“CFC” AND DIVIDENDS FROM BLACKLIST COUNTRIES: THE NEEDED HARMONISATION

When considering investee companies in “tax havens” for fiscal matters according to the Italian legislation, the definition of “tax haven” changes depending on whether it is used in a context of profits accrued in a “CFC” – a controlled foreign company – rather than distributed profits from the “CFC”.

It is just this discrepancy that emerges when there is a time gap between the production of profits by the controlled or participated subject and their imputation for transparency or their distribution. The uncertainty also depends on the numerous normative interventions that have followed in the time, going to modify the criteria with which to qualify a country as “black” or “white”, determining a stratification of the formation and the distribution of the profits.

The criticality referred to in this case could be expressed as follows:

• at the time of production of profits, the “CFC” is not considered as based in a tax haven, having demonstrated compliance with the limit of the third and therefore at the profit accrual there is no taxation for transparency.
• however, at the time of their distribution the company is treated as based in a tax haven because the actual taxation is less than 50%: therefore, dividends could not enjoy taxation on 5% of their value.

It would be desirable for the legislator to take action in order to harmonise the principles by which the “CFC” is defined on the one hand, and to indicate divergent criteria in the context of dividend distribution on the other, therefore eliminating any possible source of uncertainty at least in this area: it would be sufficient to replicate in art. 47-bis of the TUIR the expression “jointly” present in art. 167 of the TUIR, in order to harmonize and equal the two norms.