미국의 피지배외국법인(CFC)세제에 대한 연구

Abstract

The tax regime on a controlled foreign corporation(CFC) is designed to prevent the deferral of taxation on dividend which arises because the CFC decides not to distribute the dividend but to retain it in the CFC. For the CFC regime, the US have coped with the deferral of tax on dividend to U.S. shareholders by the CFCs most actively among countries all over the world. Since the U.S. enacted subpart F in 1962, the US CFC rules had two extensive reforms in 1982 and 2017. Especially, Tax Cuts and Jobs Act(TCJA) in 2017 introduced the territorial tax system and the participation exemption. In addition, it tightened up the definition of a CFC and a US shareholder by expanding the stock attribution rule. It may be evaluated that the US CFC regime is better effective than the OECD BEPS Action 3 final report, "Designing Effective Controlled Foreign Company Rules". The Korean CFC rule was introduced in 1997 and has well handled with the shift of capital to foreign countries which have lower tax rates. Compared to US CFC regime, however, it is necessary to be complemented and clear ambiguity on detailed CFC provisions. Therefore this article drew some implications to Korean CFC rules by analyzing the US CFC rules. First, it appears to be premature that the definition of a CFC(also a shareholder) includes a trust, a partnership, or a permanent establishment. Second, it is necessary to provide specifically the constructive stock attribution rule by referring the US stock attribution rule. Third, for the standard of a substantive control, it is necessary to materialized its scope by referring the US Treasury regulations. Fourth, it appears to be better if any income related to the shipping industry is excluded from types of CFC incomes. Lastly, any loss which derives from a CFC should be deducted from other related corporation gains on a reasonable level.