Licentious Behavior

How do I handle withholding fee for license fees in Japan? StaffJuly 13, 2001

Q: We license virtual component (synthesizable electronic design) technology to companies in Japan and other foreign countries. The license agreements include a license fee, maintenance fee, and royalties when the products that are developed using this technology are put into production. The governments try to withhold 20 percent of the value of the license transaction (because it is considered software). If you sign an exemption certificate they ‘only’ withhold 10 percent. Supposedly, this certificate can be used to offset taxes in the United States (provided you meet certain criteria and have profits that can be used as an offset).

Are there any ways to eliminate this withholding against the revenue that is the license fee portion? (I realize that the royalty payments are a different discussion.)

Name Withheld

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Although most countries consider one-time license fees for software to be “sales” income, some, such as Japan and Korea, treat them as “royalties.” Japan subjects royalties to a 20 percent withholding tax, but reduces this rate to 10 percent for certified U.S. residents, in accordance with the U.S.-Japan Income Tax Treaty.

Usually, foreign taxes are creditable for U.S. taxpayers if 9a0 the Internal Revenue Service agrees that theses are “income taxes,” and not, for example, “voluntary payments” to a foreign country; and (b) the U.S. taxpayer actually pays U.S. taxes against which to use these foreign taxes to offset the U.S. tax on the same foreign-sourced income, among other requirements.

Unfortunately, the IRS has denied foreign tax credits for Japanese withholding taxes on up-front, one-time “license fees” for software,” because it believes that such tax should not have been paid on this “sales” income. (In addition, it is very common for software companies to have negative U.S. taxable income, due to research, stock options, and other expenses.) However, for annual license fees, the IRS respects Japan’s “royalty” characterization. There is no simple answer as to how to “avoid” Japanese royalty treatment for one-time license fees.

Arnold Fries
Principal, Ernst & Young LLP

See previous “Ask the Experts” columns:

Software Leasing

Buy-out Legal Fees and Treasury Stock

A Merger Accounting Scenario

Use Tax

A FAS 133 Example

Leasing Accounting

Goodwill Taxing

Recognizing Upfront Fees

Proving Tax-exempt Status

The ABCs of OECD

Credentials for Credit

Big Five Audits and Venture Funding

GAAP for Private Firms

Transfer-Pricing Guidelines

Insurance for E- business Infrastructure

401(k) Brokerage Links

Navigating the Rough Waters of Sales Tax

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