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Approved Changes (5)

Ecuador

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Ecuador Extends Deadline for Assets and Liabilities Reporting Annex in 2022

Ecuador's Internal Revenue Service (SRI) has issued Resolution No. NAC-DGERCGC22-00000019, which extends the deadlines for the submission of the annex on assets and liabilities of companies and permanent establishments in Ecuador. Normally due in May of each year, the resolution extends the deadline for 2022 by seven months to between 10 and 28 December 2022, with the exact date depending on the taxpayer's tax ID number (RUC).

The requirement to submit the annex on assets and liabilities was introduced in 2017 and generally applies where foreign assets or liabilities exceed USD 500,000, although certain entities are exempt, including public entities, international organizations, and financial institutions. The annex should include details of assets/liabilities held in both Ecuador and abroad.

05-18-2022

Italy

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Italy Issues Circular Providing Further Clarification on Specific Issues for DAC6 Reporting

The Italian Revenue Agency has issued Circular No. 12/E of 13 May 2022, which provides further clarification on the application of the DAC6 reporting requirements for cross-border arrangements as introduced by Legislative Decree No. 100 of 30 July 2020 and the Ministerial Decree of 17 November 2020. Circular No. 12/E of 13 May 2022 expands upon the guidance first provided by Circular No. 2/E of 10 February 2021. In particular, Circular No. 12/E provides further clarifications on issues raised in the context of the consultation held on the initial circular that, due to their specific nature, were not covered in the initial circular or require additional clarification. This includes specific issues in relation to certain intermediaries, specific operations, verification and application of the tax reduction criteria and main benefits test, the terms of submission, sanctions in different cases, and the application of hallmarks in specific cases.

05-18-2022

Mexico

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Mexico Publishes Updated List of Registered Non-Resident Digital Service Providers

The Mexican Tax Administration (SAT) has issued Official Letter No. 700-04-00-00-00-2022-023, which was published in the Official Gazette on 11 May 2022. The letter contains an updated list of non-resident digital service providers that have registered under Mexico's new requirements, which generally apply from 1 June 2020. The list, which contained 141 companies as on 28 February 2022, now contains 154 companies as on 29 April 2022, including the addition of Accuity Inc., Fenix International Limited, Lnrs Data Services Inc., Lexisnexis Risk Solutions Fl Inc., Upflex, Inc., World Compliance, Inc, and others.

Under the requirements, non-resident service providers are required to register with the Federal Registry of Taxpayers when providing services to recipients in Mexico and must account for and collect VAT on their services. Further, individual users that provide goods, services, or accommodation in Mexico through the use of digital intermediation services are subject to income tax and VAT, which is to be generally withheld and remitted by the intermediation service provider.

05-18-2022

Nigeria

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Critical Tax Issues for the Operation of a Holding Company Structure in Nigeria

Nigeria's Federal Inland Revenue Services (FIRS) issued an Information Circular (Public Notice) on 11 May 2022 that provides explanatory notes on the critical tax issues for the operation of a holding company structure in Nigeria. The Information Circular replaces a Circular issued in 2012 that provided explanatory notes focused on bank holding company structures. Considering subsequent requests for guidance on holding company structures in general, the latest explanatory notes have been issued.

The main sections of the Information Circular on relevant tax issues are as follows, including guidance on withholding tax, capital gains tax, value added tax, minimum tax, stamp duties, and other issues.

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3.0 Clarifications on the Relevant Tax Issues

The implication of Section 19 (2) (a) and 80 (3) of Company Income Tax Act (CITA) on HoldCo.

Section 19 of Companies Income Tax Act, CAP C21, LFN, 2004 (as amended) states that:

The provisions of subsection (1) shall not apply to- dividends paid out of the retained earnings of a company, provided that the dividends are paid out of profits that have been subjected to tax under this Act, the Petroleum Profits Tax Act, or the Capital Gains Tax Act;

Section 80 (3) of CITA, CAP C21, LFN, 2004 however provides that:

"Dividend received after deduction of tax prescribed in this section shall be regarded as franked investment income of the company receiving the dividend and shall not be charged to further tax as part of the profits of the recipient company .………………………………………………………………."

In line with Section 19 (2) (a) of CITA, Franked Investment Income would not be subjected to further tax indirectly through the application of Section 19(1) of CITA.

3.1 Treatment of Withholding Tax on Dividend

Under the existing WHT administrative framework, FIRS understands that WHT on dividend payable to HoldCos being corporate entities would be remitted to FIRS. However, WHT on eventual distribution to individual shareholders by the HoldCos would be due to the relevant tax authority. In the case of individual shareholders, the relevant Tax Authority will be the State Internal Revenue Service, while for corporate entities, the FIRS would be the appropriate tax authority.

In view of the above and in order to avoid administrative challenges that may occur for the HoldCos, where an operating subsidiary has declared dividend, the subsidiary may pay the dividend due to the HoldCo gross of WHT. Whilst dividend due to the other minority shareholders of the subsidiary companies should be paid net of WHT. WHT deducted from such minority shareholders should be remitted to the relevant tax authorities. However, for this treatment to be applicable, the HoldCo must within 30 days of receiving the dividend from the subsidiaries, redistribute the full amount received to the ultimate shareholders to the relevant tax authorities.

3.2 Exemption from Commencement and Cessation Rules

In view of the provision of Section 29(9) and (12) of CITA, where a HoldCo is formed as a result of restructuring, the Board of FIRS may direct on application by any of the companies that commencement and cessation rules shall not apply provided that:

  • The formation of the HoldCo does not result in any change in ownership structure of the Group;
  • The business of the HoldCo and the subsidiaries are not discontinued, but may be transferred within the Group; and
  • The assets are sold or transferred at an amount equal to the residue of the qualifying expenditure, that is, at their tax written down values (TWDV).

However, unrelieved losses or unabsorbed capital allowance by a member of the Group cannot be transferred to another member.

NOTE: For other forms of merger and acquisition other than for the purpose of forming a 'Passthrough' HoldCo Structure, the existing procedure of case by case application for the Board's direction will continue to apply.

3.3 Capital Gains Tax

The creation of HoldCo Structure may result in divestment from some business activities, as a result of which the Group has to re-organize and move assets around the successor entities, including the HoldCo. The transfer/disposal of such assets will likely attract capital gains tax.

However, Section 32 of Capital Gains Tax Act Cap C1 LFN, 2004(as amended) provides that:

"Where a trade or business carried on by a company is sold or transferred to a Nigerian company for the purposes of better organisation of that trade or business or the transfer of its management to Nigeria, and any asset employed in such trade or business is sold or transferred, no tax shall apply under this Act to the sale or transfer of the aforementioned assets to the extent that one company has control over the other or both are controlled by some other person or are members of a recognised group of companies and have been so for a consecutive period of at least 365 days prior to the date of re-organisation: "

Provided that if the acquiring company were to make a subsequent disposal of the assets acquired within the succeeding 365 days after the date of transaction, any concessions enjoyed under this subsection shall be rescinded and the companies shall be treated as if they did not qualify for the concessions stipulated in this subsection as at the date of initial re-organisation"

In line with the provisions of Section 32, any assets transferred in exchange for shares issued shall not be subject to Capital Gains tax provided that the disposal was made at least 365 days prior to reorganisation.

3.4 Value Added Tax

The operation of the holding company structure may require re- organization and movement of assets around the successor entities (including HoldCo), which will continue different lines of business within their group. In this way, businesses previously conducted through a single company may now be undertaken by multiple entities under the control and supervision of HoldCo.

The transfer of assets within the group, may expose the re-organization to value added tax in line with Section 2 of the Value Added Tax (VAT) Act Cap V1, LFN 2004 1993 (as amended), which provides that "The tax shall be charged and payable on the supply of all goods and services (in this Act referred to as "taxable goods and services") other than those goods and services listed in the First Schedule to this Act".

In addition, Section 46 of the VAT Act states inter alia:

"supplies" means any transaction, whether it is the sale of goods or the performances of a service for a consideration, that is, for money or money's worth"

"supply of goods" means any transaction where the whole property in the goods is transferred or where the agreement expressly contemplates that this will happen and in particular includes the sale and delivery of taxable goods or services used outside the business, the letting out of taxable goods on hire or leasing, and any disposal of taxable goods".

However, "goods" for the purposes of this Act, means all forms of tangible properties, movable or immovable, but does not include, land and building, money or securities".

Based on the above provisions of the VAT Act, where the reorganisation involves transfer of land and building, or interest in land and building, securities, interest in securities, money, interest in money then VAT will not be applicable.

Furthermore, for other assets not exempted above, Section 42 of VAT Act states that

"Where a trade or business carried on by a company is sold or transferred to a Nigerian company for the purpose of better organisation of that trade or business or the transfer of its management to Nigeria, and any asset employed in such trade or business is sold or transferred, no tax shall apply under this Act to the sale or transfer of the assets to the extent that one company has control over the other or both are controlled by some other person or are members of a recognised group of companies and have been so for a consecutive period of at least 365 days prior to the date of reorganisation:

Provided that if the acquiring company were to make a subsequent disposal of the assets thereby acquired within the succeeding 365 days after the date of transaction, any concessions enjoyed under this subsection shall be rescinded and the companies shall be treated as if they did not qualify for the concessions stipulated in this subsection as at the date of initial reorganisation.

As such, VAT will apply where the assets transferred in the reorganisation process are disposed of within 365 days of the reorganisation.

3.5 Minimum Tax

Companies in Nigeria are liable to pay minimum tax under the Companies Income Tax Act, Cap C21, LFN 2004. This arises, where in any year of assessment, the assessable profits of a company result in a loss or where the total profits result in no tax payable or tax payable, which is less than the minimum tax payable under the CITA. The rationale for the minimum tax is to ensure that the Government receives a fair share of return from every economic entity.

Section 33 (1) and (2) of CITA, provides as follows:

  1. Notwithstanding any other provisions in this Act, where in any year of assessment, the ascertainment of total assessable profits from all sources of a company results in a loss, or where a company's ascertained total profits results in no tax payable or tax payable which is less than minimum tax, there shall be levied and paid by the company the minimum tax as prescribed by subsection (2) of this
  2. For the purpose of subsection (1), the minimum tax to be levied and paid shall be 0.5% of gross turnover of the company less franked investment income: Provided that—
    1. the applicable minimum tax is reduced to 0.25% for tax returns prepared and filed with respect to financial years ending on any date between 1 January 2020 and 31 December 2021, both days inclusive;
    2. where the company had filed its relevant tax returns for any year of assessment falling on any date between 1 January 2020 and 31 December 2021, both days inclusive, the applicable minimum tax is reduced to 25% for tax returns prepared and filed for any two accounting periods ending on any date between 1 January 2019 and 31 December 2021, both days inclusive; and
    3. for the purpose of this subsection, the application of the reduced rate shall be available for only two accounting periods either from 1 January 2019 to 31 December 2020 or from 1 January 2020 to 31 December 2021, as may be determined by the taxpayer"

Considering that "Franked Investment income" is exempted from the application of minimum tax, dividend received by HoldCo from their subsidiaries is deducted from their gross turnover before the application of minimum tax rate.

In addition, section 55(8) of CITA, provides that: –

Any company which fails to comply with the provision of subsection (2) of this section and claims the minimum tax relief under section 33(2) of this Act shall be liable to pay as penalty for late filing, an amount equivalent to the relief sought.

This implies that companies claiming the minimum tax relief of 0.25% of gross turnover must file their tax returns timely, otherwise, they will be required to pay a penalty of an amount equivalent to the relief sought in addition to the late returns penalty as contained in Section 55(3) of CITA.

3.6 Payment of Stamp Duties

The re-organisation into Holdco structure would trigger the occurrence of a number of transactions, which will likely attract payment of stamp duties. These transactions include:

  • incorporation of new entities e.g. a Holdco;
  • mergers between existing subsidiaries;
  • increase in share capital of existing companies;
  • transfer of vested security interest between re-organising entities; and perfection of amendments to contractual

However, pursuant to Section 104 (9) of the Stamp Duties Act, Cap S8, LFN 2004(as amended), where it is proved to the satisfaction of the Service that the HoldCo holds not less than 90% of the issued share capital of the subsidiaries, stamp duty shall not apply in this regard.

05-18-2022

Switzerland

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Swiss Voters Approve Introduction of 4% Tax on Video Streaming Service Providers

In a public referendum held on 15 May 2022, a majority of Swiss voters approved legislation for a 4% tax on video streaming service providers such as Netflix and Hulu. As approved in parliament in 2021, the tax will be implemented by requiring streaming service providers to either invest a minimum of 4% of their turnover in Switzerland into Swiss audiovisual productions or be subject to a 4% replacement tax (levy) payable to the Federal Office of Culture. The legislation for the 4% tax also requires that at least 30% of the content provided by streaming service providers in Switzerland be produced in Europe.

05-18-2022
Proposed Changes (1)

Argentina

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Argentine Senate Approves Special Tax on Unreported Foreign Assets to Fund IMF Debt Repayment

On 12 May 2022, the Argentine Senate approved Bill 535/22 for the creation of a national fund for the repayment of debts to the International Monetary Fund (IMF), which would be funded by a new special tax on individuals and companies with unreported foreign assets. The bill must be approved by the Chamber of Deputies before being enacted into law. The special tax will be levied at a general rate of 20% on the value of unreported assets if declared and paid spontaneously and voluntarily within 6 months of the law's entry into force. If declared and paid spontaneously and voluntarily after 6 months, the rate increases to 35%. If control procedures have begun and a taxpayer accepts the tax authority's claim within 15 days of notification, a 50% rate would apply.

Taxpayers settling the tax as above would be eligible for certain amnesty relief established by Law 27,613 to promote housing construction. Otherwise, taxpayers with unreported foreign assets would be subject to the standard rules for underpaid taxes, with associated interest and penalties, as well as potential prosecution for tax evasion. Banks and other intermediaries may also be penalized if found to have facilitated tax evasion. Lastly, Persons that assist in the exposure of unreported foreign assets may be compensated for up to 30% of the related tax collection.

05-18-2022
Treaty Changes (5)

Andorra-United Kingdom

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Andorra and the UK to Speed Up Tax Treaty Negotiations

According to a release from the Andorran government, officials from Andorra and the United Kingdom met on 11 May 2022 to discuss bilateral relations, including the need to speed up negotiations for an income tax treaty. Any resulting treaty will be the first of its kind between the two countries and must be finalized, signed, and ratified before entering into force.

05-18-2022

Austria-Russia

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Austria Suspends Information Exchange with Russia Under Mutual Assistance Convention

Austria has suspended the exchange of information with Russia under the OECD-Council of Europe Convention on Mutual Administrative Assistance in Tax Matters. According to a notice published on 12 May 2022, the exchange of information under the Mutual Assistance Convention has been suspended since 23 March 2022.

05-18-2022

Finland-Romania-Thailand

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Finland Publishes Declarations on Entry into Force of BEPS MLI for Tax Treaties with Romania and Thailand

On 12 May 2022, Finland published Declaration 31/2022 and Declaration 32/2022 announcing the entry into force of the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) for Finland's tax treaties with Romania and Thailand.

Although in force for the 1998 Finland-Romania tax treaty, the MLI is not yet effective for the treaty because Romania has taken the reservation that it must deposit a notification that it has completed its internal procedures for the entry into effect of the MLI for a particular covered agreement. Romania has not yet deposited such notification. Once the notification is deposited, the MLI will generally apply:

  • with respect to taxes withheld at source on amounts paid or credited to non-residents, from the first day of the year beginning on or after 30 days after the date of deposit of the notification; and
  • with respect to all other taxes, from the taxable period beginning on or after the expiration of a six-month period from 30 days after the date of deposit of the notification.

For the 1985 Finland-Thailand tax treaty, the MLI applies:

  • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2023; and
  • with respect to all other taxes levied by the Contracting States, for taxes levied with respect to taxable periods beginning on or after 1 January 2023.

With the publication of the declarations, publication of the synthesized text of the tax treaty with Thailand as impacted by the MLI is expected in the near future, while the synthesized text of the tax treaty with Romania will likely be published after Romania deposits its notification on the completion of internal procedures. Click the following link for the tax treaty page on the Ministry of Justice FINLEX website, which includes the synthesized texts of Finland's tax treaties.

05-18-2022

Pakistan-Saudi Arabia-Serbia-Singapore-Sweden-United Arab Emirates-United Kingdom

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Pakistan Publishes Synthesized Texts of Tax Treaties with Saudi Arabia, Serbia, Singapore, Sweden, UAE, and UK as Impacted by the BEPS MLI

Pakistan's Federal Board of Revenue has published the synthesized texts of the tax treaties with Saudi Arabia, Serbia, Singapore, Sweden, the United Arab Emirates, and the United Kingdom as impacted by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI). The synthesized texts were prepared on the basis of the reservations and notifications submitted to the Depositary by the respective countries. The authentic legal texts of the treaties and the MLI take precedence and remain the legal texts applicable.

The MLI applies for the 2006 Pakistan-Saudi Arabia tax treaty:

  • in Pakistan:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after 1 April 2021; and
    • with respect to all other taxes levied by Pakistan, for taxes levied with respect to taxable periods beginning on or after 1 October 2021; and
  • in Saudi Arabia:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
    • with respect to all other taxes levied by Saudi Arabia, for taxes levied with respect to taxable periods beginning on or after 1 October 2021.

Notwithstanding the above, Article 16 of the MLI (Mutual Agreement Procedure) has effect for a case presented to the competent authority of a Contracting State on or after 1 April 2021, except for cases that were not eligible to be presented as of that date under the treaty prior to its modification by the MLI, without regard to the taxable period to which the case relates.

The MLI applies for the 2010 Pakistan-Serbia tax treaty:

  • in Pakistan:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after 1 April 2021; and
    • with respect to all other taxes levied by Pakistan, for taxes levied with respect to taxable periods beginning on or after 1 October 2021; and
  • in Serbia:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
    • with respect to all other taxes levied by Serbia, for taxes levied with respect to taxable periods beginning on or after 1 October 2021.

Notwithstanding the above, Article 16 of the MLI (Mutual Agreement Procedure) has effect for a case presented to the competent authority of a Contracting State on or after 1 April 2021, except for cases that were not eligible to be presented as of that date under the treaty prior to its modification by the MLI, without regard to the taxable period to which the case relates.

The MLI applies for the 1993 Pakistan-Singapore tax treaty:

  • in Pakistan:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after 1 April 2021; and
    • with respect to all other taxes levied by Pakistan, for taxes levied with respect to taxable periods beginning on or after 1 October 2021; and
  • in Singapore:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
    • with respect to all other taxes levied by Singapore, for taxes levied with respect to taxable periods beginning on or after 1 October 2021.

Notwithstanding the above, Article 16 of the MLI (Mutual Agreement Procedure) has effect for a case presented to the competent authority of a Contracting State on or after 1 April 2021, except for cases that were not eligible to be presented as of that date under the treaty prior to its modification by the MLI, without regard to the taxable period to which the case relates.

The MLI is not yet effective for the 1985 Pakistan-Sweden tax treaty. Although both countries have deposited their ratification instruments for the MLI, Sweden has taken the reservation that it must deposit a notification that it has completed its internal procedures for the entry into effect of the MLI for a particular covered agreement. Sweden has not yet deposited such notification. Once the notification is deposited, the MLI will generally apply:

  • with respect to taxes withheld at source on amounts paid or credited to non-residents, from the first day of the year beginning on or after 30 days after the date of deposit of the notification; and
  • with respect to all other taxes, from the taxable period beginning on or after the expiration of a six-month period from 30 days after the date of deposit of the notification.

The MLI applies for the 1993 Pakistan-United Arab Emirates tax treaty:

  • in Pakistan:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after 1 April 2021; and
    • with respect to all other taxes levied by Pakistan, for taxes levied with respect to taxable periods beginning on or after 1 October 2021; and
  • in the United Arab Emirates:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
    • with respect to all other taxes levied by the United Arab Emirates, for taxes levied with respect to taxable periods beginning on or after 1 October 2021.

Notwithstanding the above, Article 16 of the MLI (Mutual Agreement Procedure) has effect for a case presented to the competent authority of a Contracting State on or after 1 April 2021, except for cases that were not eligible to be presented as of that date under the treaty prior to its modification by the MLI, without regard to the taxable period to which the case relates.

The MLI applies for the 1986 Pakistan-United Kingdom tax treaty:

  • in Pakistan:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after 1 April 2021; and
    • with respect to all other taxes levied by Pakistan, for taxes levied with respect to taxable periods beginning on or after 1 October 2021; and
  • in the United Kingdom:
    • with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1 January 2022; and
    • with respect to all other taxes levied by the United Kingdom, for taxes levied with respect to taxable periods beginning on or after 1 October 2021.

Notwithstanding the above, Article 16 of the MLI (Mutual Agreement Procedure) has effect for a case presented to the competent authority of a Contracting State on or after 1 April 2021, except for cases that were not eligible to be presented as of that date under the treaty prior to its modification by the MLI, without regard to the taxable period to which the case relates.

05-18-2022

Timor-Leste (formerly East Timor)-Portugal

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Timor-Leste Approves Pending Tax Treaty with Portugal

On 16 May 2022, the Council of Ministers of Timor-Leste (formerly East Timor) approved the pending income tax treaty with Portugal. The treaty, signed 27 September 2011, is the first of its kind between the two countries, and the first with any country for Timor-Leste. It will enter into force 30 days after the ratification instruments are exchanged and will apply from 1 January of the year following its entry into force.

05-18-2022
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