Controlled Foreign Corporations as Fiscally Transparent Entities. The Application of CFC Rules in Tax Treaties

Controlled foreign corporation rules are a fundamental piece of the international tax regime. They preserve national tax bases from erosion and profit shifting, counteract tax deferral and implement capital export neutrality policies. However, the application of these rules should be coordinated at treaty level, which would also serve to avoid undesirable policy effects. The legal framework of tax treaties, as integrated by the Multilateral Convention, is now ready to support such a coordinated application of CFC rules. The new set of provisions for transparent entities can be used to this end, on the assumption that certain CFCs should also be treated as transparent entities. Indeed, CFC rules patterned after the transparency approach produce effects and involve problems comparable to transparent partnerships. This article elaborates on some of these problems and illustrates how the new provisions dedicated to transparent entities interact with each other and allow a balanced application of treaties to CFCs as well