Profili evolutivi della CFC Legislation: dalle origini all'economia digitale

Abstract. This paper focuses on the evolutionary profiles of the controlled foreign companies (CFC) rules, observing, in parallel, the crisis of the axioms of international taxation, going back almost a century ago. Three distinct trade-offs can be considered. The first is the trade-off "inside” the national tax systems. The genesis and evolution of the CFC rules are characterized for the search of a balance between two opposing needs: the defense of the national revenue and the safeguarding the competitiveness of the tax system and the companies that operate abroad. The second is the trade-off OECD / Governments. The US Subpart F rules are the incubator, the OECD action the accelerator of the CFC legislation model. But so far the OECD’s action has indicated to the Governments the goals, however not the means to achieve them, paving the way for a convergence in broad terms of the tax systems. In BEPS Action Plan, the "Action 3: Strengthening CFC Rules" breaks down the CFC rules in seven "building blocks", which are needed to introduce effective regulation in countries that don’t have it or to align it with the best practices of the OECD existing rules. The third is the trade-off OECD-Europe / Governments. With respect to EU Member States, the application of the rules on CFCs is potentially in conflict with the European legal order. The existence of these constraints, which are opposed to the application of OECD soft law in the European tax systems, influence the development of the Action Plan. In fact, the recommendations of the OECD relating to CFC must be large enough to be effective in combating the phenomena of BEPS, but also adaptable, if necessary, to enable Member States of the EU to comply with European law. For the CFC legislation this opens the way for international cooperation, however it is a difficult path.