Читать книгу International Taxation - Adnan Islam - Страница 27

An IC-DISC is a separate (legal) C corporation that acts as a sales commission agent for a U.S. agricultural, food manufacturing, or distributing exporter (the exporting entity). The IC-DISC is by design and by operation of tax law within the IRC more form over substance. In the IRS audit guide, it is apparent that the form, including documentation and a completely thorough and accurate IC-DISC [formal] election, are crucial for the qualification and maintenance for the IC-DISC tax beneficial status.

An IC-DISC does not need employees or office space and does not have to perform any services or participate in any sales to earn a commission. The entity is required to maintain a separate set of books and records, including a separate bank account. It may have only one class of stock and must, at all times, have stock outstanding with a par or stated value of at least $2,500. Any type of entity or individual can own an IC-DISC. In most situations, ownership should be held by an individual or flow-through entity (an LLC, partnership, or S corporation) for the greatest tax benefit. If the exporting entity is one of these pass-through entities, the IC-DISC can even be formed as a subsidiary. However, if the exporting entity is a C corporation, the IC-DISC should be set up as a sibling to the exporting entity rather than a subsidiary, and it should generally be owned by the exporting entity’s individual shareholders.

Note that the shareholders of the IC-DISC do not need to be the same as the shareholders of the exporting company. An IC-DISC can be used to provide a benefit to key employees or as a tool in estate and or succession planning.

An IC-DISC is also allowed to have foreign shareholders as long as the foreign shareholder agrees that any distribution (actual or deemed) is income effectively connected with a U.S. permanent establishment. The dividends paid from an IC-DISC to its shareholders are generally considered to be foreign-source income. This makes the use of an IC-DISC particularly valuable to U.S. shareholders with passive foreign tax credit carryovers.