[Code of Federal Regulations] [Title 26, Volume 1] [Revised as of April 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 26CFR1.58-7] [Page 528-541] TITLE 26--INTERNAL REVENUE CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY PART 1--INCOME TAXES--Table of Contents Sec. 1.58-7 Tax preferences attributable to foreign sources; preferences other than capital gains and stock options. (a) In general. Section 58(g)(1) provides that except in the case of the stock options item of tax preference (section 57(a)(6) and Sec. 1.57-1(f)) and the capital gains item of tax preference (section 57(a)(9) and Sec. 1.57-1(i)), items of tax preference which are attributable to sources within any foreign country or possession of the United States shall, for purposes of section 56, be taken into account only to the extent that such items reduce the tax imposed by chapter 1 (other than the minimum tax under section 56) on income derived from sources within the United States. Items of tax preference from sources within any foreign country or possession of the United States reduce the chapter 1 tax on income from sources within the United States to the extent the deduction relating to such preferences, in combination with other foreign deductions, exceed the income from such sources and, in effect, offset income from sources within the United States. Items of tax preference, for this purpose, are determined after application of Sec. 1.57-4 (relating to limitation on amounts treated as items of tax preference). In the case of a taxpayer who deducted foreign taxes under section 164 for a taxable year, the provisions of this section shall be applied (without regard to section 275(a)(4)) as if he had elected the overall foreign tax credit limitation under section 904(a) (2) for such year. (b) Preferences attributable to foreign sources--(1) Preferences other than excess investment interest. Except in the case of excess investment interest (see subparagraph (2) of this paragraph), an item of tax preference to which this section applies is attributable to sources within a foreign country or possession of the United States to the extent such item is attributable to a deduction properly allocable or apportionable to an item or class of gross income from sources within a foreign country or possession of the United States under the principles of section 862(b), or section 863, and the regulations thereunder. Where, in the case of income partly from sources within the United States and partly from sources within a foreign country or possession of the United States, taxable income is computed before apportionment to domestic and foreign sources, and is then apportioned by processes or formulas of general apportionment (pursuant to section 863(b) and the regulations thereunder), deductions attributable to such taxable income are considered to be proportionately from sources within the United States and within the foreign country or possession of the United States on the same basis as taxable income. (2) Excess investment interest--( i) Per-country limitation. (a) In the case of a taxpayer on the per-country foreign tax credit limitation under section 904(a) for the taxable year, excess investment interest (as defined in section 57(b)(1)), and the resulting item of tax preference, is attributable to sources within a foreign country or a possession of the United States to the extent that investment interest expense attributable to income from sources within such foreign country or possession of the United States exceeds the net investment income from sources within such foreign country or such possession. For this purpose, net investment income from within a foreign country or possession of the United States is the excess (if any) of the investment income from sources within such country or possession over the investment expenses attributable to income from sources within such country or such possession. For the definition of investment interest expense see section 57(b)(2)(D); for the definition of investment income see section 57(b)(2)(B); for the definition of investment expense see section 57(b)(2)(C). [[Page 529]] (b) If the taxpayer's excess investment interest computed on a worldwide basis is less than the taxpayer's total separately determined excess investment interest (as defined in this subdivision (b)), the amount of the taxpayer's excess investment interest from each foreign country or possession is the amount which bears the same relationship to the taxpayer's excess investment interest from each such country or possession, determined without regard to this subdivision (b), as the taxpayer's worldwide excess investment interest bears to the taxpayer's total separately determined excess investment interest. For purposes of this subdivision (b), the taxpayer's total separately determined excess investment interest is the sum of the total excess investment interest determined without regard to this subdivision (b) plus the taxpayer's excess investment interest from sources within the United States determined in a manner consistent with (a) of this subdivision (i). (ii) Overall limitation. In the case of a taxpayer who has elected the overall foreign tax credit limitation under section 904(a)(2) for the taxable year, excess investment interest (as defined in section 57(b)(1)), and the resulting item of tax preference, is attributable to sources within any foreign country or possession of the United States to the extent that investment interest expense attributable to income from such sources exceeds the sum of (a) the net investment income from such sources plus (b) the excess, if any, of net investment income from sources within the United States over investment interest expense attributable to sources within the United States. For this purpose, net investment income from sources within any foreign country or possession of the United States is the excess (if any) of the investment income from all such sources over the investment expenses attributable to income from such sources. For the definition of investment interest expense see section 57(b)(2)(D) for the definition of investment income see section 57(b)(2)(B); for the definition of investment expense see section 57(b)(2)(C). (iii) Allocation of expenses. The determination of the investment interest expense and investment expenses attributable to a foreign country or possession of the United States is made in a manner consistent with subparagraph (1) of this paragraph. (iv) Attribution of certain interest deductions to foreign sources. Where net investment income from sources within any foreign country or possession has the effect of offsetting investment interest expense attributable to income from sources within the United States, the deductions for the investment interest expense so offset are, for purposes of Sec. 1.58-7(c) (relating to reduction in taxes on United States source income), treated as deductions attributable to income from sources within the foreign country or possession from which such net investment income is derived. Such an offset will occur where there is an excess of investment interest expense attributable to income from sources within the United States over net investment income from such sources and (a) in the case of a taxpayer on the per-country foreign tax credit limitation, an excess of net investment income from sources within a foreign country or possession of the United States over investment interest expense from within such foreign country or possession, or (b) in the case of a taxpayer who has elected the overall foreign tax credit limitation, there is an excess of net investment income from sources within foreign countries or possessions of the United States over investment interest expense attributable to income from within such sources. (v) Separate limitation on interest income. Where a taxpayer has income described in section 904(f)(2) (relating to interest income subject to the separate foreign tax credit limitation) or expenses attributable to such income, the determination of the excess investment interest resulting therefrom must be determined separately with respect to such income and the expenses properly allocable or apportionable thereto in the same manner as such determination is made in the case of a taxpayer on the per-country foreign tax credit limitation for the taxable year (see subdivision (i) of this subparagraph). (vi) Examples. The principles of this subparagraph may be illustrated by the [[Page 530]] following examples in each of which the taxpayer is an individual and a citizen of the United States: Example 1. The taxpayer's only items of income and deduction relating to excess investment interest are as follows: ---------------------------------------------------------------------------------------------------------------- United States France Germany Total ---------------------------------------------------------------------------------------------------------------- Investment income from sources within........................... $150,000 $120,000 $180,000 $450,000 Investment expenses relating to income from sources within...... (100,000) (90,000) (120,000) (310,000) ----------------------------------------------- Net investment income........................................... 50,000 30,000 60,000 140,000 Investment interest expense relating to income from sources (110,000) (70,000) (50,000) (230,000) within......................................................... ----------------------------------------------- (Excess) of investment interest expense over net investment (60,000) (40,000) *10,000 (90,000) income......................................................... ---------------------------------------------------------------------------------------------------------------- *Excess of net investment income over investment interest expense. (a) If the taxpayer has elected the overall foreign tax creditlimitation, his excess investment interest from sources within any foreign countries or possessions of the United States determined under subdivision (ii) of this subparagraph is computed as follows: Investment interest: French........................... ($70,000) German........................... (50,000) ($120,000) ------------ Net investment income: Investment income: French......................... 120,000 German......................... 180,000 $300,000 ------------ Less: Investment expenses: French......................... (90,000) German......................... (120,000) (210,000) 90,000 ------------------------------------ Excess of U.S. net income over investment interest expenses: Total foreign excess .......... ........... (30,000) investment interest......... ------------------------------------------------------------------------ (b) If the taxpayer is on the per-country foreign tax credit limitation, his excess investment interest from France and Germany determined under subdivision (i)(a) of this subparagraph is $40,000 and zero, respectively. Since the taxpayer's worldwide excess investment interest ($90,000) is less than his total separately determined excess investment interest ($60,000 (United States) plus $40,000 (French) plus zero (German), or $100,000), the limitation in subdivision (i) (b) of this subparagraph applies and the excess investment interest attributable to France is limited as follows: Total worldwide excess ($90,000)/Total separately determined excess ($100,000) x French excess ($40,000)=$36,000 The taxpayer's total excess investment interest attributable to sources within any foreign country or possession of the United States is, thus, $36,000 ($36,000 (French) plus zero (German)). The taxpayer's excess investment interest attributable to sources within the United States is $54,000 ($90,000/$100,000x$60,000). Since, in making the latter determination, $6,000 of the $60,000 of U.S. investment interest expense in excess of U.S. net investment income is, in effect, offset by German net investment income, for purposes of Sec. 1.58-7(c), $6,000 of interest deductions attributable to income from sources within the United States are, pursuant to subdivision (iv) of this subparagraph, treated as deductions attributable to income from sources within Germany. Example 2. Assume the same facts as in example (1) except that the items of income and deduction in Germany and the United States are reversed. The worldwide excess investment interest, thus, remains $90,000 and the items of income and deduction relating to excess investment interest are as follows: ---------------------------------------------------------------------------------------------------------------- United States France Germany Total ---------------------------------------------------------------------------------------------------------------- Investment income from sources within........................... $180,000 $120,000 $150,000 $450,000 [[Page 531]] Investment expenses relating to income from sources within...... (120,000) (90,000) (100,000) (310,000) ----------------------------------------------- Net investment income........................................... 60,000 30,000 50,000 140,000 Investment interest expense relating to income from sources (50,000) (70,000) (110,000) (230,000) within......................................................... ----------------------------------------------- (Excess) of investment interest expense over net investment 10,000 (40,000) (60,000) (90,000) income......................................................... ---------------------------------------------------------------------------------------------------------------- (a) If the taxpayer has elected the overall limitation, his excess investment interest from sources within any foreign countries or possessions of the United States determined under subdivision (ii) of this subparagraph is determined as follows: Foreign investment interest: French.......................... ($70,000) German.......................... (110,000) ($180,000) ------------ Foreign net investment income: French.......................... 120,000 German.......................... 150,000 $270,000 ------------ Less: Investment expenses: French.......................... (90,000) German.......................... (100,000) (190,000) 80,000 ----------------------------------- Excess of U.S. net investment income .......... .......... 10,000 over U.S. investment interest expense............................ ----------- Excess investment interest .......... .......... (90,000) attributable to foreign sources.... (b) If the taxpayer has not elected the overall foreign tax credit limitation, his excess investment interest from France and Germany determined under subdivision (i) of this subparagraph (without regard to the limitation to worldwide excess investment interest) is $40,000 and $60,000 respectively, and his total separately determined excess investment interest is, thus, $10,000. Since the total separately determined excess would exceed the worldwide excess, the limitation to the worldwide excess in subdivision (i) applies and the excess investment interest is determined as follows: France: $90,000/$100,000x$40,000=$36,000 Germany: $90,000/$100,000x$60,000=$54,000 Total excess investment interest attributable to sources within any foreign countries and possessions--$90,000. Example 3. Assume the same facts as in example (1) except that the taxpayer, in addition has investment income, investment expenses, and investment interest subject to the separate limitation under section 904(f). (a) If the taxpayer has elected the overall foreign tax credit limitation, his excess investment interest from sources within any foreign countries or possessions of the United States determined under subdivision (ii) of this subparagraph is the same as in (a) of example (1) of this subdivision (vi). He then treats such amount as separately determined excess investment interest attributable to a single foreign country as determined under subdivision (i) of this subparagraph and proceeds as in (b) of example (1) of this subdivision (vi) treating items of income and deduction subject to section 904(f) and from each separate foreign country or possession separately in making the additional determinations under subdivisions (i) and (iv) of this subparagraph. (b) If the taxpayer has not elected the overall foreign tax credit limitation, his excess investment interest from sources within any foreign country or possession of the United States would be determined in the same manner as in (b) of example (1) treating items of income and deduction which are subject to section 904(f) and from each separate foreign country or possession separately in making the determinations under subdivisions (i) and (iv) of this subparagraph. (c) Reduction in taxes on United States source income--(1) Overall limitation--(i) In general. If a taxpayer is on the overall foreign tax credit limitation under section 904(a)(2), the items of tax preference determined to be attributable to foreign sources under paragraph (b) of this section reduce the tax imposed by chapter 1 (other than the minimum tax imposed under section 56) on income from sources within the United States for the taxable year to the extent of [[Page 532]] the smallest of the following three amounts: (a) Items of tax preference (other than stock options and capital gains) attributable to sources within a foreign country or possession of the United States, (b) The excess (if any) of the total deductions properly allocable or apportionable to items or classes of gross income from sources within foreign countries and possessions of the United States over the gross income from such sources, or (c) Taxable income from sources within the United States. See Sec. 1.58-7(b)(2)(iv) with respect to the attribution of certain interest deductions to foreign sources in cases involving the excess investment interest item of tax preference. (ii) Net operating loss. Where there is an overall net operating loss for the taxable year, to the extent that the lesser of the amounts determined under (a) or (b) of subdivision (i) of this subparagraph exceeds the taxpayer's taxable income from sources within the United States (and, therefore do not offset taxable income from sources within the United States for the taxable year) the amount of such excess is treated as ``suspense preferences.'' Suspense preferences are converted to actual items of tax preference, arising in the loss year and subject to the provisions of section 56, as the net operating loss is used in other taxable years, in the form of a net operating loss deduction under section 172, to offset taxable income from sources within the United States. Suspense preferences which, in other taxable years, reduce taxable income from sources within any foreign country or possession of the United States lose their character as suspense preferences and, thus, are never converted into actual items of tax preference. The amount of the suspense preferences which are converted into actual items of tax preference is equal to that portion of the net operating loss attributable to the suspense preferences which offset taxable income from sources within the United States in taxable years other than the loss year. The determination of the component parts of the net operating loss and the determination of the amount by which the portion of the net operating loss attributable to suspense preferences offsets taxable income from sources within the United States is made on a year-by-year basis in the same order as the net operating loss is used in accordance with section 172(b). Such determination is made by applying deductions attributable to U.S. source income first against such income and deductions attributable to foreign source income first against such foreign source income and in accordance with the following principles: (a) Deductions attributable to items or classes of gross income from sources within the United States offset taxable income from sources within the United States before any remaining portion of the net operating loss; (b) Deductions attributable to items or classes of gross income from sources within foreign countries or possessions of the United States offset taxable income from such sources before any remaining portion of the net operating loss; (c) Deductions described in (b) of the subdivision (ii) which are not suspense preferences (referred to in this subparagraph as ``other foreign deductions'') offset taxable income from sources within foreign countries and possessions of the United States before suspense preferences; and (d) Suspense preferences offset taxable income from sources within the United States before other foreign deductions. For purposes of the above computations, taxable income is computed with the modifications specified in section 172(b)(2) or section 172(c), whichever is applicable. However, the amount of suspense preferences which are converted into actual items of tax preference in accordance with the above principles is reduced to the extent suspense preferences offset increases in taxable income from sources within the United States due to the modifications specified in section 172(b)(2) or section 172(c). For this purpose, suspense preferences are considered to offset an increase in taxable income due to the section 172(b)(2) modifications only after reducing taxable income computed before the section 172(b)(2) or section 172(c) modifications. [[Page 533]] (iii) Examples. The principles of this subparagraph may be illustrated by the following examples. In each example the taxpayer is an individual citizen of the United States and has elected the overall foreign tax credit limitation. Personal deductions and exemptions are disregarded for purposes of these examples. Example 1. In 1974, the taxpayer has the following items of income and deduction: United States taxable income: Gross income...................... .......... $750,000 Deductions........................ .......... (250,000) $500,000 ------------ Foreign source loss: Gross income...................... .......... 200,000 Deductions: Preference items (excess of $550,000 percentage depletion over basis)......................... Other........................... 50,000 (600,000) (400,000) ------------------------ Overall taxable income.............. .......... .......... 100,000 Pursuant to subdivision (i) of this subparagraph the smallest of (a) the items of tax preference attributable to the foreign sources ($550,000), (b) the foreign source loss ($400,000), or (c) the taxable income from sources within the United States ($500,000) reduces the tax imposed by chapter 1 (other than the minimum tax) on income from sources within the United States. Thus, $400,000 of the $550,000 of excess depletion is treated as an item of tax preference in 1974 subject to the minimum tax. Example 2. Assume the same facts as in example (1) except that the gross income from sources within the United States is $350,000 resulting in U.S. taxable income of $100,000 and an overall net operating loss of $300,000. Pursuant to subdivision (i) of this subparagraph, $100,000 of the $550,000 excess depletion would be treated as an item of tax preference in 1974 subject to the minimum tax. In addition, pursuant to subdivision (ii) of this subparagraph, the excess of the items of tax preference from foreign sources ($550,000) or the foreign source loss ($400,000), whichever is less, over the U.S. taxable income ($100,000), or, in this example, $300,000, is treated as suspense preferences. (a) If, in 1971, the taxpayer's total items of income and deduction result in $350,000 of taxable income all of which is from sources within the United States, the entire $300,000 net operating loss, all of which is attributable to suspense preferences, is used to offset U.S. taxable income. Accordingly, the full $300,000 of suspense preferences are converted into actual items of tax preference arising in 1974 and are subject to tax under section 56. (b) If the $350,000 in 1971 is modified taxable income resulting from the denial of a section 1202 capital gains deduction of $175,000 by reason of section 172(b)(2), the $300,000, otherwise treated as actual items of tax preference, is reduced by $125,000, i.e., the extent to which the suspense preferences offset U.S. taxable income attributable to the increase in taxable income resulting from the denial of the section 1202 deduction. Example 3. In 1974, the taxpayer has the following items of income and deduction: United States loss: Gross income.................... .......... $75,000 Deductions...................... .......... (225,000) ------------- .......... ($150,000) Foreign loss: Gross income.................... .......... 400,000 Deductions: Preference items (excess of $200,000 accelerated depreciation on sec. 1250 property over straight-line amount)........ Other......................... 550,000 (750,000) (350,000) ----------------------------------- Overall net operating loss.......... .......... .......... (500,000) Since the nonpreference deductions reduce the foreign source income before the preference portion, the $350,000 foreign source loss consists of $200,000 of suspense preferences and $150,000 of other deductions. In 1971, 1972, and 1973 the taxpayer had taxable income from sources within the United States of $100,000, $200,000, and $300,000, respectively and taxable income from sources within foreign countries of $80,000 each year. Of the $200,000 of suspense preferences, $150,000 are converted into actual items of tax preference, subject to the minimum tax in 1974, determined as follows: [[Page 534]] [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- Taxable income Foreign deductions ------------------------------ ------------------------- Year--Explanation U.S. deductions Suspense U.S. source Foreign source preferences Other ---------------------------------------------------------------------------------------------------------------- 1971 End of year balance before 100 80 150 200 150 section 58(g) computations............ 1. U.S. deductions against U.S. (100) ............... ............... ........... ........... income............................ ........... ............... (100) ........... ........... 2. Other foreign deductions against ........... (80) ............... ........... (80) foreign income.................... 1972 End of year balance before 200 80 50 200 70 section 58(g) computations............ 1. U.S. deductions against U.S. (50) ............... (50) ........... ........... income............................ 2. Other foreign deductions against ........... (70) ............... ........... (70) foreign income.................... 3. Suspense preferences against ........... (10) ............... (10) ........... foreign income.................... 4. Suspense preferences against *(150) ............... ............... *(150) ........... U.S. income....................... 1973 End of year balance before 300 80 ............... 40 ........... section 58(g) computations............ 1. U.S. deductions against U.S. ........... ............... Not applicable ........... ........... income............................ 2. Other foreign deductions against ........... ............... Not applicable ........... ........... foreign income.................... 3. Suspense preference against ........... (40) ............... (40) ........... foreign income.................... 4. Suspense preferences against Not applicable U.S. income....................... Balances........................... 300 40 ............... ........... ........... ---------------------------------------------------------------------------------------------------------------- *Suspense preferences converted to actual items of tax preference. Example 4. In 1970, the taxpayer's total items of income and deduction, all of which are attributable to foreign sources, are as follows: Foreign loss: Gross income.............................................. $400,000 Deductions: Preferences (excess of accelerated $200,000 depreciation on section 1250 property over straight-line)............................. ----------------------- Net operating loss.......................................... 350,000 Pursuant to subdivision (i) of this subparagraph, none of the preferences attributable to foreign sources reduce the tax imposed by chapter 1 (other than the minimum tax) on taxable income from sources within the United States. Pursuant to subdivision (ii) of this subparagraph, the $200,000 portion of the net operating loss resulting from the excess accelerated depreciation constitutes suspense preferences. No part of the net operating loss that is carried back to previous years is reduced in such previous years. In 1971 and 1972, the taxpayer's income (before the net operating loss deduction) consists of the following: 1971 taxable income: United States............................................. $160,000 Foreign................................................... 70,000 ------------- Total................................................... 230,000 ============= 1972 taxable income: United States............................................. 25,000 Foreign................................................... 105,000 ------------- Total................................................... 130,000 (a) In 1971, the conversion of suspense preferences into actual items of tax preference under section 58(g) (and this paragraph) and the imposition of the minimum tax on 1970 items of tax preference under section 56(b) and (Sec. 1.56A-2) are determined as follows: Conversion of suspense preferences: [[Page 535]] 1970 Net Operating Loss [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- U.S. Other taxable Foreign U.S. deductions Suspense foreign income taxable income preferences deductions ---------------------------------------------------------------------------------------------------------------- $160 $70 ..................... $200 $150 ----------------------------------------------------------------------------- 1. U.S. deductions against U.S. Not applicable....... income. 2. Other foreign deductions ........... 70 ..................... ........... (70) against foreign income. 3. Suspense preference against Not applicable....... foreign income. 4. Suspense preference against *(160) .............. ..................... (160) ........... U.S. income. ----------------------------------------------------------------------------- Balance to 1972................................................................... 40 80 ---------------------------------------------------------------------------------------------------------------- *Suspense preferences converted into actual items of tax preference. Imposition of minimum tax on 1970 items of tax preference: 1970 Net Operating Loss [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- 1971 taxable Nonpreference Preference Suspense income portion portion portion ---------------------------------------------------------------------------------------------------------------- $230 $150 ............... $200 ------------------------------------------------------------------- 1. 1971 conversion of suspense preferences ............... \1\ 30 $130 (160) pursuant to sec. 58(g)..................... Adjusted NOL............................ ............... 180 130 40 2. Nonpreference portion against taxable (180) (180) ............... ............... income..................................... 3. Preference portion against taxable income \2\ (50) ............... (50) ............... ------------------------------------------------------------------- Balance to 1972........................................................... 80 40 ---------------------------------------------------------------------------------------------------------------- \1\ Represents the 1970 minimum tax exemption. \2\ Imposition of 1970 minimum tax (10 pctx$50,000=$5,000). (b) In 1972, the conversion of suspense preferences into actual items of tax preferences under section 58(g) (and this paragraph) and the imposition of the minimum tax on 1970 items of tax preference under section 56(b) (and Sec. 1.56A-2) are determined as follows: Conversion of suspense preferences: 1970 Net Operating Loss [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- U.S. Other taxable Foreign taxable U.S. deductions Suspense foreign income income preferences deductions ---------------------------------------------------------------------------------------------------------------- $25 $105 ............... $40 $80 ------------------------------------------------------------------------ 1. U.S. deduction against U.S. income.. Not applicable 2. Other foreign deductions against ........... (80) ............... ........... (80) foreign income........................ 3. Suspense preferences against foreign ........... (25) ............... (25) ........... income................................ 4. Suspense preference against U.S. \1\ (15) ............... ............... (15) ........... income................................ ------------------------------------------------------------------------ Balance............................ 10 ............... ............... ........... ........... ---------------------------------------------------------------------------------------------------------------- \1\ Suspense preferences converted into actual items of tax preference. Imposition of minimum tax on 1970 items of tax preference: [[Page 536]] 1970 Net Operating Loss [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- 1972 taxable Nonpreference Preference Suspense income portion portion portion ---------------------------------------------------------------------------------------------------------------- $130 ............... $80 $40 ------------------------------------------------------------------- 1. 1972 conversion of suspense preferences ............... $25 15 (40) pursuant to sec. 58(g)..................... Adjusted NOL............................ ............... 25 95 ............... 2. Nonpreference portion against taxable (25) (25) ............... ............... income..................................... 3. Preference portion against taxable income \1\ (95) ............... (95) ............... ------------------------------------------------------------------- Balance................................. 10 ............... ............... ............... ---------------------------------------------------------------------------------------------------------------- \1\ Imposition of 1970 minimum tax (10 pctx$95,000=$9,500). (2) Per-country limitation--(i) In general. If a taxpayer is on the per-country foreign tax credit limitation for the taxable year, the amount by which the items of tax preference to which this section applies reduce the tax imposed by chapter 1 (other than the minimum tax under section 56) on income from sources within the United States is determined separately with respect to each foreign country or possession of the United States. Such determination is made in a manner consistent with subparagraph (1) of this paragraph as modified in subdivision (ii) of this subparagraph. In applying subparagraph (1)(i) of this paragraph to a taxpayer on the per-country limitation, if the total potential preference amounts (as defined in this subdivision (i)) exceed the taxpayer's taxable income from sources within the United States, then, for purposes of subparagraph (1)(i)(c) of this paragraph (relating to the U.S. taxable income limitation on the amount treated as a reduction of U.S. taxable income), the taxable income from sources within the United States which is reduced by potential preference amounts with respect to each foreign country or possession is an amount which bears the same relationship to such income as the potential preference amount with respect to such foreign country or possession bears to the total of the potential preference amounts with respect to all foreign countries and possessions. For purposes of this subparagraph, the potential preference amount with respect to a foreign country or possession is the lesser of the amount of foreign source preference (described in subparagraph (1)(i)(a) of this paragraph) attributable to such country or possession or the amount of foreign source loss (described in subparagraph (1)(i)(b) of this paragraph) attributable to such country or possession. (ii) Net operating loss. Where there is an overall net operating loss for the taxable year and the total of the potential preference amounts with respect to all foreign countries and possessions exceeds the taxpayer's taxable income from sources within the United States, the amount of such excess is treated as ``suspense preferences''. The suspense preferences are converted into actual items of tax preference, arising in the loss year and subject to the provisions of section 56, as the net operating loss is used in other taxable years, in the form of a net operating loss deduction under section 172, to offset taxable income from sources within the United States. Suspense preferences attributable to a foreign country or possession which, in other taxable years, reduce taxable income from sources within such country or possession or offset taxable income from sources within any other foreign country or possession lose their character as suspense preferences and, thus, are never converted into actual items of tax preference. The amount of the suspense preferences which are converted into actual items of tax preference is equal to that portion of the net operating loss attributable to the suspense preferences which offsets taxable income from sources within the United States in taxable years other than the loss year. The determination of the component parts of the net operating loss and the determination of the amount by which the portion of the net operating [[Page 537]] loss attributable to the suspense preferences offsets taxable income from sources within the United States is made on a year-by-year basis in the same order as the net operating loss is used in accordance with section 172(b). Such determination is made by applying deductions attributable to United States source income first against such income and applying deductions attributable to income from sources within a foreign country or possession of the United States first against income from sources within such country or possession and in accordance with the following principles: (a) Deductions attributable to items or classes of gross income from sources within the United States offset taxable income from sources within the United States before any remaining deductions; (b) Deductions attributable to items or classes of gross income from sources within any foreign country or possession of the United States which are not suspense preferences (referred to in this paragraph as ``other foreign deductions'') offset taxable income from sources within such country or possession before any remaining deductions; (c) Suspense preferences attributable to items or classes of gross income from sources within a foreign country or possession offset any remaining taxable income from sources within such foreign country or possession after application of (b) of this subdivision (ii) before any remaining deductions; (d) Suspense preferences from each foreign country and possession (remaining after application of (c) of this subdivision (ii)) offset taxable income from sources within the Unted States (remaining after application of (a) of this subdivision (ii)) before other foreign deductions pro rata on the basis of the total of such suspense preferences; (e) Other foreign deductions from each foreign country and possession (remaining after application of (b) of this subdivision (ii)) offset taxable income from sources within the United States (remaining after application (a) and (b) of this subdivision (ii)) pro rata on the basis of the total of such other foreign deductions; (f) Deductions attributable to income from sources within the United States (remaining after application of (a) of this subdivision (ii)) offset taxable income from sources within any foreign country or possession before any foreign deductions; (g) Other foreign deductions from each foreign country and possession (remaining after application of (b) and (e) of this subdivision (ii)) offset taxable income from sources within any other foreign countries or possessions (remaining after application of (f) of this subdivision (ii)) pro rata on the basis of the total of such other foreign deductions; and (h) Suspense preferences (remaining after the application of (c) and (d) of this subdivision (ii)) offset taxable income from sources within any foreign country or possession (remaining after the application of paragraphs (f) and (g) of this subdivision (ii)) pro rata on the basis of the total of such suspense preferences. For purposes of the above computations, taxable income is computed with the modifications specifed in section 172(b)(2) or section 172(c), whichever is applicable. However, the amount of suspense preferences which are converted into actual items of tax preference in accordance with the above principles is reduced to the extent the suspense preferences offset increases in taxable income from sources within the United States due to the modifications specified in section 172(b)(2) or section 172(c). For this purpose, suspense preferences are considered to offset an increase in taxable income due to section 172(b)(2) or section 172(c) modifications only after reducing taxable income computed before such modifications. (iii) Examples. The principles of this subparagraph may be illustrated by the following examples in each of which the per-country foreign tax credit limitation is applicable. For purposes of these examples, personal deductions and exemptions are disregarded. Example (1). The taxpayer has the following items of income and deduction for the taxable year 1971: [[Page 538]] ---------------------------------------------------------------------------------------------------------------- United United States France Germany Kingdom ---------------------------------------------------------------------------------------------------------------- Gross income.................................................. $180,000 $165,000 $50,000 $75,000 Deductions: Preference.................................................. ........... ........... .......... (45,000) Other....................................................... (120,000) (125,000) (80,000) (100,000) ------------------------------------------------- Taxable income (or loss).................................. 60,000 40,000 (30,000) (70,000) ---------------------------------------------------------------------------------------------------------------- (a) Pursuant to subdivision (i) of this subparagraph, the potential preference amount in the case of the United Kingdom is the lesser of the preferences attributable to the United Kingdom ($45,000) or the excess of deductions over gross income from sources within the United Kingdom ($70,000) and the potential preference amounts in the case of France and Germany are zero in both cases since the preferences attributable to both countries are zero. Since the total potential preference amounts ($45,000) is less than the taxable income from sources within the United States ($60,000), no modification of U.S. taxable income is required. Thus, the amount by which the U.K. preferences reduce the tax on taxable income from sources within the United States, determined in a manner consistent with subparagraph (1)(i) of this paragraph, is the smallest of (1) the items of tax preference attributable to the United Kingdom ($45,000), (2) the excess of deductions over gross income attributable to the United Kingdom ($70,000), or (3) taxable income from sources within the United States ($60,000). The full $45,000 of U.K. preference items are, therefore, taken into account as items of tax preference in 1971 and subject to the minimum tax. Since there is no net operating loss, subdivision (ii) of this subparagraph does not apply. (b) If the French taxable income is $15,000 instead of $40,000, a $25,000 net operating loss (on a worldwide basis) results. The determination of the foreign preference items taken into account pursuant to subdivision (i) of this subparagraph is the same as in (a) of this example. Subdivision (ii) of this subparagraph again does not apply since the total potential preference amounts ($45,000) is less than the U.S. taxable income ($60,000). Example 2. For the taxable year 1972, the taxpayer has a net operating loss of $35,000 consisting of the following items of income and deduction: ---------------------------------------------------------------------------------------------------------------- United United States France Germany Kingdom Belgium ---------------------------------------------------------------------------------------------------------------- Gross income........................................ $250,000 $50,000 $60,000 $5,000 $45,000 Deductions: Preferences....................................... .......... (35,000) (70,000) (95,000) .......... Other............................................. (100,000) (75,000) (30,000) .......... (40,000) ----------------------------------------------------------- Taxable income (or loss)........................ 150,000 (60,000) (40,000) (90,000) 5,000 ---------------------------------------------------------------------------------------------------------------- (a) Pursuant to subdivision (i) of this subparagraph the potential preference amount with respect to each country is the lesser of the amount shown as preferences with respect to such country or the amount of the loss from such country. Thus, the potential preference amounts in this case are: France...................................................... $35,000 Germany..................................................... 40,000 United Kingdom.............................................. 90,000 Belgium..................................................... 0 ----------- Total..................................................... 165,000 Since the total of the potential preference amounts exceeds the U.S. taxable income, in applying the principles of subparagraph (1)(i) of this paragraph, U.S. taxable income which is reduced by potential preference amounts with respect to each country is a pro-rata amount based on the total potential preference amounts as follows: France..................................... (35,000/165,000x$150,000)-- $31,818 Germany.................................... (40,000/165,000x$150,000)-- $36,364 United Kingdom............................. (90,000/165,000x$150,000)-- $81,818 Belgium.................................... (0/165,000x$150,000)--$0 ---------------------------- Total.................................... $150,000 The amount by which the foreign preference items offset U.S. taxable income pursuant to subdivision (i) of this subparagraph is then determined as follows: [[Page 539]] ---------------------------------------------------------------------------------------------------------------- (a) (b) (c) (d) --------------------------------------------------------------- Smallest of Preferences Loss U.S. taxable (a), (b), or income (c) ---------------------------------------------------------------------------------------------------------------- France.......................................... $35,000 $60,000 $81,818 $31,818 Germany......................................... 70,000 40,000 36,364 36,364 United Kingdom.................................. 95,000 90,000 81,818 81,818 Belgium......................................... .............. .............. .............. .............. --------------------------------------------------------------- Total....................................... .............. .............. .............. 150,000 ---------------------------------------------------------------------------------------------------------------- Thus, $150,000 of the total foreign preference items will be taken into account pursuant to subdivision (i) of this subparagraph as items of tax preference in 1972 and subject to the provisions of section 56. (b) Pursuant to subdivision (ii) of this subparagraph, the 1972 net operating loss of $35,000 will consist of suspense preferences of $15,000 and other foreign deductions of $20,000 attributable to each foreign country as shown below and determined as follows: ---------------------------------------------------------------------------------------------------------------- Deductions ----------------------------------------------------------------------------------- Explanation France Germany United United ------------------------------------------------ Kingdom Belgium States Preferences Other Preferences Other preferences other ---------------------------------------------------------------------------------------------------------------- $100,000 $35,000 $75,000 $70,000 $30,000 $95,000 $40,000 1. U.S. deductions against (100,000) ........... ......... ........... ......... ........... ......... U.S. income ($250,000)..... 2. Other foreign deductions .......... ........... (50,000) ........... (30,000) ........... (40,000) against foreign income (per- country) \1\............... 3. Suspense preferences .......... ........... ......... (30,000) ......... (5,000) ......... against remaining foreign income (per-country)....... 4. Suspense preferences against remaining U.S. income: France (35,000/165,000x .......... (31,818) ......... ........... ......... ........... ......... $150,000).............. Germany (40,000/165,000 .......... ........... ......... (36,364) ......... ........... ......... x $150,000)............ U.K. (90,000/165,000 x .......... ........... ......... ........... ......... (81,818) ......... $150,000).............. 5. Other foreign deductions (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) against remaining U.S. income (0)................. 6. U.S. deductions against (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) other foreign income....... 7. Other foreign deductions .......... ........... (5,000) ........... ......... ........... ......... against remaining foreign income ($5,000)............ 8. Suspense preferences (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) against remaining foreign income (0): Balance (components of .......... 3,182 20,000 3,636 ......... 8,182 ......... NOL)................. ---------------------------------------------------------------------------------------------------------------- \1\ Foreign income amounts before step 2 are: France--$50,000; Germany--$60,000; United Kingdom--$5,000; Belgium- -$45,000. \2\ Not applicable. Example 3. In 1973, the taxpayer has taxable income (computed without regard to the net operating loss deduction) from the following sources and in the following amounts: ------------------------------------------------------------------------ United United States France Germany Kingdom ------------------------------------------------------------------------ $100,000............................ $60,000 $20,000 $30,000 ------------------------------------------------------------------------ In addition, the taxpayer has a net operating loss deduction of $235,000 resulting from a 1972 net operating loss consisting of the following amounts: Deductions attributable to income from sources within $25,000 the United States...................................... Suspense preferences attributable to income from sources $75,000 within France.......................................... Deductions other than suspense preferences attributable $85,000 to income from sources within France................... Deductions other than suspense preferences attributable $50,000 to sources within the Netherlands...................... [[Page 540]] (a) Pursuant to subdivision (ii) of this subparagraph, the converted suspense preferences and the remaining portions of the 1972 net operating loss carried over to 1974 are computed as follows: [In thousands of dollars] ---------------------------------------------------------------------------------------------------------------- 1973 income 1972 net operating loss --------------------------------------------------------------------------------- French French Dutch United France Germany United United suspense other other States Kingdom States preferences deductions deductions ---------------------------------------------------------------------------------------------------------------- 100 60 20 30 25 75 85 50 U.S. deductions against U.S. (25) ....... ....... ....... (25) ........... .......... .......... income....................... Other foreign deductions ....... (60) ....... ....... ....... ........... (60) .......... against foreign income (per- country)..................... Suspense preferences against (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) remaining foreign income (per- country)..................... Suspense preferences against (\1\ 75 ....... ....... ....... ....... (75) .......... .......... remaining U.S. income........ ) Other foreign deductions (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) against remaining U.S. income U.S. deductions against (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) remaining foreign income..... Other foreign deductions against remaining foreign income: French (25,000/75,000 x ....... ....... (16.7) ....... ....... ........... (16.7) .......... $50,000)................. Dutch (50,000/75,000 x ....... ....... (33.3) ....... ....... ........... .......... (33.3) $50,000)................. Suspense preferences against (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) (\2\) remaining foreign income..... Balance (1972 carryover to ....... ....... ....... ....... ....... ........... 8.3 16.7 1974)........................ ---------------------------------------------------------------------------------------------------------------- \1\ Suspense preferences converted to actual items of tax preference. \2\ Not applicable. (b) If, in 1972, there had been no items of tax preference without regard to the suspense preferences, the conversion of the suspense preferences in 1973 would result in a 1972 minimum tax liability under section 56(a) of $4,500 (10 percent x ($75,000-$30,000)), all of which would have been deferred by reason of section 56(b). Further, by application of section 56(b) and Sec. 1.56A-2, $20,000 of the $45,000 preference portion of the 1972 net operating loss would be treated as having reduced taxable income in 1973 resulting in the imposition in 1973 of $2,000 of the deferred 1972 minimum tax liability. (3) Separate limitation under section 904(f). In the case of a taxpayer subject to the separate limitation on interest income under section 904(f), the provisions of this paragraph shall be applied in the same manner as in subparagraph (2) of this paragraph. If the taxpayer has elected the overall foreign tax credit limitation, subparagraph (2) of this paragraph shall be applied as if all income from sources within any foreign countries or possessions of the United States and deductions relating to income from such sources other than income or deductions subject to the separate limitation under section 904(f) were from a single foreign country. (4) Carryover of excess taxes. For rules relating to carryover of excess taxes described in paragraph (1) of section 56(c) when suspense preferences are converted to actual items of tax preference, see Sec. 1.56A-5(f). (5) Character of amounts. Where the amounts from sources within a foreign country or possession of the United States (or all such countries or possessions in the case of a taxpayer who has elected the overall foreign tax credit limitation) which are treated as reducing chapter 1 tax on income from sources within the United States or as suspense preferences are less than the total items of tax preference described in subparagraph (1)(i)(a) of this paragraph attributable to such sources, the [[Page 541]] amounts so treated are considered derived proportionately from each such item of tax preference. [T.D. 7564, 43 FR 40484, Sept. 12, 1978, as amended by T.D. 8138, 52 FR 15309, Apr. 28, 1987]