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    Zambia’s 2024 Tax Reforms

    Zambia’s 2024 Tax Reforms – Introduction

    In its 2024 budget, Zambia sets forth a series of tax measures designed to stimulate economic growth, enhance policy consistency, and ensure equitable development across various sectors.

    With a projected growth increase from 4% in 2023 to 4.8% in 2024, and amid a backdrop of contained external debt and decreasing inflation, these reforms aim to unlock Zambia’s economic potential through both incentives and tightened tax administration.

    Empowering Individuals and Industries

    Direct Tax Measures

    Personal Tax Adjustments:

    Enhancements to the Pay-As-You-Earn (PAYE) system include raising the income tax exemption threshold from K4,800 to K5,100 and reducing the top monthly tax rate from 37.5% to 37%, effectively increasing disposable incomes and stimulating consumer spending.

    Rural Investment Incentive

    A reduction in income tax by 20% for five years for investments in rural areas, applicable to all sectors except mining, encourages businesses to contribute to rural economic development.

    Cotton Producers’ Incentives

    Tax exemptions for up to 10 years for profits derived from the cotton value chain promote the agriculture sector’s diversification and competitiveness.

     Multi-Facility Economic Zones (MFEZ) Incentives

    Immediate 100% tax write-offs for new equipment for both developers and investors in MFEZs aim to spur significant investment in these special economic zones.

    Value Addition Incentive for Sorghum and Millet

    Aligning with incentives for other crops, this measure encourages the production and processing of sorghum and millet, supporting agricultural diversification.

    Transfer Pricing Adjustments

    Clarification of Assessment Date

    The law now acknowledges the final ruling date in disputes as the official date for assessment, ensuring fairness in transfer pricing adjustments.

    Expanded Scope for Transfer Pricing Audits

    Removing the six-year limit on assessing transfer pricing issues enhances the tax authority’s flexibility in managing complex audits.

    Pre-approval for Non-OECD Methods

    This measure ensures that related-party transactions employing non-OECD methods meet the Commissioner’s standards, aligning Zambia with international best practices.

    OECD Alignment

    The redefinition of terms to match OECD standards demonstrates Zambia’s commitment to maintaining coherence with global tax norms.

    Strengthening Tax Administration

    Royalty Withholding Agents

    The introduction of agents to manage royalty withholding aims to improve compliance among small-scale miners, ensuring a level playing field in the mining sector.

    Penalties for Non-Compliance in Mining

    Harmonizing penalties across the mining sector, including artisanal and small-scale activities, deters tax evasion and fosters fair competition.

    Expanded Commissioner Powers

    Enhancing the Commissioner General’s authority to request information from various professionals and regulators strengthens the tax administration’s capacity to enforce compliance.

    Zambia’s 2024 Tax Reforms – Conclusion

    By incentivizing investment in key sectors, adjusting direct tax measures for individuals and industries, and tightening tax administration, Zambia is poised to harness its full economic potential while ensuring fairness and transparency in its tax system.

    If you have any queries about this article on Zambia’s 2024 tax reforms, or other related tax matters, then please get in touch.

    Yer name’s not down – UAE is off Dutch Tax Blacklist

    UAE is off the Dutch Blacklist – Introduction

    The Netherlands’ recent update to its list of low-taxed and non-cooperative jurisdictions for 2024 has notably excluded the United Arab Emirates (UAE), marking a shift in tax policy.

    This change follows the UAE’s introduction of a federal Corporate Income Tax (CIT) regime, setting a standard tax rate of 9% for financial years beginning on or after 1 June 2023.

    The Blacklist

    Of course, this blacklist has nothing to do with Raymond Reddington.

    Instead, the Dutch tax blacklist is a list of jurisdictions that facilitate abusive tax structures through minimal or non-existent taxation rates, defined as less than 9%.

    The presence on this list subjected entities in blacklisted jurisdictions to stringent domestic anti-abuse measures in the Netherlands.

    These included conditional withholding taxes on cross-border payments and limitations on obtaining tax rulings for transactions involving blacklisted jurisdictions, alongside the application of Controlled Foreign Corporation (CFC) rules that impacted the taxable income of Dutch entities.

    Back from black

    The removal of the UAE from this blacklist alleviates several challenges for UAE-based businesses operating in the Netherlands.

    Previously, the anti-abuse measures introduced a layer of complexity and uncertainty for transactions between the two nations.

    Now, the reclassification signals a positive development, potentially enhancing economic connections and fostering a more favorable environment for cross-border investments and collaborations.

    The UAE’s proactive adjustment of its tax regime to introduce a CIT rate aligns with global tax standards and demonstrates a commitment to fostering a transparent and cooperative financial landscape.

    This adjustment has directly influenced its standing with the Netherlands, removing barriers that once complicated financial and corporate engagements.

    UAE is off the Dutch Blacklist – Conclusion

    For businesses within the UAE with Dutch interests, this development opens doors to new opportunities and simplifies operations, heralding a phase of strengthened economic ties between the UAE and the Netherlands.

    This move is anticipated to encourage a smoother flow of trade, investment, and financial services between the two countries, reinforcing their positions in the global market.

    Final thoughts

    If you have any queries about this article on the UAE being off the Dutch Blacklist, or UAE matters more generally, then please get in touch.

    Kenya’s Employment Law Changes

    Kenya’s Employment Law Changes – Introduction

    Important changes in employment law, prompted by the Finance Act 2023, are set to reshape the landscape for employers and employees alike in Kenya.

    Understanding these changes is crucial for businesses to ensure compliance and adapt their employment strategies effectively.

    Housing Levy and Taxation Adjustments

    One of the key changes introduced by the Finance Act 2023 is the implementation of a housing levy.

    Employers are now required to deduct 1.5% of an employee’s gross monthly salary as a contribution towards this levy, match this contribution themselves, and remit both amounts.

    This move is designed to foster a more inclusive housing scheme for employees.

    Additionally, the Act has redefined the taxation landscape for employees participating in employment share ownership plans, particularly those working for eligible startups.

    This initiative aims to encourage employee ownership while providing tax-efficient benefits.

    Moreover, the amendments to the Income Tax Act, including adjustments to the Pay-As-You-Earn (PAYE) system, target higher-income earners with increased tax deductions.

    These changes are part of a broader effort to ensure a more equitable tax regime.

    The Virtual Workspace

    The rise of the ‘virtual workspace’ is another significant development, with legal implications for employers.

    A landmark ruling involving Meta Platforms Inc. highlights the legal responsibilities of employers in virtual work environments, especially concerning employee rights.

    This ruling underscores the importance of understanding the legal framework governing virtual workspaces.

    Employees’ Right to Disconnect

    The concept of an employee’s ‘right to disconnect’ has gained traction, with legislative proposals aiming to protect employees from being obligated to engage in work-related communications outside of work hours.

    This initiative reflects a growing recognition of the need for work-life balance in the digital age.

    Mandatory Vaccination Policies

    The courts have also addressed the contentious issue of mandatory employee vaccinations, ruling that such policies are permissible under certain conditions.

    This decision emphasizes the delicate balance between individual rights and public health imperatives.

    National Social Security Fund (NSSF) Contributions

    A notable legal challenge has resulted in a ruling against mandatory contributions to the NSSF by employees who are already part of alternative pension schemes.

    This decision highlights the importance of freedom of choice in pension contributions.

    Unemployment Insurance Fund (UIF)

    The introduction of an Unemployment Insurance Fund represents a significant policy shift, aiming to provide financial support to those affected by job loss or inability to work due to illness.

    Employers and employees are expected to contribute to this fund, underscoring a collective approach to social protection.

    Flexible Working Arrangements and Other Legislative Changes

    The pandemic has accelerated the adoption of flexible working arrangements, prompting legislative proposals to formalize these practices.

    These changes, along with adjustments to policies on sexual harassment, non-compete clauses, and employee rights in business transactions, signal a comprehensive update to employment law.

    Kenya’s Employment Law Changes – Conclusion

    Businesses should proactively review employment contracts and benefits, ensuring they are compliant with the new legal framework.

    Final Thoughts

    If you have any queries about this article on Kenya’s employment law changes then please get in touch.

    Higher stakes? HMRC’s crackdown on tax evasion & avoidance

    HMRC COP8 and COP9 – Introduction

    In its pursuit of greater tax compliance, HMRC seems to have significantly ramped up its efforts to combat tax evasion and avoidance.

    The past year saw the opening of 1,091 of HMRC’s most serious tax investigations, known as ‘COP8‘ and ‘COP9′.

    A Closer Look at HMRC’s Hand

    HMRC’s strategic approach involved 417 investigations under ‘COP9’ targeting severe suspected cases of tax evasion, alongside 674 ‘COP8’ civil investigations focusing on suspected tax avoidance.

    These numbers contribute to a total of 3,300 ongoing COP8 and COP9 investigations, representing HMRC’s activities in clamping down on major tax evasion and avoidance.

    Non-Compliance: Playing for High Stakes?

    The behavior-based penalty structure employed by HMRC ensures that penalties escalate with the severity of the taxpayer’s actions.

    These penalties potentially reach up to 100% of the tax for UK matters, and even higher for offshore issues.

    However, there is a silver lining for those willing to cooperate.

    Full cooperation with HMRC’s investigations can lead to significantly reduced penalties, provided taxpayers make a comprehensive and truthful disclosure of all irregularities in their tax affairs.

    The Last Chance Saloon for Taxpayers

    A COP9 investigation, reserved for suspected tax fraud cases, offers a final opportunity for individuals to rectify their tax affairs.

    Such an investigation comes with the assurance of remaining under civil investigation if they cooperate fully.

    Conversely, failure to cooperate, as seen in high-profile cases like that of former Formula 1 boss Bernie Ecclestone and Dominic Chappell, former owner of BHS, can lead to staggering fines and even imprisonment.

    When faced with these types of issues, it is important that you engage a specialist in tax investigation matters to assist you.

    HMRC COP8 and COP9 – Conclusion

    HMRC’s intensified efforts in conducting serious tax investigations underscore a stern warning against tax evasion and avoidance.

    While the investigations pose significant risks, they also offer a final chance for individuals to regularise their affairs.

    Again, if you are faced with a COP* or COP9 then please take this seriously and appoint a specialist adviser to assist you.

    Unlike a hand of Texas Hold ’em… You won’t be able to bluff your way to victory!

    Final thoughts

    If you have any queries over this article on HMRC COP8 and COP9, or UK  tax matters in general, then please get in touch

    Scottish Budget: Brigadoon or bust?

    Scottish Budget: Introduction

    The Scottish Government Budget 2024/25 was recently unveiled by Shona Robison.

    In this short article, we summarise some of the changes that are, to be honest, pretty bold

    The “Advanced” Tax Rate

    In a move that was more foreshadowed than a plot twist in a detective novel, a new Scottish income tax rate has emerged.

    It targets income between £75,001 and £125,140 at a 45% rate. Named “Advanced” – because, just like in school, “Advanced” here means “Higher.”

    Top Rate Takes a Tiny Jump

    Catching us slightly off guard, the Scottish Top rate of tax has nudged up a notch to 48%. It’s edging ever closer to the half-century mark – that’s 50% for those who skipped math class.

    Reminder: these rates are exclusively for Scottish taxpayers, focusing on income from jobs, self-employment, or property.

    A Sextet of Tax Rates

    Scotland says “why stop at three?” and introduces a sixth income tax rate, making it a half-dozen compared to the rest of the UK’s trio.

    Scottish taxpayers, brace yourselves for a marginal rate of 67.5% on incomes between £100,000 and £125,140.

    Inflation-Proofing the Starter and Basic Bands

    Inflation’s not just for balloon animals. The Starter and Scottish Basic rate bands are inflating by 6.7%. The Starter band now encompasses income up to £14,876, and the Basic band stretches from £14,877 to £26,561.

    Council Tax: Freeze Frame!

    The Council Tax freeze is more solid than a Scotsman’s resolve. It’s not only confirmed but also fully funded, giving councils a financial boost equivalent to a 5% tax increase.

    Non-Domestic Rates: Frozen in Time

    The Basic Property Rate (poundage) is frozen faster at 49.8p per £1 of rateable value, mirroring the UK Government’s recent move.

    Hospitality Sector: A Mixed Bag

    Despite numerous pleas, the wider hospitality sector won’t see an extension in current reliefs.

    However, island-based hospitality gets a 100% break, capped at £110,000.

    The Scottish Government is also cooking up some targeted solutions and a new valuation method for the sector.

    LBTT and ADS: No News is Good News

    In the Land and Buildings Transaction Tax (LBTT) and Additional Dwelling Supplement (ADS) world, it’s status quo for both residential and non-residential dealings.

    Landfill Tax: Up and Up We Go

    In sync with UK landfill tax increases, from April 2024, the Scottish Landfill Tax will see the standard rate climb to £103.70/tonne and the lower rate to £3.30/tonne.

    Talk about trashy tax rates going up!

    A New Scottish Aggregates Tax on the Horizon

    The Scottish Aggregates Tax (SAT) is set to make its grand debut in April 2026, replacing the UK-wide aggregates levy.

    This new kid on the block was introduced to the Scottish Parliament back in November 2023.

    Scottish Budget – Final thoughts

    If you have any queries about this article on the Scottish Budget, then please do get in touch

    Beckham Law Overhaul: Key Changes and Implications

    Beckham Law Overhaul – Introduction

    In a significant legislative update, Spain has revised its ‘Beckham Law’, originally implemented on 6 December 2003.

    The Royal Decree 1008/2023, issued by the Spanish government, brings crucial amendments to the Personal Income Tax Regulations, aligning them with the new Startup Law.

    These changes, effective from January 2023, have redefined the impatriate regime, expanding its scope and refining application processes.

    Key Elements of the Startup Law

    Effective from 1 January 2023, the Law 28/2022, known as the Startup Law, introduced notable enhancements to the impatriate regime.

    The law now encompasses a broader group, including teleworkers, innovative entrepreneurs, and highly skilled professionals involved in training, research, development, and innovation (R&D&I) activities, as well as company administrators, irrespective of their share capital ownership.

    Amendments in Personal Income Tax Regulations

    Royal Decree 1008/2023, published on 6 December 2023, serves to adapt the Income Tax Regulations to the Startup Law’s modifications.

    It specifies new eligibility criteria for the impatriate regime, focusing on entrepreneurial activities and highly qualified professionals, among others.

    Notably, the decree clarifies the prerequisites for these categories and establishes a six-month period for family members of the taxpayer under the special regime to relocate to Spain.

    Deductions and Exclusions

    The revised rules state that only income from professional activities is eligible for deductions or economic activity payments.

    It’s mandatory for taxpayers to maintain detailed records of their income, expenses, and invoices.

    Additionally, the waiver and exclusion regime has been expanded to include family members, with individual applications being the norm, barring exceptional circumstances.

    Transitional Regime

    For individuals who gained residency in Spain in 2023 due to postings in 2022 or 2023, a transitional regime is in place.

    They can opt for the impatriate regime within six months following the ministerial order, which came into force on 15 December 2023.

    New Forms for Compliance

    The Ministerial Order, also issued on 15 December 2023, introduces Form 149 for reporting personal income tax and opting in or out of the special regime, and Form 151 for personal income tax returns.

    These forms are specifically tailored for the varied categories of professionals, entrepreneurs, and investors affected by the new regime.

    Beckham Law Overhaul – Conclusion

    With these changes, Spain is modernizing its approach to attracting global talent and investment.

    The updated Beckham Law now offers more inclusive and detailed guidelines for the impatriate regime, making it an attractive proposition for a wider spectrum of professionals and entrepreneurs.

    Taxpayers seeking to benefit from this regime must be mindful of the new regulations, ensuring compliance with the updated processes and documentation requirements.

    The transitional provisions offer a crucial window for those who established tax residence in Spain recently, enabling them to adapt to these changes smoothly.

     

    Final thoughts

    If you have any queries about this article on the Beckham Law, or Spanish tax matters in general, then please get in touch.

    The Secret Private Client Tax Adviser: Italy debriefing

    The meeting takes place in an undisclosed, luxurious, but bustling hotel lobby in Rome

    Head Tax Native (“TN”):

    Secret Private Client Adviser in Italy,  your mission, should you choose to accept it, is to educate us on the practical tax considerations in Italy.

    This task requires a delicate balance of expertise and discretion. Be warned, should your real identity be revealed during this covert operation, you will be disavowed by Tax Natives and shunned by your fellow private client advisers.

    Do you accept?

    Secret Private Client Adviser in Italy (Secret Adviser):

    I accept.

    Tax Natives:

    [settles into a plush chair in the bustling hotel lobby, notebook ready] So, let’s dive straight into Italy’s tax residency rules.

    What makes someone a tax resident here?

    Secret Adviser:

    [leans forward, glasses reflecting the lobby’s chandeliers] It’s about presence and connection.

    If you’re registered at an Italian municipality, have your domicile or main center of interests in Italy for over 183 days a year, you’re a tax resident.

    Interestingly, even if you leave the registry and move to a low-tax country, you might still be deemed a resident unless proven otherwise.

    Receptionist:

    [animatedly to a guest] “No, the gondola ride isn’t included with your room, this is Rome, not Venice!”

    Tax Natives:

    [smiles, then refocuses] And for these residents, how does Italy tax their income?

    Secret Adviser:

    [sips espresso] Residents face worldwide income taxation, meaning they’re taxed on income earned both in and outside Italy.

    The IRPEF system classifies income into categories like employment, business, and capital, applying progressive rates from 23% to 43%.

    Confused Tourist:

    [interrupts, brandishing a map] Could you point me to the Leaning Tower of Pisa?

    Secret Adviser:

    [points gently] That’s a bit of a journey from here. Head to the train station… and get a train to Pisa.

    Now, regarding non-residents…

    Tax Natives:

    [jots down notes, intrigued] Yes, how are non-residents taxed?

    Secret Adviser:

    Non-residents are taxed only on their Italian-sourced income.

    But there’s an appealing flat tax option for new residents, like a €100,000 substitute tax on foreign income.

    Tax Natives:

    [nods] That’s the famous ‘non-dom’ regime we hear so much about?

    Go on… tell us a bit more. Don’t be shy!

    Secret Adviser:

    [Laughs] OK, you twist my arm!

    As I say, one of the most advantageous aspects of the regime is that Italy now offers a flat tax rate for high-net-worth individuals.

    [Takes another sip of Espresso for extra fortitude]

    As a high-net-worth individual, you have the option to pay €100,000 per annum on any foreign income you generate as an Italian tax resident.

    The rate is fixed – it doesn’t matter  how much foreign income you have.

    [Leans back]

    There is an exemption from paying wealth tax in Italy on your foreign investments, including paying tax on the value of foreign real estate investments.

    In addition, there is an exemption from inheritance and gift tax payable in Italy.

    [starts unconsciously twiddling with spoon]

    But don’t get carried away. Any income you generate in Italy will not fall under the flat tax and will be taxed at standard Italian rates.

    The scheme is likely to be most beneficial if most of your income is – and will continue to be – generated outside Italy.

    TN:

    Intriguing. How long does this regime apply to  taxpayer?

    Secret Adviser:

    The flat tax rate is applicable for a period of fifteen years, which is counted from the first year that you benefit from Italian tax residency.

    TN:

    And all that great food and wine. What is there not to love?

    Secret Adviser:

    Indeed!

    TN:

    What about capital gains?

    Secret Adviser:

    Capital gains, typically from financial assets like stocks or bonds, are taxed at 26%.

    But there are lower rates, like 12.5% for government securities.

    There is no tax on real estate sales if held for more than five years.

    Tax Natives:

    And the approach to lifetime gifts and inheritances?

    Secret Adviser:

    Gifts are subject to indirect tax, with rates depending on the relationship between donor and donee.

    Inheritance tax also varies but offers some exemptions, especially for direct relatives.

    Tourist:

    [returns, cheerfully] Got my ticket to Pisa, thanks!

    Tax Natives:

    [stands up] Just a quick one on real property taxes before we wrap up?

    Secret Adviser:

    [standing too] Sure.

    The key ones are IMU and TARI, but your primary residence is typically exempt, barring luxury properties.

    Tax Natives:

    [extends a hand] Thanks for your insights. I’ve learned a lot about Italian tax laws today.

    Secret Adviser:

    [shakes hand warmly] Happy to help. Enjoy your time in Italy!

    [They part ways, the Tax Natives heading towards the bustling hotel exit, amused and enlightened by the day’s interactions.]

    Cayman Islands Private Trust Companies

    Cayman Islands Private Trust Companies – Introduction

     

    In the realm of wealth structuring for high-net-worth individuals and families, private trust companies (PTCs) have gained significant traction. 

     

    A rising trend among private clients is the establishment of their own PTCs to act as trustees for trusts, as opposed to entrusting these responsibilities to professional trustee companies provided by offshore service providers.

     

    Lets look at Cayman PTCS a bit more closely.

     

    PTC Regulation

     

    Central to the regulation of Cayman’s trust company industry is the Banks and Trust Companies Act (BTC Act), which mandates licensing by the Cayman Islands Monetary Authority (CIMA) for any company engaging in “trust business” within or from the Cayman Islands. 

     

    “Trust business” includes acting as a trustee for express trusts on a professional basis, as well as acting as an executor or administrator.

     

    Since 2008, Cayman PTCs that meet specific criteria have been exempted from the licensing requirement under the BTC Act. 

     

    These PTCs must register with CIMA, demonstrating their eligibility for unlicensed status, as outlined in the Private Trust Companies Regulations (PTC Regs).

     

    Key Requirements for Exemption

     

    1. The PTC must be a Cayman-incorporated company under the Companies Act.
    2. It should exclusively conduct “connected trust business” as defined in the PTC Regs.
    3. The PTC’s registered office must be maintained by a service provider with a full trust license issued by CIMA under the BTC Act.
    4. The PTC’s registered company name must include “Private Trust Company” or the letters “PTC.”
    5. The PTC should not solicit or receive contributions for trusts of which it serves as trustee from the public or non-“connected persons” as defined in the PTC Regs.

     

    Connected trust business?

     

    The scope of “connected trust business” hinges on the relationship between the settlors/contributors of the trusts in question. 

     

    PTCs acting as trustees for family trusts, for instance, typically meet this criterion seamlessly.

     

    Unlicensed PTCs are required to maintain certain documents at their registered office in Cayman, including copies of trust terms, trustee and beneficiary details, settlor and protector information, and financial records related to their connected trust business.

     

    Key Points to Note

     

    1. PTCs must regularly provide details of their name, directors, shareholders, and registered office service provider to CIMA.
    2. There is no minimum capitalization requirement or the need for local directors or officers. Audited accounts do not have to be filed with CIMA.
    3. Anti-money laundering regulations apply, but the due diligence responsibility rests with the registered office service provider.
    4. A registered PTC can serve as the sole trustee of a STAR Trust.

     

    Registration Fees

     

    The combined government incorporation fees and disbursements total around US$900 for an exempted company. 

     

    Registered office service providers charge additional fees, which vary among providers. 

     

    If the service provider also serves as the trustee for orphaning the PTC, an extra fee applies. 

     

    The CIMA application fee for PTC registration is approximately US$4,200.

     

    Ownership Structure of a PTC

     

    PTCs can be owned in various ways, influenced by tax considerations and client circumstances. 

     

    Common ownership structures include individual ownership, purpose trusts, or charitable/non-charitable purpose trusts such as STAR Trusts.

     

    Composition of the Board of Directors

     

    At least one director must be an individual, but beyond this requirement, the board composition can align with the settlor’s preferences. 

     

    Control mechanisms may be established through the constitutional documentation of the PTC and the terms of the purpose trust, influencing the appointment or removal of directors.

     

    Settlor Involvement

     

    Settlor involvement can take various forms, such as serving as a protector, a board member, or an advisor. The settlor’s role can be pivotal in key decisions related to the underlying trusts and businesses.

     

    Operation and Funding of a PTC

     

    The PTC’s board must ensure alignment with the trust terms, seek professional advice as necessary, and maintain proper records. 

     

    For orphaned PTCs, funding strategies should be devised to ensure self-sufficiency or rely on invoicing for trustee services.

     

    Cayman Islands Private Trust Companies

    – Conclusion

     

    Cayman’s legal and regulatory environment positions it as an excellent choice for establishing PTCs. 

     

    These flexible structures enable bespoke trustee services and offer a platform for family members’ active participation in trust administration and business management.

     

    If you have any queries about Cayman Islands Private Trust Companies, or other Cayman matters, then please do get in touch.

    Angel Tax Valuation Rules – recent changes

    Angel Tax Valuation Rules – Introduction

     

    The Central Board of Direct Taxes (CBDT) announced changes to the so-called Angel Tax provisions.

     

    It did this through a notification dated 25 September 2023.

     

    The notice has made amendments to Rule 11UA of the Income-tax Rules, 1962, which outline the methodology for calculating the fair market value (FMV) of unlisted equity shares and compulsorily convertible preference shares (CCPS) under Section 56(2)(viib) of the Income-tax Act, 1961. 

     

    Section 56(2)(viib) is commonly known as the “Angel Tax” provision.

     

    What are the Angel tax provisions?

     

    The Angel Tax provisions apply when a company not substantially owned by the public (private or unlisted public company) issues shares at a premium that exceeding the FMV of the shares.

     

    The excess amount received is treated as income from other sources. 

     

    Changes from 1 April 2023

     

    General

     

    Prior to April 1, 2023, Angel Tax applied only to shares issued to Indian tax residents but now extends to shares issued to non-residents.

     

    The amendments introduce flexibility in valuation methods and incentivize venture capital investments, with the following notable provisions:

     

    Types of Valuation Methods

     

    The issuer company can choose from various valuation methods, including new methods for non-resident investors and venture capital investments

     

    Methods for Non-Resident Investors

     

    Five new valuation methods (e.g., Comparable Company Multiple Method) have been introduced for shares issued to non-resident investors.

     

    These methods must be computed by a Category I merchant banker registered with the Securities and Exchange Board of India (SEBI).

     

    Methods for Venture Capital Undertakings

     

    The FMV of equity shares issued to venture capital investors can be used as a benchmark for shares issued to other investors within a specific period.

     

    Methods for Notified Investors

     

    The valuation method for unquoted equity shares issued to Notified Investors is used as a benchmark for shares issued to other investors within a set period. Notified Investors are specified in Notification No. 29/2023 dated May 24, 2023.

     

    Valuation of CCPS

     

    The FMV of CCPS can be determined using the DCF method or new valuation methods based on the type of investor or FMV of unlisted equity shares.

     

    Valuation date

     

    The valuation date allows the use of a valuation report issued up to 90 days before the date of share issuance.

     

    Safe harbour

     

    A safe harbour  provision permits a tolerance limit of 10% between the issue price and FMV.

     

    If the difference does not exceed 10%, the issue price is considered the FMV.

     

    Start ups?

     

    The Angel Tax provisions also apply to startups receiving investments from non-residents, with exceptions based on specified conditions.

     

    Conclusion

     

    While these measures are welcomed, Indian companies continue to face scrutiny regarding share premiums and valuation methods. 

     

    An observation is that Indian tax authorities often challenge valuation methodologies and assumptions, focusing on increasing the tax base by treating undervalued share issuances as income from other sources. 

     

    If you have any queries about the Angel Tax Rules, or any other Indian tax matters, then please get in touch.

    No More Law and Order in Israel?

    This is a dramatic week on the Israeli judicial front. Two massive amendments to the Judgement basic law passed their first reading in the Knesset. First, it is proposed to prohibit judicial review of the reasonableness of government decisions. Second, it is proposed to abolish the Israeli Bar Association (i.e. the Law Society). Many people are out demonstrating. But how will this impact the Israeli business scene? We briefly review these proposals.

    Proposed prohibition of judicial review:

    A bill which passed its first reading in the Knesset on July 11, 2023, proposes to ban the Israeli High Court of Justice (“Bagatz”) from discussing or giving injunctions concerning the reasonableness of decisions of the government, the prime minister or any other minister. This would also apply to decisions of others “chosen by the public” as determined in any law. (Proposed Basic Law: Judgment (Amendment 5)(Reasonableness Standard)).

    Why? The Commentary to the bill explains that the reasonableness standard currently enables the High Court to disqualify a governmental decision that does not give sufficient weight to different interests that ought to be considered…amounting to material or extreme unreasonableness. The Commentary says elected representatives of the public should consider this, not a Court. The Commentary also says the proposal would not stop the Court considering and issuing injunctions on other grounds, such as proportionality (presumably against a disproportionate decision).

    Abolition of Israeli Bar Association:

    Another bill which passed its first reading in the Knesset on July 5, 2023, proposes to wind up the Israel Bar Association and replace it with a quite different Israeli Lawyers Council (Draft Law Israeli Lawyers’ Council, 2022).
    Currently the Israeli Bar Association is an autonomous body whose leaders are democratically elected by lawyers in Israel. It admits new lawyers, administers disciplinary matters and promotes other professional matters. This is all legal, pursuant to the Bar Association Law, 1961.

    According to the latest Bill, the Israeli Lawyers Council would be an appointed body with the following members: a Chairman (District Court judge) appointed by the Justice Minister; 4 private lawyers appointed by the Knesset Constitution and Law Committee; a District Court judge appointed by the Supreme Court President; 3 public sector lawyers appointed by the Justice Minister; 2 representatives of the Finance Minister; 1 academic appointed by the Knesset Constitution and Law Committee.

    The Lawyers’ Council would largely take over the Bar Association’s functions according to detailed provisions in the proposed bill. Note that the Justice Minister would issue ethical rules for lawyers. This would be after consulting the Lawyers’ Council and the Knesset Constitution and Law Committee.

    What would the Lawyers’ Council NOT do?

    According to the latest Bill (Section 67), the Lawyers’ Council would not take over the Bar Association’s function of appointing two representatives to the Judges’ Appointment Committee….

    Currently, Israeli judges are appointed by the President based on the selection of the Judges’ Appointment Committee which has 9 members: the Supreme Court president; 2 other Supreme Court judges appointed by the Supreme Court; the Justice Minister; another Minister; 2 Knesset Members; and 2 members of the Bar Association. According to the proposed Bill, the last 2 would drop out leaving 7 members on the Judges’ Appointment Committee.

    Why? The Commentary to this Bill says the interests of all citizens should be promoted, not just the welfare of the legal profession.

    Comments:

    These are controversial proposals which the government may or may not refine before they are finally enacted. Regrettably, no written constitution is yet proposed to lay down separation of powers or checks and balances, not even a second Knesset chamber. A simple majority of the Knesset would be sufficient. All this is different from the situation in many other Western democratic countries.

    Impact on business?

    Start-ups in Israel often now set up US parent companies which own intellectual property (IP) and Israeli limited scope subsidiary companies. This benefits the US treasury and puts the Israeli hitech economy and tax revenues on borrowed time.
    Whenever an exit deal occurs, the US IRS would collect capital gains tax.

    On the legal side, Israeli attorney Gidon Cohen, based in Ramat Gan, commented to us that judges must be seen to be impartial, professional and free from political influence. Otherwise, commercial disputes won’t be heard in Israel and Israel won’t be the forum for litigation. A left-wing liberal businessman will not want a biased right-wing judge, and vice versa. Impartiality is absolutely vital. Loss of faith in the Israeli legal system to enforce rights would reinforce the need to register IP abroad among other things.

    Also, businesses don’t like surprises – the proposed Israeli judicial reform was scarcely mentioned in the last Israeli general election, it was mainly about personalities. The Shekel is fluctuating and international credit rating agencies have expressed reservations.

    The next Israeli election is 3 years away. Market forces are here now.

    It remains to be seen how things develop. One possibility is that compromise talks might perhaps resume at the residence of President Herzog, a lawyer, before the Knesset passes the proposals…..

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