A US LLC wholly owned by a US corporation, which has not checked the box to be treated as a corporation for US tax purposes, nevertheless has "earnings" under subparagraph (a)(i) of the s. 5907(1) definition. To fall under that subparagraph, it is sufficient that the LLC's earnings are required to be calculated under US law in order to compute the owning corporation's taxes rather than its own taxes. However, CRA also stated:
If the CRA encounters a Canadian corporation that has attempted to inflate the surplus balances of a foreign affiliate that is a US limited liability company by computing its "earnings" in accordance with the Act and ignoring discretionary deductions, the CRA may challenge the taxpayer's filing position as if none of these positions existed. The result may be that U.S. limited liability company does not qualify as a "foreign affiliate" as defined in subsection 95(1) of the Act.