A unitary
business group is defined - in part - as:
a group of United States persons, other than a foreign operating entity, 1 of
which owns or controls, directly or indirectly, more than 50% of the ownership
interest with voting rights or ownership interests that confer comparable rights
to voting rights of the other United States persons . . . . [MCL 208.1117(6)
(emphasis added).]
"United States person" means "that term as defined in [IRC] 7701(a)(30)." MCL
208.117(7). Under IRC 7701(a)(30), "United States person" means:
(A) a citizen or resident of the United States,
(B) a domestic partnership,
(C) a domestic corporation,
(D)any estate (other than a foreign estate, within the meaning, of paragraph
(31)), and
(E) any trust if-
(i) a court within the United States is able to exercise primary supervision
over the administration of the trust, and
(ii) one or more United States persons have the authority to control all
substantial decisions of the trust. [IRC 7701(a)(30).]
A partnership or corporation is "domestic" when that entity is "created or
organized in the United States or under the law of the United States or of any
State unless, in the case of a partnership, the Secretary provides otherwise by
regulations." IRC 7701(a)(4).
In other words, a foreign entity is not a U.S. person and is therefore excluded
from unitary business groups. Similarly, foreign operating entities are also
excluded from unitary business groups under the MBT. "Foreign operating entity"
means a U.S. person that:
(a) Would otherwise be a part of a unitary business group that has at least 1
person included in the unitary business group that is taxable in this state.
(b) Has substantial operations outside the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession of the
United States, or a political subdivision of any of the foregoing.
(c) At least 80% of its income is active foreign business income as defined in
section 861(c)(1)(B) of the internal revenue code. [MCL 208.1109(5).]
Foreign entities or foreign operating entities are excluded even if that entity
owns a domestic single member limited liability company disregarded for federal
tax purposes. The domestic disregarded entity and foreign parent will file
separately - the domestic subsidiary as part of the unitary business group and
the foreign entity, or foreign operating entity, as a separate taxpayer. [Note:
The insertion of a foreign entity or foreign operating entity into a chain of
ownership does not cut off the entities under the foreign entity from the
unitary business group so long as the control and relationship tests for a
unitary business group are satisfied.]
Foreign entities or foreign operating entities are also excluded if that entity
is the disregarded entity of a domestic entity included in a unitary business
group. In that case, the foreign entity must file a separate return.
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