What are CFC (Controlled Foreign Company) rules 

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    The CFC (Controlled Foreign Company Rules), one of the three anti-tax avoidance policies, will be approved by the Ministry of Finance in August 2021 and will be on the road as soon as 2022. At least 100,000 holding companies in tax havens, such as the Cayman Islands and BVI, will be compulsorily listed as taxable objects.

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    The three anti-tax avoidance policies include the Taiwanese version of the CRS (Common Reporting Standards), the CFC (Controlled Foreign Company Rule), and Place of Effective Management (PEM). From the perspective of progress, CRS has already been on the road, but the company is most worried about the Taiwanese version of the CFC that will be on the road.

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    It is understood that before the two sides of the Taiwan Strait joined the World Trade Organization (WTO) in 2002, Taiwan prohibited enterprises from directly investing in mainland China. Taiwanese companies first set up holding companies in third places such as BVI (British Virgin Islands), Cayman Islands, Bermuda, and other tax-free paradise. Then those companies, in the name of this company, make a detour to invest in mainland China. Such planning has another big advantage: those companies can keep the surplus in the holding company without distribution, and use this to defer taxation or reduce tax liabilities.

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    After the Taiwanese version of CRS hit the road, Taiwan did not sign the Competent Authority Agreement (CAA) with these tax-free paradise countries, so Taiwanese holding companies became the places for companies to evade CRS. To avoid the loss of the tax, the Ministry of Finance in 2017 referred to the "Strengthening Controlled Foreign Company Law (CFC)" of the OECD (Organization for Economic Cooperation and Development) Anti-Tax Avoidance Program and implemented a Taiwanese version of the CFC. That is, to compulsorily include overseas holding companies in the taxable scope.

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    If Taiwanese tax residents, including individuals and companies, hold more than 50% of the shares of overseas companies in low-tax countries (the tax rate is lower than 14%), or have significant influence, the tax authority can adopt the principle of substantive taxation to tax on the reserved earnings of these overseas companies, even these oversea companies do not distribute dividends. 

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   Dividends from foreign subsidiaries have often been distributed to the overseas holding companies and not to the shareholders in Taiwan to defer income taxation. However, after the implementation of the CFC, as long as the overseas company holding companies receive the dividends distributed by the foreign subsidiaries, it is deemed that the shareholders have received the dividends and shareholders must include the dividend in the personal overseas income in accordance with the Basic Income Tax. After deducting the basic allowance of NTD 6.7 million per person per year, the remaining domestic and foreign income must be taxed at 20%. 

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Ex:

    An individual invests in a company in China through a Samoa registered company. Under the current CFC, if the net profit of the China company is 50 million NTD last year, the dividend will be paid to the Samoa company this year, as long as the Samoa company does not distribute dividends to the individual shareholder, individuals do not need to be taxed. 

    But after the implementation of CFC, the individual shareholder is deemed to have received the dividend, and the dividend income of 50 million NTD must be included in calculating the personal income tax.  After deducting the basic allowance of 6.7 million NTD per person per year, the remaining domestic and foreign income must be taxed at 20%. The possible tax due is 8.66 million NTD.

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CFC declaration exemption

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    After CFC hits the road, will all overseas companies be required to apply for CFC declaration? In fact, it is not. As mentioned in the previous column, the individual should confirm whether the overseas holding company is in a low-tax country or region, and then judge the individual and his/her relatives directly or indirectly holds more than 50% of the shares of an overseas holding company or has significant influence to this company.

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     The individual shareholder can waive the CFC declaration if the overseas holding company meets both requirements:

Requirement one: Set up a fixed business office in the place of registration, hire employees, and actually operate the business locally.

Requirement two: Passive income accounts for less than 10% of total income. Negative income includes investment income, dividends, interest, royalties, rents, gains from the sale of assets, etc.

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The second exemption is that the current year's net profit of the foreign holding company is below 7 million NTD. When the foreign holding companies's annual net profit is less than NT$7 million can be exempted from reporting. However, in order to prevent individuals from diversifying CFC surplus for exemption purposes, the individual, spouse and dependent relatives of the same comprehensive income tax return household are regulated. If the total surplus or loss of the CFC under control is positive and exceeds NT$7 million, the individual CFC’s surplus for the current year cannot be exempted from reporting.

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Individual Controlled Foreign Company (CFC) Rules

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Exemption Threshold
(1) The CFC carries out substantial operating activities
(2) The current year earnings of the CFC are less than NTD 7 million

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Avoidance of  Double Taxation
1. When actually receiving dividends or earnings, the amount shall not be included in the basic income again
2. Foreign tax credits may be applicable
3. When an individual trades CFC shares and calculates capital gains, the  CFC’s business income included in the individual’s income previously can be deducted based on the trade ratio of the shares 

 

Taxation Requirements
To meet both requirements below
1. For any individual and his/her related parties directly or indirectly holding 50% or more of shares or capital of a foreign enterprise registered in a low-tax jurisdiction, or having a significant influence on such a foreign enterprise
2. For any individual with his or her spouse and relatives within the second degree of kinship holding 10% or more of shares or capital of a CFC

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Taxation Investment Income
CFC business income of individuals
= (The current year surplus earnings of the CFC –The losses of past years assessed by tax authority) 
   X  Direct holding ratio  X Holding period

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Business Controlled Foreign Company (CFC) Rules

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Exemption Threshold
1. The CFC carries out substantial operating activities
2. The current year surplus earnings of the CFC are less than NTD 7 million

 

Avoidance of Double Taxation
1. When actually receiving the dividends or earnings, the amount shall be included in taxable income again
2. Foreign tax credits may be applicable
3. When an enterprise dispose of CFC shares and calculates capital gains, the  CFC’s investment income recognized previously can be deducted based on the disposal ratio of the shares

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CFC Definition
For any profit-seeking enterprise and its related parties directly or indirectly holding 50% or more of shares or capital of a foreign enterprise registered in a low-tax jurisdiction, or having a significant influence on such a foreign enterprise

 

Taxation Investment Income
CFC investment income recognized by profit-seeking enterprises
= (The current year earnings of the CFC – The losses of past year assessed by tax authority)
   X Direct holding ratio  X Holding period

 

Enforcement Date
Will be determined by the Executive Yuan

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