Tenth Circuit: Section 904(f)(3)(A) does not prevent recognition of gain in excess of overall foreign loss account
Decision of Tax Court affirmed
The U.S. Court of Appeals for the Tenth Circuit today affirmed the U.S. Tax Court and held that section 904(f)(3)(A) did not apply to prevent the taxpayer’s recognition of approximately $2.8 billion in gain (the amount of its gain in excess of its overall foreign loss (OFL) account) upon its sale of controlled foreign corporation (CFC) stock or to recharacterize such gain as foreign source income such that the taxpayer could claim more than $240 million in foreign tax credits.
The case is: Liberty Global Inc. v. Commissioner, No. 24-9004 (August 22, 2025). Read the Tenth Circuit’s decision
Summary
At the beginning of 2010, the taxpayer had an OFL account balance of approximately $474 million. That year, the taxpayer sold all its stock in a CFC, realizing gain of more than $3.25 billion. On its 2010 return, the taxpayer reported approximately $438 million of the gain as dividend income pursuant to section 1248 and approximately $2.8 billion as foreign source income, taking the view that Treas. Reg. § 1.904(f)-2(d)(1) required this result. The increased foreign source income allowed the taxpayer to claim foreign tax credits of more than $240 million for the year.
The IRS determined that the taxpayer overstated its foreign source income for the year and consequently overstated its foreign tax credit, and the taxpayer petitioned the Tax Court for redetermination of the resulting assessed deficiency. The Tax Court in November 2023 held that the IRS was correct in its assertion that section 904(f)(3)(A) does not govern the treatment of the taxpayer’s $2.8 billion in gain (which is instead subject to the rules of sections 865, 1001, and 1248) and Treas. Reg. § 1.904(f)-2(d)(1) does not require that such gain be recharacterized as foreign source. Read TaxNewsFlash
The Tenth Circuit today affirmed the Tax Court and held that the taxpayer’s gain was not foreign source income, and thus the taxpayer was not eligible for the foreign tax credits it claimed.