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Strategies to Recharacterize Gain from Certain Stock Sales with Untaxed Foreign Earnings

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

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Conducted on Thursday, February 23, 2023

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This webinar will review the relevant rules under the new quasi-territorial regime, the remaining types of untaxed foreign earnings, and the basics of Section 1248 and Section 245A. Our panel of multinational tax practitioners will explain planning strategies to use untaxed foreign earnings to recharacterize gain from the sale, or deemed sale, of foreign corporation stock as a deemed dividend that may be eligible for the Section 245A dividends received deduction.


An underlying policy of the GILTI regime is to capture and tax certain income not already included in U.S. income under the Subpart F regime or otherwise. However, as certain types of income are expressly excluded from current taxation under the GILTI rules, a CFC may continue to have untaxed earnings. For instance, a U.S. shareholder’s “net deemed tangible income return,” which is 10 percent of the U.S. shareholder’s aggregate share of a CFC’s qualified business asset investment (QBAI) less a specified interest expense, is excluded from the U.S. shareholder’s GILTI amount. Untaxed income is accumulated and tracked as E&P under Section 1248. These accumulated earnings under Section 1248 can provide tax-saving and planning opportunities for certain transactions.

For example, Section 311(b) provides that if a corporation distributes property with a fair market value that is greater than the distributing corporation’s basis in the property, the distributor’s gain will be treated as a deemed sale of the property to the distributee at its fair market value. If the distributed property is stock of a foreign subsidiary corporation, the distribution is treated as a deemed sale or exchange by the distributor of its foreign subsidiary’s stock. This, coupled with gain recharacterization requirements of Section 1248 and the Section 245A dividends received deduction, presents a significant tax-saving opportunity for multinational companies. Tax practitioners working with CFCs can use these rules to recharacterize amounts that are treated as gain from the sale or exchange of stock as a deemed dividend under Section 1248 that can benefit from the dividends received deduction if the requirements of Section 245A are otherwise met.

Listen as our panel of international tax planning experts provides cost-saving solutions to recharacterize gain from certain foreign stock sales as a deemed dividend that may be eligible for the dividends received deduction.



  1. Overview of the quasi-territorial system
  2. Section 1248 and untaxed E&P
  3. Section 311(b) distributions
  4. Section 964(e) stock sales
  5. Section 245A dividends received deduction


The panel will cover these and other critical issues:

  • Overview of the quasi-territorial system, subpart F and GILTI
  • Explaining the types of untaxed E&P after the enactment of the Tax Cuts and Jobs Act
  • Historical background and mechanics of Section 1248
  • Using untaxed E&P to recharacterize gain from certain Section 311(b) distributions
  • Mitigating tax on Section 964(e) stock sales
  • Utilizing Section 245A DRD to reduce tax


Chung, Bona
Bona Chung
Ernst & Young

Ms. Chung advises multinational clients on tax consulting, planning, and structuring issues in connection with...  |  Read More

Mirisis, Andrew
Andrew G. Mirisis

Freeman Law

Mr. Mirisis is a multi-disciplined tax attorney with over a decade of public and private sector experience. He relies...  |  Read More

Zemil, Nick
Nick Zemil


Mr. Zemil focuses his practice on assisting taxpayers with large-scale international tax issues, with an emphasis on...  |  Read More

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