Jenner & Block

US Credit Facilities and Foreign Subsidiaries: That Old 66-2/3% Rule May Be Out and Foreign Credit Support May Be In

The Tax Cuts and Jobs Act enacted certain foreign dividend exclusion rules for US corporations, the so-called “participation exemption” under Sec. 245A of the Internal Revenue Code of 1986, as amended (the "Code") designed, in part, to move toward a more territorial system of income taxation. Congress did not, however, change the rules applicable to Controlled Foreign Corporations (CFC’s) under Sec. 956 of the Code that treat investments in US property by CFC’s as a taxable deemed dividend. The deemed dividends under Sec. 956 animate the by-now familiar language in most sophisticated US corporate credit agreements limiting pledges of CFC stock to 65% of first-tier CFCs and excepting CFCs from any form of guaranty—in order to avoid a deemed dividend as a result.