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In a recent court case, the Court of Justice in the European Union (EU) has ruled that it is legally acceptable for Italy to impose a withholding tax (WHT) and data-gathering obligations on non-resident online platforms that facilitate short-term property rentals like holiday lets.
However, the obligation to appoint an Italian tax representative liable to pay the WHT was prohibited by the EU law fundamental freedom to provide services.
The ruling has implications for other EU member states with similar rental markets, as they might also be tempted to bring in their own WHT regimes that could impact non-resident platforms.
The case began when Italy introduced three obligations on non-resident platforms in the short-term letting sector in 2017:
(1) collecting income-related data on Italian rentals,
(2) withholding tax on rental income, and
(3) appointing a local tax representative with responsibility for withholding the tax.
Airbnb challenged these rules, arguing that they were incompatible with the freedom to provide services.
The ruling is part of the EU’s ongoing attempts to regulate the economic models of online platforms in areas such as tax and data-protection.
The judgment concerns tax and data-collection and sharing obligations imposed on online platforms and the extent to which tax authorities can use platforms as a de facto compliance arm for the ‘gig’ economy.
The court held that the obligations to collect data and withhold tax at source did not constitute a restriction on the freedom to provide services. However, the obligation to appoint a tax representative in Italy was deemed a breach of the freedom to provide services.
The ruling confirms that direct taxation is not an EU-competence yet, and in principle, each member state could introduce its own WHT regime applicable to online platforms.
One key part of the case is DAC 7, a council directive that requires most online platforms to conduct due diligence on their service-providing users and report the information to one or more EU tax authorities.
DAC 7 does not require platforms to act as tax collectors; only as information providers.
In the short-term, the case allows Italy to impose WHT obligations on non-resident platforms.
The long-term implication is that other EU member states might be tempted to introduce their WHT regimes, which could impact non-resident platforms in the medium term.
If you have any queries relating to the Airbnb WHT case or Italian tax matters more generally, then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article.
On February 14, 2023, the Council of the European Union made changes to the list of countries that do not cooperate with the EU on tax matters.
This is called the “EU blacklist”.
Four new countries were added to the list:
With these additions, the EU blacklist list now has 16 countries on it. The other countries are as follows:
The Council gave reasons for adding these countries.
For example, the Marshall Islands was added because they have a tax system that encourages businesses to move profits offshore without any real economic activity.
Costa Rica was added because they do not provide enough information about tax matters, and they have tax policies that are considered harmful. Russia was added for the same reason.
The Bahamas was previously removed from the EU blacklist in 2018 but was added back in 2022 and remains on the list.
The new list will be officially published in the Official Journal of the EU, and the next revision will take place in October 2023.
If you have any queries relating to the EU Blacklist or tax matters more generally, then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article.
On 31 January, HMRC changed its guidance on unauthorised unit trusts, including Jersey Property Unit Trusts (JPUTs).
This new guidance has perhaps put a cat among the pigeons.
Previously, HMRC advised that neither authorised nor unauthorised unit trusts needed to be registered on HMRC’s trust register unless the unit trust became liable to certain UK tax liabilities.
However, the guidance for unauthorised unit trusts has now changed, meaning that JPUTs may need to be registered even if they don’t have a liability to UK tax.
JPUTs will need to be registered if they acquire UK land directly or intend to do so since 6 October 2020.
There are only two situations in which a JPUT may need to be registered: when it becomes liable for UK tax or when it acquires UK land after 6 October 2020.
If a JPUT is required to be registered, the relevant information, including contact details for each trustee and unit holder, will need to be compiled and submitted via HMRC’s online system.
The change in HMRC’s guidance means that many more JPUTs will be required to be registered on HMRC’s trust register.
Trustees and advisers should urgently check whether they have any trusts which should now be registered, and ensure they comply with the registration requirements.
Although HMRC is currently adopting a light-touch approach to penalties, trustees and advisers should not rely on this and should ensure they comply with the registration requirements.
If you have any queries relating to JPUT or tax matters more generally, then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article.
The EU introduced trust sanctions in respect of Russia last year. However, the effect of these sanctions has had international impact.
Despite announcing its intention to introduce trust sanctions some time ago, the UK trust sanctions, provided for in Russia (Sanctions) (EU Exit) (Amendment) (No. 17) Regulations 2022 (“The Regulations”), only came into force last month.
However, there are some important differences between the regimes.
The UK sanctions include a prohibition on providing trust services to or for the benefit of a person connected with Russia or to a ‘designated person’ (unless the services were provided immediately prior to the regulations coming into force).
The Regulations came into force on 16 December 2022. They amend the Russia (Sanctions) (EU Exit) Regulations 2019 (SI 2019/855).
The amendments define “trust services” as follows:
A person is broadly considered “connected with Russia”:
The EU’s sanctions focus on the nationality or residence of a trust’s settlor or beneficiary. As such, there are some notable differences.
Firstly, under the UK’s rules, a private individual who is a Russian national but is resident elsewhere will not automatically be considered connected with Russia for these purposes.
The UK rules also provide helpful guidance about when trust services are “for the benefit” of a person. This includes circumstances where services are provided to a person:
The new rules are ‘forward-facing’. As such, these sanctions won’t apply to trust services that are already being provided under an existing relationship at 16 December 2022. A key question is whether additional or different work can be provided under this existing relationship or whether a ‘new instruction’ is a new relationship?
Additionally, The Office of Financial Sanctions Implementation (“OFSI”) has confirmed that it will consider granting licences for trust work if that work falls within certain exceptions. This might include charitable pursuits.
Of course, UK trust provides, and those providing services in Crown Dependencies and British Overseas Territories, will need to be mindful of these sanctions. In terms of how they might apply to new relationships and the extent to which new instructions by existing clients within the scope of these rules might constitute a new relationship.
If you have any queries on UK expands Russian sanctions to trust services or UK tax matters more generally, then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article
On October 26, 2022, President Zelensky signed a law creating an electronic system through which foreign entrepreneurs can apply for residency permits.
Foreigners will be able to obtain an electronic residence (an E-Residence / E-Resident) in Ukraine without having to become Ukrainian tax residents.
It is scheduled to come into effect on April 1, 2023. Under it, foreigners will be able register themselves as private entrepreneurs and pay taxes in Ukraine.
The E-Residency program provides its participants access to a range of services, including the registration and termination of business activities in Ukraine.
The E-Residency status will not grant the right to live or visit Ukraine.
The E-Residency program is open to people who meet all of the following requirements:
To become an E-Resident, applicants must go through the “E-Resident” information system, obtain qualified digital signatures, and pass identification procedures.
Ukraine E-Residence may withdraw from the program at any time by applying for termination.
Ukrainian authorities have the power to revoke an individual’s E-Residency if they decide that this person no longer qualifies for the status.
To become an E-Resident, in addition to the above conditions, you must:
E-Residents will pay a flat tax of 5% on their business income. They are not allowed to deduct any expenses from this amount.
The nature of the business activities of the E-Resident is not restricted.
E-Residents must transfer their business income to the Ukrainian bank account they opened as part of the process.
The bank will also operate as the E-Resident’s tax agent and deduct the relevant tax and deal with all other reporting.
E-Residents are not subject to the social security charges in Ukraine.
E-Residents should consider whether the Ukrainian taxes deducted in respect of their business income can be credited against taxes they are liable in their country of tax residency.
If you have any queries about Ukraine E-Residence then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article
Last month, the Swiss Federal Council took the decision to suspend co-operation under the Automatic Exchange of Information (AEoI) between itself and Russia.
Obligations under AEoI stem from the Common Reporting Standard (CRS). However, similar data sharing obligations arise under other tax-related information exchange including:
These are also suspended.
In respect of the CRS based obligations, this means that where a Swiss Reporting Financial Institution (FI) has submitted information for 2021 to the Swiss Federal Tax Administration (FTA) on its Russian resident clients then the FTA will not provide the Russian authorities with the data.
It is worth pointing out that all obligations of a Swiss Reporting FI remain in place following the move. It is simply that the FTA will not pass this information over the Swiss authorities as would normally be the case.
If you have any queries about this article, or Swiss tax matters in general, then please do get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article
The ATO has published its protocol regarding LPP. The document sets out the ATO’s recommendations for identifying whether communications are covered by LPP and how to make such claims to the ATO.
The aim of the document is to provide guidance to the country’s taxpayers and tax advisers whenever they are asserting that LPP applies to a document in response to a requests by the ATO for information.
It does this by explaining the ATO’s recommended approach for claiming LPP and providing taxpayers with information on what they can expect from the ATO in different situations where they claim LPP. It is voluntary to follow the recommended approach.
The protocol is not intended to provide a legal analysis of the law of LPP in Australia, nor does it take the place of legal advice on what LPP claims are available.
The document sets out how one should approach a claim for LPP.
The approach set out by the ATO can, it seems, be broken down into a three-step approach as follows:
The document includes four ‘Addendums’:
We are told that the ATO will monitor the protocol in order to understand how it is used by taxpayers and their advisers. They will also review how effective it is in improving the standard of any LPP claims. Clearly, this process will feed into any future changes or revisions to the protocol and associated documents.
If you have any queries about this article, or Australian tax issues or tax matters in general, then please do not hesitate to get in touch.
The content of this article is provided for educational and information purposes only. It is not intended, and should not be construed, as tax or legal advice. We recommend you seek formal tax and legal advice before taking, or refraining from, any action based on the contents of this article.