This paper considers the treatment of the GILTI regime under the GloBE Rules. First, it argues that the GILTI regime (in its current form) is most likely to be treated as a CFC Tax. It then sets out two detailed methodologies for properly allocating taxes under GILTI to individual CFCs in accordance with the GloBE Rules and Commentary. Under the ‘deferential approach’ the GloBE Rules would allocate all additional tax arising from the GILTI regime (including taxes arising from the 20% ‘haircut’ of foreign taxes and the foreign tax credit limitation rules). Under the ‘assertive approach’, the cross-jurisdictional allocation would be limited to where the GILTI regime was asserting ‘secondary taxing rights’. The paper considers the impact of each of these options for the priority ordering rules between taxes as well as the incentives of states to impose the minimum tax. It argues that the preferential approach will largely depend upon whether or not the Inclusive Framework’s objectives for the GloBE Rules include having the minimum tax being imposed by the jurisdiction of the Constituent Entity itself. Finally, the paper argues that both of these allocation mechanisms are complicated and, particularly in light of the possibility that the GILTI regime may be amended to bring it in line with the GloBE Rules, a simplified allocation rule may be considered appropriate by the Inclusive Framework as a transitional measure.
