§ 1.957-1 Definition of controlled foreign corporation.
(a) In general. The term controlled foreign corporation means any foreign corporation of which more than 50 percent (or such lesser amount as is provided in section 957(b) or section 953(c)) of either—
(1) The total combined voting power of all classes of stock of the corporation entitled to vote; or
(2) The total value of the stock of the corporation, is owned within the meaning of section 958(a), or (except for purposes of section 953(c)) is considered as owned by applying the rules of section 958(b) and § 1.958-2, by United States shareholders on any day during the taxable year of such foreign corporation. For the definition of the term United States shareholder, see sections 951(b) and 953(c)(1)(A). For the definition of the term foreign corporation, see § 301.7701-5 of this chapter ( Procedure and Administration Regulations). For the treatment of associations as corporations, see section 7701(a)(3) and §§ 301.7701-1 and 301.7701-2 of this chapter. For the definition of the term stock, see sections 958(a)(3) and 7701(a)(7). For the classification of a member in an association, joint stock company or insurance company as a shareholder, see section 7701(a)(8).
(b) Percentage of total combined voting power owned by United States shareholders—(1) Meaning of combined voting power. In determining for purposes of paragraph (a) of this section whether United States shareholders own the requisite percentage of total combined voting power of all classes of stock entitled to vote, consideration will be given to all the facts and circumstances of each case. In all cases, however, United States shareholders of a foreign corporation will be deemed to own the requisite percentage of total combined voting power with respect to such corporation—
(i) If they have the power to elect, appoint, or replace a majority of that body of persons exercising, with respect to such corporation, the powers ordinarily exercised by the board of directors of a domestic corporation;
(ii) If any person or persons elected or designated by such shareholders have the power, where such shareholders have the power to elect exactly one-half of the members of such governing body of such foreign corporation, either to cast a vote deciding an evenly divided vote of such body or, for the duration of any deadlock which may arise, to exercise the powers ordinarily exercised by such governing body; or
(iii) If the powers which would ordinarily be exercised by the board of directors of a domestic corporation are exercised with respect to such foreign corporation by a person whom such shareholders have the power to elect, appoint, or replace.
(2) Shifting of formal voting power. Any arrangement to shift formal voting power away from United States shareholders of a foreign corporation will not be given effect if in reality voting power is retained. The mere ownership of stock entitled to vote does not by itself mean that the shareholder owning such stock has the voting power of such stock for purposes of section 957. For example, if there is any agreement, whether express or implied, that any shareholder will not vote his stock or will vote it only in a specified manner, or that shareholders owning stock having not more than 50 percent of the total combined voting power will exercise voting power normally possessed by a majority of stockholders, then the nominal ownership of the voting power will be disregarded in determining which shareholders actually hold such voting power, and this determination will be made on the basis of such agreement. Moreover, where United States shareholders own shares of one or more classes of stock of a foreign corporation which has another class of stock outstanding, the voting power ostensibly provided such other class of stock will be deemed owned by any person or persons on whose behalf it is exercised or, if not exercised, will be disregarded if the percentage of voting power of such other class of stock is substantially greater than its proportionate share of the corporate earnings, if the facts indicate that the shareholders of such other class of stock do not exercise their voting rights independently or fail to exercise such voting rights, and if a principal purpose of the arrangement is to avoid the classification of such foreign corporation as a controlled foreign corporation under section 957.
(c) Illustrations. The application of this section may be illustrated by the following examples:
Example 1.
Foreign corporation R has
two classes of capital
stock outstanding, 60 shares of class A
stock, and 40 shares of class B
stock. Each share of each
class of stock has one vote for all purposes. E, a
United States person, owns 51 shares of class A
stock.
Corporation R is a
controlled foreign corporation.
Example 2.
Foreign corporation S has three classes of capital
stock outstanding, consisting of 60 shares of class A
stock, 40 shares of class B
stock, and 200 shares of class C
stock.
The owners of a majority of class A
stock are entitled to elect 6 of
the 10 corporate directors, and
the owners of a majority of
the class B
stock are entitled to elect
the other 4 of
the 10 directors. Class C
stock has no voting rights. D, a
United States person, owns all of
the shares of
the class C
stock. He also owns 31 shares of class A
stock and as such an
owner can elect 6
members of
the board of directors. None of
the remaining shares of class A
stock, or
the 40 shares of class B
stock, is owned, or considered as owned, within
the meaning of section 958, by a
United States person. Since, as
owner of 31 shares of
the class A
stock, D has sufficient voting power to elect 6 directors, D has
more than 50 percent of
the total combined voting power of all
classes of stock entitled to vote, and
S Corporation is a
controlled foreign corporation.
Example 3.
M, a
United States person, owns a 51-percent
interest in R Company, a foreign company of which he is a
member.
The company, if it were domestic, would be taxable as a
corporation.
The remaining
interest of 49 percent in
the company is owned by seven
other members none of whom is a
United States person.
The memorandum of association of R Company provides for only one manager, who with respect to
the company exercises
the powers ordinarily exercised by a board of directors of a
domestic corporation.
The manager is to be elected by unanimous agreement of all
the members. Since M owns 51 percent of
the company, he will be deemed to own
more than 50 percent of
the total combined voting power of all
classes of stock of R Company entitled to vote, notwithstanding that he has power to elect a manager only with the agreement of
the other members. Company R is a
controlled foreign corporation.
Example 4.
Domestic corporation M owns a 49-percent
interest in S Company, a foreign company of which it is a
member.
The company, if it were domestic, would be taxable as a
corporation. Company S is formed under
the laws of
foreign country Y.
The remaining
interest of 51 percent in S Company is owned by persons who are not
United States persons.
The organization contract of S Company provides for one manager, B, a citizen and
resident of country Y who is an
officer of M
Corporation in charge of its foreign operations in such country, or any
person M
Corporation may at any time appoint to succeed B in such capacity.
The manager has
the sole authority with respect to S Company to
exercise powers ordinarily exercised by a board of directors of a
domestic corporation. Since M
Corporation has
the discretionary power to replace B and to appoint his
successor as manager of S Company,
the company is a
controlled foreign corporation.
Example 5.
N, a
United States person, owns 50 percent of
the outstanding shares of
the only class of capital
stock of foreign corporation R. An additional 48 percent of
the outstanding shares is owned by foreign corporation S.
The remaining 2 percent of shares is owned by P, a citizen and
resident of
foreign country T, who regularly
acts as
attorney for N in
the conduct of N's
business affairs in country T. All of
the shares of
the outstanding capital
stock of R
Corporation are bearer shares. At
the time of
the issuance of
the shares to him, P places
the certificates for such shares in a depository to which N has access. On several occasions N, with P's acquiescence, has taken such shares from
the depository and, on one such occasion, used
the shares as collateral in borrowing funds on a
loan. Although
dividends, when
paid, are paid to P on his shares, his charges to N for legal fees are reduced by
the amount of
the dividends paid on such shares. Although P votes his shares at meetings of
shareholders,
the facts set forth above indicate an implied agreement between P and N that N is really to retain dominion over
the stock. N is deemed to own
the voting rights ostensibly attached to
the stock owned by P, and R
Corporation is a
controlled foreign corporation.
Example 6.
M, a
domestic corporation which manufactures in
the United States and distributes all of its
production for foreign consumption through N, a person
other than a
related person or a
United States person, forms foreign corporation S to
purchase products from M
Corporation and sell them to N.
Corporations S and M have common directors.
The outstanding capital
stock of
S Corporation consists of 10,000 shares of $100 par
value class A
stock, which has no voting rights except to vote for dissolution of
the corporation on a share-for-share
basis, and 500 shares of no par class B
stock which has full voting rights. Each class of
the outstanding
stock is to participate on a share for share
basis in any
dividend.
The class A
stock has a preference as to assets on dissolution of
the corporation to
the extent of its par
value as well as
the right to participate with
the class B
stock in all
other assets on a share for share
basis. All of
the shares of class A
stock are issued to M
Corporation in return for
property having a
value of $1 million. Of
the class B
stock, 300 of
the shares are issued to N in return for $3,000 in
cash and 200 shares are issued to M
Corporation for $2,000 in
cash. At stockholder meetings N never votes in opposition to M
Corporation on important
issues.
Corporation S has average annual
earnings of $200,000, all of which will be
subpart F income if
S Corporation is held to be a
controlled foreign corporation. All such
earnings are accumulated. Although N ostensibly has 60 percent of
the voting power of
S Corporation by virtue of his
ownership of 300 shares of class B
stock, he has
the right to only approximately 3 percent of any
dividends which may be
paid by
S Corporation; in
addition, upon
liquidation of
S Corporation, N is entitled to share in
the assets only after M
Corporation has received
the par
value of its 10,000 shares of class A
stock, or $1 million. Thus,
the voting power owned by N is substantially greater than its proportionate share of
the earnings of
S Corporation. In
addition,
the facts set forth above indicate that N is not exercising his voting rights independently and that a
principal purpose of
the capitalization
arrangement is to avoid classification of
S Corporation as a
controlled foreign corporation. For these reasons,
the voting power ostensibly provided
the class B
stock will be deemed owned by M
Corporation, and
S Corporation is a
controlled foreign corporation.
Example 7.
Foreign corporation A, authorized to
issue 100 shares of one class of capital
stock,
issues, for $1,000 per share, 45 shares to
domestic corporation M, 45 shares to foreign corporation B, and 10 shares to foreign corporation C.
Corporation C, a
bank, lends $3 million to finance
the operations of A
Corporation. In
the course of negotiating these financial
arrangements, D, an
officer of
C Corporation, and E, an
officer of M
Corporation, orally agree that
C Corporation will vote its
stock as M
Corporation directs. By virtue of such oral agreement M
Corporation possesses
the voting power ostensibly owned by
C Corporation, and A
Corporation is a
controlled foreign corporation.
Example 8.
For its prior
taxable year,
JV, a foreign corporation, had outstanding 1000 shares of class A
stock, which is voting common, and 1000 shares of class B
stock, which is nonvoting preferred.
DP, a
domestic corporation, and
FP, a foreign corporation, each owned precisely 500 shares of both class A and class B
stock, and each elected 5 of
the 10
members of
JV's board of directors.
The other facts and circumstances were such that
JV was not a
controlled foreign corporation on any
day of
the prior
taxable year. On
the first
day of
the current taxable year,
DP purchased one share of class B
stock from
FP. JV was a
controlled foreign corporation on
the following day because over 50 percent of
the total
value in
the corporation was held by a person that was a
United States shareholder under section 951(b). See
§ 1.951-1(f).
Example 9.
The facts are
the same as in
Example 8 except that
the stock of
FP was
publicly traded,
FP had one
class of stock, and on
the first
day of
the current taxable year
DP purchased one share of
FP stock on
the foreign
stock exchange instead of purchasing one share of
JV stock from
FP. JV became a
controlled foreign corporation on
the following day because over 50 percent of
the total
value in
the corporation was held by a person that was a
United States shareholder under section 951(b).
Example 10. X,
a foreign corporation, is incorporated under
the laws of country
Y. Under
the laws of country
Y, X is considered a mutual
insurance company.
X issues insurance policies that provide
the policyholder with
the right to vote for directors of
the corporation,
the right to a share of
the assets upon
liquidation in proportion to premiums
paid, and
the right to receive
policyholder dividends in proportion to premiums
paid. Only policyholders are provided with
the right to vote for directors, share in assets upon
liquidation, and receive
distributions.
United States policyholders contribute 25 percent of
the premiums and have 25 percent of
the outstanding rights to vote for
the board of directors. Based on these
facts,
the United States policyholders are
United States shareholders owning
the requisite combined voting power and
value. Thus,
X is a
controlled foreign corporation for purposes of taking into
account related person insurance income under section 953(c).
(d) Effective date. Paragraphs (a) and (c) Examples 8 through 10 of this section are effective for taxable years of a controlled foreign corporation beginning after November 6, 1995.
[T.D. 6688,
28 FR 11631, Oct. 31, 1963, as amended by T.D. 8216,
53 FR 27510, July 21, 1988; T.D. 8618,
60 FR 46529, Sept. 7, 1995;
60 FR 62026, Dec. 4, 1995; T.D. 8704,
62 FR 21, Jan. 2, 1997]
