INTEREST CHARGE – DOMESTIC INTERNATIONAL SALES CORPORATION

What is an Interest Charge – Domestic International Sales Corporation?  Better known as IC-DISC, was originally created as a Domestic International Sales Corporation in 1971 to stimulate U.S. exports, IC-DISC is a variation of the original creation. It allows U.S. owners of a qualified business tax savings on a calculated percent of qualified export sales.

What are the tax savings?  Instead of the exporting company paying up to a 35 percent federal corporate tax on 100 percent of export NET income, a tax deductible commission is paid to the IC-DISC Corporation.  When the commission received by the IC-DISC Corporation is distributed to its shareholders, they pay an individual tax rate based on the qualified dividend tax rate.  Depending on the shareholder’s ordinary income tax rate that could be between ZERO to 20 percent in 2013.  For example if the Corporation is in the 35 percent Federal tax rate and a shareholder has a 15 percent dividend tax rate, the shareholder realizes a 20 percent federal tax savings.  This is a permanent tax savings and not reversed in later years. 

Depending on how the IC-DISC is set up, IC-DISC income may or may not be considered income that is subject to the additional 3.8% Medicare Tax.  There is alot of ambiguity and no tax court cases to rely on.  In general the 3.8% Medicare Tax is a tax on investment or passive income.  If the IC-Disc is set up as a Commission DISC [see the discussion on how a Commission DISC works on page 2], the dividends will be considered coming from a passive activity, then the Medicare Tax applies.  However if the IC-DISC is set up as a Buy/Sell DISC where the export activities occur in the DISC corporation [see the discussion on how a Buy/Sell DISC works on page 2], then the income is not from a passive activity and Medicare Tax on Investment Income does not apply. However this has not been tested in court and it is my opinion the IRS will take the position that the Medicare Tax still applies because the word dividend is used in the code.  But I believe the IRS would be incorrect and tax should not apply because the Buy/Sell DISC is not a passive activity and the distributions out of the DISC are not true dividends, just taxed as a dividend.  As in many other cases the IRS could lose in court.  But like I said before this has not been tested in court and taking this position is aggressive and even though, in my opinion, has merit the Taxpayer could lose in court

Unfortunately not all states recognize the IC-DISC, California is one of them.  Some tax consultants take the position that if the IC-DISC is organized in a state outside of California, like Nevada, California tax can be avoided.  However I believe this is incorrect due to California Nexus rules.  Because the DISC and the California export company are related and the economic activity that creates income in the DISC occurs in California, a combined return will be required and tax paid. 

Additional tax savings

There are a number of related planning opportunities associated with this technique. An IC-DISC can be used as a succession planning tool to accumulate cash on a tax-advantaged basis to facilitate a buyout of the Exporter itself. Exporters have also used these entities to provide equity incentives to key management personnel without the drawbacks of granting an equity interest in the Exporter itself. Care must be taken in structuring these types of arrangements if the shareholders of the IC-DISC are not the same as the shareholders of the Exporter, although such arrangement is permitted.

Because the IC-DISC does not pay income tax, and its shareholders are only taxed when distributions are made, other planning opportunities exist if these shareholder distributions are deferred. For instance, the IC-DISC can loan the commission payments back to the Exporter.

Interest paid on this indebtedness generates another deduction for the Exporter, and the interest income is treated as a dividend to the shareholders. The same tax savings described above are effectively realized on the financing transaction. If distributions of commission income are deferred, there is an interest change (which is deductible for corporation shareholders). This interest change is based on the deferred tax liability of the shareholder and the base period Treasury bill rate.

Who should consider forming an IC-DISC?  An IC-DISC may be established at any time during the year by any non-publicly traded corporation that earns significant income from exporting goods, including software, or from engineering or architectural services on foreign construction projects.  The corporation must be organized under the laws of a state or the District of Columbia and meet the following tests:

(1)   At least 95% of its gross receipts in the DISC during the tax year are qualified export receipts.  The 95% rule does not apply to all gross receipts of the export company, just the gross receipts in the DISC.

(2)   At the end of the tax year, the adjusted basis of its qualified export assets is at least 95% of the sum of the adjusted basis of all of its assets in the DISC.

(3)   The DISC has only one class of stock, and its outstanding stock has a par or stated value of at least $2,500 on each day of the tax year (or, for a new corporation, on the last day.

(4)   The DISC maintains separate books and records.

(5)   The DISC is not a member of any controlled group of which a foreign sales corporation (FSC) is a member.

(6)   Its tax year of the DISC must conform to the tax year of the principal shareholder(s) who has the highest percentage of voting power.

How does an IC-DISC work? 

  Commission DISC

(1)   The exporting company forms an IC-DISC corporation, which generally mirrors the ownership structure of the exporting company.

(2)   The IC-DISC charges the exporting company a commission on NET income related to export sales using one of the two following methods, whichever is greater:

·        The ‘Four-Percent’ Gross Receipt Method

·        50% of NET income

(3)    The exporting company fully deducts the commission expense.

(4)   The IC-DISC distributes profits to its shareholders via dividends

(5)   U.S. income tax is imposed on the IC-DISC shareholder’s dividends on the shareholder’s personal tax return.

(6)   No employees are required within the Commission DISC and the entity has no effect on exporting operations.

   Buy/Sell DISC

(1)   The exporting company forms an IC-DISC corporation, which generally mirrors the ownership structure of the exporting company.

(2)   The DISC takes title to the goods it exports and operates as an export subsidiary with employee(s) who handles the export functions such as purchasing, invoicing.

(3)   A commission rate, using the arm's length transfer pricing rules of the IRS regulations (IRC Section 482), is established to pay the related supplier for the goods it takes title of.

(4)   100% of the profits related to export sales are captured at the lower tax rate rather than only the commission element as in (2) above.

(5)   The IC-DISC distributes profits to its shareholders via dividends

(6)   U.S. income tax is imposed on the IC-DISC shareholder’s dividends on the shareholder’s personal tax return.

Other Forms

      There are other forms to be considered. They are as follows:

(a)   Safe Harbor Buy/Sell IC-DISC. The IC-DISC purchases and sells export property. The parent company reimburses the IC-DISC-paid export promotion expenses plus 10 percent. Does not require an IRC Section 482 transfer pricing study.

(b)   Export Invoice Factoring. The IC-DISC purchases invoices (connected to the commissions paid) from the parent company on a non-recourse, discounted basis (e.g., at a 3% or 4% discount rate). Requires an IRC Section 482 transfer pricing study.

(c)   IC-DISC with Foreign International Sales Corporation (FISC).  The IC-DISC owns 100 percent of a FISC that buys and on-sells inventory at a mark-up to foreign customers. The FISC must be located in a jurisdiction outside the 50 states and Puerto Rico. The parent company pays a commission to the IC-DISC for the FISC sales and requires an IRC Section 482 transfer pricing study.

Cautions

The IC-DISC is considered a Tier 1 audit issue by the IRS and requires additional due diligence to ensure compliance and substantiation of company practices.  Tier I audit issues are of “high strategic importance” to the IRS and have a significant impact on one or more industries. Tier I issues may involve a large number of taxpayers, a significant dollar amount, a substantial compliance risk or high visibility. Issues will be placed in this category if the IRS has an established legal position or directive out on the issue.  In other words, if you form an IC-DISC, it could be a “red flag” for audit.  Normally if a taxpayer is honest and follows the rules, with transparency, an audit should not deter them from taking appropriate tax positions.  The IC-DISC rules are complex and time consuming, if the IC-DISC is set up improperly, calculated incorrectly or lacks substantiation, your business could face additional taxes, penalties, and interest.  Thus it is imperative that you seek proper tax advice from a CPA or tax attorney.

Applicable tax codes 

(1)   Internal Revenue Code § 995(f)

(2)   Treasury Regulation § 1.995(f)-1(d).

(3)   IRS Instructions for Form 1120-IC-DISC

(4)   IC-DISC Audit Guide [LB&I-04-0212-003]

Summary 

The Interest Charge – Domestic International Sales Corporation, also known as IC-DISC, allows qualified US exports a tax deductible commission from business net income equal to 50 percent of NET export income.  That commission is then distributed to the shareholder of the IC-DISC Corporation as a dividend and the shareholder pays an individual tax rate based on the qualified dividend tax rate when the dividend is distributed