Sec. 1.993-5 Definition of related foreign export corporation.
General rule
Definition.
Under section 993(e), a foreign corporation is a related foreign export corporation with respect to a DISC if--
Application of this section.
It is necessary to determine whether a foreign corporation is a related foreign export corporation with respect to a DISC for the following two purposes:
Qualified export assets.
Under section 1.993-2(g), the stock or securities of a related foreign export corporation held by the DISC are qualified export assets.
(ii) Qualified export receipts.
Under section 1.993-1(e), (f), and (g), certain receipts of the DISC with respect to stock or securities of a related foreign export corporation held by the DISC are qualified export receipts.
Foreign international sales corporation
In general.
A foreign corporation is a foreign international sales corporation with respect to a taxable year of a DISC if--
On each day during such taxable year of the DISC on which the foreign corporation has stock issued and outstanding, the DISC owns directly stock of the foreign corporation possessing more than 50 percent of the total combined voting power of all classes of stock of the foreign corporation entitled to vote as determined under the principles of section
1.957-1(b)(relating to definition of controlled foreign corporation),
(ii) 95 percent or more of such foreign corporation's gross receipts (as defined in section 1.993-6) for its taxable year ending with or within such taxable year of the DISC consists of qualified export receipts described in section 1.993-1(b) through (e) or interest described in section 1.993-1(g) derived from any obligations described in section 1.993-2(d) or (e), and
(iii) The sum of the adjusted bases of the assets of the foreign corporation which are qualified export assets described in section 1.993-2(b) through (e) and which are held by the foreign corporation at the close of its taxable year which ends with or within such taxable year of the DISC equals or exceeds 95 percent of the sum of the adjusted bases of all assets held by the foreign corporation at the close of such taxable year.
Certain determinations.
The determinations as to whether gross receipts are qualified export receipts described in subparagraph (1)(ii) of this paragraph and as to whether assets are qualified export assets described in subparagraph (1)(iii) of this paragraph are made by applying the requirements of sections 1.993-1 and 1.993-2 to the foreign corporation as if it were a domestic corporation being tested to determine whether it is a DISC. For purposes of making either of such determinations, the principles of accounting applicable for purposes of computing earnings and profits under section 1.964-1 (relating to a controlled foreign corporation's earnings and profits) shall apply.
Real property holding company
In general.
A foreign corporation is a real property holding company with respect to a taxable year of a DISC if--
On each day during such taxable year of the DISC on which the foreign corporation has stock issued and outstanding, the DISC owns directly stock of the foreign corporation possessing more than 50 percent of the total combined voting power of all classes of stock of the foreign corporation entitled to vote as determined under the principles of section
1.957-1(b)and
(ii) The sole function of the foreign corporation is to hold title to real property situated outside the United States for the exclusive use of the DISC, title to which may not be held by the DISC (and, if the DISC subleases such property to a related supplier, as described in subparagraph (3) of this paragraph, by such related supplier) under the law of the country in which such property is situated.
Activities of the foreign corporation.
For purposes of subparagraph (1)(ii) of this paragraph, a foreign corporation which holds title to real property situated outside the United States may also perform activities with respect to such property (such as management, maintenance, and payment of taxes) which are ancillary to its function of holding title to such property.
(3) Exclusive use by the DISC.
Real property held by the foreign corporation must be used exclusively by the DISC whether under a lease or any other arrangement. Real property is not so used by the DISC if the DISC subleases such property to any other person. If, however, during a taxable year of the DISC--
90 percent or more of the qualified export receipts of the DISC for such year are derived from transactions with respect to which it is a commission agent for a related supplier (as defined in section
1.994-1(a)(3)(ii)), and
(ii) The DISC subleases such property to such related supplier
then such property will be considered as used exclusively by the DISC during such year if such related supplier does not sublease such property.
(d) Associated foreign corporation
In general.
A foreign corporation is an associated foreign corporation with respect to a taxable year of the DISC if--
On each day during such taxable year of the DISC on which the foreign corporation has stock issued and outstanding, the DISC, or one or more members of the same controlled group of corporations (as defined in subparagraph (2) of this paragraph) as the DISC, owns (within the meaning of section
1563(d)and
(e)) stock of the foreign corporation possessing less than 10 percent of the total combined voting power of all classes of stock of the foreign corporation entitled to vote, as determined under the principles of section
1.957-1(b), or owns no stock of such corporation, and
(ii) The ownership of stock, or of securities (as defined in section 1.993-2(g)), of the foreign corporation by the DISC or by one or more members of such controlled group of corporations reasonably furthers a transaction or transactions giving rise to qualified export receipts for the DISC.
Controlled group of corporations.
For purposes of this paragraph, the term "controlled group of corporations" has the same meaning assigned to the term in section 1563(a) and not section 993(a)(3) and section 1.993-1(k). Thus, for purposes of this paragraph, the test of control is 80 percent control and, since the rules of section 1563(b) apply, only domestic members are considered to be members of the controlled group.
(3) Furtherance of qualified export receipts.
Ownership of stock or securities of a foreign corporation will be considered as reasonably furthering a transaction or transactions giving rise to qualified export receipts for a DISC if--
The ownership is necessary to obtain or maintain the foreign corporation as a customer of the DISC or of a related supplier, as defined in section
1.994-1(a)(3)(ii)of the DISC or to aid the sales distribution system of the DISC or of such related supplier, and
(ii) The amount of the investment in the foreign corporation bears a reasonable relationship to the amount of the DISC's annual net profit from transactions in its trade or business which it may reasonably expect to derive on account of such ownership.
In determining whether the amount of the investment is reasonable, there shall be taken into account any stock or securities of the foreign corporation owned by any other foreign corporation which, if it were a domestic corporation, would be a member of the same controlled group of corporations as the DISC.
[T.D. 7514, 42 FR 55467, Oct. 17, 1977; corrected at 42 FR 60910, Nov. 30, 1977]
