EVERYTHING YOU WANTED TO KNOW ABOUT FOREIGN TAX CREDITS

Generally, the following four tests must be met for any foreign tax to qualify for the credit:

1. The tax must be imposed on you
2. You must have paid or accrued the tax
3. The tax must be the legal and actual foreign tax liability
4. The tax must be an income tax (or a tax in lieu of an income tax)

Tax Must Be Imposed on You

You can claim a credit only for foreign taxes that are imposed on you by a foreign country or U.S. possession. For example, a tax that is deducted from your wages is considered to be imposed on you.

Foreign Country

A foreign country includes any foreign state and its political subdivisions. Income, war profits, and excess profits taxes paid or accrued to a foreign city or province qualify for the foreign tax credit.

U.S. Possessions

For foreign tax credit purposes, all qualified taxes paid to U.S. possessions are considered foreign taxes.  For this purpose, U.S. possessions include Puerto Rico and American Samoa.

Tax Must Be Paid Or Accrued

You can claim a credit only if you paid or accrued the foreign tax to a foreign country or U.S. possession.

Joint Return

If you file a joint return, you can claim the credit based on the total of any foreign income tax paid or accrued by you and your spouse.

Combined Income

If foreign tax is imposed on the combined income of two or more persons (for example, spouses), the tax is allocated among, and considered paid by, these persons on a pro rata basis in proportion to each person's portion of the combined income.

Example. You and your spouse reside in Country X, which imposes income tax on your combined incomes. Your filing status on your U.S. income tax return is married filing separately. If you earned 60% of the combined income, you can claim only 60% of the foreign taxes imposed on your income on your U.S income tax return. Your spouse can claim only 40%.

Mutual Fund Shareholder

If you are a shareholder of a mutual fund, or other regulated investment company (RIC), you may be able to claim the credit based on your share of foreign income taxes paid by the fund if it chooses to pass the credit on to its shareholders. You should receive from the mutual fund a Form 1099-DIV, or similar statement, showing the foreign country or U.S. possession, your share of the foreign income, and your share of the foreign taxes paid. If you do not receive this information, you will need to contact the fund.

Tax Must Be the Legal and Actual Foreign Tax Liability

Your qualified foreign tax is only the legal and actual foreign tax liability that you paid or accrued during the year. The amount of foreign tax that qualifies is not necessarily the amount of tax withheld by the foreign country. The amount of the foreign tax that qualifies for the credit must be reduced by any refunds of foreign tax made by the government of the foreign country or the U.S. possession.

Example 1:  You received a $1,000 payment of interest from a Country A investment.  
Country A’s withholding tax rate on interest income is 30% ($300), but you are eligible for a reduced treaty withholding rate of 15% ($150) if you provide a reduced withholding statement/certificate to the withholding agent. Your qualified foreign tax is limited to $150 based on your eligibility for the  reduced treaty rate, even if $300 is actually withheld because you failed to provide the required withholding statement/certificate.

Example 2:  You are sent to Country A by your U.S. employer to work for two weeks. You earn $2,500 while in Country A. Under Country A tax law, non-residents are not taxed on personal services income earned in the country if working for a non-Country A employer, earn less than $3,000, and are in the country for less than 30 days. However, in order to leave Country A, you are required to pay tax on the $2,500, but you can file a claim for refund and have the full amount of tax refunded to you later. Because it is fully refundable, none of the tax is a qualified tax, whether or not you file a refund claim with Country A.      

Example 3:  You are a shareholder of a French corporation. You receive a $100 refund of the tax paid to France by the corporation on the earnings distributed to you as dividend. The French government imposes a 15% withholding tax ($15) on the refund you received. You receive a check for $85. You include the $100 in your income. The $15 of tax withheld is a qualified foreign tax.

Tax Must Be an Income Tax or Tax In Lieu of Income Tax

Generally, only income, war profits, and excess profits taxes (collectively referred to as income taxes) qualify for the foreign tax credit. Foreign taxes on wages, dividends, interest, and royalties generally qualify for the credit. The tax must be a levy that is not payment for a specific economic benefit and the predominant character of the tax must be that of an income tax in the U.S. sense.

A foreign tax is not an income tax and does not qualify for the foreign tax credit to the extent it is a soak-up tax. A soak-up tax is a foreign tax that is assessed only if a tax credit is available to the taxpayer. This rule only applies if and to the extent the foreign tax would not be imposed if the credit were not available.

Foreign taxes on income can qualify even though they are not imposed under an income tax law if the tax is in lieu of an income, war profits, or excess profits tax. The tax must be a foreign levy that is not payment for a specific economic benefit and the tax must be imposed in place of, and not in addition to, an income tax otherwise generally imposed.

See Publication 54, Tax Guide for U.S. Citizens and Resident Aliens Abroad, for Taxes in Lieu of Income Taxes.  Examples of such taxes in lieu of foreign income taxes may include:

1. The gross income tax imposed on nonresidents on income not attributable to a trade or business in the country, where residents with a trade or business are generally taxed on realized net income.
2. A tax imposed on gross income, gross receipts or sales, or the number of units produced or exported.

If a foreign country imposes a tax in lieu of an income tax that is a soak-up tax imposed in lieu of an income tax, the amount that does not qualify for the foreign tax credit is the lesser of:

1. the amount of the tax that would not be imposed unless a foreign tax credit would be available; or
2. the foreign tax you paid that is more than the amount you would have paid if you had been subject to the generally imposed income tax.

Foreign Taxes for Which You Cannot Take a Credit

The following are some foreign taxes for which you cannot take a foreign tax credit:

• Taxes on excluded income (such as the foreign earned income exclusion),
• Taxes for which you can only take an itemized deduction,
• Taxes on foreign mineral income,
• Taxes from international boycott operations,
• A portion of taxes on combined foreign oil and gas income,
• Taxes of U.S. persons controlling foreign corporations and partnerships who fail to file required information returns,
• Taxes related to a foreign tax splitting event, and
• Social security taxes paid or accrued to a foreign country with which the United States has a social security agreement. For more information about these agreements, refer to Totalization Agreements.

Reduction in Total Foreign Taxes Available for Credit

You must reduce your foreign taxes available for the credit by the amount of those taxes paid or accrued on income that is excluded from U.S. income under the foreign earned income exclusion or the foreign housing exclusion.   Need help taking a foreign tax credit in addition to the foreign earned income exclusion or in lieu of that exclusion?  Email us at ddnelson@gmail.com for a mini consultation.