A controlled foreign company (CFC) is a term used in international tax law to describe a company located in a foreign country that is controlled by residents or entities of another country. The concept of CFCs is designed to prevent tax avoidance by individuals or businesses who shift their profits to low-tax or no-tax jurisdictions.
Example to help you understand what is a Controlled Foreign Company
Let’s say there’s a fictional country called Taxland, where the corporate tax rate is 30%. A company called ABC Inc. is based in Taxland and earns $1 million in profits each year.
However, ABC Inc. has a subsidiary called XYZ Ltd. located in a country called Tax Haven, where the tax rate is only 5%.
If ABC Inc. directly earned the profits in Taxland, it would owe $300,000 in taxes (30% of $1 million). But instead, ABC Inc. uses XYZ Ltd. to shift its profits to Tax Haven, where it only pays $50,000 in taxes (5% of $1 million).
To prevent this type of profit shifting, many countries have implemented CFC rules. These rules consider the profits of XYZ Ltd. as if they were earned by ABC Inc. in Taxland. If the ownership or control of XYZ Ltd. is held by Taxland residents or entities, the CFC rules would require ABC Inc. to include XYZ Ltd.’s profits in its taxable income in Taxland.
| Company | Location | Profits | Tax Rate | Taxes Paid |
| ABC Inc. | Taxland | $1,000,000 | 30% | $300,000 |
| XYZ Ltd. | Tax Haven | $1,000,000 | 5% | $50,000 |
By using XYZ Ltd. in the tax haven, ABC Inc. effectively reduces its tax liability from $300,000 to $50,000. This illustrates the practice of profit shifting to lower-tax jurisdictions to minimize tax obligations.
Tax implications on Controlled foreign company (CFC)
Have you heard of the Organization for Economic Cooperation and Development (OECD) and their Base Erosion and Profit Shifting (BEPS) project? They’re all about setting global standards for tax-related issues. Exciting stuff!
Under the BEPS project, the OECD has come up with recommendations to tackle tax avoidance strategies, including those involving CFC rules. Their aim is to prevent companies from playing tricks by shifting profits to low-tax jurisdictions.
Here’s the interesting part. The BEPS project encourages countries to adopt rules that effectively tax the passive income of CFCs in the hands of their controlling shareholders, even if that income is earned in another country. It’s all about making sure everyone pays their fair share, no matter where the money comes from.
By implementing CFC rules, countries can limit the ability of taxpayers to avoid taxes by artificially shifting profits to low-tax jurisdictions. This helps maintain a fair system where companies and individuals contribute their due taxes in the countries where they operate or reside. It’s all about preventing any erosion of the tax base and sneaky profit shifting.
Keep in mind, though, that CFC rules and their tax implications can get a bit complex. They also vary from country to country. If you’re navigating this territory, it’s always a good idea to consult with tax professionals or refer to specific tax laws and regulations in your jurisdiction. They’ll provide you with the detailed information and guidance you need.
What is considered a controlled foreign corporation?
Control Test
To identify a controlled foreign company (CFC), we look at the level of control that relevant individuals or entities have over a foreign company.
Basically, it’s about who has power over decision-making. If a person or group holds a significant controlling interest (directly or indirectly) in a foreign company, it may be classified as a CFC.
Lower Level of Taxation
Countries often use a test to see if the foreign company is paying significantly lower taxes compared to domestic standards.
They want to prevent companies from shifting profits to low-tax jurisdictions. Some countries specify specific tax levels, while others look for a significant difference in taxation rates. The aim is to ensure fair taxation and prevent tax avoidance.
Identification of Income
Countries focus on identifying certain types of income or gains earned by foreign companies that are seen as abusive. They want to make sure passive or investment income (like royalties, rent, or interest) is not left untaxed or under-taxed in foreign jurisdictions.
They also pay attention to transactions with related parties that aim to minimize taxes. However, active overseas business activities are usually not affected by these rules.
Other Tests
Besides control, taxation levels, and income identification, there may be additional tests that limit the impact of CFC rules. These tests create exceptions or exemptions for specific situations.
For example, if certain non-investment activities take place in a jurisdiction with significant business presence, it might be exempt. Also, companies listed on recognized stock exchanges or those with very low profits may have different considerations.
What happens if an entity is classified as CFC
Once a foreign company is classified as controlled, the CFC legislation requires the residents or entities of the controlling country to include certain types of income earned by the foreign company in their taxable income, even if the income was earned in a different country. This prevents the profits from being shifted to a low-tax jurisdiction and ensures that individuals or businesses pay taxes in the country where they are based or reside.
Controlled Foreign Company (CFC) rules
Definition: A CFC rule may state that a company is considered controlled if residents or entities of a country hold more than 50% of its voting rights or share capital.
Income Inclusion: The CFC rule requires residents of Country A to include the dividends received from their controlled foreign company in their taxable income in Country A.
Passive Income Focus: The CFC rule stipulates that interest income earned by a controlled foreign company must be included in the taxable income of the controlling residents or entities, regardless of where the interest was earned.
Thresholds or Safe Harbors: The CFC rule provides an exemption for CFCs with an annual income below a specified threshold, such as $100,000. If the CFC’s income is below this threshold, it is not subject to income inclusion by the controlling residents or entities.
Anti-Deferral Mechanisms: The CFC rule imposes a deemed distribution mechanism, requiring controlling residents or entities to recognize a portion of the CFC’s undistributed income as taxable income in their own country after a specified number of years.
Calculation Methods: The CFC rule states that the controlling residents or entities must include in their taxable income their pro-rata share of the CFC’s income, based on their ownership percentage in the CFC.
Reporting and Compliance: The CFC rule requires controlling residents or entities to file an annual report disclosing their ownership and financial information regarding the controlled foreign company, providing transparency to tax authorities.
How are controlled foreign corporations taxed in the US?
- Subpart F Income: Certain types of income earned by CFCs must be included in the taxable income of U.S. shareholders.
- Global Intangible Low-Taxed Income (GILTI): U.S. shareholders of CFCs are subject to a minimum tax on certain intangible income earned by the CFC, regardless of whether it is distributed.
- Repatriation Tax: There is a one-time tax on previously untaxed foreign profits of CFCs, aimed at bringing those profits back to the U.S.
- Foreign Tax Credits: U.S. shareholders may be able to offset their U.S. tax liability by claiming credits for foreign taxes paid or accrued by the CFC.
- Reporting Requirements: U.S. shareholders have obligations to file certain forms and provide information about the CFC’s operations, income, and other relevant details.
Who is considered to be a US shareholder of a CFC?
A U.S. shareholder is someone from the United States who owns, or is seen as owning, 10% or more of the total voting power or value of shares in a controlled foreign company (CFC).
What happens when you sell a CFC?
When you sell a controlled foreign company (CFC):
- You may have capital gains or losses, depending on the sale price and adjusted basis.
- Taxation of the gain depends on the CFC’s location and your tax residency.
- Repatriating funds from the CFC to the US may have additional tax implications.
- Some countries impose exit taxes when assets are transferred out of the country.
- Fulfill reporting requirements for the sale, including disclosing the transaction and complying with relevant regulations.
How does a controlled foreign company differ from a foreign subsidiary?
A controlled foreign company (CFC) is a foreign company that is owned or controlled by a foreign entity, which influences its operations and financial decisions.
A foreign subsidiary, on the other hand, is a company owned by a parent company from a different country, established to expand its business.
The key difference is that a CFC is influenced by a foreign entity, while a foreign subsidiary is owned by a parent company from another country to expand its business.
How can a U.S. shareholder avoid being subject to the CFC rules?
The U.S. CFC rules are in place to prevent U.S. shareholders from avoiding taxes by moving income to foreign subsidiaries. However, there are ways for U.S. shareholders to potentially avoid these rules:
- “High-tax exception”: If the foreign subsidiary is located in a country with a higher tax rate than the U.S., the U.S. shareholder might be exempt from the CFC rules. This means they won’t have to include the subsidiary’s income in their U.S. tax calculations.
- Structuring as a “passive foreign investment company” (PFIC): If the foreign subsidiary is classified as a PFIC, different tax rules come into play. These rules may result in lower tax liability for the U.S. shareholder, offering a potential tax advantage.
- Avoiding “subpart F income”: The CFC rules specifically target certain types of income called “subpart F income.” If the foreign subsidiary doesn’t generate this type of income, the CFC rules may not apply, giving the U.S. shareholder more flexibility in managing their tax obligations.
By understanding and utilizing these exceptions, U.S. shareholders can navigate the CFC rules more effectively and potentially reduce their tax burden.
Final words
Controlled Foreign Company (CFC) rules play a vital role in preventing tax avoidance by ensuring fair taxation and discouraging profit shifting to low-tax jurisdictions. These rules focus on identifying foreign companies controlled by residents or entities of another country and include their income in taxable income.
By implementing CFC rules, countries strive to maintain a level playing field and ensure that everyone pays their fair share of taxes.
Although navigating CFC rules can be complex, seeking guidance from tax professionals and understanding specific tax laws in your jurisdiction can help you comply with these regulations effectively.
Let’s stay informed and contribute to a transparent and equitable tax system.