. If this that choice is made, section 275(a)(4) provides that no deduction against taxable income may be taken on the consolidated return for such foreign taxes paid or accrued by any member of the group. See . However, if section 275(a)(4) .

(b) Limitation effective under section 904(a) for the group -

(1) Common parent's limitation effective for group. The determination of whether the overall limitation or the per-country limitation applies for a consolidated return year shall be made by reference to the limitation effective with respect to the common parent corporation for such year. If the limitation effective with respect to a member for its immediately preceding separate return year differs from the limitation effective with respect to the common parent corporation for the consolidated return year, then such member shall, if the overall limitation is effective with respect to the common parent, be deemed to have made an election to use such overall limitation, or, if the per-country limitation is effective with respect to the common parent, be deemed to have revoked its election to use the overall limitation. Consent of the Secretary or his delegate (if otherwise required) is hereby given to such member for such election or revocation. Any such election or revocation shall apply only prospectively beginning with such consolidated return year.

(2) Limitation effective for subsequent years. The limitation effective with respect to a member for the last year for which it joins in the filing of a consolidated return with a group shall remain in effect for a subsequent separate return year and may be changed by such corporation for such subsequent year only in accordance with the provisions of section 904(b) (and this paragraph if it joins in the filing of a consolidated return with another group). Any retroactive change in the limitation by the common parent corporation for such member's last consolidated return year shall change the election effective with respect to such member for such last period. Thus, if the common parent (P) elects the overall limitation with respect to calendar year 1966, such election would be effective with respect to its subsidiary S for 1966. If S leaves the group at the beginning of calendar year 1967, such election shall be effective for 1967 with respect to S (unless S revokes such election for 1967 or a subsequent year in accordance with section 904(b), or this paragraph if it joins in the filing of a consolidated return with another group). However, if P retroactively changes back to the per-country limitation with respect to 1966, such limitation would be effective with respect to S for 1966 and subsequent years (unless S elects the overall limitation for any such subsequent year).

(c) Computation of consolidated

does not apply, a deduction against consolidated taxable income may be allowed for certain taxes for which a credit is not allowed, even though the choice is made to claim a credit for other taxes. See, for example, sections 901(j)(3), 901(k)(7), 901(l)(4), 901(m)(6), and 908(b).

(b) Computation of foreign tax credit. The foreign tax credit for the consolidated return year

shall be

is determined on a consolidated basis under the principles of sections 901 through

905

909 and

section

960.

For example, if the per-country limitations applies to the consolidated return year,

All foreign income taxes paid or accrued by members of the group for

such

the year (including those deemed paid

or accrued

under

sections 902 and 960(a)

section 960 and paragraph (

e

d) of this section)

to each foreign country or possession by the members of the group shall

must be aggregated.

If the overall limitation applies, taxes paid or accrued for such year (including those deemed paid or accrued) to all foreign countries and possessions by members of the group shall be aggregated. If the overall limitation applies and a member of the group qualifies as a Western Hemisphere trade corporation, see section 1503(b). (d)

(c) Computation of limitation on credit. For purposes of computing the group's

applicable limitation

limiting fraction under section 904

(a)

, the following rules

shall

apply:

(1) Computation of taxable income from foreign sources -

(i) Separate categories. The group must compute a separate foreign tax credit limitation for income in each separate category (as defined in § 1.904-5(a)(4)(v)) for purposes of this section. The numerator of the

applicable

limiting fraction in any separate category is the consolidated taxable income of the group determined in accordance with § 1.1502-11, taking into account adjustments required under section 904(

a) shall be an amount (not in excess of the amount determined under subparagraph (2) of this paragraph) equal to the aggregate of the separate taxable incomes of the members from sources within each foreign country or possession of the United States (if the per-country limitation is applicable), or from sources without the United States (if the overall limitation is applicable), determined under § 1.1502-12, adjusted for the following items taken into account in the computation of consolidated taxable income:

(i) The portion of the consolidated net operating loss deduction, the consolidated charitable contributions deduction, the consolidated dividends received deduction, and the consolidated section 922 deduction, attributable to such foreign source income;

(ii) Any such foreign source capital gain net income (net capital gain for taxable years beginning before January 1, 1977) (determined without regard to any net capital loss carryover or carryback);

(iii) Any such foreign source net capital loss and section 1231 net loss, reduced by the portion of the consolidated net capital loss attributable to such foreign source loss; and

(iv) The portion of any consolidated net capital loss carryover or carryback attributable to such foreign source income which is absorbed in the taxable year.

(2) Computation of entire taxable income. The denominator of the applicable limiting fraction under section 904(a) (that is, the entire taxable income of the group) shall be the consolidated taxable income of the group computed

b), if any, from sources without the United States in that category, determined in accordance with the rules of §§ 1.904-4 and 1.904-5 and the section 861 regulations (as defined in § 1.861-8(a)(1)).

(ii) Adjustments under sections 904(f) and (g). The rules for allocation and recapture of separate limitation losses and overall foreign losses under section 904(f) and § 1.1502-9 apply to determine the foreign source and U.S. source taxable income in each separate category of the consolidated group. Similarly, the rules for allocation and recapture of overall domestic losses under section 904(g) and § 1.1502-9 apply to determine the foreign source and U.S. source taxable income in each separate category of the consolidated group. See § 1.904(g)-3 for allocation rules under sections 904(f) and 904(g). The rules of sections 904(f) and 904(g) do not operate to recharacterize foreign income tax attributable to any separate category.

(iii) Computation of consolidated net operating loss. The source and separate category of the group's consolidated net operating loss (“CNOL”), as that term is defined in § 1.1502-21(e), for the taxable year, if any, is determined based on the amounts of any separate limitation losses and U.S. source loss that are not allocated to reduce U.S. source income or income in other separate categories under the rules of sections 904(f) and 904(g) in computing the group's consolidated foreign tax credit limitations for the taxable year under paragraphs (c)(1)(i) and (ii) of this section.

(iv) Characterization of CNOL carried to a separate return year -

(A) In general. The total amount of CNOL attributable to a member that is carried to a separate return year is determined under the rules of § 1.1502-21(b)(2). The source and separate category of the portion of the CNOL that is attributable to a member is determined under this paragraph (c)(1)(iv).

(B) Tentative apportionment. For the portion of the CNOL that is attributable to the member described in paragraph (c)(1)(iv) of this section, the consolidated group determines a tentative allocation and apportionment to each statutory and residual grouping (as described in § 1.861-8(a)(4) with respect to section 904 as the operative section) under the principles of § 1.1502-9(c)(2)(i), (ii), (iv), and (v) by treating the portion of the group's CNOL in each statutory and residual grouping as if it were a CSLL account, as that term is described in § 1.1502-9(b)(4). This determination is made as of the end of the taxable year of the consolidated group in which the CNOL arose or, if earlier and applicable, when the member leaves the consolidated group.

(C) Adjustments.

(1) If the total tentative apportionment for all statutory and residual groupings exceeds the portion of the CNOL attributable to the member described in paragraph (c)(1)(iv)(A) of this section (the “excess amount”), then the tentative apportionment in each grouping is reduced by an amount equal to the excess amount multiplied by a fraction, the numerator of which is the tentative apportionment in that grouping, and the denominator of which is the total tentative apportionments in all groupings.

(2) If the total tentative apportionment for all statutory and residual groupings is less than the total CNOL attributable to the member described in paragraph (c)(1)(iv)(A) (the “deficiency”), then the tentative apportionment in each grouping is increased by an amount equal to the deficiency multiplied by a fraction, the numerator of which is the CNOL in that grouping that was not tentatively apportioned, and the denominator of which is the total CNOL in all groupings that was not tentatively apportioned.

(v) Consolidated net capital losses. The principles of the rules in paragraphs (c)(1)(i) through (iv) of this section apply for purposes of determining the source and separate category of consolidated net capital losses described in § 1.1502-22(e).

(2) Computation of consolidated taxable income. The denominator of the limiting fraction in any separate category is the consolidated taxable income of the group determined in accordance with § 1.1502-11, taking into account adjustments required under section 904(b), if any.

(3) Computation of tax against which credit is taken. The tax against which the limiting fraction under section 904(a) is applied will be the consolidated tax liability of the group determined under § 1.1502-2, but without regard to

paragraphs

§ 1.1502-2(a)(2)

,

through (

3), (

4)

,

and (8)

,

and (9)

of that section

, and without regard to any credit against such liability. See sections 26(

e)

b) and 901(a).

(d) Carryover and carryback of unused foreign tax -

(1) Allowance of unused foreign tax as consolidated carryover or carryback. The

aggregate of the consolidated unused foreign tax carryovers and carrybacks to the taxable year, to the extent absorbed for such year

consolidated group's carryovers and carrybacks of unused foreign tax (as defined in § 1.904-2(c)(1)) to the taxable year is determined on a consolidated basis under the principles of section 904(

d), shall be

c) and § 1.904-2 and is deemed to be paid or accrued to a foreign country or possession for

such

that year. The consolidated group's unused foreign tax carryovers and carrybacks to the taxable year

shall

consist of any

consolidated

unused foreign tax of the consolidated group, plus any unused foreign tax of members for separate return years

of such members

, which may be carried over or back to the taxable year under the principles of section 904(

d

c) and

(e). However, such consolidated

§ 1.904-2. The consolidated group's unused foreign tax carryovers and carrybacks

shall

do not include any

consolidated

unused foreign taxes apportioned to a corporation for a separate return year pursuant to § 1.1502-79(d)

and shall be subject to the limitations contained in paragraphs (f) and (g) of this section

. A consolidated group's unused foreign tax in each separate category is the excess of the foreign taxes paid

or

, accrued

by the group (

or deemed paid

or accrued

under section 960 by the

group, other than by reason of section 904(d)

consolidated group over the limitation in the applicable

limitation

separate category for the consolidated return year. See paragraph (c) of this section.

(2) Absorption rules. For purposes of determining the amount, if any, of an unused foreign tax

(consolidated or separate)

which can be carried to a taxable year (whether a consolidated or separate return year), the amount of

such

the unused foreign tax

which

that is absorbed in a prior consolidated return year under section 904(

d

c) shall be determined by

:

-

(i) Applying all unused foreign taxes which can be carried to

such

a prior year in the order of the taxable years in which

such

those unused foreign taxes arose, beginning with the taxable year

which

that ends earliest

,

; and

(ii) Applying all

such

unused foreign taxes which can be carried to such prior year from taxable years ending on the same date on a pro rata basis.

(

f) Limitation on unused foreign tax carryover or carryback from separate return limitation years -

(1) General rule. In the case of an unused foreign tax of a member of the group arising in a separate return limitation year (as defined in paragraph (f) of § 1.1502-1) of such member, the amount which may be included under paragraph (e) of this section (computed without regard to the limitation contained in paragraph (g) of this section) shall not exceed the amount determined under subparagraph (2) of this paragraph.

(2) Computation of limitation. The amount referred to in subparagraph (1) of this paragraph with respect to a member of the group is the excess, if any, of:

(i) The section 904(a) limitation of the group, minus such limitation recomputed by excluding the items of income and deduction of such member, over

(ii) The sum of (a) the foreign taxes paid (or deemed paid, other than by reason of section 904(d)) by such member for the consolidated return year, and (b) the unused foreign tax attributable to such member which may be carried to such consolidated return year arising in taxable years ending prior to the particular separate return limitation year.

(3) Limitation on unused foreign tax credit carryover or carryback from separate return limitation years. Paragraphs (f)(1) and (2) of this section do not apply for consolidated return years for which the due date of the income tax return (without extensions) is after March 13, 1998. For consolidated return years for which the due date of the income tax return (without extensions) is after March 13, 1998, a group shall include an unused foreign tax of a member arising in a SRLY without regard to the contribution of the member to consolidated tax liability for the consolidated return year. See also § 1.1502-3(d)(4) for an optional effective date rule (generally making the rules of paragraphs (f)(1) and (2) of this section also inapplicable to a consolidated return year beginning on or after January 1, 1997, if the due date of the income tax return (without extensions) for such year is on or before March 13, 1998).

(g) Limitation on unused foreign tax carryover where there has been a consolidated return change of ownership -

(1) General rule. If a consolidated return change of ownership (as defined in paragraph (g) of § 1.1502-1) occurs during the taxable year or an earlier taxable year, the amount which may be included under paragraph (e) of this section in the consolidated unused foreign tax carryovers to the taxable year with respect to the aggregate unused credits attributable to the old members of the group (as defined in paragraph (g)(3) of § 1.1502-1) arising in taxable years (consolidated or separate) ending on the same day and before the taxable year in which the consolidated return change of ownership occurred shall not exceed the amount determined under subparagraph (2) of this paragraph.

(2) Computation of limitation. The amount referred to in subparagraph (1) of this paragraph shall be the excess of the section 904(a) limitation of the group for the taxable year, recomputed by including only the items of income and deduction of the old members of the group, over the sum of:

(i) The aggregate foreign taxes paid (or deemed paid, other than by reason of section 904(d)) by the old members for the taxable year, and

(ii) The aggregate unused foreign tax attributable to the old members which can be carried to the taxable year arising in taxable years ending prior to the particular unused foreign tax year or years.

(3) Special effective date for CRCO limitation. Paragraphs (g)(1) and (2) of this section apply only to a consolidated return change of ownership that occurred during a consolidated return year for which the due date of the income tax return (without extensions) is on or before March 13, 1998. See also § 1.1502-3(d)(4) for an optional effective date rule (generally making the rules of paragraph (g)(1) and (2) of this section also inapplicable if the consolidated return change of ownership occurred on or after January 1, 1997, and during a consolidated return year for which the due date of the income tax return (without extensions) is on or before March 13, 1998).

(h) Amount of credit with respect to interest income. If any member of the group has interest income described in section 904(f)(2) (for a year for which it filed on a consolidated or separate basis), the group's foreign tax credit with respect to such interest shall be computed separately in accordance with the principles of section 904(f) and this section.

(i) [Reserved]

(j) Examples. The provisions of this section may be illustrated by the following examples:

Example 1.

e) Example. The following example illustrates the application of this section:

(1) Facts.

(i) Domestic corporation P is incorporated on January 1,

1966

Year 1. On that same day

it also

, P incorporates domestic corporations S and T

,

as wholly owned subsidiaries. P, S, and T file consolidated returns for

1966

Years 1 and

1967

2 on the basis of a calendar year. T engages in business solely through a qualified business unit in

country

Country A. S

transacts

engages in business solely through qualified business units in

countries

Countries A and B. P does business solely in the United States. During

1966

Year 1, T sold an item of inventory to P at a

profit

gain of $2,000. Under § 1.1502-13

(as contained in the 26 CFR part 1 edition revised as of April 1, 1995) such profit is deferred and none of the circumstances of restoration contained in paragraph (d), (e), or (f) of § 1.1502-13 have occurred as of the close of 1966. The taxable income for 1966 from foreign and United States Total

the intercompany gain has not been taken into account as of the close of Year 1. The taxable income of each member for Year 1 from foreign and U.S. sources, and the foreign taxes paid on such foreign income, are as follows:

Table 1 to Paragraph (e)(1)(i)

Corporation	U.S. source taxable income

Country A Country B

Foreign branch
category foreign
source taxable
income

Taxable income

Foreign branch
category foreign
tax paid

Taxable

Total taxable
income

Foreign tax paid

P	$40,000			$40,000
T		$20,000	$12,000	20,000
S

10

20,000

6

9,000

$10

20,000

$3

Group

40,000

20

40,000

$80

21,000

Such

80,000

(ii) The separate taxable income of each member was computed by taking into account the rules

provided in

under § 1.1502-12.

Thus, the

Accordingly, T's intercompany gain of $2,000

deferred profit

is not included in T's taxable income for

1966 (but will be included for the taxable year for which one of the events specified in paragraph (d), (e), or (f) of § 1.1502-13 occurs). The consolidated taxable income of the group

Year 1. The group's consolidated taxable income (computed in accordance with § 1.1502-11) is $80,000. The consolidated tax liability against which the credit may be taken (computed in accordance with paragraph (

d

c)(3) of this section) is

$31

$16,

900

800.

(

i) Assuming P chooses to use the foreign taxes paid as a credit and the group is subject to the per-country limitation, the group may take as a credit against the consolidated tax liability $11,962.50 of the amount paid to country A, plus the $3,000 paid to country B. Such amounts are computed as follows: The aggregate taxes paid to country A of $18,000 is limited to $11,962.50 ($31,900 times $30,000/$80,000). The unused foreign tax with respect to country A is $6,037.50 ($18,000 less $11,962.50), and is a consolidated unused foreign tax which shall be carried to the years prescribed by section 904(d). A credit of $3,000 is available with respect to the taxes paid to country B since such amount is less than the limitation of $3,987.50 ($31,900 times $10,000/$80,000). (ii) Assuming the overall limitation is in effect for the taxable year, the group may take $15,950 as a credit, computed as follows: The aggregate taxes paid to all foreign countries of $21,000 is limited to $15,950 ($31,900 times

2) Analysis. Under section 904(d) and paragraph (c)(1)(i) of this section, the aggregate amount of foreign income taxes paid to all foreign countries with respect to the foreign branch category income of $21,000 ($12,000 + $9,000) that may be claimed as a credit in Year 1 is limited to $8,400 ($16,800 × $40,000/$80,000).

The unused foreign tax is $5,050 ($21,000 less $15,950), and is a consolidated unused foreign tax which shall be carried to the years prescribed by section 904(d).

Example 2.

Assume the same facts as in example (1), except that T has a $10,000 long-term capital gain (derived from a sale to a nonmember in country A) and P has a $10,000 long-term capital loss (derived from a sale to a nonmember in the United States). Notwithstanding that the consolidated net capital gain (capital gain net income for taxable years beginning after December 31, 1976) of the group is zero, T's capital gain shall be reflected in full in the computation of taxable income from foreign sources.

Example 3.

Assume the same facts as in example (1), except that the group had a consolidated section 172 deduction of $8,000 which is attributable to a net operating loss sustained by T. The $8,000 consolidated net operating loss deduction is offset against T's income from country A, thus reducing T's taxable income from country A to $12,000

Assuming P, as the agent for the group, chooses to use the foreign taxes paid as a credit, the group may claim a $8,400 foreign tax credit.

(f) Applicability date. This section applies to taxable years for which the original consolidated Federal income tax return is due (without extensions) after January 11, 2021.

[T.D. 68949922, 31 85 FR 11794, Sept. 8, 1966, as amended by T.D. 7728, 45 FR 72650, Nov. 3, 1980; T.D. 8597, 60 FR 36679, July 18, 1995; T.D. 8766, 63 FR 12642, Mar. 16, 1998; T.D. 8884, 65 FR 33758, May 25, 2000; T.D. 9885, 84 FR 67039, Dec. 6, 201972072, Nov. 12, 2020]