BEAT Update: New Provisions Provide Some Help to Captives
Treasury issued new proposed (Reg-112607-19) and final (T.D. 9885) regulations on the base erosion anti-abuse tax (BEAT) on December 12, 2019. The BEAT is a minimum tax on modified taxable income, determined by adding back base erosion payments to US taxable income. The BEAT only applies to "applicable taxpayers" that have an annual average of $500 million or more in gross receipts, calculated over 3 years, and a base erosion percentage of 3 percent (2 percent for certain financial companies) (i.e., the ratio of deductible payments made to non-US related parties' overall deductible payments).
These new provisions provide some helpful news to captive insurance companies. The proposed regulations provide an election to forego deductions in order to stay under the 3 percent base erosion percentage cliff, and the final regulations provide that certain loss payments made on behalf of unrelated underlying insureds are not base erosion payments and are not included in either the numerator or denominator for purposes of calculating a taxpayer's base erosion percentage.