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Profit Shifting to CFCs to Reduce Pillar 2 Top-Up Tax

Article 4.3.2(c) of the OECD Model Rules,  allocates tax paid on CFC income to the CFC entity (subject to a pushdown limitation). This is required to prevent the income being taxed twice, however, it leads to a scenario where an MNE can reduce Pillar Two top-up tax by actually allocating more profits to a CFC jurisdiction.
 
For instance, let’s take this scenario. 
CFC group structure and pillar 2
The MNE generates profits of 100M and successfully allocates 20M of profits to the 0% tax entity. In this case the MNE isn’t subject to CFC rules or other anti-avoidance rules. The tax rate in the MNE jurisdiction is 20%. 
 
Before Pillar Two the MNE pays tax of 16M in its home jurisdiction and zero tax in the 0% tax entities jurisdiction. 
 
After Pillar Two there is potential top up-tax for the 0% tax entity of 3M (20M * 15%). 

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CFC group structure for pillar 2
Picture of Lee Hadnum

Lee Hadnum

Lee is a qualified Chartered Accountant and Chartered Tax Adviser. A former Senior Tax Analyst at Bloomberg Tax, Lee began his career in Ernst & Young's Entrepreneurial Services department and has 20 years of international tax planning experience. Lee's books have been recommended by The Times, The Guardian and The Telegraph.

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