Rekomendasi Aksi 3 menguraikan pendekatan untuk mengaitkan kategori pendapatan tertentu dari perusahaan asing kepada pemegang saham untuk melawan struktur luar negeri yang mengalihkan pendapatan dari yurisdiksi pemegang saham. Peraturan Perusahaan Asing Terkendali (CFC) merespons risiko bahwa wajib pajak dapat menghilangkan basis pajak di negara tempat tinggal mereka dan dengan mengalihkan pendapatan ke perusahaan asing yang dikendalikan oleh wajib pajak. Tanpa aturan tersebut, CFC memberikan peluang terjadinya pengalihan keuntungan dan penangguhan perpajakan jangka panjang. Sejak peraturan CFC pertama diberlakukan pada tahun 1962, semakin banyak yurisdiksi yang menerapkan peraturan ini. Namun, peraturan CFC yang ada seringkali tidak mengikuti perubahan dalam lingkungan bisnis internasional,[1]
Rujukan utama Action 3 of OECD/G20 Inclusive Frameworks didasarkan pada laporan tahun 2015 yang berjudul Designing Effective Controlled Foreign Company Rules yang pada pokoknya membahas pertimbangan kebijakan, tujuan, dan rekomendasi aturan. Menurut laporan tersebut, peraturan CFC telah ada dalam konteks perpajakan internasional selama lebih dari lima dekade, dan puluhan negara telah menerapkan peraturan ini. Laporan ini mempertimbangkan seluruh unsur pokok peraturan CFC dan mengelompokkannya ke dalam “blok penyusun” yang diperlukan agar peraturan CFC efektif. Blok bangunan ini akan memungkinkan negara-negara tanpa aturan CFC untuk menerapkan aturan yang direkomendasikan secara langsung dan negara-negara yang sudah memiliki aturan CFC untuk mengubah aturan mereka agar lebih selaras dengan rekomendasi tersebut, meliputi [2] :
- Aturan untuk mendefinisikan CFC (termasuk definisi kontrol)
- Pengecualian CFC dan persyaratan ambang batas
- Definisi pendapatan CFC
- Aturan untuk menghitung pendapatan
- Aturan untuk menghubungkan pendapatan
- Aturan untuk mencegah atau menghilangkan pajak berganda
CFC in this report is generally defined as foreign entity under control of domestic residents or taxpayers, at minimum threshold, more than 50% control either direct or indirect that is usually determined by aggregated interests or shares, although countries may set the control threshold at a lower level. Then CFC generally rules income that has been separated from the underlying value creation to obtain a reduction in tax. Jurisdictions generally categorize the income according to its legal classification, focusing on categories such as dividends, interest, insurance income, royalties and IP income and lastly sales and services income.[3]
The calculation of income according to the 2015 report in form of 4 options including based on holding companies’ jurisdiction rules, based on CFCs jurisdictions rules, based on taxpayer choice and computed using common standard. The report would recommend the holding companies’ jurisdiction rules as basis on computing income for CFC because it is consistent with the goals of the BEPS Action Plan and it reduces administrative costs. The recommended approach and most used CFC rules allow only the losses of the CFC to be offset against the profits of the CFC since allowing CFC losses to be offset against the profits of parent companies or CFCs in other jurisdictions could encourage manipulation of losses in the CFC jurisdiction.[4]
Once the amount of CFC income has been calculated, the next step is determining how to attribute that income to the appropriate shareholders in the CFC. Income attribution can be broken into five steps. Step one, attributing income to the taxpayer by tie attribution threshold to the control threshold or if a taxpayer met the minimum control threshold, then that taxpayer would also have income attributed to it. Next on step two in determining the amount of attributed income, the report acknowledges that most of CFC rules attribute income in proportion to each taxpayer’s ownership, but they differ in how they treat taxpayers whose ownership lasted for only a portion of the year. Followed by step three, attributed income must be included in the taxpayer’s taxable income for the taxable year in which the end of the CFC’s accounting period ends. Then step four, in treating the income some of existing CFC rules take several different approaches, including treating attributed income as a deemed dividend or treating it as having been earned by the taxpayer directly. Finally, Step Five in determining the tax rate that is being imposed in accordance with the holding company jurisdiction rule. Further, in case the CFC income is subject to taxation in both the CFC jurisdiction and the holding companies’ jurisdiction the most recommended solution is by providing foreign tax credit.[5]
Based on the report, All CFC rules share some general policy considerations, including (i) their role as a deterrent measure; (ii) how they complement transfer pricing rules; (iii) the need to balance effectiveness with reducing administrative and compliance burdens; and (iv) the need to balance effectiveness with preventing or eliminating double taxation. When addressing these policy considerations, jurisdictions are allowed to prioritize their policy objectives differently depending on whether member states apply worldwide or territorial tax systems. First consideration are CFC rules are generally designed to act as a deterrent or it is designed to protect revenue by ensuring profits remain within the tax base of the parent or, in the case of CFC regimes that also target the stripping of third countries’ bases (“foreign-to-foreign stripping”), other group companies, typically by preventing taxpayers from shifting income into CFCs. The second consideration is relation to Transfer Pricing because CFC rules are seen as a way for a parent jurisdiction to capture income earned by a foreign subsidiary that may not have been earned had the original pricing of the income-creating asset been set correctly. CFC rules are thus often referred to as “backstops” to transfer pricing rules. A third policy consideration is how to achieve effective rules that do not unduly increase compliance costs and administrative burdens. An additional consideration is how to avoid double taxation. Last consideration is avoiding double taxation or CFC rules effectively subject the income of a foreign subsidiary to taxation in the parent jurisdiction, they can lead to double taxation if, for example, the subsidiary is also subject to taxation in the CFC jurisdiction.[6]
The OECD 2015 Action 3 report set out recommendations in the form of building blocks for the design of effective CFC rules, which include the definition of a CFC, exemptions and thresholds, approaches for determining the type of income subject to the rule, computation of CFC income, the attribution of CFC income to shareholders and measures to eliminate the risk of double taxation. These recommendations are not minimum standards, but are designed to ensure that jurisdictions that choose to implement them will have rules that effectively prevent taxpayers from inappropriately shifting income into foreign subsidiaries. As at mid-2019, almost 50 OECD/G20 Inclusive Framework countries have now enacted CFC rules, with EU Member States all having CFC rules in effect since the beginning of 2019 following the adoption of Council Directive (EU) 2016/1164, with a number of additional countries considering the adoption of CFC rules for the first time.[7]
The Action 3 implementation in Indonesia has been accommodated by Minister of Finance Regulation (MFR) No.93/PMK.03/2019 Concerning Amendments to the Minister of Finance Regulation No.107/PMK.03/2017 Concerning Determination of When Dividends are Obtained and the Basis for Calculation by Domestic Taxpayers for Equity Participation in Overseas Business Entities Other than Business Entities Selling Their Shares on the Stock Exchange.[7] Although the current regulation is a replacement for its previous MFR No.256/PMK.03/2008 dated back around seven years precede the Action 3 formally released. This means the CFC rule has been brought up unilaterally by member states, not only Indonesia, way back and the action fundamentally became a consideration for member states to harmonize its regulation according to the collective agreement between states. It could be observed from attached summary table, that the provision in MFR No.107/PMK.03/2017 as last amended with MFR No.93/PMK.03/2019 align with recommendations of the action 3 based on 2015 report although CFC is equally called as controlled non-exchange Foreign Business Entity (FBE). Supported with the fact that 2017 and 2019 MFR amend its previous MFR of 2008 and around two years after 2015 report being released, its shown that there are efforts by Indonesian government to harmonize its previously promulgated regulations with Action 3 or by it means Indonesia is attempting oblige with International Regimes of OECD/G20 Inclusive Framework on BEPS.
| Article | Content | Notes |
| Article 1 | Definition and Related Law | |
| Article 2 | Subject of the MFR (controlled non-exchange FBE) | Amended by MFR No.93/PMK.03/2019 |
| Article 3 | Determining when the Deemed Dividend is obtained | |
| Article 4 | Basis for imposition of Deemed Dividend | Amended by MFR No.93/PMK.03/2019 |
| Article 5 | Number of shares paid up | |
| Article 6 | Deemed Dividend can be calculated with dividends received from directly controlled non-exchange FBE | |
| Article 7 | Dividends received from directly controlled non-exchange FBE as Income Tax Credit | |
| Article 8 | Income Tax Credit Requirements | |
| Article 9 | Enforcement Period | |
| Article 10 | Termination of Previous Regulation | Repeal Provision of Dividends received from directly controlled non-exchange FBE as Income Tax Credit from Minister of Finance Decree No 164/KMK.03/2002
and MFR No.256/PMK.03/2008 |
In summary, The Action 3 recommendations outline approaches to attribute certain categories of income of foreign companies to the shareholder(s) in order to counter offshore structures that shift income from the shareholder jurisdiction. The main reference of the Action 3 of OECD/G20 Inclusive Frameworks is based on a report in 2015 holding a title of Designing Effective Controlled Foreign Company Rules. The 2015 Action 3 report set out recommendations in the form of building blocks for the design of effective CFC rules, which include the definition of a CFC, exemptions and thresholds, approaches for determining the type of income subject to the rule, computation of CFC income, the attribution of CFC income to shareholders and measures to eliminate the risk of double taxation. These recommendations are not minimum standards, but are designed to ensure that jurisdictions that choose to implement them will have rules that effectively prevent taxpayers from inappropriately shifting income into foreign subsidiaries. It could be observed that the provision in MFR No.107/PMK.03/2017 as last amended with MFR No.93/PMK.03/2019 align with recommendations of the action 3 based on 2015 report although CFC is equally called as controlled non-exchange Foreign Business Entity (FBE). Supported with the fact that 2017 and 2019 MFR amend its previous MFR of 2008 and around two years after 2015 report being released, its shown that there are efforts by Indonesian government to harmonize its previously promulgated regulations with Action 3 or by it means Indonesia is attempting oblige with International Regimes of OECD/G20 Inclusive Framework on BEPS
TBrights adalah konsultan pajak di Indonesia yang saat ini merupakan layanan bisnis terintegrasi di Indonesia yang menyediakan layanan perpajakan dan bisnis yang komprehensif
Oleh
Mitra Olina Rizki Arizal
[1] https://www.oecd.org/tax/beps/beps-actions/action2/
[2] Erosi Basis OECD/G20 dan Peralihan Keuntungan: Perancangan Proyek Peraturan Perusahaan Asing Terkendali yang Efektif, 2015
[3] Ibid
[4] Erosi Basis OECD/G20 dan Peralihan Keuntungan: Perancangan Proyek Peraturan Perusahaan Asing Terkendali yang Efektif, 2015
[5] Ibid
[6] Erosi Basis OECD/G20 dan Pergeseran Keuntungan: Perancangan Proyek Peraturan Perusahaan Asing Terkendali yang Efektif, 2015
[7] https://www.oecd.org/tax/beps/beps-actions/action2/
