Corporate tax

Taxation
An aspect of fiscal policy
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Corporate tax or company tax refers to a tax imposed on entities that are taxed at the entity level in a particular jurisdiction. Such taxes may include income or other taxes. The tax systems of most countries impose an income tax at the entity level on certain type(s) of entities (company or corporation). Many systems additionally tax owners or members of those entities on dividends or other distributions by the entity to the members. The tax generally is imposed on net taxable income. Net taxable income for corporate tax is generally financial statement income with modifications, and may be defined in great detail within the system. The rate of tax varies by jurisdiction. The tax may have an alternative base, such as assets, payroll, or income computed in an alternative manner.

Most income tax systems provide that certain types of corporate events are not taxable transactions. These generally include events related to formation or reorganization of the corporation. In addition, most systems provide specific rules for taxation of the entity and/or its members upon winding up or dissolution of the entity.

In systems where financing costs are allowed as reductions of the tax base (tax deductions), rules may apply that differentiate between classes of member-provided financing. In such systems, items characterized as interest may be deductible, subject to interest limitations, while items characterized as dividends are not. Some systems limit deductions based on simple formulas, such as a debt-to-equity ratio, while other systems have more complex rules.

Some systems provide a mechanism whereby groups of related corporations may obtain benefit from losses, credits, or other items of all members within the group. Mechanisms include combined or consolidated returns as well as group relief (direct benefit from items of another member).

Most systems also tax company shareholders on distribution of earnings as dividends. A few systems provide for partial integration of entity and member taxation. This is often accomplished by "imputation systems" or franking credits. In the past, mechanisms have existed for advance payment of member tax by corporations, with such payment offsetting entity level tax.

Many systems (particularly sub-country level systems) impose a tax on particular corporate attributes. Such non-income taxes may be based on capital stock issued or authorized (either by number of shares or value), total equity, net capital, or other measures unique to corporations.

Corporations, like other entities, may be subject to withholding tax obligations upon making certain varieties of payments to others. These obligations are generally not the tax of the corporation, but the system may impose penalties on the corporation or its officers or employees for failing to withhold and pay over such taxes.

Contents

Corporation defined

A corporation is a juridical person organized under the corporate or company laws of some jurisdiction. The jurisdiction may be a country or a subdivision of a country. For example, in Canada, a corporation may be organized under either Federal or provincial laws. Most jurisdictions recognize as corporations entities organized under the corporate or company laws of other jurisdictions. Under many tax systems, any entity providing limitations on the liability of all members for the actions of the entity is considered a corporation. Characterization as a corporation for tax purposes is based on the form of organization in most taxing jurisdictions. One notable exception applies for United States Federal[1] and most state income taxes within the United states under which an entity may (with exceptions) elect to be treated as a corporation and taxed at the entity level or taxed only at the member level. See Limited liability company, Partnership taxation, S corporation, Sole proprietorship.

Governments may impose tax on corporations as separately from their owners. Most jurisdictions tax companies or corporations at the entity rather than the member level.[2] Members of the corporate entity are generally not subject to tax on the entity's earnings until such earnings are distributed. By contrast, most jurisdictions tax partnerships at the member level and not the entity level. Members of a partnership are generally subject to tax on the partnership's earnings as they are earned rather than when they are distributed.

Taxation of corporations

Corporations may be taxed on their incomes, property, or existence by various jurisdictions. Many jurisdictions impose a tax based on the existence or equity structure of the corporation. For example, Maryland imposes a tax on corporations organized in that state based on the number of shares of capital stock issued and outstanding. Many jurisdictions instead impose a tax based on stated or computed capital, often including retained profits.

Most jurisdictions tax corporations on their income.[3] Generally, this tax is imposed at a specific rate or range of rates on taxable income as defined within the system. Some systems have a separate body of law or separate provisions relating to corporate taxation.[4] In such cases, the law may apply only to entities and not to individuals operating a trade. Such laws may differentiate between broad types of income earned by corporations and tax such types of income differently. Generally, however, most such systems tax all income of a corporation in the same manner.[5]

Some systems (e.g., Canada and the United States) tax corporations under the same framework of tax law as individuals. In such systems, there are normally taxation differences related to differences between the inherent natures of corporations and individuals or unincorporated entities. For example, individuals are not formed, amalgamated, or acquired, and corporations do not generally incur medical expenses except by way of compensating individuals.[6]

Many systems allow tax credits for specific items. Such direct reductions of tax are commonly allowed for foreign taxes on the same income and for withholding tax. Often these credits are the same as those available to individuals or for members of flow through entities such as partnerships.

Most systems tax both domestic and foreign corporations. Often, domestic corporations are taxed on worldwide income while foreign corporations are taxed only on income from sources within the jurisdiction. Many jurisdictions imposing an income tax impose such tax income from a permanent establishment within the jurisdiction.[7]

Corporations are also subject to property tax, payroll tax, withholding tax, excise tax, customs duties, value added tax, and other common taxes, generally in the same manner as other taxpayers. These, however, are rarely referred to as “corporate tax.”

Taxable income

Most systems impose income tax at a specified rate of tax times taxable income as defined in the system. Many systems define taxable income by reference to net income before income taxes per financial statements prepared under locally accepted accounting principles. Such income may be decreased for income subject to tax exemption. Other adjustments often apply.

Some systems define taxable income within the system. The United States system defines taxable income for a corporation as all gross income (sales plus other income minus cost of goods sold and tax exempt income) less allowable tax deductions, without the allowance of the standard deduction applicable to individuals.

Principles for recognizing income and deductions may differ from financial accounting principles. Key areas of difference include differences in the timing of income or deduction, tax exemption for certain income, and disallowance or limitation of certain tax deductions. The United States system requires that these differences be disclosed in considerable detail for non-small corporations on Schedule M-3 to Form 1120.

Most systems tax resident corporations (generally those organized within the country) on their worldwide income, and nonresident corporations only on their income from sources within the country.[8] A few systems, such as Hong Kong, tax resident and nonresident corporations only on income from sources within the country.

Corporate tax rates

Corporate tax rates generally are the same for differing types of income. However, many systems have graduated tax rate systems under which corporations with lower levels of income pay a lower rate of tax.[9] Some systems impose tax at different rates for different types of corporations.[10] Tax rates vary by jurisdiction. In addition, some countries have sub-country level jurisdictions that also impose corporate income tax.[11] Some jurisdictions also impose tax at a different rate on an alternative tax base (see below). Note that some entities may be eligible for tax exemption on part or all of their income in some jurisdictions.

Examples of corporate tax rates for a few English-speaking countries include:

See also:

Note: tax rates quoted above and in referenced Wikipedia articles may not be current or accurate.

Distribution of earnings

Most systems that tax corporations also impose income tax on shareholders of corporations when earnings are distributed.[12] Such distribution of earnings is generally referred to as a dividend. The tax may be at reduced rates. For example, the United States provides for reduced amounts of tax on dividends received by individuals and by corporations.[13] By contrast, the United Kingdom provides for reduced amounts of tax only on dividends received by individuals.[14]

The company law of some jurisdictions prevents corporations from distributing amounts to shareholders except as distribution of earnings. Such earnings may be determined under company law principles or tax principles. For example, the United Kingdom permits a company to make dividend distributions only up to the balance of earnings available for distribution according to its last audited accounts.[15] In such jurisdictions, exceptions are usually provided with respect to distribution of shares of the company, for winding up, and in limited other situations.

Other jurisdictions treat distributions as distributions of earnings taxable to shareholders if earnings are available to be distributed, but do not prohibit distributions in excess of earnings. For example, under the United States system each corporation must maintain a calculation of its earnings and profits (a tax concept similar to retained earnings).[16] A distribution to a shareholder is considered to be from earnings and profits to the extent thereof unless an exception applies.[17] Note that the United States provides reduced tax on dividend income of both corporations and individuals.

Other jurisdictions provide corporations a means of designating, within limits, whether a distribution is a distribution of earnings taxable to the shareholder or a return of capital. For example, in Canada a corporation may designate a distribution to shareholders as a distribution of Paid Up Capital (PUC), and thus not taxable as a dividend, to the extent of remaining capital, or an eligible dividend.[18]

Example

The following illustrates the dual level of tax concept:

C Corp earns 100 of profits before tax in each of years 1 and 2. It distributes all the earnings in year 3, when it has no profits. Jim owns all of C Corp. The tax rate in the residence jurisdiction of Jim and C Corp is 30%.

Year 1 Cumulative Pre-Tax Income Taxes
Taxable Income 100 100
Tax 30 30
Net After Tax 70
Year 2
Taxable Income 100 200
Tax 30 60
Net After Tax 70
Jim's Income & Tax -0-
Year 3:
Distribution 140
Jim's Tax 42 102
Net After Jim's Tax 98
Totals 200 102
51%

Other corporate events

Many systems provide that certain corporate events are not taxable to corporations or shareholders. Significant restrictions and special rules often apply. The rules related to such transactions are often quite complex.

Formation

Most systems treat the formation of a corporation by a controlling corporate shareholder as a nontaxable event. Many systems, including the United States and Canada, extend this tax free treatment to the formation of a corporation by any group of shareholders in control of the corporation.[19] Generally, in tax free formations the tax attributes of assets and liabilities are transferred to the new corporation along with such assets and liabilities.

Example: John and Mary are United States residents who operate a business. They decide to incorporate for business reasons. They transfer the assets of the business to Newco, a newly formed Delaware corporation of which they are the sole shareholders, subject to accrued liabilities of the business in exchange solely for common shares of Newco. Under United States principles, this transfer does not cause tax to John, Mary, or Newco. If on the other hand Newco also assumes a bank loan in excess of the basis of the assets transferred less the accrued liabilities, John and Mary will recognize taxable gain for such excess.[20]

Acquisitions

Corporations may merge or acquire other corporations in a manner a particular tax system treats as nontaxable to either of the corporations and/or to their shareholders. Generally, significant restrictions apply if tax free treatment is to be obtained.[21] For example, Bigco acquires all of the shares of Smallco from Smallco shareholders in exchange solely for Bigco shares. This acquisition is not taxable to Smallco or its shareholders under U.S. or Canadian tax law if certain requirements are met, even if Smallco is then liquidated into or merged or amalgamated with Bigco.

Reorganizations

In addition, corporations may change key aspects of their legal identity, capitalization, or structure in a tax free manner under most systems. Examples of reorganizations that may be tax free include mergers, amalgamations, liquidations of subsidiaries, share for share exchanges, exchanges of shares for assets, changes in form or place of organization, and recapitalizations.[22]

Interest deduction limitations

Most jurisdictions allow a tax deduction for interest expense incurred by a corporation in carrying out its trading activities. Where such interest is paid to related parties, such deduction may be limited. Without such limitation, owners could structure financing of the corporation in a manner that would provide for a tax deduction for much of the profits, potentially without changing the tax on shareholders. For example, assume a corporation earns profits of 100 before interest expense and would normally distribute 50 to shareholders. If the corporation is structured so that deductible interest of 50 is payable to the shareholders, it will cut its tax to half the amount due if it merely paid a dividend.

A common form of limitation is to limit the deduction for interest paid to related parties to interest charged at arm's length rates on debt not exceeding a certain portion of the equity of the paying corporation. For example, interest paid on related party debt in excess of three times equity may not be deductible in computing taxable income.

The United States, United Kingdom, and French tax systems apply a more complex set of tests to limit deductions. Under the U.S. system, related party interest expense in excess of 50% of cash flow is generally not currently deductible, with the excess potentially deductible in future years.[23]

The classification of instruments as debt on which interest is deductible or as equity with respect to which distributions are not deductible can be complex in some systems.[24]

Foreign corporation branches

Most jurisdictions tax foreign corporations differently than domestic corporations.[25] No international laws limit the ability of a country to tax its nationals and residents (individuals and entities). However, treaties and practicality impose limits on taxation of those outside its borders, even on income from sources within the country.

Most jurisdictions tax foreign corporations on business income within the jurisdiction when earned through a branch or permanent establishment in the jurisdiction. This tax may be imposed at the same rate as the tax on business income of a resident corporation or at a different rate.[26]

Upon payment of dividends, corporations are generally subject to withholding tax only by their country of incorporation. Many countries impose a branch profits tax on foreign corporations to prevent the advantage the absence of dividend withholding tax would otherwise provide to foreign corporations. This tax may be imposed at the time profits are earned by the branch or at the time they are remitted or deemed remitted outside the country.[27]

Branches of foreign corporations may not be entitled to all of the same deductions as domestic corporations. Some jurisdictions do not recognize inter-branch payments as actual payments, and income or deductions arising from such inter-branch payments are disregarded.[28] Some jurisdictions impose express limits on tax deductions of branches. Commonly limited deductions include management fees and interest.

Losses

Most jurisdictions allow interperiod allocation or deduction of losses in some manner for corporations, even where such deduction is not allowed for individuals. A few jurisdictions allow losses (usually defined as negative taxable income) to be deducted by revising or amending prior year taxable income.[29] Most jurisdictions allow such deductions only in subsequent periods. Some jurisdictions impose time limitations as to when loss deductions may be utilized.

Groups of companies

Several jurisdictions provide a mechanism whereby losses or tax credits of one corporation may be used by another corporation where both corporations are commonly controlled (together, a group). In the United States and Netherlands, among others, this is accomplished by filing a single tax return including the income and loss of each group member. This is referred to as a consolidated return in the United States and as a fiscal unity in the Netherlands. In the United Kingdom, this is accomplished directly on a pairwise basis called group relief. Losses of one group member company may be “surrendered” to another group member company, and the latter company may deduct the loss against profits.

The United States has extensive regulations dealing with consolidated returns.[30] One such rule requires matching of income and deductions on intercompany transactions within the group by use of “deferred intercompany transaction” rules.

In addition, a few systems provide a tax exemption for dividend income received by corporations. The Netherlands system provides a “participation exception” to taxation for corporations owning more than 25% of the dividend paying corporation.

Transfer pricing

A key issue in corporate tax is the setting of prices charged by related parties for goods, services, or the use of property. Many jurisdictions have guidelines on such prices which allow tax authorities to adjust prices charged. Such adjustments may apply in both an international and a domestic context. See Transfer pricing.

Taxation of Shareholders

Most income tax systems levy tax on the corporation and, upon distribution of earnings (dividends), on the shareholder. This results in a dual level of tax. Most systems require that income tax be withheld on distribution of dividends to foreign shareholders, and some also require withholding of tax on distributions to domestic shareholders. The rate of such withholding tax may be reduced for a shareholder under a tax treaty.

Some systems tax some or all dividend income at lower rates than other income. The United States has historically provided a dividends received deduction to corporations with respect to dividends from other corporations in which the recipient owns more than 10% of the shares. For tax years 2004-2010, the United States also has imposed a reduced rate of taxation on dividends received by individuals.[31]

Some systems currently attempt or in the past have attempted to integrate taxation of the corporation with taxation of shareholders to mitigate the dual level of taxation. As a current example, Australia provides for a “franking credit” as a benefit to shareholders. When an Australian company pays a dividend to a domestic shareholder, it reports the dividend as well as a notional tax credit amount. The shareholder utilizes this notional credit to offset shareholder level income tax.[32]

A previous system was utilised in the United Kingdom, called the Advance Corporation Tax (ACT). When a company paid a dividend, it was required to pay an amount of ACT, which it then used to offset its own taxes. The ACT was included in income by the shareholder resident in the United Kingdom or certain treaty countries, and treated as a payment of tax by the shareholder. To the extent that deemed tax payment exceeded taxes otherwise due, it was refundable to the shareholder.

Alternative tax bases

Many jurisdictions incorporate some sort of alternative tax computation. These computations may be based on assets, capital, wages, or some alternative measure of taxable income. Often the alternative tax functions as a minimum tax.

United States federal income tax incorporates an alternative minimum tax. This tax is computed at a lower tax rate (20% for corporations), and imposed based on a modified version of taxable income. Modifications include longer depreciation lives assets under MACRS, adjustments related to costs of developing natural resources, and an addback of certain tax exempt interest. The U. S. state of Michigan previously taxed businesses on an alternative base that did not allow compensation of employees as a tax deduction and allowed full deduction of the cost of production assets upon acquisition.

Some jurisdictions, such as Swiss cantons and certain states within the United States, impose taxes based on capital. These may be based on total equity per audited financial statements,[33] a computed amount of assets less liabilities[34] or quantity of shares outstanding.[35] In some jurisdictions, capital based taxes are imposed in addition to the income tax.[36] In other jurisdictions, the capital taxes function as alternative taxes.

Mexico imposes an alternative tax on corporations, the IETU.[37] The tax rate is lower than the regular rate, and there are adjustments for salaries and wages, interest and royalties, and depreciable assets.

Tax returns

Most systems require that corporations file an annual income tax return.[38] Some systems (such as the Canadian and United States systems) require that taxpayers self assess tax on the tax return.[39] Other systems provide that the government must make an assessment for tax to be due.[40] Some systems require certification of tax returns in some manner by accountants licensed to practice in the jurisdiction, often the company's auditors.[41]

Tax returns can be fairly simple or quite complex. The systems requiring simple returns often base taxable income on financial statement profits with few adjustments, and may require that audited financial statements be attached to the return.[42] Returns for such systems generally require that the relevant financial statements be attached to a simple adjustment schedule. By contrast, United States corporate tax returns require both computation of taxable income from components thereof and reconciliation of taxable income to financial statement income.

Many systems require forms or schedules supporting particular items on the main form. Some of these schedules may be incorporated into the main form. For example, the Canadian corporate return, Form T-2, an 8 page form, incorporates some detail schedules but has nearly 50 additional schedules that may be required.

Some systems have different returns for different types of corporations or corporations engaged in specialized businesses. The United States has 13 variations on the basic Form 1120 for S corporations, insurance companies, Domestic international sales corporations, foreign corporations, and other entities. The structure of the forms and imbedded schedules vary by type of form.

Preparation of non-simple corporate tax returns can be time consuming. For example, the U.S. Internal Revenue Service states in the instructions for Form 1120 that the average time needed to complete form is over 56 hours, not including record keeping time and required attachments.

Tax return due dates vary by jurisdiction, fiscal or tax year, and type of entity.[43] In self assessment systems, payment of taxes is generally due no later than the normal due date, though advance tax payments may be required.[44] Canadian corporations must pay estimated taxes monthly. In each case, final payment is due with the corporation tax return.

Further reading

U.S.:

United Kingdom

External links

References

  1. ↑ See United States tax regulations at 26 CFR 301.7701-2 and -3.
  2. ↑ See, e.g., Canada and United States 26 USC 11.
  3. ↑ See, e.g., United Kingdom Income and Corporation Taxes Act of 1988 as amended (UK ICTA88) section 6, United States 26 USC 11.
  4. ↑ For example, whilst the United Kingdom consolidated income tax laws applying to individuals and corporations in 1988 (UK ICTA88), the charge to tax remains separate, with significant differences in details. Compare UK ICTA88 sections 1 through 5 with sections 6 through 12, and subsequent differences.
  5. ↑ Canada and the United States tax all types of income at the same rate, but provide different rates of tax depending on income levels or size of entity. See 26 USC 11.
  6. ↑ See, e.g., United States itemized deductions for individuals and special deductions for corporations as well as Other corporate events below.
  7. ↑ (English language for France or Germany.
  8. ↑ See, e.g., United States taxation of foreign corporations at 26 USC 881-885.
  9. ↑ See, e.g., 26 USC 11, which imposes rates varying from 15% on the first $50,000 of income to 35% on incomes over $10,000,000, with phase-outs.
  10. ↑ E.g., Canada allows lower rates for some smaller corporations.
  11. ↑ Examples include Canada, Germany, Japan, Switzerland, and the United States. Sub-country level jurisdictions may include states, provinces, cantons, prefectures, cities, or other levels of government particular to the jurisdiction.
  12. ↑ See, e.g., 26 USC 61(a)(7).
  13. ↑ See 26 USC 1(h)(11) for the reduced rate of tax for individuals, and 26 USC 243(a)(1) and (c) for a deduction for dividends received by corporations.
  14. ↑
  15. ↑ to current version of s263-270 CA 85
  16. ↑ 26 USC 312.
  17. ↑ 26 USC 316.
  18. ↑
  19. ↑ 26 USC 351. For a discussion of U.S. principles, see Bittker & Eustice, below, Chapter 3.
  20. ↑ 26 USC 357 and 26 CFR 1.367-1(b) Example.
  21. ↑ See, e.g., 26 USC 368 defining events qualifying for reorganization treatment, including certain acquisitions.
  22. ↑ See 26 USC 354 for tax effect on shareholders of reorganizations as defined in 26 USC 368.
  23. ↑ 26 USC 163(j).
  24. ↑ See, e.g., 26 USC 385. The Internal Revenue Service had proposed complex regulations under this section (see TD 7747, 1981-1 CB 141) which were soon withdrawn (TD 7920, 1983-2 CB 69). An article in Tax Notes, a publication of Tax Analysts in 1986 identified 26 factors the U.S. courts have used to classify instruments as debt or equity. Also see article by Englebrecht, et al.
  25. ↑ Contrast tax on domestic corporations under 26 USC 11 and 26 USC 63 with tax on foreign corporations under 26 USC 881-885.
  26. ↑ See, e.g., 26 USC 882.
  27. ↑ See 26 USC 884 for the latter approach.
  28. ↑ For example, the Internal Revenue Service states in its Publication 515, “The payee of a payment made to a disregarded entity is the owner of the entity.”
  29. ↑ See, e.g., 26 USC 170(b)(2).
  30. ↑ 26 CFR 1.1502-0, et seq.
  31. ↑ 26 USC 1(h)(11). Note that distributions from an S corporation, Regulated Investment Company (mutual fund), or Real Estate Investment Trust are not treated as dividends.
  32. ↑
  33. ↑ Switzerland
  34. ↑ New York
  35. ↑ Delaware
  36. ↑ New York
  37. ↑
  38. ↑ See, e.g., 26 USC 6012(a)(2).
  39. ↑ See, e.g., 26 USC 6151.
  40. ↑
  41. ↑ See, e.g., India
  42. ↑ See, e.g., UK Form CT600, which requires the attachment of audited or statutory accounts as filed with the Companies House.
  43. ↑ Examples: U.S. corporations must file Federal income Form 1120 by the 15th day of the third month following the end of the tax year (March 15 for calendar years); but Form 1120-IC-DISC returns are not due until the 15th day of the ninth month; Canadian corporations must file T-2 by June 30.
  44. ↑ U.S. Corporations must pay estimated taxes for each quarter or face penalties under 26 USC 6655.