Asia coal export boom brings no bonus for U.S. taxpayers

WASHINGTON, Tue Dec 4, 2012 — U.S. miners who are booking big profits on coal sales to Asia are enjoying an accounting windfall to boot.

By valuing coal at low domestic prices rather than the much higher price fetched overseas, coal producers can dodge the larger royalty payout when mining federal land.

The practice stands to pad the bottom line for the mining sector if Asian exports surge in coming years as the industry hopes, a Reuters investigation has found.

Current and former regulators say their supervisory work has lagged the mining industry as it eyed markets across the Pacific. They say they will now give the royalty question a close look.

“We are committed to collecting every dollar due,” said Patrick Etchart, spokesman for the Office of Natural Resources Revenue, which collects federal royalties.

At issue is the black rock pulled from the coal-rich Powder River Basin in Wyoming and Montana. Miners there say they abide by the letter of royalty rules that call for the government to get a 12.5 percent cut on coal sold under federal lease.

How an IC-DISC can benefit your company

Tim Schlotterer, Director, Tax and Business Advisory Services, GBQ Partners LLC

Exporting goods overseas can have a positive impact on your business. The Interest Charge Domestic International Sales Corporation, or IC-DISC, can offer a tremendous tax benefit and a permanent tax savings opportunity for your company.

Generally, if you are a tax-paying entity that exports more than $1 million in sales to locations outside the U.S., you should consider an  IC-DISC, says Tim Schlotterer, CPA, director, tax and business advisory services with GBQ Partners LLC. An IC-DISC could reduce your federal effective tax rate on qualified export income by as much as 20 percent.

“IC-DISC has become more prevalent in recent years due to the favorable qualified dividend tax rate,” says Schlotterer. “In years past, companies have used other export incentives. However, those are no longer available as a result of the World Trade Organization potentially placing sanctions on the U.S. for offering those incentives.”

Smart Business spoke with Schlotterer about what you need to know about IC-DISC and how it can benefit your company.

What are key items businesses need to understand about an IC-DISC?

IC-DISC is not for everyone. It is really important to identify that you  have qualified export income. Three requirements must be met in order for an IC-DISC to have qualified income from an export sale.

  • The goods sold must be manufactured, produced, grown, or extracted in the U.S. by an entity other than the IC-DISC.
  • The export property must be held primarily for sale, lease or rental use, consumption, or disposition outside the U.S.
  • The export property must contain at least 50 percent of the fair market value attributable to U.S. produced content.

In addition to export sales, an IC-DISC can be used if you are providing engineering or architectural services for construction projects located outside of the U.S.

What is an IC-DISC?

An IC-DISC is a separate legal entity.  Companies will need to coordinate with their tax adviser and attorney to incorporate the IC-DISC. An IC-DISC’s benefits are not retroactive. To qualify as an IC-DISC, a corporation must:

  • Have a minimum capitalization of 2,500 authorized and issued shares.
  • Have a single class of stock.
  • Be incorporated in one of the 50 states or in the District of Columbia.
  • Have qualified export sales.
  • Ninety-five percent of the IC-DISC’s gross receipts and assets must be related to the export of property.
  • File an election with the IRS to receive approval to be treated as an IC-DISC for federal income tax purposes.
  • Maintain separate books and records.

How can an IC-DISC reduce taxes?

An entity that has qualified as an IC-DISC will need to set up a commission agreement with your company. The company then pays a commission (which is tax deductible) to the IC-DISC.

The qualified export sale commission income earned by an IC-DISC is tax-exempt as long as the IC-DISC distributes its income to its shareholders. This distribution is made in the form of a qualified dividend, which is currently taxed at a rate of 15 percent.

There are two methods by which the commission can be computed. Companies are able to compute this commission on a transaction by transaction basis. Therefore, companies are able to use the greater of the two methods in determining which commission to charge:

  • 4 percent of qualified export receipts
  • 50 percent of foreign source taxable income.

It is recommended that you work with your tax adviser to determine which commission method should be used. Companies with large gross margins will generally have a larger tax benefit using the 4 percent method in computing the IC-DISC commission.

What are the benefits and risks associated with IC-DISC?

The largest benefit an IC-DISC provides is a permanent tax savings to the company. In addition to this, an IC-DISC could be used as a way to incent key employees within your organization or as an estate planning tool.

There is no requirement that an IC-DISC’s shareholders be the same as those of the company. You can therefore offer ownership that differs from the operating company and distribute earnings to the shareholders in the form of a 15 percent qualified dividend.

The largest risk of IC-DISC is that the qualified dividend rate of 15 percent is only secured through the end of 2012. There is concern that if nothing is done with the current tax law, the qualified dividend rate would go away and it would return to the ordinary tax rate, so there would be no difference in the tax rates and no benefit.

To the extent that the qualified dividend rate stays at 15 percent, or lower than the ordinary tax rate,  an IC-DISC will be a good option for companies to enhance their export sales in the future.

Tim Schlotterer, CPA, is director, tax and business advisory services, at GBQ Partners LLC. Reach him at (614) 947-5296 or [email protected]

Insights Accounting & Consulting is brought to you by GBQ Partners LLC

Cheniere and BG agree to $8 billion deal to export U.S. LNG

HOUSTON ― BG Group will export liquefied natural gas from the United States under a landmark $8 billion deal with Cheniere Energy that will allow domestic producers to ship bountiful shale gas supplies to the world for the first time.

The deal, announced Wednesday, paves the way for terminal developer Cheniere to secure financing for the its Sabine Pass project in Louisiana which could be the first LNG export plant built in the United States in nearly 50 years as U.S. gas production hits record highs.

“If we start construction by next year then we could be exporting by 2015,” Cheniere chief executive Charif Souki told Reuters. “The BG Group contract will help with financing.”

The deal is expected to reap $410 million a year, Souki said, a boon for a company which put most of its money into building a huge import terminal at Sabine Pass that has for three years received only sporadic supply.

Record U.S. natural gas production has swamped the market in recent years, leading to a series of rival export proposals all hoping to sell LNG to higher paying markets in Asia and Europe.

LNG is natural gas cooled to a liquid for shipping overseas.

Under the deal, which could help reverse the fortunes of the troubled Houston-based company, Cheniere will sell 3.5 million tonnes per year of liquefied natural gas to BG for 20 years from its proposed export plant in Sabine Pass, Louisiana.

Terminal developers like Cheniere are scrambling to turn their idle import facilities into export plants to ship U.S. natural gas abroad after a revolution in shale gas production left the United States with 100 years of supply.

BG Group, one of the world’s biggest LNG players, has access to import markets across the globe. Anywhere from Japan to Korea to Chile could soon be importing U.S. gas.Cheniere will sell the LNG to BG for 115 percent of U.S. benchmark Henry Hub prices, plus a $2.15 premium.

“The 15 percent will be used for fuel and sourcing the gas, so we will make $2.15 (per million British thermal units),” Souki said.

“We haven’t decided where we will source the gas from. It will either be from the market or through a supply deal,” he said.

Sabine Pass will have an initial capacity to export 9 million tonnes per year. Cheniere expects to announce another supply deal soon, Souki said.

Five projects across the United States and two in western Canada have applied for construction and export licenses, seeking long term deals predominantly with buyers in Asia where prices are four times higher than those in the United States.

Cheniere is the only project in the United States with a license to ship LNG across the globe. It is now waiting for approval to start construction at Sabine Pass, which will source gas from prolific shale fields in the southern United States for thirsty Asian markets.

How to make sure you’re protected when doing business in other countries

It’s a reality of business today: many of the products sold in the U.S. are part of a global supply chain. There is even a debate surrounding what percentage of a product has to come from the United States in order to be labeled “Made in the U.S.A.”

“Unless they are very small, most manufacturing and distribution companies in the U.S. are involved with at least one other country,” says Debra F. Scalice, vice president, Millennium Corporate Solutions.

“Importing from China alone has increased from $109 billion in 2001 to $365 billion today — that’s huge; almost a 300 percent increase. Obviously the removal of U.S. manufacturing jobs has had multiple impacts, and among these is increased international risk,” Scalice adds.

Unfortunately, she says, many U.S. companies are not fully cognizant of the consequences that may occur if they are not covered properly while conducting business with and in other nations.

Smart Business asked Scalice about some of the exposures businesses face and what they can do to minimize them.

Why is international risk such an important topic right now?

Many U.S. manufacturers are fighting to stay alive and they are often resorting to smaller, niche markets, leaving their old product skews behind and innovating new products or parts, which are imports. They must change or face extinction via lack of competitive price points. Nearly all U.S. companies are involved to some degree with importing or exporting. All too often, U.S. companies think they are protected from various liabilities when in reality they are not. It is easy to misinterpret your coverage. Countries have very specific mandates about the types of coverage you need to have and who is legally able to provide that coverage — Mexico is a good example. If you don’t have a Mexican insurance company and something goes wrong, you’re going to jail.

What are some of the risks involved with property exposure?

Typically, international property exposures are similar to domestic exposures. You need to know where the property is located, whether there are any nationally mandated coverages, availability of coverage subject to increased hazards, if the property is adequately covered while in transit, and if you are using the shipper’s coverage or purchasing your own.

Are there any time constraints regarding the arrival of your property? What if the goods arrive at the harbor and half of the product isn’t there? Or, has the product been substituted using trickery? What level of risk are you prepared to take on yourself? On the other hand, if you are exporting, what happens if the companies you are exporting to owe you money and disappear? Can you handle the financial loss or will you need credit insurance?

What key factors about liability exposure do companies need to be aware of?

If you’re manufacturing in the U.S. and your policy says you have worldwide coverage and protection, don’t let that lull you into a false sense of security. It probably means you’re only covered for lawsuits initiated in the U.S. Let’s say you sell something in Europe and someone gets hurt. You think you have worldwide coverage, but if you don’t have proper international liability in place, there could be terrible financial consequences.

Liability exposure for importers is another consideration. There are many domestic carriers who are not interested in covering imported products. So if you’re an importer and something goes wrong with the product you imported, you will be held accountable, as there is no domestic manufacturer to seek financial restitution from. It is very difficult to sue in other countries, which are often ‘developing.’ Who will you sue in that country? Are they even liable according to their laws? What if the products you’re bringing in and selling to your clients start to fail? This is a nuance of international business you can’t insure for, but you have to contemplate the risk.

What are some considerations for traveling overseas for business?

In today’s world, you do not want to be walking around a foreign country without proper risk assessment and coverage. Let’s say you’re a salesperson who travels to London for your boss; you and your boss decide you should live there temporarily. The employer needs to cover you for workers’ compensation in that country — it’s a human resource issue. Or let’s say you’re the CEO of your own business and you’ve excluded yourself from workers’ compensation insurance. You go to Europe and something happens to you — you have a car accident or a health event, or a political act takes place. Who will pay to bring you back to the U.S.?  Kidnap and ransom are also real concerns. If you are an American traveling abroad, you are a target. There are hotter spots than others in terms of exposure, but it’s actually quite common and happens all over the world. For any executives who are traveling, you need to ensure that risk management techniques have been employed to help assure your safety and that the right coverage is in place.

How can companies ensure that they are protected properly?

Talk with your international attorney and a diligent insurance broker who will show you how to protect your interests. They will help you determine your own risk tolerance, where you are exposed, and what needs to be covered. Seek a broker familiar with international risk who will know the insurance vehicles available to cover international risk. Equally important, the broker will help you understand what is not covered. This is a very dynamic and fluid area so it’s important to keep in touch with your broker on a regular basis to ensure you are properly covered at all times.

DEBRA F. SCALICE is vice president, Millennium Corporate Solutions. Reach her at (949) 679-7139 or [email protected]

How your bank can help you do business overseas

Jeannie Kao, Executive Vice President/Division Manager, International Banking Division, Bridge Bank

With uncertain markets, what seems today like a good international business deal could turn into a major loss tomorrow.

To protect your business against volatile currency markets, consider hedging, says Jeannie Kao, executive vice president/division manager, International Banking Division at Bridge Bank.

“When negotiating with a foreign buyer or vendor, what is on the table now might make you money today,” says Kao. “But the only way to guarantee that profit is to lock in the exchange rate so you know that when you do get paid, your margin is protected.”

Smart Business spoke with Kao about how hedging can impact your business and how doing business with an EX-IM-affiliated bank can help you gain access to capital.

What is the first thing to consider when thinking about doing business overseas?

Think about where you are in this trading relationship. Are you a buyer or a seller? Do you have more negotiating power when compared to your counterpart, or do you not really have a say? If you are a small company dealing with a large company, your negotiating power is weak. But if you are a bigger company dealing with a smaller vendor, you’ll have a lot more say.

You also need to evaluate yourself. Look at what you are selling. Are you buying offshore, as well? What currencies will you be dealing with? Do you need financing? What kind of instrument will you use to conclude the sales transaction? Your banker can point out things you may not have thought of and suggest instruments to help you secure and protect yourself.

How can hedging help a business protect itself?

Due to recent volatility in currency markets, the U.S. dollar is no longer the king of currency. Ten years ago, companies didn’t want to deal in foreign currency because the risk was too great, so they only dealt with companies that would take U.S. dollars. But today, when you want to get a good deal, sometimes you have to pay, or buy, in the local currency of the market you’re dealing in.

A simple hedging scenario is a forward contract. Let’s say, today, pricing per unit on your foreign transaction is $1.41. But you won’t be paying for 90 days. Today, you may be getting a good deal, but if the exchange rate goes up to $1.45 in this scenario, your margin has suddenly diminished, and you may now  be losing money. To protect your costs on transactions like this, get a forward contract to ensure that your costs are locked in

So your strategy should be to manage this process closely, rather than to take what could be costly chances. Many businesses choose the latter, and if by chance the market swings in their favor their profit margin will widen. But if the market goes against them, their margins could disappear completely. It’s not worth the risk.

How can the Export-Import Bank of the United States help a company do business overseas?

The EX-IM Bank is the official export credit agency for the U.S. Its primary aim is to promote export activities, but it is a small agency.

Commercial lenders in the market, however, have contacts with exporters. So the EX-IM Bank names certain commercial banks as delegated authority lenders to provide lending to exporters, with the EX-IM Bank providing a 90 percent guarantee on loans that these particular commercial banks make.

For example, if a commercial bank is not a delegated authority lender, it wouldn’t even look at using international receivables as collateral for lending because those receivables represent a higher risk. So they only want to consider domestic receivables as potential collateral.

A company that is heavily into exporting doesn’t have much in domestic receivables but does have foreign receivables, making it difficult to get working capital from a regular commercial bank. So the EX-IM Bank designed this program in which, if commercial banks are willing to lend to exporters, it will guarantee the lender 90 percent of the loan, and the commercial bank is only exposed to 10 percent of the risk. That makes it easier for the commercial lender to help the exporter. And the exporter still deals with its own bank; EX-IM only comes into play if the loan goes into default.

What should a business look for when doing business with a bank?

Look at the banking relationship. Businesses tend to think that, if they’re importing or exporting, they have to go to a global bank. There’s nothing wrong with that, but if a business is small, it may not get the attention it needs to help it structure deals. At a bigger bank, smaller companies tend to get lost.

By going to a bank that caters to smaller companies, you can get the attention that you need to move your business forward. Your bank can do so much more than just provide you with a loan. Look for a bank that really wants to help you and that can ask the right questions to urge you to think through the details of what needs to be in place to achieve your business objectives.

Find a bank that will get to know your company. It should really understand what your business model is, and what kinds of products you do and don’t need, and provide you with an honest assessment.

By finding the right bank to partner with, your business can take advantage of the growing opportunities in international markets.

Jeannie Kao is executive vice president/division manager, International Banking Division at Bridge Bank. Reach her at (408) 556-8375 or [email protected]

How to qualify for an IC-DISC that can decrease tax on export sales by half

For U.S. companies considering export sales, the potential incremental transportation costs, selling expenses, duties and other costs can create a financial barrier to entry.  This complicates a tough environment in which manufacturers are working to cut costs and go lean to compete in a difficult global economy.

Doug Eckert, Member, International Tax Practice Leader, Brown Smith Wallace LLC

The potential silver bullet is an export incentive that could save you as much as 10 cents of tax on every dollar of export profit. The Interest Charge Domestic International Sales Corporation (IC-DISC) tax incentive has been in place since the 1970s but has been underutilized. However, taking advantage of this tax incentive can change your financial picture and help you compete in today’s world market.

“Businesses that implement an IC-DISC can reduce the U.S. tax cost for export sales profits by more than 50 percent,” says Doug Eckert, member and international tax practice leader, Brown Smith Wallace LLC, St. Louis, Mo. “It is an opportunity to save tax dollars on export sales so companies can reinvest that money back into their operations. This incentive is designed to encourage U.S. businesses to manufacture in the U.S. and export, with the hope that export sales on an after-tax basis will be at least as profitable as domestic sales.”

Smart Business spoke with Eckert about how IC-DISC can benefit your company and how you can qualify for the export incentive.

What is the IC-DISC tax incentive, and how does a company qualify?

The IC-DISC incentive permits qualifying U.S. taxpayers to exclude at least 50 percent, and often more, of their export income. Any company that manufactures, produces or grows products in the U.S. can qualify for IC-DISC benefits, as long as those products are exported.

Basically, you qualify if your products or goods are produced in the United States and contain at least 50 percent U.S. content — meaning that goods can contain some foreign components — and if you are selling to a customer outside the United States. The customs duty value of imported components must be less than half of the sales price of the finished exported goods.

Also, you don’t have to be the actual exporter to qualify for IC-DISC. You can still qualify if you sell goods to a customer for use outside the United States.

In addition, distributors that don’t actually manufacture goods can qualify for an IC-DISC as long as the product is manufactured in the U.S. and they export the products.

How does the tax incentive work?

To take advantage of IC-DISC benefits, you set up a separate corporation that elects to be an IC-DISC. Generally, this company would not have employees or operations.

A portion of the export profits are allocated to the IC-DISC company. There are several different allocation rules, of which, 50 percent of the export profits is the most common method.  However, it is allowable to use 4 percent of gross receipts, or a method called the marginal costing method, which allows averaging of domestic sales profits and export sales profits to determine the profit that may be allocated to the IC-DISC. Taxpayers may choose the method that allocates the maximum profit to the IC-DISC.

The profit allocated to the IC-DISC is not subject to U.S. federal tax. The remaining profit stays with the exporting company.

For example, say your company makes $2 million in export profits. The IC-DISC will report receiving $1 million in export commission income, and your company will reduce its $2 million of export profits by a deduction payable to the IC-DISC, leaving only $1 million of income subject to tax.

Your company then pays tax of $350,000 (a 35 percent rate) and the DISC does not pay tax. At the time the DISC distributes its profits to individual shareholders, the distribution is taxed at the qualified dividend rate of 15 percent.

Therefore, the profits in the IC-DISC are ultimately subject to tax of $150,000 in this example, compared to a tax of $350,000 had the IC-DISC not been in place, a savings of $200,000. That amounts to a savings of 10 cents for every dollar of export profits by starting an IC-DISC and taking advantage of this tax incentive.

Can service companies qualify for the incentive?

There are carve-outs for specific industries such as software that some people may not define as a product. Also, service companies providing architectural or engineering services for construction projects outside the U.S. may qualify for an IC-DISC.

These provisions are very specific, so service firms should talk to an international tax adviser about whether they qualify.

What steps should a company pursue to take advantage of the incentive?

Talk to a tax professional who is well versed in international affairs so you can be assured that you are setting up the IC-DISC properly and realizing its full tax advantage. Essentially, to receive IC-DISC benefits, you must set up an IC-DISC corporation that is separate from the manufacturing company. The IC-DISC must be a newly formed C corporation. You then elect to be treated as an IC-DISC within 90 days, which makes the entity nontaxable for federal tax purposes.

How can implementing an IC-DISC fit into a company’s bigger tax picture?

For companies with export income, this is an opportunity to defer taxation or take advantage of lower dividend tax rates that are set to expire Dec. 31, 2012.

To ensure that the IC-DISC company is properly structured, you should work with a CPA firm with IC-DISC specialists who can guide you through the process, including all the structuring and compliance issues.

Doug Eckert is a member and the international tax practice leader at Brown Smith Wallace in St. Louis, Mo. Reach him at (314) 983-1268 or [email protected]