Controlled Foreign Companies and Tax Avoidance: International and Comparative Perspectives with Specific Reference to Polish Tax and Constitutional Law, EU Law and Tax Treaties

Abstract

A lion’s share of global investments is likely being conducted for tax avoidance purposes via controlled foreign companies (CFC) which are established in tax havens or low tax jurisdictions. Avoiding tax via CFCs causes several problems, in particular it: (i) leads to unfair and unbalance taxation of income; (ii) may widen the gap between the poorest and the richest that may further adversely affect sustainable development; (iii) erodes the tax base of the States that undermines the integrity of the tax system; and (v) it can harm fair competition among enterprises. Considering the negative consequences of tax avoidance via CFCs, I have worked hard to improve provisions specifically designed to prevent tax avoidance via CFCs – CFC rules. As a result of in depth international and comparative research and analysis, I submitted a set of proposals for designing CFC rules in order to increase the ability of States to effectively prevent tax avoidance schemes while shielding at the same time genuine cross-border economic activities. Even though the analysis and conclusions (proposals) concern the Polish CFC rules in principle, they are, mutatis mutandis, relevant to the CFC rules of other countries as well, and may be used as a yardstick by countries without CFC rules at present to draft rules of their own. The proposals ensure the appropriate balance between preservation of the domestic tax base while fostering competitiveness, are compatible with EU/EEA law and tax treaties, and reflect the most recent thinking of the OECD on the issue under BEPS. Thus, the proposals may contribute to fair and balance taxation of income, narrow gap between the poorest and the richest that may positively affect sustainable development. Once the proposals are implemented by concerned States, there may be no reason to insert the conjunction “and” between controlled foreign companies and tax avoidance.