Правила контролируемых иностранных компаний: международный опыт и российская практика.

Controlled foreign corporation (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 an entity that is not currently taxed to the owners of the entity. 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 defines 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 the United States (since 1962), the United Kingdom, Germany, Japan, Australia, New Zealand, Brazil, Russia (since 2015), Sweden, and many others. Rules in different countries may vary significantly.

The tax law of many countries, including the United States, does normally not tax a shareholder of a corporation on the corporation's income until the income is distributed as a dividend. Prior to the first U. S. CFC rules, it was common for 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 (see transfer pricing). 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, because interest on the loans could be deducted and such interest payments would not be considered income. The CFC rules of Subpart F, and later of other countries' provisions, 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 intended not to interfere with active business income or transactions with unrelated parties.

The Belgian CFC legislation is incorporated in article 185/2 of the Belgian Income Tax Code. Belgium has chosen the transactional approach rather than the entity approach. However, Belgian CFC legislation is obsolete in practice given that the application of Belgian transfer pricing rules (i. e. article 185, § 2 of the Belgian Income Tax Code, allowing the Belgian tax authorities to implement an upwards adjustment of the profits in case of a breach of the arm's length principle) take precedence over CFC legislation.

The CFC Rules were first introduced in Indian taxation as part of the proposed Direct Tax Code 2010. The CFC provisions was also retained in revised draft of Direct Tax Code, 2013. However, Direct Tax Code is yet to become law in India and consequently, there are no statutory provisions in existing Income Tax Act (Income Tax Act 1961) for the enactment of CFC Rules.

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. 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. U. S. passive foreign investment companies (PFICs) 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. European civil law may provide opportunities for formalistic agreements whereby practical control is maintained but formal definitions of control are not met.