Israel Amends Controlled Foreign Corporation Tax Regime
by Henriette Fuchs
Israel's Knesset on December 23 approved amendment 198, revising section 75B
of the Income Tax Ordinance, 1961 (ITO) to further ensure the taxation of controlled
foreign corporations. The amendment entered into force on January 1.
Since 2006 Israel has taxed qualifying resident shareholders -- both corporate and
individual -- on the undistributed profits of foreign companies that qualify as CFCs.
Specifically, when an Israeli resident shareholder individually owns at least 10 percent
of the means of control of a foreign company and collectively owns, together with other
Israeli resident shareholders, at least 50 percent, and the majority of the foreign
company's income is (by Israeli definition) considered passive in a specific tax year,
the qualifying shareholders must each report their pro rata part in the undistributed
profits of that foreign company as a deemed dividend. That regime also applies to
foreign companies that are controlled at least 40 percent by close relatives.
The CFC legislation applies to the profits of a foreign company that are effectively
taxed in a country that Israel considers to be a low-tax jurisdiction. Since the inception
of this legislation, however, the tax authorities have become aware of the need to
reexamine ITO section 75B.
Several changes to that regime have been enacted under amendment 198.
The profits of a CFC located in a country with which Israel has an income tax treaty
will continue to be calculated in accordance with the tax rules in that other country.
However, from 2014 onward, the calculation of the undistributed profits of the foreign
company must include dividends and capital gains, even if those items of income are
not included when calculating taxable income under the rules in the other country.
When that country's tax rate applicable to the foreign company's passive income
is under 15 percent, the company must report a deemed dividend. (Previously, the
minimum rate of foreign corporate tax that would disqualify a foreign company from
being a CFC was 20 percent.)
The option of claiming a foreign tax credit to offset the Israeli tax on deemed
dividends has been canceled. An FTC now can be claimed only in the year that the
foreign tax is paid, most likely in the year of actual distribution. When a shareholder in
a CFC reports a dividend and is not able to fully offset the foreign tax incurred on actual
distributions in the same year, the shareholder may be eligible for a refund of any taxes
paid on the deemed dividend in previous years.
When considering the nature of a foreign company's income, the dividends it
receives will not be characterized as passive income if the profits that produced the
dividends were taxed at a rate higher than 15 percent and if the receiving company
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