How Economic Substance Tests Impact Commerce

The Economic Substance Test requires a Licensee to demonstrate that: the Licensee and Relevant Activity are being directed and managed in the United Arab Emirates; the relevant Core Income Generating Activities are being conducted in the United Arab Emirates; and. the Licensee has adequate employees, premises and expenditure in the United Arab Emirates.

There is a multitude of companies in the United Arab Emirates that are owned by entities incorporated in “no or only nominal tax” jurisdictions such as the British Virgin Islands, Cayman Islands, Isle of Man, Jersey, Guernsey, Mauritius, Bahamas, Seychelles, Bermuda and the United Arab Emirates.

Except for using these entities only to hold shares in United Arab Emirates entities, these companies in the noons often also hold intellectual property rights and enter into licensing agreements, franchise agreements, management agreements and other similar agreements with United Arab Emirates entities, aimed at reducing the perceived risks of retaining these funds in the United Arab Emirates and/or to take advantage of the no or nominal tax regimes of these jurisdictions from which dividends are distributed internationally.

The European Union has however, with effect from 1 January 2019 changed, the playing fields regarding the conduct of business in this way as is explained below.

Affected Entities

In general, all legal entities that are resident for tax purposes in accordance with the laws of the particular noon must comply with the economic substance requirements, the only exception being if the entity is resident for tax in another jurisdiction from which a tax residency certificate must be obtained to this effect.

A number of the noons have also provided particular provisions relating to the determination of tax residency in their economic substance laws.

Affected Sectors and Relevant Activities

Generally, the relevant jurisdictions have made the economic substance laws applicable to the following sectors and/or activities, namely banking, insurance, shipping, fund management, financing and leasing, headquarters, equity holding entities, head offices entities, intellectual property holding and distribution and service centres.

Economic Substance Tests

To show that sufficient economic substance exists within the noon, an entity must pass the following “substance tests”, namely that the entity must from within the noon be effectively directed and managed, conduct core income generating activities, and show adequacy in respect of qualified employees, expenditure and physical presence.

Directed and Managed

For an entity to be directed and managed from within the noon it will have to show that regular board meetings are held, the required quorum of directors are present at such board meetings, that the directors have adequate experience and knowledge of such responsibilities, that the minutes of the board meetings are kept, all within the noon itself.

Core Income Generating Activities

The entity must show that core income generating activities are conducted within the noon with due consideration to the level of income being generated by the entity’s activities. The extent of the CIGA’s may also be dependent upon the economic sector within which the entity falls and/or the economic activity of the entity as certain entities may be an equity holding company and license intellectual property in which case it must pass the test for both activities.

The important feature in complying with the CIGA’s is that the income subject to tax in the noon is “appropriate” to the CIGA’s conducted in that jurisdiction.

Adequacy

Relating to the two criteria mentioned above, the noon entity must have sufficient qualified employees, incur sufficient expenditure and have adequate assets within the noon in order to justify the income generated by the noon entity. The employees must be physically present in the noon, although they do not need to be directly employed by the noon entity and may be employed by another entity and may be also be employed either on a temporary or permanent basis.

The determination of “adequacy” will depend entirely on the particularities of the noon entity and its economic activity.

Reporting Obligations

Each noon has its own reporting mechanisms however, reporting will mostly be by the submission of a bi-annual or annual “economic substance return” specifying how the substance rules are being complied by the entity. Failure to comply with the economic substance rules of the particular noon will result in the imposition of penalties or other ramifications as determined by these laws.

As the implementation date of the various economic substance laws in some of the noons was 1 January 2019, the reporting obligations relating to compliance with the economic substance rules for entities incorporated prior to 1 January 2019 is as early as 1 July 2019 in some of these noons.

Penalties for Non-Compliance

Should the economic substance requirements not be met for each financial reporting period, the noons will impose financial penalties on the noon entities and in cases of repeated violation, the noon entity may even be de-registered or placed into liquidation by the competent authorities. The amount of the penalties are determined by the economic substance laws of the noons and are not uniform. By way of example, in the BVI the Economic Substance Act of 2018 provides for a penalty up to USD 20,000 for the first year of non-compliance and for repeated years up to USD 400,00 per year.

The impact on a local United Arab Emirates entity by a holding entity is incorporated in a noon could be that unless outstanding penalties are paid, the company registration offices of the noon entity may not issue documents such as certificates of good standing and the like, that may be required for share or property transfers in the United Arab Emirates, amongst other problems that may be experienced.

De-Registration & Liquidation

In the event of repeated non-compliance with the economic substance laws of a particular noon, the noon entity may be de-registered or placed into liquidation at the instance of the relevant noon’s company registration office. Should the noon entity be de-registered, this will severely impact upon the local United Arab Emirates company in that, required documentation will not be obtainable from the company registration authorities in the noon as may be required from time to time in the United Arab Emirates, the transfer of shares in the United Arab Emirates entity will be refused, the transfer of property owned by the local United Arab Emirates entity will be blocked through the lack of documents, bank accounts of the noon entity may be blocked or even closed, the agreements between the local United Arab Emirates entity and the noon entity may be unenforceable or terminated, and intellectual property rights may be seriously affected.

Action To Be Taken

Where United Arab Emirates entities are owned by noon entities, the economic substance laws of the particular noon must be complied with to avoid possibly serious implications on the operations of the United Arab Emirates entity. As the reporting deadlines are close in a number of noons, the necessary action should be taken immediately to establish both the necessity and thereafter the requirements of the particular noon in order to comply with the economic substance rules. In the event that the economic substance laws of the noon applicable to your business require action, immediate corrective action should be implemented to avoid unnecessary penalties.

If actions have been taken, it may also be worthwhile to undergo a “health check” to ensure complete compliance.

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