What is a Controlled Foreign Corporation?

In the United States, a CFC is a foreign corporation in which US Shareholders own more than 50% of its value. The shareholders are required to report the foreign income earned, which is subject to US taxation.

How Does a Controlled Foreign Corporation Work?

The CFC status is also called a Subpart F regulation since it was set up under Subpart F of the Internal Revenue Code. This category of the CFC was formed with the purpose of getting information on the income realized from the foreign corporations under US citizens' control and collect the tax associated with that income. Therefore, the management and shareholders of the CFCs are required to report the income from their earnings. According to IRS, a foreign corporation is controlled if: "more than 50% of the total combined voting power of all stock classes of such corporation entitled to vote, or more than 50 percent of the value of all its outstanding stock, is owned (directly, indirectly, or constructively) by U.S. shareholders on any day during the foreign corporation's tax year." Furthermore, the IRS defines a US shareholder on a foreign corporation as US citizen owning 10% or more of the total voting power of the foreign corporation. This means that a foreign corporation is determined by the amount of its stock owned by US shareholders. Occasionally, the IRS publishes information to auditors on the criteria that it looks at regarding CFC's. Such information includes:

• Whether a person owns shares in a foreign corporation
• Whether the shareholder is a citizen of the US for the CFC designation. In regards to this, the shareholder's citizenship and percentage of ownership are considered.
• Whether the business is a CFC. It must be a foreign business only treated as a corporation for tax reasons.

Under the Subpart F, the IRS treats the shareholder as if he received the proportionate share of specific categories of the current earnings of the CFC. All the US shareholders having a controlling interest in a foreign corporation are required to report their share of income from the CFC and their share of profits and earnings of the CFC that are invested in property in the US. This corporation is required to file an annual report on IRS Form 5471. This form is completed and then attached to the corporation's income tax return. It is submitted for a tax year by the company, and it requires information on:

• Individuals who are U.S. citizens: officers, shareholders, and directors
• A list of the total US shareholders and the stock which they hold.
• The classes of stock in the corporation and the shares outstanding.
• The income statement and the balance sheet of the corporation for the tax year.

In addition to this, a separate form is also required for any shareholder, officer and director meeting the 50% and above criterion. This form is used to list the individual's income from the foreign company in terms of dividends, other incomes and investments. This form or report is called a Summary of the Shareholders Income from the Foreign Corporation and is given to the person expected to include the income on his tax return. The income that is received by the individuals and the tax charged on this income is distinct from the corporate tax paid by the company. The preparation of such a report requires the expertise of a tax preparer who is knowledgeable about foreign corporations and taxes.

Do Other Countries Have CFCs?

Several other countries including the UK and Germany have foreign corporation designation although each country determines the CFC status and identifies the individuals differently to require them to report and pay taxes on foreign income.

How is CFC income Taxed?

The previously described summary report is included in the person's individual income tax return. The section of this return where the information is included depends on the type of income. If the income is dividends, for example, it might be included on Schedule B-Interest and Ordinary Dividends. The income is taxed depending on the type of income. Dividend income is usually taxed depending on the type of dividend and for how long it is held. Since the CFC status is complicated, it is difficult to know if one must report his income as a shareholder in a CFC. A US shareholder must include as gross income his pro rata share of the foreign entity's Subpart F income for the year if the Foreign Company is a CFC. The Foreign Personal Holding Company Income is the most common type of Subpart F, and it comprises mainly of passive investments like dividends, rents and capital gains from the sale of various assets. The Tax Code allows certain exceptions; for rents and royalties which are received from unrelated parties as the company conducts its business, the income earned from a payer who is incorporated in the same country as the recipient etc.

Global Intangible Low-Taxed Income (GILTI)

A new requirement was introduced for the US shareholders of CFCs by the Tax Cuts and Jobs Act to include their GILTI in their gross income. GILTI is seen as the excess of the shareholder's net CFC tested income for the year and the shareholder's net that is regarded as the substantial income for the year. GILTI, when included in gross income, is treated as Subpart F for various purposes. The corporate taxpayers are required to include 50% of GILTI in their taxable income so that their liability can be reduced by 80% of the foreign tax credits on the CFC's income. However, individual taxpayers and pass-through entities are required to include 100% of GILTI although they can elect to be taxed as corporations to enjoy the benefits accorded to such bodies. After repatriation, no further tax is imposed on the individuals who included GILTI in its income.

Mandatory Repatriation Tax

The earnings of a foreign company are not taxed in the US unless they are repatriated. Because of this rule, many US multinationals are taking advantage and maintaining the foreign earned income abroad to avoid US taxation. An estimated $1.6 to $2.1 trillion in foreign profits have escaped US taxes. A mandatory repatriation tax was put in place by the Tax Cuts and Job Acts on the accumulated foreign earnings and profits of a CFC and those foreign corporations owned by more than 10% US shareholders. This repatriation imposes a reduced 15.5% tax rate for the earnings held in cash or ash equivalent and 8% for others. It is a one-time repatriation tax that can be paid via installments for over eight years. A CFC can bring about tax consequences which are unfavorable for the US taxpayers more so if they are not prepared. US citizens expanding overseas need to be aware of the rules as well as resident aliens and foreign investors staying in the US and satisfy the Substantial Presence Test and own companies in their home country.