受控外國公司課稅制度之研究

Research on the Controlled Foreign Corporation

德國於1972年成為僅次於美國設立受控外國公司課稅制度之國家，其間受到歐盟最高法院判決見解、OECD之BEPS行動方案、歐盟ATAD反避稅指令與德國聯邦財務法院見解之影響，歷經多次修正，目前最新之版本則為2021年7月所修訂。其受控外國公司課稅制度之立法過程在在反映國際稅法、歐盟稅法的發展與改革。新版德國受控外國公司課稅制度修正之重點包含：受控外國公司課稅制度之擴大適用、應歸戶課稅之範圍為非源自於積極行為所取得之所得、以事實上徵收之稅負作為認定低稅負之依據、反證規定之內容修改為實質之經濟行為與採取間接稅額扣抵法作為避免雙重課稅之方式。反觀我國前年（2023年）開始施行之受控外國公司課稅制度，從法條內容觀之，仍有諸多待釐清之爭議。有鑒於歐盟、德國對於受控外國公司課稅制度在法釋義學與審判實務之發展，本文最後借鏡德國新版之受控外國公司課稅制度，提出我國所得稅法第43條之3之修法建議，以期我國受控外國公司課稅制度盡早與國際接軌，以因應國際稅制的變動。

In 1972, Germany became the second country after the United States to establish the Controlled Foreign Corporation (CFC). During this period, it was influenced by the judgments of the EU Supreme Court, the OECD's BEPS action plan, the EU Anti-Tax Avoidance Directive and the opinions of the German Federal Financial Court. It has been revised many times, and the latest version was revised in July 2021. The development and reform of international tax law and EU tax law reflect the legislative process of the CFC in Germany. The key points of the revision of the new German CFC include: the expansion of the application of the CFC, the income from active activities is excluded from the scope of application of CFC, the actual tax burden is used as the basis for determining a low tax burden, the content of counter-evidence is modified into substantive economic behavior and the indirect tax deduction method is adopted as a way to avoid double taxation. Taiwan’s CFC, in contrast, there are still many disputes that need to be clarified. Therefore, the development of European Union's and Germany's CFC in terms of dogmatic and trial practice will definitely contribute to Taiwan. Consequently, this article uses Germany’s experience and suggests amending Article 43-3 of Taiwan’s Income Tax Law, in particular expansion of the scope of application of CFC, passive income is as the scope of tax by CFC, the actual tax burden is used as the basis for determining a low tax burden, substantive operating activities should be added on the applicable elements and exceptions from exceptions, provisions should be added on how to avoid double taxation when establishing interconnected CFC. It is hoped that Taiwan’s CFC will be in line with international standards as soon as possible and learn the lesson from the European Union and Germany, so that Taiwan can respond to the variation of the international tax system.