IC-DISC Offers Tax Advantages for Closely Held Export Companies

By Mary K. Thomas, CPA, J.D., Weaver LLP, Fort Worth, Texas

Editor: Anthony S. Bakale, CPA, M. Tax.


Foreign Income & Taxpayers

For a closely held U.S. company engaged in export sales, an interest charge domestic international sales corporation (IC-DISC) offers opportunities to both reduce the amount of revenue subject to the ordinary income tax rate and provide financial compensation to employees, shareholders, or other stakeholders.

An IC-DISC exists as a separate entity apart from the parent company, and it is not required to have the same shareholders as the parent company. Export sales from the parent company flow through the IC-DISC, and the IC-DISC receives a commission based on either 4% of gross receipts or 50% of net foreign sales income (plus 10% of export promotion expenses) (Sec. 994).

Tax can be deferred on commissions on up to $10 million per year in export sales conducted by the IC-DISC. The commissions are then passed on as dividends to IC-DISC shareholders. A minimum capitalization of $2,500 is required to establish an IC-DISC.

The IC-DISC, then known as the domestic international sales corporation (DISC), was created by Congress in 1971 to help U.S. businesses combat a growing U.S. trade deficit. The DISC was eliminated in 1984 and restructured by Congress as the IC-DISC. The IC-DISC’s income is treated as if it were distributed to its shareholders, and shareholders pay interest on any deferred tax liability from this passthrough income (hence, the “interest charge” nomenclature) (Sec. 995(f)). The IC-DISC today is the lone export incentive available to U.S. companies.

Operating Company Tax Benefits

A company that establishes an IC-DISC reduces the amount of ordinary income subject to a 35% tax rate.

Example: A Co. has $1 million in annual foreign sales and $500,000 in annual taxable income attributable to those export sales. If A Co., its shareholders, or executives form an IC-DISC, the commissions owed to the IC-DISC by the company can then be deducted. The amount of the deductible commissions is the greater of the amount calculated using the gross receipts method, or the combined taxable income (CTI) method.

Based on the gross receipts method, a 4% commission ($40,000) on annual foreign sales would be paid to the IC-DISC. Assuming the company’s or its shareholders’ (in the case of a passthrough entity) ordinary income is taxed at the maximum 35% tax rate, the commission payment would reduce the amount of tax owed by $14,000. The commission paid to the IC-DISC would then be distributed to its shareholders as dividends. Assuming those shareholders are individuals, a 15% tax (the current top rate for dividends) would be paid by the IC-DISC shareholders (or $6,000 of tax on a $40,000 distribution), thereby saving $8,000 in tax ([35% – 15%] × $40,000).

If the company decided to use the CTI method to calculate commissions, the IC-DISC would be paid a commission equal to 50% of the combined taxable income amount, which takes into account applicable expenses. That payment could result in a $50,000 tax savings to the company and its shareholders ([35% – 15%] × [50% × $500,000 of CTI]).

While reducing the amount of income subject to the 35% ordinary income tax rate, an IC-DISC also enables a company to channel the commissions in various ways to reward certain individuals. Where the IC-DISC is formed by individuals who are either shareholders of the company, relatives of the shareholders, or executives, the IC-DISC can be a powerful tax planning tool.

Objectives Served by IC-DISC Commissions

Because an IC-DISC is not required to have the same shareholders as the company, the company owners can determine who will be beneficiaries of the commission payments. Those beneficiaries would be subject to a 15% dividend income tax rate on the distributions received from the IC-DISC. (The 15% top rate for dividends is set to expire after Dec. 31, 2012, unless Congress changes the law. Under current law, the top rate would rise to 43.4% on Jan. 1, 2013.)

In some instances, IC-DISC shareholders may be employees of the company. In those scenarios, the IC-DISC commissions could function as a substitute for other components of the employee’s compensation package, such as annual bonuses or commissions paid on export sales.

IC-DISC shareholders can also be company founders, previous owners, or other stakeholders that no longer have active company roles. In those cases, the IC-DISC payments could be regarded as part of retirement, succession, or deferred payment plans.

While an IC-DISC offers those benefits, there are export sales standards that must be met, as well as requirements for establishing and sustaining the IC-DISC.

Requirements for Qualified Export Sales

For a company to conduct sales through an IC-DISC, the goods being sold must be manufactured, produced, grown, or extracted (MPGE) within the United States.

That requirement accommodates “substantial transformations” of various items. Fish caught in international waters that are processed and canned within the United States qualify as MPGE goods. Transforming wood pulp from another country into paper would likewise meet the MPGE standard. Goods provided by distributors, professional services firms, software developers, or other entities may also qualify.

A content requirement specifies that no more than 50% of the fair market value of the goods being sold can be attributable to foreign materials. This provision may bar a company from qualifying for IC-DISC benefits if it mostly performs simple assemblies of parts produced in other countries and then exports the assembled goods.

A foreign destination test is also used to determine sales eligible for IC-DISC commissions. To meet that destination requirement, goods must be sold or leased for direct use, consumption, or disposition outside the United States. A company can still qualify for IC-DISC commissions if goods are sold to a freight forwarder or distributor or manufacturer in the United States. Those goods, though, must then be resold to a foreign customer within one year.

The commission requirements also include a safe-harbor provision that applies when conversion costs (direct labor and factory burden, including packaging or assembly) account for 20% of the cost of goods sold or inventory costs.

IC-DISC Entity Requirements

In addition to having at least $2,500 in capitalization, an IC-DISC must be a U.S. entity, and it must have made a timely election to be treated as an IC-DISC. At least 95% of gross receipts must be qualified export receipts, and at least 95% of total assets must be qualified export assets on the close of each tax year.

Remaining in compliance with those provisions requires maintaining accurate documentation to support the validity of commission-based sales.

Final Considerations for Creating an IC-DISC

Forming an IC-DISC requires careful evaluation of a company’s products and sales, comparisons of various commission methodologies, and detailed documentation of sales and commission activities.

The considerable potential tax incentives and the ability to pass through income to individuals, though, make it worthwhile for a company that exports goods to consider whether it can benefit from establishing and sustaining an IC-DISC.

EditorNotes

Anthony Bakale is with Cohen & Co., Ltd., Baker Tilly International, Cleveland.

For additional information about these items, contact Mr. Bakale at 216-579-1040 or tbakale@cohencpa.com.

Unless otherwise noted, contributors are members of or associated with Baker Tilly International.

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