IRS issues form 8991 for base erosion and anti-abuse tax

The Tax Cuts and Jobs Act added a new provision to the Internal Revenue Code called the “Base Erosion and Anti-abuse Tax” (BEAT Tax). The IRS recently issued IRS Form 8991, Tax on Base Erosion Payments of Taxpayers with Substantial Gross Receipts, which taxpayers will use to report their tax liability under the BEAT Tax provisions. Both the BEAT Tax provision and Form 8991 have important implications for accounting professionals and their businesses.

What is base erosion and anti-abuse tax?

In short, the base erosion and anti-abuse tax is an additional minimum tax imposed on certain corporations that make certain base erosion payments to foreign related parties. The base erosion and anti-abuse tax applies to large corporations with at least $500 million in gross receipts. The new tax is effective for taxable years beginning after December 31, 2017.  

The BEAT does not apply to individuals, S corporations, RICs or REITs. There is also a de minimis exception for companies whose foreign related party payments are low relative to overall deductions.

Base erosion and anti-abuse tax calculation

Once you've determined that the base erosion and anti-abuse tax in fact applies to your business, it's important to know how much this tax is valued. The base erosion and anti-abuse tax is generally calculated by taking 10 percent of modified taxable income. The rate is 5 percent for years beginning in 2018 to help phase-in the new regime. It increases to 12.5 percent for years beginning after 2025.

Deductible payments to related foreign persons are added back to taxable income to arrive at modified taxable income.

There is also an “add back” for depreciation and amortization deductions associated with property acquired from related foreign persons.  A foreign person is considered a “related person” if it owns at least 25 percent of the stock of the taxpayer (by vote or value) or satisfies other control tests.

What is Form 8991?

The Internal Revenue Code's Form 8991 consists of four parts and two schedules.

Form 8991 IRS Part 1, Applicable Taxpayer, requires the taxpayer to report gross receipts and calculate its base erosion percentage to determine if the tax applies for the current year.

Form 8991 Schedule A is required if a corporation has average annual gross receipts of $500 million or more for the 3-tax-year period ending with the preceding tax year. This schedule requires a taxpayer to report all amounts that are base erosion payments as defined in section 59A(d) and base erosion tax benefits as defined in section 59A(c)(2). This schedule also requires a taxpayer to report any amounts that qualify for certain exceptions applicable to amounts that are not treated as base erosion payments.

Form 8991 IRS Part 2 calculates Modified Taxable Income. Modified taxable income is the taxpayer’s taxable income determined without regard to any base erosion tax benefit with respect to any base erosion payment or the base erosion percentage of any net operating loss allowable for the tax year.

Form 8991 Part 3 is the Regular Tax Liability Adjusted for Purposes of Computing the Base Erosion Minimum Tax Amount. This section takes into account the regular tax liability, as adjusted for allowable tax credits, under the BEAT regime.

Any adjustments to allowable credits are computed on Schedule B.

Part 4 is the computation of the Base Erosion Minimum Tax Amount. This amount is reported as follows:

Form 1120               Schedule J, Line 3

Form 1120-F           Section II, Schedule J, Line 3

Form 1120-L            Schedule K, Line 3

Form 1120-PC         Page 1, Line 6

Any large company that wants to “defeat the BEAT” will have to review their deductible payments tied to related foreign affiliates, determine if certain exceptions apply, and, if not, evaluate whether restructuring is appropriate to minimize amounts added back to taxable income for purposes of the BEAT provisions.

Learn more about the base erosion and anti-abuse tax and how it impacts your business at the Becker CPE blog.

The content contained in this article is for informational purposes only and is not tax advice. You should consult a tax advisor for advice applicable to your situation.