Controlled Foreign Corporations

CFC rules are features of an income tax system designed to limit artificial deferral of tax by using offshore low taxed entities. The rules are needed only with respect to income of entities that is not currently taxed to the owners of the entity. The basic mechanism and details vary among jurisdictions. Generally, certain classes of taxpayers must include in their income currently certain amounts earned by foreign entities they or related persons control. A set of rules generally define the types of owners and entities affected, the types of income or investments subject to current inclusion, exceptions to inclusion, and means of preventing double inclusion of the same income. Countries with CFC rules include, but are not limited to, the United States (since 1962), the United Kingdom, Germany, and Japan. The rules of each of these four countries bear significant differences.

The tax law of many countries, including the United States, does not tax a shareholder of a corporation on the corporation's income until the income is distributed as a dividend. Prior to U.S. CFC rules, it was common for U.S. publicly traded companies to form foreign subsidiaries in tax havens and shift "portable" income to those subsidiaries. Income shifted included investment income (interest and dividends) and passive income (rents and royalties), as well as sales and services income involving related parties. U.S. tax on this income was avoided until the tax haven country paid a dividend to the shareholding company. This dividend could be avoided indefinitely by loaning the earnings to the shareholder without actually declaring a dividend. The CFC rules of Subpart F were intended to cause current taxation to the shareholder where income was of a sort that could be artificially shifted or was made available to the shareholder. At the same time, such rules were designed not to interfere with normal commercial practices.

The rules vary, so this paragraph may not exactly describe a particular tax system. However, the features listed are prevalent in most CFC systems. A domestic person who is a member of a foreign corporation (a CFC) that is controlled by domestic members must include in such person's income the person's share of the CFC's subject income. The includible income (often determined net of expenses) generally includes some of the following:

• Income received by the CFC from investment or passive sources, including interest, unrelated party dividends, rents from unrelated parties, and royalties from unrelated parties;
• Income received by the CFC from purchasing goods from related parties or selling goods to related parties where the goods are both produced and for use outside the CFC's country;
• Income received by the CFC from performing services outside the CFC's country for related parties;
• Income from non-operating, insubstantial, or passive businesses, and
• Income of the above types received through lower-tier partnerships and/or corporations.

In addition, many CFC rules treat as a deemed dividend earnings of the CFC loaned by the CFC to domestic related parties. Further, most CFC rules permit exclusion from taxable income of dividends paid by a CFC from earnings previously taxed to members under the CFC rules.

CFC rules may have a threshold for domestic ownership, below which a foreign entity is not considered a CFC. Alternatively or in addition, domestic members of a foreign entity owning less than a certain portion or class of shares may be excluded from the deemed income regime.

Enacted in 1962, these rules incorporate most of the features of CFC rules used in other countries. Subpart F  (IRC sections 951-964 and related  IRS regulations)   was designed to prevent U.S. citizens and resident individuals and corporations from artificially deferring otherwise taxable income through use of foreign entities.  The rules require that:

• A U.S. Shareholder of a
• Controlled Foreign Corporation must
• Include in his/its income currently
• His/its share of Subpart F Income of the CFC and
• His/its share of earnings and profits (E&P) of the CFC that are invest in United States Property, and further
• Exclude from his/its income any dividends distributed from such previously taxed income.

Each of the capitalized terms above is defined. A  CFC is any corporation organized outside the U.S. (a foreign corporation) that is more than 50% owned by U.S. Shareholders. A U.S. shareholder is any person (individual or entity) that owns 10% or more of the foreign corporation. Complex rules apply to attribute ownership  of one person to another person.

Subpart F income includes the following types of income (IRC sections 953 and 954):

• Foreign Personal Holding Company Income (FPHCI), including dividends, interest, rents, royalties, and gains from alienation of property that produces or could produce such income. Exceptions apply for dividends and interest from related persons organized in the same country as the CFC, active rents and royalties, rents and royalties from related persons in the same country as the CFC, and certain other items. (IRC section 954(c))
• Foreign Base Company Sales Income from buying goods from a related party and selling them to anyone or buying goods from anyone and selling them to a related party, where such goods are both made and for use outside the CFC's country of incorporation. A branch rule may cause transfers between a manufacturing branch of a CFC in one country and a sales branch in another country to trigger Subpart F income.  (IRC section 954(d))
• Foreign Base Company Services Income form performing services for or on behalf of a related person. A substantial assistance rule can cause services performed for unrelated parties to be treated as performed for or on behalf of a related party.  (IRC section 954(e))
• Foreign Base Company Oil Related Income from oil activities outside the CFC's country of incorporation. ( IRC section 954(g))
• Insurance Income from insurance or annuity contracts related to risks outside the CFC's country of incorporation.  (IRC section 953)

Certain broad exceptions apply to negate the requirement of inclusion for particular income.  Subpart F income does not include items of income which (after considering deductions, etc., under U.S. concepts) were subject to foreign income tax in excess of 90% of the highest marginal U.S. tax rate for the type of shareholder.  De minimis amounts of Subpart F income need not be included, in absence of other Subpart F income.  Subpart F income is deferred if the CFC has a deficit in E&P, until the CFC has positive E&P.  (IRC section 952)

In addition, a U.S. shareholder must include in his/its income his/its share of E&P invested in U.S. Property.  (IRC section 956)  For this purpose, U.S. Property specifically includes obligations of or investments in related parties, tangible property with a physical situs in the U.S., and stock of a domestic corporation. It does not include bank deposits or obligations of unrelated persons.

U.S. rules provide that a U.S. shareholder excludes from his/its income any dividend received which is considered paid from amounts previously taxed under Subpart F.  (IRC section 959)

Corporate U.S. shareholders are entitled to a foreign tax credit for their share of the foreign income taxes paid by a CFC with respect to E&P underlying a Subpart F inclusion.  (IRC section 960)

To prevent avoidance of Subpart F, U.S. shareholders of a CFC must recharacterize gain on disposition of the CFC shares as a dividend.  (IRC section 1248)  In addition, various special rules apply.

UK Controlled Foreign Company  rules do not apply to individual shareholders, but otherwise bear many similarities to U.S. rules. UK resident companies subject to a charge for tax on undistributed income of low tax controlled foreign companies of which they are shareholders. Control for this purpose is not a mechanical test, rather one of factual control. However, control is considered to exist if the shareholder (or shareholder group of companies) own 40% or more of voting interests. Per the HMRC,  "The test is not a mechanical one based simply on, for example, shareholding or voting rights. The aim is to establish whether a person (or persons) has the power to ensure that the affairs of a company are conducted in accordance with his (or their) wishes."

A controlled company is a controlled foreign company if it is tax resident outside the UK and it is subject to a charge to tax less than it would have been were it a UK resident company. This is determined by comparing the actual charge to tax to a corresponding UK tax. In computing the corresponding tax, lower UK rates of tax on small companies are considered. Further, there are taken into account certain adjustments to income and fiscal years.

Certain exemptions apply.  (ICTA88/S748(a)) Generally, a foreign company will not be considered a controlled foreign company if it meets any of the following tests:

• It is tax resident in a "white list" of countries not considered to be tax havens, as maintained by HMRC,
• The foreign company maintains a policy whereby it distributed 90% or more of its available earnings each year,
• The foreign company meets an active business test,
• The foreign company is publicly quoted on a recognized securities exchange, or
• The group meets a no-tax-reduction motive test.

The CFC provisions in Germany apply to both individual and corporate shareholders of a controlled foreign company. Such shareholders must include in their currently taxable income as a deemed dividend their share of passive income if two tests are met:

• German residents control the non-German corporation and
• That corporation is taxed at a rate of less than 25% on the passive income.

Control in this case is ownership by all German residents of more than 50% of the vote or capital of the foreign corporation. Such ownership includes both direct ownership and ownership through related persons. In determining the 50% threshold, all German residents are considered, even those owning very minor amounts.

Passive income is all income which is not active income, as extensively defined. Active income, however, excludes income where there has been substantial assistance by a German related party in earning the income. Active income also excludes all income of a foreign corporation lacking sufficient substance. Generally, passive income resembles U.S. Foreign Personal Holding Company Income discussed above. However, deemed dividends may be exempted under some treaties.

Japan taxes shareholders of foreign corporations where the operation of such corporation results in no or minimal foreign tax. However, there is a waiver where the foreign corporation conducts a substantial business. New Zealand and Sweden each have CFC rules, following a "grey list" and a "white list" approach, respectively. Numerous other countries have CFC rules. Australia has CFC rules similar to UK rules, but relies more on a "white list" of safe countries.

Several countries have adopted other measures aimed at preventing artificial deferral of passive or investment income. The U.S. Passive Foreign Investment Company (PFIC) require that shareholders in foreign mutual funds must include in their current taxable income their share of ordinary income and capital gains, or face a tax-and-interest regime.

Under U.S. tax rules, a foreign entity may be classified for U.S. tax purposes as a corporation or a flow-through entity somewhat independently of its classification for foreign purposes. Under these "check the box" rules, shareholders may be able to elect to treat their shares income, deductions, and taxes of a foreign corporation as earned and paid by themselves. This permits U.S. individuals to obtain credits for foreign taxes paid by entities they own, which credits might otherwise not be available.

Artificial arrangements to avoid CFC status may be ignored in some jurisdictions under legislative provisions or court developed law, such as substance over form doctrines.  See  26 CFR 1.957-1(b)(2)   and HMRC guidance.

European civil law may provide opportunities for formalistic agreements whereby practical control is maintained but formal definitions of control are not met