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The New Inversion Regulations


Product Code - TMW13
Speaker(s): Brenda Zent, Office of International Tax Counsel; Carol P. Tello, Sutherland; Michael DiFronzo, PwC, Washington, D.C.; John Merrick, Special Counsel, to the Associate Chief Counsel (International); and Eric Sensenbrenner, Skadden, Washington, D.C.
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 Recently issued final and temporary regulations under section 7874 make unexpected changes from prior regulations and will have a major impact on U.S. headquartered multinational enterprises' ability to become foreign corporations. Significantly, the temporary regulations remove a facts and circumstances test to determine that substantial business activities occur in the foreign company’s home country, which excuses a company from the provisions of section 7874, and which has been a feature of the regulations since they were first introduced in 2006. The new rules substitute a purely quantitative, 25 percent threshold for substantial business activities. Many practitioners question whether the new test could ever be met, given the wide geographic dispersion of multinational groups' employees, assets and income.

The final regulations also now expressly bring downstream mergers under section 7874, and make changes to the way options are treated.

Panelists will discuss the following:

  • The operation and significance of the new substantial business activities test
  • How the final regulations change 2009 rules concerning options
  • Downstream mergers of a U.S. corporation into a foreign subsidiary
  • Common traps under Section 7874
  • Transactions that are still viable
  • What’s next – Summer regulations implementing Notice 2009-78?

Educational Objectives

  • Understand the underlying policy concerns and what types of transactions are targeted
  • Understand the basic rules of section 7874 and how the temporary and final regulations impact U.S. companies
  • Understand the impact of the new substantial business activities test.

Brenda Zent, Office of International Tax Counsel; Carol P. Tello, Sutherland; Michael DiFronzo, PwC, Washington, D.C.; John Merrick, Special Counsel, to the Associate Chief Counsel (International); and Eric Sensenbrenner, Skadden, Washington, D.C.

 Brenda L. Zent is a Taxation Specialist with the U.S. Department of the Treasury's Office of International Tax Counsel. Ms. Zent serves on a small team charged with developing and reviewing policy, legislation, regulations, and similar guidance dealing with international tax matters. The team also negotiates and reviews income tax and estate and gift tax treaties with foreign countries, coordinates tax treaty matters with the State Department and the Congress, and handles various inquiries on a variety of international tax matters. Before joining the Office of International Tax Counsel, Ms. Zent was a managing director in KPMG LLP’s Washington National Tax Corporate practice, where she specialized in cross-border taxation issues, and also consulted generally on Subchapter C issues. Ms. Zent has also worked in the U.S. Corporate Tax practice of KPMG’s Toronto, Canada office and in KPMG’s Minneapolis, Minnesota office, providing a full range of federal, international, and state tax consulting.

Ms. Zent has a Bachelor of Accountancy from the University of North Dakota, and a Master of Business Taxation, from the University of Minnesota. Ms. Zent is a Certified Public Accountant.

Carol Tello
is a member of Sutherland’s Tax Practice Group and focuses primarily on international tax matters. Her practice includes a broad range of cross-border tax planning and Internal Revenue Service (IRS) controversy matters for both business entities and individuals. Much of her work has been for insurance companies in the cross-border context. She has particular experience in cross-border restructuring transactions, inbound corporate transactions, withholding matters, and treaty interpretation issues, as well as cross-border taxation of corporate executives and the U.S. taxation of non-U.S. citizens. She also advises clients on tax issues involving intellectual property transactions.

Her prior experience includes service in the IRS Office of Associate Chief Counsel (International) and as a Special Assistant to the Assistant Commissioner (International). While at the IRS, she participated in a number of income tax treaty negotiations, was the IRS National Office adviser in several Tax Court cases, and worked on various regulations and other guidance, including significant participation in developing regulations concerning the taxation of software transactions.

Michael A. DiFronzo serves as a Principal in the Washington National Tax Office of PricewaterhouseCoopers LLP. In that role, Mr. DiFronzo serves as a global resource for the firm’s international tax practice. His practice includes all aspects of international taxation, with a particular focus on international mergers, acquisitions and restructurings and the U.S. anti-deferral rules. He also works closely with U.S. and non-U.S. based multinationals on cross-border financing, cash repatriation and other planning issues. Before joining PricewaterhouseCoopers, Mr. DiFronzo was a senior executive in the U.S. Treasury Department. He worked for the Office of Chief Counsel, Internal Revenue Service as the Deputy Associate Chief Counsel (International – Technical). In that capacity, he had primary responsibility for the oversight of published guidance related to the taxation of cross-border investment and related issues. Mr. DiFronzo served in that role from 2006 through 2010. Prior to joining the Office of Chief Counsel, Internal Revenue Service, Mr. DiFronzo served as a partner in the Tax Department of McDermott Will & Emery LLP in Chicago, Illinois. Mr. DiFronzo’s work experience also includes the Washington National Tax Office of Deloitte Tax LLP and the Washington, DC office of Weil Gotshal & Manges LLP.

Mr. DiFronzo received an LL.M. in taxation from New York University School of Law, a J.D. from University of Montana School of Law, and a B.S. in Accounting from Montana State University. He is the author of numerous articles on cross-border tax issues and a frequent speaker. Mr. DiFronzo is currently a member of the District of Columbia, Illinois, Montana and Nevada bar associations and is admitted to practice before the United States Tax Court. He is also a licensed CPA.

John Merrick is a Special Counsel to the Associate Chief Counsel (International) in the Office of Chief Counsel. Prior to joining Chief Counsel, Mr. Merrick practiced international tax in the national offices of two accounting firms in Washington. He also practiced international and corporate tax in Chicago with an accounting firm and a law firm. Mr. Merrick holds a Bachelors in Business Administration in accounting from Loyola University Chicago, summa cum laude, where he also earned his J.D., cum laude, and was a member of the Loyola Law Journal. He obtained an LL.M. in Taxation from the De Paul College of Law. He also passed the Certified Public Accountant exam.