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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.
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 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.
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.
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.
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.
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.
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.
Businesses should proactively review employment contracts and benefits, ensuring they are compliant with the new legal framework.
If you have any queries about this article on Kenya’s employment law changes then please get in touch.
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′.
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.
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.
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’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!
If you have any queries over this article on HMRC COP8 and COP9, or UK tax matters in general, then please get in touch
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
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.”
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.
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’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.
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.
The Basic Property Rate (poundage) is frozen faster at 49.8p per £1 of rateable value, mirroring the UK Government’s recent move.
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.
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.
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!
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.
If you have any queries about this article on the Scottish Budget, then please do get in touch
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.
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.
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.
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.
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.
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.
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.
If you have any queries about this article on the Beckham Law, or Spanish tax matters in general, then please get in touch.
The meeting takes place in an undisclosed, luxurious, but bustling hotel lobby in Rome
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?
I accept.
[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?
[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.
[animatedly to a guest] “No, the gondola ride isn’t included with your room, this is Rome, not Venice!”
[smiles, then refocuses] And for these residents, how does Italy tax their income?
[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%.
[interrupts, brandishing a map] Could you point me to the Leaning Tower of Pisa?
[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…
[jots down notes, intrigued] Yes, how are non-residents taxed?
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.
[nods] That’s the famous ‘non-dom’ regime we hear so much about?
Go on… tell us a bit more. Don’t be shy!
[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.
Intriguing. How long does this regime apply to taxpayer?
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.
And all that great food and wine. What is there not to love?
Indeed!
What about capital gains?
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.
And the approach to lifetime gifts and inheritances?
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.
[returns, cheerfully] Got my ticket to Pisa, thanks!
[stands up] Just a quick one on real property taxes before we wrap up?
[standing too] Sure.
The key ones are IMU and TARI, but your primary residence is typically exempt, barring luxury properties.
[extends a hand] Thanks for your insights. I’ve learned a lot about Italian tax laws today.
[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.]
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.
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).
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.
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.
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.
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 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.
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’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.
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.
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.
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:
The issuer company can choose from various valuation methods, including new methods for non-resident investors and venture capital investments
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).
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.
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.
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.
The valuation date allows the use of a valuation report issued up to 90 days before the date of share issuance.
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.
The Angel Tax provisions also apply to startups receiving investments from non-residents, with exceptions based on specified conditions.
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.
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.
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).
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.
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.
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.
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…..
If you would like more information about this issue or Israeli tax matters in general then please 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.
A recent court judgment has held that non resident hedge funds should be treated like residents in Spain if they meet certain requirements.
Under the Non-resident Income Tax Law, hedge funds resident in Spain are taxed at a lower rate of 1%, while those resident in other countries are taxed at a higher rate of 19%, unless there is a relevant double tax treaty.
The Supreme Court ruled that this different treatment is discriminatory and goes against the free movement of capital regulated in article 63 of the Treaty on the Functioning of the European Union.
The court held that non-resident hedge funds should be treated like residents if they can prove that they are open-ended entities, that they have relevant authorization, and that they are managed by an authorized management company pursuant to the terms of Directive 2011/61/EU.
The nonresident hedge fund has the burden to prove these requirements, but a certain flexibility should be allowed due to the lack of specific regulations in Spain in this regard. If the Spanish authorities have reservations about the documentation provided by the fund, they must initiate an exchange of information procedure with its State of residence.
The Court also concluded that the restriction on the free movement of capital could only be considered neutralized by the provisions of a double tax treaty if the treaty permits the hedge fund (not its members) to deduct the total amount of Spanish tax withheld in excess. However, given the way hedge funds operate and are taxed, that neutralization is impossible in practice.
This judgment is significant as it removes discrimination against nonresident hedge funds and brings Spain in line with the free movement of capital provisions of the Treaty on the Functioning of the European Union.
The decision clarifies the requirements that nonresident hedge funds must meet to be treated like residents and offers some flexibility in terms of providing documentation. It also highlights the difficulty in neutralizing restrictions on the free movement of capital through double tax treaties in practice.
In conclusion, the recent Supreme Court judgment in Spain has removed discrimination against nonresident hedge funds and clarified the requirements for them to be treated like residents.
This decision is in line with the free movement of capital provisions of the Treaty on the Functioning of the European Union and offers some flexibility in terms of providing documentation.
However, the decision also highlights the difficulty in neutralizing restrictions on the free movement of capital through double tax treaties in practice.
If you have any queries about issues around Spain non-resident hedge funds, or Spanish 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.
Over a year ago, we wrote an article called “She sells corporate shells” about the EU Commission’s proposal for a directive imposing new rules to prevent the misuse of shell entities for tax purposes.
In January 2023, the European Parliament approved the European Commission’s draft directive known as ATAD 3 to prevent the misuse of shell entities for tax purposes.
The directive includes several indicators of minimum substance to assess if an entity has no or minimal economic activity, which could result in the denial of certain tax benefits based on treaties or EU directives.
Unlike Pillar 2, ATAD 3 is not limited to international or domestic groups with global revenues exceeding EUR 750 million, meaning it will impact many small and medium-sized enterprises with an EU presence, increasing the administrative burden.
The European Council is not bound by the amended text and may still amend or decide not to issue the directive.
The Council will have the final vote, and ATAD 3 will be on the agenda of the European Council Ecofin meeting of 16 May 2023.
Member States are meant to transpose ATAD 3 into domestic law by 30 June 2023, and the directive would apply as of 1 January 2024, although the European Commission may relax the timeframe in light of the short timeframe for final adoption and implementation.
ATAD 3 targets passive undertakings that are tax resident in an EU Member State and deemed not to have minimum substance.
The directive aims to bring more entities into scope by lowering some gateway thresholds but clarifies that the intra-group outsourcing of the administration of day-to-day operations and decision-making on significant functions is not considered a gateway.
Certain entities, including UCITS, AIFs, AIFMs, and certain domestic holding companies, will benefit from a carve-out and be exempt from reporting obligations. However, entities owned by regulated financial undertakings that have as their object the holding of assets or the investment of funds did not retain the proposed amendment to introduce a carve-out.
If an entity passes all three gateways, it will have to report certain information regarding indicators of minimum substance through its annual tax return.
Failure to comply with the reporting obligation triggers a penalty of at least 2% of the entity’s revenue, and for false declarations, an additional penalty of at least 4% of the entity’s revenue would be due.
If an entity lacks substance in one of the indicators or fails to provide adequate supporting documentation, that entity is presumed to be a shell entity. However, an entity has the right to rebut this presumption.
If the entity cannot rebut the presumption, it will not receive a certificate of tax residence from its EU Member State of residence, resulting in the disallowance of any tax advantage gained through bilateral tax treaties of the entity’s resident jurisdiction or through EU Directives.
Regardless of whether the entity is classified as a shell, the reported information will be exchanged automatically.
Additionally, the European Commission is working on a new taxation package, including the Securing the Activity Framework of Enablers initiative and the FASTER proposal, aiming to introduce a new EU-wide system for withholding tax to prevent tax abuse in the field of withholding taxes.
The implementation of ATAD 3 and other initiatives to restrain the use of shell entities and aggressive tax planning may have an important impact on existing structures, and entities should be carefully checked on a case-by-case basis before the relevant date of entry into force.
If you have any queries about this article, or the matters discussed 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.