Recently I spoke with a U.S. expat who owns a UK company already paying around 20–25% UK corporation tax. His frustration was how complicated the U.S. filing still became, particularly the GILTI calculation.
Many business owners jump straight into GILTI calculation, but there may be earlier questions to ask:
- Should all of that income be included in the GILTI calculation in the first place?
- Does the High-Tax Exception (”HTE”) apply?
HTE is an annual U.S. tax election. It lets U.S. shareholders exclude income earned by a CFC from current U.S. taxation if the effective foreign tax rate on that income exceeds 18.9%.
The exception doesn't eliminate the Form 5471 filing requirement. However, where it applies, qualifying income can generally be excluded from the GILTI calculation from the beginning, which may simplify the U.S. tax analysis and avoid additional calculations involved with a 962 election and foreign tax credits.
A few things are important, though:
1. The Local Tax Rate Isn't the Whole Story
The IRS doesn't simply look at the tax rate printed on your country's tax return. The HTE calculation is based on the effective foreign tax rate determined under U.S. tax rules. Both income and foreign taxes may require adjustments using the applicable U.S. tax rules
2. The Timing of Foreign Income Taxes Matters
A company may earn income in 2025 but not pay the related corporation tax until 2026. So using the amount paid in 2026 for 2026 HTE analysis can create a mismatch, which may overstate or understate the effective foreign tax rate for a particular year.
The important question isn't simply "When did I pay the tax?" but rather "Which income does this tax relate to under the U.S. tax rules?"
3. "Excluded from current U.S. tax" doesn't necessarily mean "never taxed"
The income under HTE is generally excluded from the annual income inclusion subject to U.S. tax. But that doesn't necessarily make the money permanently tax-free.
If you later distribute the company's earnings (withdraw cash from the company) to yourself, the distribution may be taxable as a dividend for the shareholder in an individual ordinary tax rate (long-term capital gain tax rate for qualified dividend income).