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Taxation of Intellectual Property: Classifying Intangibles, Determining Domicile, Holding Structures, Amortization

Note: CLE credit is not offered on this program

Recording of a 110-minute CPE webinar with Q&A

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Conducted on Thursday, April 20, 2023

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This webinar will explain the tax ramifications of creating, transferring, and holding intellectual property (IP) in the U.S. and overseas. Our panel of international tax experts will discuss appropriate holding entities, the U.S. international tax regimes as applied to IP, and transfer pricing considerations with an emphasis on minimizing tax and accelerating amortization and expense deductions.

Description

Intellectual property is a broad description covering patents, copyrights, processes, trademarks, software, and a number of other types of intangible property. Different property types are subject to different tax guidelines in the U.S. Amortization rules vary based on the property type. Self-created property could be subject to Section 167 amortization, trade names and trademarks to Section 197, while Section 174 applies to R&E expenses.

Not only are the guidelines for expensing these assets voluminous and complex, where the IP is created and used affects its taxation. Introduced as part of the Tax Act of 2017, the GILTI regime is meant to equalize taxes paid in the U.S. with those paid overseas on these easily transferable assets. The revised provisions of GILTI, FDII, and the preexisting Subpart F muddle the decisions of where to locate these mobile assets and the choice of holding entity. Tax practitioners working with domestic and multinational entities that own, purchase, transfer, or create these assets need to understand and plan for the acquisition, transfer, and expensing of these valuable assets.

Listen as our panel of IP attorneys explains key features of these intangible assets so that tax advisers and businesses can maximize the tax benefits of owning these worthwhile resources.

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Outline

  1. Definition of intellectual property
    1. Codified intangibles
        1. Patents
        2. Trademarks
        3. Copyrights
        4. Trade secrets
    2. Other intangibles
        1. Good will
        2. ii. Marketing
        3. iii. Workforce in place
        4. iv. Publicity rights
  2. IP creation
    1. U.S. vs. non-U.S.
    2. Cost sharing
    3. Cross border tax implications
  3. Mobile income
    1. Choice of offshore domicile, patent box regimes
  4. U.S. international tax issues
    1. GILTI
    2. FDII
    3. Subpart F
    4. Super royalty provisions under Section 367(D)
  5. Transfer pricing considerations
    1. License or sale of IP
    2. Services

Benefits

The panel will review these and other critical issues:

  • Tax treatment of intellectual property by type of property
  • Tax considerations for self-created property
  • Locating the intangible asset: U.S. or abroad
  • GILTI and FDII taxation of intellectual property
  • Choice of offshore domicile

Faculty

Anolik, Stuart
Stuart Anolik
Partner
FisherBroyles

Mr. Anolik has handled client matters involving international investment and finance, intellectual property migration,...  |  Read More

Jablonski, Kevin
Kevin Jablonski
Partner
FisherBroyles

Mr. Jablonski is a registered patent attorney with a focus on patent portfolio development and patent prosecution. He...  |  Read More

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