Le interazioni tra il transfer pricing e la disciplina cfc

[Machine translation] The purpose of the contribution is to analyze the interaction profiles of the tp discipline with the imputation regime for the transparency of the income of controlled foreign companies. The analysis carried out of the most recent regulatory developments reveals an increasingly accentuated convergence between the CFC discipline and that on transfer pricing, which requires careful consideration, in order to preserve the autonomous role and value of each instrument. In fact, without prejudice to the shared function of combating phenomena of fiscal drainage, the CFC legislation cannot be considered as a “substitute” measure for the rules on transfer pricing, and vice versa, the latter cannot be considered fully fungible to the former, since they are disciplines that operate on different levels and with different intensities. First of all, the CFC, even if structured in a totalizing approach, does not exempt the discipline on transfer pricing from its function. The first regime, in fact, has a restricted scope of application to the so-called control group, with reference to transactions referring to the more limited vertical context of the majority shareholder - investee company, where the scope of application of the TP is obviously wider. The nature and purpose of the two regulations are also different, as the TP is aimed at counteracting any reduction in the tax base, regardless of the “cause” underlying the alteration in intra-group prices, which may also be different from that of tax savings, such as if it is intended to “improve” the performance of a certain company or influence its credit rating. Transfer pricing operates, in fact, as a rule of substantive law, providing, upon the occurrence of applicability assumptions, a mandatory criterion for evaluating intra-group transactions, without contemplating any possibility, for the taxpayer, of obtaining their disapplication, the right, vice versa, provided for in relation to disciplines with anti-abuse purposes. On the other hand, the CFC discipline has an ontological anti-abuse purpose, aimed at counteracting the relocation of income implemented with regard to the tax objective pursued by the resident shareholder. The two regulations, while responding to the common purpose of counteracting the diversion of profits from the “right” system, have a different nature and application outcome, which, on the one hand, preserves their autonomous role in the legal system and, on the other, explains well the multiple profiles of mutual interaction.