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Bär & Karrer was elected Switzerland M&A Legal Adviser of the Year at yesterday's annual Mergermarket M&A Awards. Based on a comprehensive analysis of Mergermarket's league tables, the judging panel chose Bär & Karrer from among seven shortlisted Swiss and international law firms that were particularly active in the Swiss M&A market in 2014.
Alexander Lavrentyev, head of the VEGAS LEX Fuel and Energy Group, has spoken at the XI Professional Energy Forum, Generation, Networks and Sales, about default supplier's breach of contract without disruption of supplies
The patent attorneys at Boult Wade Tennant are well known for their expertise and advocacy skills for both contentious and non-contentious matters before the European Patent Office. In November 2014 alone, Boult Wade Tennant attorneys attended over 29 oral proceedings in Munich or The Hague.
For the fourth time, Pepeliaev Group has topped the Pravo.Ru-300 reputational ranking. The firm was awarded the maximum possible points in its category.
Pravo.Ru-300's experts acknowledge the firm as occupying leading positions in areas including Tax Law, Commercial Real Estate and Construction, Natural Resources and Energy, Commercial Arbitration, Bankruptcy and Intellectual Property. In addition, the analysts gave high ratings to the results of the firm's projects in Corporate Law and International Arbitration.
"We appreciate our colleagues' high opinion of our accomplishments and professionalism," commented Sergey Pepeliaev, managing partner of Pepeliaev Group. The 'best reputation in the market' is a very satisfying title, but with it comes great responsibility. From year to year we do work with utmost quality because we understand the level of expertise and services that our clients expect. Successfully solving their business tasks will always remain our main priority."
This is the fourth successive year that Pepeliaev Group has headed the Pravo.Ru-300 ranking and has claimed the 'Best reputation in the market' award. In this category, law firms evaluate one another.
The Pravo.Ru-300 ranking is based on a firm's financial and statistical data, an analysis of the firm's largest and most important projects during the period as well as peer reviews and evaluations by fellow professionals.
Valentina Orlova, Head of the Intellectual Property and Trademarks Practice at Pepeliaev Group, has been named as 'IP Star in Trademarks' - the highest award of the influential international directory Managing Intellectual Property. The title in question is given to IP experts from different countries.
Pepeliaev Group's Intellectual Property and Trademarks Practice was also highly acclaimed in the study by Managing IP.
Mrs Orlova was given the prestigious award for her outstanding results in the area of IP protection. Valentina advises clients in relation to copyright, related rights, patent law, selective breeding achievements, and means of identification (such as trademarks, corporate names, and commercial designations). When giving advice, she focuses in particular on creating security for and protecting know-how, introducing commercial confidentiality regimes, allocating and securing the rights to intellectual property, and means of identification within contractual relationships.
Mrs Orlova played a role in drafting and providing commentaries on Russian legislation regarding trademarks. Before joining Pepeliaev Group, Valentina headed the legal department of Rospatent (the Federal Service for Intellectual Property).
The Managing IP directory was founded in 1990 and it remains one of the key sources of news and analytical information concerning IP protection worldwide.
The VEGAS LEX law firm and First Infrastructure Company InfraONE are performing comprehensive consultancy and support services for the concession grantor at the financial close phase of the project to introduce fees for 12-plus ton vehicles.
VEGAS LEX, InfraONE take part in meeting of Transport Ministry Taskforce on Extending Moscow Air Hub
On November 27, 2014, the Transport Ministry Investment Coordination Council's** Taskforce on Extending the Moscow Air Hub (MAH) Experience to Regional Airports* led by VEGAS LEX Partner Albert Eganyan, chairman of the InfraONE Board of Directors, held its first meeting.
Russian rating of law firms Pravo.Ru-300 recognizes VEGAS LEX as one of Russia's leading law firms, ranking us among top-tier law firms in various categories.
The VEGAS LEX Volga Directorate has organized a roundtable on important theoretical and practical aspects of challenging transactions during bankruptcy proceedings.
VEGAS LEX experts have discussed personal and corporate fraud risk management with business executives
Extended session of the Russian Union of Industrialists and Entrepreneurs' Committee for promotion o
VEGAS LEX's managing partner Alexander Sitnikov held an extended final session of the Russian Union of Industrialists and Entrepreneurs' Committee for promotion of competition dedicated to the critical issues of antitrust regulation with participation of representatives of the Federal Antimonopoly Service of Russia and the Ministry of Economic Development of the Russian Federation
On 31 October 2014, Hella KGaA Hueck & Co., one of the world's leading suppliers of lighting and electronic components for the automotive industry, announced its going public in an innovative and tailored structure. Read more...
ImmobilienScout24 expands its activities in the field of Customer Relation Management systems (CRM) and acquires FLOWFACT AG, headquartered in Cologne. FLOWFACT AG is a leading provider of software in the real estate sector in Germany. The company was founded in 1985 and has more than 120 employees at the location in Cologne. Read more...
Siemens sells its Audiology Solutions business to the Swedish investor EQT and the German entrepreneurial family Strüngmann as co-investor for €2.15bn plus an earn-out component. Due to the very attractive offer made by the two investors, Siemens has decided not to further pursue preparations for the public listing it announced in May. Siemens will invest €200m in preferred shares in the equity capital of the audio solutions business and will thereby be able to participate in the future success of the business. Read more...
Rabo Real Estate Group ("Rabo"), the real estate division of Rabobank with headquarters in the Netherlands, has sold the PalaisQuartier in Frankfurt am Main to funds managed by Deutsche Asset & Wealth Management. ECE is participating in the acquisition with a 10 % stake and will manage the "MyZeil" shopping centre. Read more...
Hengeler Mueller advises Axel Springer SE on repurchase of minority share in online classified busin
Axel Springer and US growth investor General Atlantic have reached a binding agreement on increasing Axel Springer's share in Axel Springer Digital Classifieds GmbH from 70% to 85% with the option to purchase the remaining 15% share. Axel Springer Digital Classifieds GmbH is a strategic partnership in which Axel Springer SE currently holds a participation of 70% and General Atlantic currently holds a participation of 30%. Read more...
IBM has signed an outsourcing agreement with Deutsche Lufthansa under which IBM will acquire Deutsche Lufthansa's IT infrastructure business with approximately 1,400 employees and deliver IT infrastructure services to Deutsche Lufthansa over a term of seven years. The contract volume amounts to approximately €1bn for the entire term. Read more...
On 21 November 2014, TOCOS Beteiligung GmbH submitted a voluntary tender offer to the shareholders of HAWESKO Holding AG for the entire share capital of HAWESKO not already held by the Bidder at a price of €40 per share. The bid price values the share capital of HAWESKO at €359m. On 4 December 2014, the Management and Supervisory Board both issued an according statement in accordance to § 27 WpÜG (German Takeover Act). Read more...
The executive board and the supervisory board of Axel Springer SE have decided to explore a change of the legal form of Axel Springer SE to a partnership limited by shares (Kommanditgesellschaft auf Aktien - KGaA). The proposed change aims to provide Axel Springer with more flexibility in financing future growth. The legal form of a partnership limited by shares will provide the basis required to retain the commercial influence of Axel Springer Gesellschaft für Publizistik GmbH & Co., the majority shareholder of Axel Springer SE, also in connection with capital increases. Read more...
Schoenherr has invited Christoph Haid, a partner in the firm's EU & Competition department, to join the firm's equity partners. Haid's practice focuses on merger control and cartel proceedings as well as competition law advice throughout the entire CEE region, where he also helps guide Schoenherr competition lawyers in their respective jurisdictions in expanding their domestic business. In addition to his competition law practice, he serves as office managing partner of Schoenherr's operations in both Croatia and Slovenia. Haid will become an equity partner as of 1 February 2015, the start of the firm's financial year. read more...
Presented by Emil Brincker, tax practice director at Cliffe Dekker Hofmeyr
South Africa levies tax on its residents on a worldwide basis. Credits are given for taxes that are paid in foreign jurisdictions.
The effective corporate rate for entities is 28%, whereas natural persons are taxed on a sliding scale up to 40%. The effective capital gains tax rate (CGT) for corporates is 18.6% whereas the CGT rate for natural persons is a sliding scale up to 13.3%. Value-added tax (VAT) is levied at the rate of 14% in circumstances where there are zero-rated supplies (for instance the sale of a business or the rendering of services to non-residents) or exempt supplies (financial services). Trusts are taxed at an effective income tax rate of 40% and the CGT rate for trusts is 26.7%, even though capital gains may be vested in beneficiaries and thus not accounted for by a trust. To the extent that a resident beneficiary obtains a vested right from a non-resident trust, such benefit becomes taxable in South Africa. Income from donations made by a resident to non-residents will also be included in the taxable income of the South African resident.
Currently withholding taxes are levied by the South African government on royalties (12%), sportsmen (15%), dividends tax (15%) and on the proceeds of the sale of immovable property (ranging from 5% in the case of a natural person to 7.5% where the seller is a company.
It has been announced that further withholding taxes will be introduced. In particular:
• a withholding tax of 15% will apply to interest that is paid or becomes due and payable on or after 1 March 2015; and
• a withholding tax on service fees will be introduced with effect from 1 January 2016 at the rate of 15%.
The withholding tax on interest will not apply to the extent that the interest is among others paid:
• in respect of any government debt instrument;
• in respect of a listed debt instrument; or
• in respect of a debt owed by a recognised South African bank.
The double taxation conventions concluded between South Africa and foreign jurisdictions are in the process of being amended so that:
• the minimum dividend withholding tax is equal to 5%; and
• a minimum withholding tax of 10% will apply in the case of interest.
It has also been announced that the withholding tax on royalties will increase to 15% with effect from 1 January 2015.
Voluntary disclosure programme
A voluntary disclosure programme is still in force in South Africa. Effectively an amnesty is granted in respect of any default.
The amnesty is not only limited to income tax, but it covers all kinds of taxes including value-added tax. To the extent that the application is successful, the capital amount and interest concerned will be payable and remission will be granted in respect of penalties/additional tax.
Even though Islamic finance is still in its infancy within South Africa, substantial measures have been announced so as to accommodate Islamic products offered by the South African banking industry. In particular, three forms of Sharia-compliant products have been identified, being:
• Mudarabah: sharing of profits at a pre-agreed ratio;
• Murabaha: purchase and sale of an asset to the client at a pre-agreed price; and
• Diminishing Musharaka: partnership arrangement used for project financing.
Effectively investment in the relevant products will not be treated as immediate disposals, but treated as interest in the hands of the financial institution. Profits are therefore not accounted for from a tax perspective immediately, but over the period of the transaction. The actual acquisition or disposal of the assets will also be deferred until such time as the transaction is terminated.
Additional forms of Islamic finance will be covered in subsequent legislation.
Regional holding company regime
In order to attract investment into Africa, a regional holding company regime has been introduced. Similar amendments have also been made to the exchange control restrictions. In order to qualify as a regional holding company, the following criteria have to be met:
• each shareholder must hold at least 10% of the equity shares and voting rights in the regional holding company;
• 80% of the cost of the total assets must be attributable to an interest in equity shares, a debt or intellectual property licensed to a foreign company in which the headquarter company held at least 10% of the equity shares and voting rights; and
• 50% or more of the grossed income must be derived from rental, dividends, interest, royalties or service fees paid or payable by a foreign company.
Interest, dividends and/or licence fees will also be treated favourably. If one meets the criteria of a regional holding company, the following relief measures apply:
• the controlled foreign company (CFC) rules will not apply;
• no dividend tax will apply;
• thin capitalisation rules will not apply pursuant to back-to-back cross-border loans;
• transfer pricing rules will be relaxed in respect of back-to- back licensing of intellectual property;
• foreign exchange control rules and regulations are not applicable to a headquarter company;
• no capital gains tax will apply pursuant to the sale of the shares in a foreign company if one held at least a 10% interest in the foreign company; and
• interest on royalties incurred by a headquarter company is deductible to the extent of interest on royalties received from foreign qualifying company investments.
No dividends tax is payable in respect of dividends from these holding companies.
A favourable regime also applies to foreign investments made into South Africa through means of locally managed partnerships and trusts. Essentially foreign limited partners are placed in the same position had these investors invested directly in the underlying assets of the partnership or trust. Management fees of the South African general partner or trustee are still taxable in South Africa. Effectively the general partner of a partnership or a trust beneficiary is treated as an independent agent and the activities of the general partner or trustee in South Africa does not create a permanent establishment for the qualifying partner or trust beneficiary.
Transfer pricing and thin capitalisation
Extensive amendments have recently been effected to the transfer pricing rules applicable in South Africa. Previously the wording focused on isolated transactions as opposed to overall arrangements driven by a general profit objective. Previously emphasis was also placed more on price as opposed to profits. It was thus decided to modernise the transfer pricing rules in line with international practice. As opposed to focusing on goods and services, the trigger is now based on transactions, operations and schemes that have been effected or undertaken for the benefit of connected persons with a cross-border relationship. The South African Revenue Service now has the power to adjust the terms and conditions of the transaction to reflect an arm’s-length price. In particular, it has been indicated that group arrangements should still comply with arm’s-length principles.
It has also been announced that thin capitalisation provisions will apply to South African branches of foreign entities. This amendment effectively places foreign-owned South African branches on par with foreign-owned South African subsidiaries. It has also been decided to incorporate the thin capitalisation rules as part of the broader transfer pricing provisions. Interest will not be deductible between related parties to the extent that the underlying debt-related finance would not have economically existed had the financing been arranged at arm’s length between independent parties. The question whether excessive debt arises is effectively measured from the perspective of the foreign company and not necessarily from the perspective of the local branch. The publication of a formal interpretation note by the South African Revenue Service is still awaited.
Distribution of profits and share premium
As opposed to distinguishing between the par value and share premium arising on the issue of shares, a new concept has been introduced as being ‘contributed tax capital’. Effectively contributed tax capital is an amount equal to the share capital or share premium that arises pursuant to the issue of shares. The return of contributed tax capital will not be deemed to be a dividend and thus be treated as a part disposal in the hands of shareholders. A new concept of a foreign partnership has also been introduced. Effectively a foreign partnership is recognised in South Africa as a conduit if each member of the partnership is required to take into account the amount received by or accrued to the partnership when it is received or accrued to the partnership in the foreign jurisdiction. In addition, the partnership as such should not be liable for or subject to any tax on income in the foreign country. In such instance the income will be taxed in the hands of the South African resident who is a partner of the foreign partnership. If one does not meet the requirement, it may be seen to be an interest in a foreign company resulting in a foreign dividend being received. Foreign dividends are taxed to the extent that the South African resident does not hold at least a 10% equity interest and voting rights in the foreign company.
Base erosion and profit shifting
South Africa is a signatory to the BEPS approach adopted by the G-20 countries and has commenced to implement a number of these principles.
Emil Brincker Cliffe Dekker Hofmeyr
1 Protea Place
Sandton, Johannesburg 2196
Tel +27 11 562 1000
Fax +27 11 562 1111
Gornitzky represented the underwriters, led by Jefferies and Cowen and Company, in the USD 45 million initial public offering of NeuroDerm Ltd. on the NASDAQ Global Market.
Jefferies and Cowen and Company acted as joint book-running managers for the offering. Oppenheimer & Co. and Roth Capital Partners acted as co-managers for the offering.
Kyiv, 08 December 2014 - Avellum Partners advised Lafarge Group in connection with obtaining a merger control clearance from the Antimonopoly Committee of Ukraine for the sale of LLC "Lafarge UralCement", operating a 1.1 million tones per year cement plant in Korkino, Russia, to Dyckerhoff Gmbh. The plant was sold for a total enterprise value of EUR 104 million.
VDB Loi and U Aye Kyaw & Associates, a specialized litigation firm in Yangon, are teaming up to provide dispute resolution services in Myanmar. The principal U Aye Kyaw is a former judge, magistrate and law lecturer with nearly 25 year experience in civil and commercial litigation and arbitration. He and his team of litigators have served clients in a broad range of industries with services since 1990. U Aye Kyaw regularly acts for clients in the property and construction sphere.
Presented by Orhan Yavuz Mavioglu, managing partner at ADMD Law Office
Even though lower than previous years, the economic growth in Turkey continued in 2014, attracting new foreign investors. Turkey implemented several amendments to its national tax legislation to better suit the needs of businesses and the revenue administration.
New withholding tax rates
The previous withholding tax rates were determined by the Council of Ministers Decree No 2006/10731, dated 22 July 2006. This decree is amended by the Council of Ministers Decree No 2012/4116, dated 24 December 2012 and published in the Official Gazette on 1 January 2013. According to Article 3 of Decree No 2012/4116, the new withholding tax rates for interest amounts paid for foreign currency deposits, and premiums paid for the foreign participation accounts are as follows:
• 18% for deposit accounts with a maturity period up to and including six months;
• 15% for deposit accounts with a maturity period up to and including one year; and
• 13% for deposit accounts with a maturity period over one year.
It should be noted that such rates shall only be applicable to interests and premiums paid for deposit accounts that are opened or renewed following the date of publication of the decree in the Official Gazette. Accordingly, such rates shall only apply to deposit accounts opened or renewed after 1 January 2013.
New rates introduced for resource utilisation support fund (RUSF)
The subjects of RUSF are loans and imports on credit. According to Article 11 of the Council Of Ministers’ Decree No 2012/4116, published in the Official Gazette dated 1 January 2013, RUSF rates for foreign exchange and gold loans procured from overseas by Turkish residents excluding banks and finance institutions are readjusted. The following new rates are applied to loans procured after 1 January 2013:
• 3% for loans with an average maturity of one year;
• 1% for loans with an average maturity between one and two years (including one year);
• 0.5% for loans with an average maturity between two and three years (including two years); and
• 0% for loans with an average maturity of three years and more (including three years).
Please note that no amendments were implemented for loans procured in Turkish liras (TRL). Subsequently, a 3% RUSF will be levied to all loans procured from overseas in TRL.
Companies subject to independent auditing
The new Turkish Commercial Code entered into effect as of 1 July 2012 and implemented new provisions on capital company audits. Accordingly, with the Council of Ministers Decree No 2012/4213 published in the Official Gazette dated 23 January 2013, companies that meet at least two of the following criteria shall be subject to independent auditing:
• companies with total asset values amounting to TRY 150m.
• companies with annual net sales revenue amounting to TRY 200m; and
• companies that employ a minimum of 500 employees.
Pursuant to the Law Regarding the Amendments to Customs Law and Other Laws and Statutory Decrees No 6455 published in the Official Gazette dated 11 April 2013, all companies that are excluded from independent auditing (subject to the above criteria) are also subject to auditing. The procedures and principles of such auditing are expected to be determined before the end of this year or early 2015.
Electronic bookkeeping and electronic invoices
According to the Tax Procedure General Communiqué No 421, published in the Official Gazette dated 14 December 2012 and the Tax Procedure Circular No 58 dated 8 February 2013, certain taxpayers are required to keep electronic accounting books (e-books) and draft electronic invoices (e-invoices). According to such regulations, the companies with mineral oil traders licences that have a minimum gross sales revenue of TRY 25m as of 31 December 2011 are required to issue e-invoices for the year 2014, and are required to keep their accounting books electronically for the years 2014 and 2015. Furthermore, companies that are involved in production, manufacturing or importing of the goods listed in List No III annexed to the Special Consumption Tax Law (such as fermented beverages, spirits with alcohol level over 22%, malt beers, cigars containing tobacco) are also required to issue e-invoices for 2014 and keep e-books for 2014 and 2015.
Capital advance payments by non-resident shareholders
Previously non-resident shareholders were allowed to submit payments to Turkish banks for capital contributions as ‘capital advances’ that could be used for capital payment, capital injection or capital increase by the company later. However, with the implementation of the Turkish Central Bank Circular No 2013/YB-7 (dated 29 March 2013), Turkish banks will no longer accept payments from non-resident shareholders with explanatory titles of ‘capital advance’. Instead, such payments are now required to be made as ‘capital payments’ or ‘capital increase payments’ and will be monitored in a separate and blocked account until the registration certificate for incorporation, share transfer, capital injection or increase is submitted to the bank.
Re-discounts on postdated checks
Pursuant to Tax Procedure Circular No 63 dated 30 April 2013, postdated checks can now also be subjected to re-discounts. Accordingly, postdated checks may utilise the re-discount application that is prescribed to be applied for receivables and payables attached to undue bills on the day of valuation. However, please note that this circular also prohibits the application of re-discounts to unexpired future checks.
Pursuant to Article 73 of the Law on Amendments to Labor Law and Other Laws No 6552 published at the Official Gazette dated 11 September 2014, the following unpaid tax debts of taxpayers that are subject to the provisions of the Tax Procedure Law No 213, shall be exempt from secondary public receivables such as interest, penalty rates, default interests and late fees and the total payable amount for such shall be calculated based on the monthly exchange ratio of the National Producer Price Index;
• Tax and attached tax penalties, default interests and late fees for the year 2014 that have accrued until (and including) 30 April 2014, (excluding the second installment of the motor vehicles tax);
• Tax penalties subject to tax audits finalised prior to (and including) 30 April 2014 that are not attached to the tax itself;
• Real estate tax and sanitation tax that have and attached tax penalties matured prior to (and including) 30 April 2014;
• Water and waste water payments due to the Water and Sewerage Administrations of the Metropolitan Municipalities that have matured prior to (and including) 30 April 2014;
• Administrative fines subject to laws such as the Highway Law, Military Service Law, Electoral Law and the Law on the Supreme Board of Radio and Television along with traffic tickets fined prior to (and including) 30 April 2014; and
• Judicial and Administrative Fines that are not listed above and are subject to the Law on the Collection Procedures of Public Receivables No 6183.
It should be noted that in order to benefit from such exemptions, the taxpayers shall not file any claims before the courts regarding such receivables, shall waive any and all claims already filed and shall not pursue any legal options. Accordingly, those who satisfy the above-mentioned criteria shall apply to the relevant tax office or municipality to which the receivable shall be paid before the end of November 2014.
Amounts calculated based on the above mentioned exemptions can be paid as a one-time payment or in installments with the interest rates set forth in the table.
Amendments to the incentives regime.
Certain investments, such as coal mining and extraction, power/electricity generation based on natural gas, medical investments other than hospitals, medical centres, dialysis centres, analytical laboratories and magnetic imaging centres are excluded from the investment incentives regime in accordance with Article 1/B-6 of Appendix 4 of the Decree No 2012/3305 (dated 15 June 2012) as of 19 June 2012.
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Extension for R&D personnel withholding tax exemption
Pursuant to Provisional Article 75 of the Income Tax Law, research and development (R&D) personnel incomes were exempt from income withholding tax until 31 December 2013 due to Article 3 of the law regarding the Promotion of Research and Development Activities No 5746, published in the Official Gazette dated 12 March 2008.
This exemption term is extended for another ten years, that is, until 31 December 2023, by Article 7 of the Law No 6487, the Law Regarding the Amendments to Certain Laws and Statutory Decrees No 375, published in the Official Gazette dated 24 May 2013.
Amendments to the registration requirements for taxpayers
Pursuant to the law regarding the Amendments to Customs Law and Other Laws and Statutory Decrees No 6455, published in the Official Gazette dated 11 April 2013, Article 153/A is added to Tax Procedure Law. According to subparagraph 1 of this article, all taxpayers whose registration with the relevant tax office was ex officio cancelled by the Revenue Administration for issuing forged documents are now required to pay any and all of their tax debts and submit a guarantee to be registered as a taxpayer again.
Withholding tax on pension systems
All funds provided by trust or pension funds for their workers and members as part of their retirement plans may be transferred into active private pension systems in Turkey. According to Temporary Article 1 of the Personal Pension Savings and Investment System Law No 4632 (dated 28 March 2001), funds transferred to such pension systems are exempt from income tax. However, the article noted above is amended by Article 35 of the Law No 6456, published in the Official Gazette dated 3 April 2013, to prevent early exits from the private pension system. Accordingly, a 3.75% withholding tax rate will be applied to all transferred funds, provided that the beneficiary decides to leave the pension within three years of the transfer date of such funds.
Tax exemptions for asset lease companies
Article 7/A of the Public Finance and Debt Management Law No 4749 (dated 28 March 2002) is amended by Article 2 of the Law No 6456, the Law Regarding the Amendments to the Public Finance and Debt Management Law No 4749 and Other Laws and Decrees, dated 3 April 2013 and published in the Official Gazette dated 18 April 2013. According to this amendment, new regulations are imposed on the exemptions applicable to the asset lease companies owned by the Undersecretariat of Treasury. With the implementation of Article 2 of Law No 6456, Article 2 of Law No 6456 now states that all asset lease companies owned (fully) by the Undersecretariat of Treasury are exempt from bookkeeping and all other obligations imposed by the Tax Procedure Law No 213 dated 1 January 1961 and the Turkish Commercial Code No 6102, dated 13 January 2011.
Orhan Yavuz Mavioglu
ADMD Law Firm
Ebulula Mardin Caddesi No.45 34330 1.Levent
Tel +90 212 269 56 61
Fax +90 212 269 56 69
Presented by Vicente Bootello and José Ignacio Ripoll, Garrigues
This has been a transitional year for the Spanish government concerning the legal amendments to the tax system.
Following the urgent temporary tax measures (adopted between 2011 and 2013) which have contributed to Spain showing the first solid signs of recovery after the severe economic crisis, the Spanish government has not made any significant tax law amendments in 2014. It has turned its attention, instead, to a sweeping reform of the Spanish tax system, which will come into force in 2015 (although some of the measures will be brought in gradually between 2015 and 2016) and seeks to promote the creation of employment, increase the competitiveness of businesses and improve the equity of the tax system, through amendments to the principal taxes in Spain.
As mentioned, the main event of 2014 was the preparation of a sweeping reform of the tax system, amending the following: (i) corporate income tax (IS); (ii) personal income tax (IRPF); (iii) non-resident income tax; and (iv) the General Taxation Law (IGT).
This reform was engendered by a report requested by the Spanish government from a group of experts, which saw the light of day in mid-March. Its contents were used by the Spanish Cabinet of Ministers in preparing a number of preliminary bills (presented on 20 June) with a smaller scope than the reform proposals in the report. Their main amendments were to corporate income tax (by creating a new law replacing the former Corporate Income Tax Law), personal income tax, non-resident income tax, VAT and the General Taxation Law. Now as Bills, after being debated in the lower house of the Spanish parliament, they were sent to the upper house in October. Therefore, without forgetting that there is scope for further amendment, many of them are likely to be approved in the terms described below.
Before discussing the main new amendments, we believe it needs highlighting that a number of proposals in these reforms are subject to what is known as the ‘announcement effect’, whereby, if the reforms are ultimately approved, they will take effect for taxable events before their entry into force (ie tax treatment of finance costs relating to participation loans before 20 June 2014, the date the report was presented).
In view of the breadth and depth of this reform, we provide below a brief description of some elements which could have the biggest repercussions.
Corporate income tax
• The tax rate is brought down in stages from the current 30% to 25% (to be 28% in 2015).
• Although it appears that the limit on the deduction of finance costs is set to stay (30% of EBITDA), the reform does not allow deductions for interest on participation loans (except for any provided before 20 June 2014 as a result of the announcement effect mentioned above), or on any other hybrid instrument that gives rise to deferred tax or non-taxation (in line with the OECD’s publications and BEPS report).
• There is set to be no deduction for the losses on intragroup transfers (until transferred to third parties outside the group) of: shares, property, plant and equipment, real estate investment property, intangible assets and debt securities.
• As a general rule (although with certain exceptions), deductions are not allowed for impairment losses on property, plant and equipment, investment property and intangible assets, including goodwill, equity instruments and debt securities (fixed income).
• A new type of reserve is introduced, a capitalisation reserve (reserva de capitalización), aimed at helping companies to build a strong equity base. These reserves will reduce taxable income by 10% of the increase in equity, subject to certain requirements (mainly creating and maintaining an unrestricted reserve).
• Technical amendments are made to the CFC rules.
• A limit is placed on the use of tax loss carryforwards, which, generally, are set to be allowed to reduce taxable income by up to 60% from 2016 (except for the year in which the entity ends its life, when this limit will not apply). The time limit for using tax loss carryforwards is set to disappear (at present they cannot be used after 18 years), although a special ten-year period is determined in which they can be reviewed by the tax authorities (as an exception to the general four-year statute of limitations period).
• The treatment of the dividends and capital gains obtained on the shares of resident and non-resident entities in Spain is unified by broadening the exemption regime to apply to both, for which certain requirements must be met. There are also changes to the requirements for the participation exemption, which will be a reason for reviewing investment structures in Spain from other countries.
• A large chunk of the existing tax credits is set to disappear, while others are set to be improved, such as the R&D&I deduction.
• The special tax consolidation regime is amended to allow what is known as horizontal consolidation, under which all of the group’s tax-resident entities in Spain can be taxed as a single taxpayer (the consolidated group). If the reform is approved as it stands, the parent company will not have to be tax-resident in Spain, but can instead appoint a resident entity as its representative.
• And lastly, there are a large number of additional and transitional provisions in this new instrument, set out to determine the tax treatment of the various items that were tax-relevant in the past (such as, for example, recoveries of impairment losses or treatment of unused credits).
Personal income tax
• The exempt severance limit is restricted to an overall sum of €180,000. The transitional regime provided determines that the limit will not apply to severance for (i) terminations or removals that took place before 1 August 2014; or (ii) to terminations under an approved collective layoff procedure or a collective layoff in which the commencement of the consultation period had been notified to the labour authorities before that date.
• The central government tax rates are reduced, from 2016, to an upper limit of 45% (47% in 2015) for the highest income bracket, and the scales are also changed (the final tax rate will depend on the applicable autonomous community rate).
• The reform as it stands does away with the income deferral systems, such as the distribution of additional paid-in capital or the sale of subscription rights at unlisted companies, which under the current law reduce the acquisition cost of shares. They are set to be taxed in the same way as any other savings income.
• The inbound expatriates regime (people coming from other countries to work in Spain and who are taxed as non-residents) is amended, one of the ways being to eliminate certain eligibility requirements for the regime, and remove the upper limit on the income they received (€600,000 per annum). Instead, up to €600,000 is taxed at 24% and the rest at 45% (47% in 2015).
Non-resident income tax
• Adaptations are made to the requirements for exempt dividends and royalty payments.
• The law on non-resident income tax is changed to adapt it to the amendments introduced to the taxation of resident taxpayers.
• The tax rates are brought down on both the income obtained through a permanent establishment (in line with the reduction to corporate income tax) and on the income obtained other than through a permanent establishment (in line with the personal income tax reduction).
• The amendments to Spanish VAT law fall into three broad categories: (i) those adapting it to EU law, to its interpretation by the Court of Justice of the European Union or to the Commission’s criteria (such as the establishment of certain amendments to the place of supply of telecommunications, radio and television broadcasting services, and electronically supplied services); (ii) some technical adjustments guided by the principle of legal certainty (such as the amendment of the definition of independent economic unit, a VAT-free scenario); and (iii) a series of measures to combat tax evasion (such as establishing new penalty events).
• On the General Taxation Law, besides making various amendments to procedural elements of appeals to the tax authorities, the reform also amends the statute of limitations period (ie as mentioned above, the time limit for reviewing tax loss carryfowards is changed), increases the limit on the length of audit proceedings and adds express provisions to the procedure to implement in the enforcement of decisions to recover aid declared by the EU.</>
Vicente Bootello and José Ignacio Ripoll Garrigues
Tel +31 91 514 5200
Fax +34 91 399 2408
E-mail firstname.lastname@example.org; email@example.com
Presented by Tiago Cassiano Neves and Rafael Graça, associates at Garrigues
The financial assistance programme initiated by the Troika (the IMF, European Commission and European Central Bank) in the first half of 2011 ends in 2014.
Motivated by the slight recovery of the economy, there is a growing consensus around the need to combine austerity measures with a wider strategy for economic growth, employment and industrial development. Tax measures represent a significant part of that strategy.
This article – by outlining both the corporate income tax (CIT) changes introduced in 2014, as well as some of the proposed measures that may enter into force throughout 2015 – addresses recent key tax points for multinationals operating or intending to invest in Portugal.
What happened in 2014?
With the aim of modernising and further enhancing the Portuguese corporate tax system and reflecting changes in the global landscape, Portugal approved a CIT reform – coming into effect from 1 January 2014 – that has been well-received by international investors.
The most relevant tax features are the following:
Lowering of the CIT rate
The Portuguese CIT rate was reduced from 25% to 23%. A reduced 17% rate now applies to the first €15,000 of taxable income for small to medium-sized enterprises, based on the legal definition provided by EU Commission Recommendation 2003/361/EC.
Depending on the location of the activities, a municipal surtax applies up to a maximum of 1.5% of the taxable profits. In addition, a state surtax also applies at a 3% rate on taxable profits exceeding €1.5m and 5% on taxable profits exceeding €7.5m.
The CIT reform introduced both the income tax exemption for dividends and divestment gains received by a Portuguese company (inbound), and withholding tax exemptions for the distribution of dividends by a Portuguese company (outbound).
For the exemption on both inbound dividends and gains from the sale of shares, the main criteria are: (i) a 5% minimum shareholding; (ii) a two-year holding period; (iii) not being geographically limited (except for blacklisted jurisdictions); and (iv) the company distributing the dividends would be subject either to CIT, taxes listed in the EU parent subsidiary directive, or a tax comparable to the Portuguese CIT at a nominal rate, corresponding to at least 60% of the Portuguese CIT rate (for third country situations).
For the outbound withholding tax exemption, the main requirements are: (i) a 5% minimum shareholding; (ii) a two-year holding period; (iii) being geographically limited to the EU/EEA (provided an exchange of information mechanism is in force) as well as other jurisdictions that entered into a double tax treaty with exchange of information with Portugal; and (iv) the company receiving the dividends must be subject either to CIT, taxes listed in the EU parent subsidiary directive or a tax comparable to the Portuguese CIT at a nominal rate corresponding to at least 60% of the Portuguese rate (for third country situations).
Tax group and reorganisations
The CIT reform implied changes to the tax group regime, particularly the reduction of the minimum holding percentage from 90% to 75%, as well as the possibility of meeting such a requirement via non-resident companies that are resident in the EU/EEA (so-called sandwich situations). The CIT reform also addressed reorganisations by revamping the tax neutrality rules, making its application more manageable.
New tax treaties in place
Portugal has been increasing its tax treaties network with the aim of fostering investment and economic transactions between Portuguese and foreign enterprises, as well as improving communication and the exchange of information between tax authorities of the signing countries. The country now has 63 tax treaties in force. Kuwait, Peru, Qatar and Singapore (a new protocol) entered into force in 2014 (some only coming into effect as of 1 January 2015).
What to expect in 2015?
21% CIT rate
Considering the importance usually attributed by multinationals to certainty and stability in tax law, the Budget Bill for 2015 – which traditionally brings a wide range of tax changes – has a single proposed change to the CIT Code: the reduction of the standard CIT rate from 23% to 21%.
The reduction of the CIT rate was somewhat expected given that the CIT reform (which was approved in 2014) had a rule for the gradual lowering of the CIT rate to reduce the standard corporate tax rate to 21% in 2015 and, in the longer term, to achieve a reduction of the rate to between 17% and 19% in 2016.
Further reductions, however, are dependent on the evolution of the economic and financial situation and are analysed by a committee monitoring the implementation of the CIT reform. There was an initial intention to phase out the municipal and state surtaxes by 2018 but, at this stage, there is no timetable for those reductions.
Interest barrier rule
As well as the replacement of the old thin-capitalisation rules by the interest barrier rule and the CIT reform, which was coupled with an important phase-in provision, net financial costs of Portuguese resident companies are deductible in 2015, only up to the greater of the following thresholds: (i) €1m; or (ii) 50% of the EBITDA as adjusted for tax purposes. Under the transitory regime, the EBITDA limit will be 40% in 2016 and 30% only from 2017 onwards. Companies reporting under a tax group regime may continue to apply the relevant thresholds at group level.
Based on a draft law presented to Parliament, which is also expected to enter into force from 1 January 2015, it is proposed that group taxation on horizontal structures of Portuguese companies should be allowed to be held by at least 75% by a common EU/EEA-based parent company. Taking this new proposed rule into consideration, Portuguese resident companies which are members of an economic group may opt to be taxed under the special tax regime of group taxation, not only if they are held in at least 75% by a Portuguese-resident dominant company, but also where such participations are attributable to a Portuguese PE of a common EU/EEA company.
Increasing relevance of sectorial taxes
The Budget Bill for 2015 represents an increasing importance of what might be called sectorial taxes, as a result of both the need for revenues and the objective of reducing taxes that are traditionally seen as having a major impact on economic growth (CIT). In addition to increases on excise duties on beer, intermediate products, spirituous drinks and tobacco (now also including electronic cigarettes), some sectors will have increased levels of taxation.
The bank levy will be increased for 2015 to a rate that can range between 0.01% and 0.085% over the institutions’ liabilities, reduced by their core capital (tier 1) and complementary capital (tier 2) and by clients’ deposits covered by the deposits’ warranty fund (in 2014 the rate varied between 0.01% and 0.07%).
The proposal includes a legislative authorisation for the government to create a contribution to the pharmaceutical industry, which shall be due over the monthly sales of the entities that proceed with the first onerous transfer of medicines for human use in Portugal. The rates are expected to range from 0.5% to 15%, depending on the type of medicine (a transitory regime for the rates is also proposed).
SIPIs for real estate investment
The Budget Bill for 2015 also includes a legislative authorisation for the government to establish a REIT regime (SIPI or Sociedade de Investimento em Património Imobiliário), aimed at modernising and increasing the competitiveness of real estate investment in Portugal and following trends of revamping REIT regimes (such as the Spanish SOCIMI). SIPIs will be public limited companies (sociedade anónima) whose corporate purpose is the holding of either: (i) leased urban assets (by means of acquisition or development); or (ii) a stake in the share capital of other SIPIs or equivalent foreign entities.
The shares in SIPIs are set to be traded on stock exchange or alternative regulated markets. According to the authorisation, the government is set to establish a tax regime, to enter into force from 1 January 2016, which will be aimed at setting no CIT taxation at the level of the SIPI and transferring the taxation to its shareholders under rules yet to be drafted.
Green tax reform and personal income tax reform
A green tax reform and a personal income tax reform were also recently presented by the government, which may start from 2015 onward and affect Portuguese resident companies, as well as some non-resident investors. The green tax reform has several proposals to change the tax system, such as: (i) a review of the vehicle tax (ISV) thresholds for the most polluting cars; (ii) CIT benefits for companies who choose to buy electric or hybrid cars; (iii) car scrapping incentives; (iv) a tax on plastic bags, which may have an impact on supermarket chains; and (v) a decrease of the rate of Municipal Property Tax (IMI) for buildings for the production of energy. The personal income tax reform paves the way for a slight reduction in the tax hikes of recent years.
Tiago Cassiano Neves and Rafael Graça
Av da República, 25, 1°
Tel +351 213 821 200
Fax +351 213 821 290
Presented by Luciano Acciari and Fabio Chiarenza, partners at Gianni, Origoni, Grippo, Cappelli & Partners
In 2014 the Italian Government adopted a number of tax changes aiming at enhancing (i) cross-border financing transactions and (ii) incentivising innovative start-up companies. The major changes are summarised below.
Tax measures on long-medium term loans
New tax measures have been adopted with regard to withholding taxes applicable on interest relating to long-medium term loans. In particular, starting as of August 21, 2014, no withholding taxes apply on interest relating to long-medium term loans paid by Italian business entities to (i) EU banks, (ii) EU insurance companies, and (iii) collective investment schemes (unleveraged) and established within the EU or in an EEA state allowing an adequate exchange of information.
Tax measures relating to the placement of debt securities by non-public traded companies
Under the new tax provisions, the listing of either the shares of the issuer or of the debt security is no longer necessary to access a favourable withholding tax regime set out in legislative decree n239 of April 1, 1996. An exemption from a withholding tax on interest payments made to investors who (i) are beneficial owners and (ii) reside in a country or territory that allows an adequate exchange of information is now available also where the shares of the issuer are not listed and the debt security is not listed provided that such debt securities are held by ‘qualified investors’.
Moreover, the new measures also further extends the withholding tax exemption on interest on bonds and similar securities paid to:
a) collective investment undertakings established in Italy or another EU member state which invest more than 50% of their assets in such bonds or similar securities and whose investors are solely ‘qualified investors’; or
b) Italian securitisation vehicles which invest more than 50% of their assets in such bonds or similar securities and whose investors are solely ‘qualified investors’.
Implementation of FATCA regulations
On January 10, 2014, the Government of the United States of America and the Government of the Republic of Italy signed an intergovernmental agreement (US-Italy IGA) for the implementation of the Foreign Account Tax Compliance Act (FATCA).
The US-Italy IGA was signed pursuant to article 26 of the 1999 US-Italy Double Tax Treaty, which authorises exchange of information for tax purposes. The US-Italy IGA is based on the reciprocal Model 1A agreement that allows automatic information exchange on a government-to-government basis. In this regard, Italian financial institutions (IFIs) will be required to report tax information about US account holders to the ITA which, in turn, will pass that information to the US Internal Revenue Service (IRS). Furthermore, pursuant to article 6 of the US-Italy IGA the US tax authorities will also provide the ITA with similar tax information regarding individuals and entities that (i) are resident in Italy for tax purposes and (ii) hold financial accounts in the United States.
The US-Italy IGA substantially replicates the above-mentioned model 1-IGA with some minor changes in Annex II with reference to certain IFIs exempt from reporting obligations (eg certain types of financial institutions, non-profit organisations registered as ‘Onlus’, etc) as well as to some exempt products (eg contracts taken out by employers to ensure workers for the payment of severance indemnity – polizze collettive TFR a beneficio dei dipendenti).
Pursuant to article 10 of the US-Italy IGA, the intergovernmental agreement will enter into force when Italy completes its internal procedures by issuing an implementing decree. On April 23, 2014, the Italian Ministry of Economy and Finance published the draft of a law decree ratifying the US-Italy IGA and announced a public consultation on the draft until May 8, 2014. It is expected that the final version of the law decree will be published shortly afterwards the release of this jurisdictional overview.
International tax ruling for permanent establishments
The scope of the international tax ruling procedure (mainly utilised for transfer pricing matters and for the taxation of dividends, interest and royalties) has been broadened by including the possibility for non-resident entities operating in Italy to request to the Italian tax authorities an advance evaluation of the existence of those elements that identify the presence of a permanent establishment in the Italian territory.
Once granted, the Italian tax authority is bound by the ruling for five years provided that the relevant facts and circumstances do not change significantly.
Withholding taxes on certain financial instruments
The rate of withholding and substitute taxes applicable, inter alia, to dividends, interest, income from investment funds and capital gains has been increased from 20% to 26%.
However, the rate of withholding taxes applicable to interest deriving from Italian state bonds and similar securities issued by states that allow an adequate exchange of information with Italy (so called white-listed countries) remains equal to 12.5%.
Incentives to start-up companies
Certain measures to incentivise innovative start-up companies has been adopted. According to the applicable provisions, investing in certain types of innovative start-up companies allows:
• individuals to deduct from the amount of individual income tax due 19% of the relevant investment (25% for start-up companies with social purposes or operating in the energy sector). The deduction cannot be higher than €500,000 per year and any amount in excess of the mentioned threshold can be carried forward in the subsequent three fiscal years;
• corporate entities to deduct from their taxable income 20% of the investment (27% for start-up companies with social purposes or operating in the energy sector). The deduction cannot be higher than €1.8m per fiscal year and the amount in excess may be carried forward in the subsequent three fiscal years.
The incentives are available for fiscal years 2013, 2014, 2015 and 2016 and are conditional upon (i) the investor maintaining the interests in the innovative start-up company for at least two consecutive fiscal years and (ii) the investment in each company not exceeding €2.5m per fiscal year.
Luciano Acciari and Fabio Chiarenza
Gianni, Origoni, Grippo, Cappelli & Partners
Via delle Quattro Fontane 20
Tel +39 06 478751
Fax +39 06 4871101
E-mail firstname.lastname@example.org email@example.com
Presented by Meir Linzen and Guy Katz, partners at Herzog Fox & Neeman
In the last few years, the Israeli Tax Authority has initiated a few important changes and reforms to the Israeli tax regime. The last reform was enacted on 5 August 2013 and it will come into force by the beginning of 2014. The main changes which are included in these reforms are as follows.
In the last few years, the applicable tax rates in Israel were raised in a wide array of areas. The individual ordinary income tax rates are set to be increased by 1%-2% (such that the highest tax rate will be 50%) as of 2014. Corporate income tax will rise to 26.5% and the tax rates on so-called preferred enterprises will rise for 2014 to between 9%-16% (from 7%-12.5%) as of 2014. VAT is currently 18%.
A new levy at the rate of 2% was imposed on income above NIS 811,560 beginning in 2013 (the threshold is adjusted annually for inflation). The additional 2% tax applies to all income categories together, such that an individual becomes subject to the tax if their income from all income categories (ordinary income, capital gains, interest and dividends) crosses the threshold.
Israeli law provides extensive benefits for ‘new immigrants’ and certain returning residents. Generally, such new immigrants are not subject to tax and reporting obligations in Israel with respect to their foreign source income and assets for a period of ten years.
Recently there has been a significant reform in the taxation of trusts in Israel. According to the previous law, trusts that were settled by foreign residents are exempted from tax in Israel. In this regard, only trusts which were settled by an Israeli resident were subject to tax in Israel. The new reform (which will come into force at the beginning of 2014) determines that trusts that were settled by foreign residents and have Israeli beneficiaries will also be subject to tax in Israel. In the case where the settlor of the trust is not alive, then the entire income of the trust will be subject to tax (worldwide taxation), and in the case where the settlor is alive, either (i) distributions from the trust; or (ii) the trust’s income will be subject to tax at the rate of 25%-30%.
Real estate tax
In addition to significant changes in the exemptions which are provided to Israeli residents, the new amendment of the tax law completely terminates: (i) the exemption which is provided to foreign residents on the sale of Israeli residential property; and (ii) the lower rates of purchase tax which are imposed on foreign residents who purchase residential apartments in Israel.
Israel is expected in the coming months to sign a full ‘inter-governmental’ agreement with the United States, for the provision of information in connection with the US FATCA provisions. The agreement is expected to be similar to the agreements the US has signed with the UK, Denmark, Mexico and Ireland, which provide for reciprocity between the two nations with respect to the exchange of information.
There have been a number of developments in Israel over the past year pertaining to the tax residency of both individuals and corporations. These developments are very significant as Israeli residents are taxed on their worldwide income.
A new decision of the Israeli district court (the so-called AK decision) interprets for the first time the new definition of an ‘Israeli resident’ under the Israeli income tax ordinance. This decision determines that the appellant remained an Israeli resident in the years 2005-06, despite his contention that he relocated to Romania. The taxpayer had spent enough days in Israel to meet a residency presumption (he stayed in Israel for 425 days in the relevant years) and failed to prove to the court that in spite of this, his centre of life was outside Israel. In an important obiter dictum the court stated that the ‘day presumption’ is only a positive presumption and could not be used to discount residency. In addition, according to a recently published court decision (‘Michael Sapir’), each spouse may have a different residency. In this case, the tax payer left Israel for Singapore and his wife and daughters stayed in Israel. The tax assessor claimed that the centre of life of the tax payer is in Israel, and the tax payer claimed that although his family is in Israel, his business and social interests are in Singapore, and accordingly, his centre of life is in Singapore. The District Court of Tel Aviv accepted the tax payer’s approach and determined that he is a resident of Singapore.
The Israeli district court published an important decision, the Niago decision, regarding the interpretation of the term of ‘management and control’. The Niago decision is the first decision in Israel that deals with the interpretation of the concept of management and control. This decision determines that a foreign company was managed and controlled from Israel despite the fact that all of its directors were foreign residents. The court reached this decision based on evidence which showed that the directors were not familiar with the foreign company’s business and that the company was actually managed by the owners of its Israeli parent company from Israel.
A number of recent rulings published by the Israeli tax authority take some important positions regarding the existence of a permanent establishment in Israel. Accordingly, a new important ruling determines that the Israeli partners in a partnership create a permanent establishment in Israel for the foreign partners. Another interesting ruling, which was published in 2012, determines that the ‘home office’ of a portfolio manager who provides employment services to her headquarter company in the US created a permanent establishment in Israel. A third important ruling determines that drilling activities on the Israeli continental shelf create a permanent establishment for the foreign company that performs the drilling activities, as well as for several other foreign companies which were engaged by this company. This ruling, which elaborates on two previous rulings on this subject, demonstrates the Israeli Tax Authority’s position, that according to which activities are performed on the Israeli continental shelf, outside the Israeli territorial waters, are considered to be performed in Israel. In addition to dealing with the drilling activities, this new ruling makes two additional important decisions according to which (i) manpower companies which send employees to work in Israel will be considered to have a permanent establishment in Israel, even if such employees spend less than 183 days in Israel during the tax year; and (ii) activities which are performed in Israel for a period of less than 60 days will generally not create a permanent establishment in Israel.
Conflicting decisions regarding US sports players
Two conflicting opinions were handed down by two different Israeli district courts regarding the taxation of the salaries of US sports players in Israel. The decisions pertain to an ambiguous clause in the US-Israel double tax treaty regarding the taxation of artists and sports players. This clause grants taxation rights to the source state only if the salary exceeds $400 per day. The issue before the courts was whether the salary threshold is a necessary or sufficient condition. The Tel Aviv District Court decided that in no case can a sports player be taxed in the source state if they receive a compensation of less than $400 per day. On the other hand, the Southern District Court decided that even if a sports player earns less than $400 per day they can still be subject to tax under articles 16 and 17 of the treaty (taxation of employees and self-employed).
Meir Linzen and Guy Katz
Herzog Fox & Neeman
Asia House, 4 Weizmann Street
Tel Aviv 6423904
Tel +972 3 692 2020
Fax +972 3 696 6464
Presented by John Gulliver (head of tax) and Robert Henson (tax partner) at Mason Hayes & Curran
The Irish tax regime provides an onshore OECD white-listed low-tax environment to conduct cross-border activity.
Key features of the Irish regime are as follows:
• 12.5% corporate tax rate on trading income;
• 25% corporate tax rate on passive income;
• 25% research and development tax credits;
• attractive tax amortisation regime for write-down of widely defined intellectual property;
• an onshore pooling system for foreign tax credits;
• access to at least 68 double tax treaties;
• wide-ranging exemptions from dividend withholding tax;
• limited transfer pricing;
• very limited application of withholding taxes on royalties payment;
• absence of controlled foreign companies legislation;
• tax-exempt funds regime;
• a special regime to facilitate corporate debt issuance from an onshore vehicle without tax leakage;
• new US FATCA intergovernmental agreement;
• new REIT regime; and
• a knowledge information box to be introduced in 2016.
For many years Ireland has adopted a low-tax regime that provides a focal point for multinational groups to conduct business in and through Ireland. In delivering The Budget 2013, the Irish Minister for Finance said:
‘The Government remains 100% committed to maintaining the 12.5% corporation tax rate… Even though this commitment has been stated numerous times, it is worth repeating so that there can be no doubt… Ireland has for the past 50 years sought to have a competitive corporate tax strategy to attract job rich foreign direct investment into Ireland.’
The papers released in the OECD Base Erosion and Profit Shifting (‘BEPS’) project clearly accept Ireland’s 12.5% tax rate. The use of Irish parent companies is also gaining favour. This is because the Irish tax system provides a gains tax participation privilege exemption and a liberal foreign tax credit regime. This foreign tax credit regime, coupled with Ireland’s absence of CFC legislation, has attracted many international groups to use Ireland as the location of the ultimate parent company. Increasingly, other foreign-parented groups are looking towards Ireland as a place to diversify and spread tax risk.
Ireland is also an attractive location to conduct cross-border finance and intellectual property hubs. Captive finance companies attract the 12.5% tax regime and can benefit from further unilateral credit relief for certain foreign withholds. The Irish s110 finance regimes provide a mechanism for major debt capital market issuances in a manner that can enable monies to flow in and out of an Irish vehicle free of withholdings.
For intellectual property, Ireland offers an ability to amortise the market-value cost of IP acquisition intra-group without restriction against the 12.5% rate. Moreover, Ireland’s onshore presence limits withholding on licence fees paid to an Irish IP hub. For IP royalty payments from Ireland only Irish patent royalties typically attract a withholding which, in itself, can be reduced under Irish domestic law and/or double tax treaties.
Ireland has a wide-ranging general anti-avoidance provision contained in s811 Taxes Consolidation Act 1997. The Irish Supreme Court recently held in favour of the Revenue that it can be used successfully to counter aggressive tax avoidance by adopting some form of purposive approach to the interpretation of the underlying tax code in determining if a misuse or abuse of a tax provision had occurred. In November 2012 the Revenue was successful in avoiding a judicial review of a decision of a Revenue official to effectively apply s811 to a complex series of transactions that were regarded as within the scope of s811. To date, the Irish Revenue has been using the section against schemes used by individuals to reduce or eliminate personal tax liabilities. The presence of the section and the Revenue’s recent successes should be taken into account when considering complex cross-border reorganisations involving Irish companies.
John Gulliver and Robert Henson
Mason Hayes & Curran
South Bank House
Barrow Street, Dublin 4
Tel +353 1 614 5007 +353 1 614 2314
E-mail firstname.lastname@example.org email@example.com
Presented by Charalambos Meivatzis, head of accounting and tax at Kinanis LLC
The following features make Cyprus one of the most favourable locations for the setting up of holding, financing and royalty structures particularly for foreign investors as these features provide such investors with highly interesting tax planning opportunities:
• one of the lowest corporate tax rate in Europe of 12.5%;
• dividend income is generally exempt from taxation;
• no withholding taxes;
• no taxation on the profit made from the sale of titles;
• no thin capitalisation rules or minimum capitalisation requirements;
• unilateral tax credit relief;
• full adoption of the EU Parent – Subsidiary Directive, EU Mergers Directive, EU Royalty and Interest Directive and the EU Directive on Mutual Assistance and Cooperation; and
• extensive network of tax treaties for the avoidance of double taxation.
Application of the tax law
The new taxation system applies only to the worldwide income of tax residents of Cyprus, and to the income that non tax residents of Cyprus derive in Cyprus.
Definition of tax resident
(a) In the case of an individual – means an individual who stays in Cyprus for one or more periods exceeding, in aggregate 183 days in the year of assessment.
(b) In the case of a company – means a company whose ‘management and control’ is exercised in Cyprus. The management and control of a company is exercised by its board of directors. The nationality or the residence of the shareholders is irrelevant. Incorporation in Cyprus is not sufficient to qualify the company as a resident of Cyprus.
Taxation of tax-resident companies
I. General taxation on companies
A Cyprus tax resident company is taxed on its worldwide income. Net profits are taxed at company level with 12.5% corporation tax. However, dividends, interest income, royalty income and profits from a permanent establishment abroad, are taxed under special rules as explained below. Special status is also granted to ship owning and ship management companies as explained below.
II. Exempt income
The following constitute exempt income under the tax legislation:
(a) Profits from activities of a permanent establishment situated outside Cyprus
The profits, which the tax resident Cypriot company may have from a permanent establishment outside Cyprus, are fully tax exempt (0%) subject to some wide anti-abuse rules.
(b) Profits from the disposal of titles
Profits from the disposal of titles ie shares, bonds, debentures, founders’ shares and other titles of companies or other legal persons incorporated in Cyprus or abroad and rights thereon, are fully exempt from any corporation tax (0%).
Profits realised from the disposal of titles are also exempt from any capital gains tax except as to the disposal of shares of companies which own immovable property in Cyprus. Such disposal is subject to capital gains tax at the rate of 20% according to the provisions of the capital gains tax law as amended.
The definition of titles is given a wide interpretation which includes among others, GDRs, ADRs, units in funds and repos on titles but it does not include promissory notes.
The taxation on dividends is as follows:
• Income tax – full exemption
Dividends received from Cypriot companies (either resident or non-resident) or dividends received from overseas companies (foreign) do not bear any corporation tax.
Special defence contribution tax
1. Dividends received from another Cypriot resident company:
Generally, there is no special defence contribution tax in this case, especially for companies whose beneficial owner either directly or indirectly is not a resident of Cyprus.
2. Dividends received from a non-resident company:
Such dividend is exempt from special defence contribution tax. However, this exception is not granted if:
(a) the company paying the dividend is engaged directly or indirectly by more than 50% in activities which result in investment income; and
(b) the rate of the foreign taxation on the income of the company paying the dividend is substantially lower than the 12.5% payable by the recipient Cyprus resident company.
If the exception does not apply, the dividend income received from the non-resident company is taxed at the rate of 17%.
(d) Royalty income
An 80% of royalty profit generated from any type of intellectual property right, patents and trademarks is exempt from corporation tax (it is considered as a deemed expense). The remaining 20% is subject to the normal corporation tax rate of 12.5%. For the purpose of determining the royalty profit the law allows the deduction from the resulting royalty income of all expenses incurred wholly and exclusively for the production of royalty income.
It is important to stress that the favourable tax treatment also covers the profit from any future sale of the IP right, allowing the owners of the IP rights to have a tax efficient exit route in the future.
In addition to the above, the Cyprus company holding the IP rights is able to write off the capital expenditure made on the acquisition or development of such rights in the first five years of use. These capital allowances are considered of course tax deductible.
Taxation of interest
The law distinguishes in an indirect way between trading interest income and passive interest income. The trading interest income is subject to corporation tax at 12.5% taxation on net profits, if any. Interest that is treated as passive interest income is taxed only under special defence tax at a rate of 30% on the interest income received or credited.
III. Allowable deductions to the income and available reliefs
The general rule is that all expenses wholly and exclusively incurred for the production of the income are deductible for taxation purposes. Further, tax losses can be carried forward for five years and can be set off against future profits.
In addition group relief (set off of the loss of one company with the profit of another) is allowed provided both companies of the group are tax residents of Cyprus under specific conditions.
IV. Mergers, re-organisations, de-mergers of companies
Any profits or gains made by reason of reorganisations, the transfer of property, and the transfer of shares in exchange for shares in another company are exempt from income tax.
Reorganisations include merger, demerger, transfers of assets and exchange of shares between resident and/or non-resident companies in Cyprus.
Taxation of special categories of companies – legal bodies – trusts
(i) Ship owning companies, charterers and ship management companies
Eligible Cypriot ship owning companies, charterers and ship management companies, provided they meet the requirements of the merchant shipping may pay only tonnage tax. Also remuneration of a Cypriot ship crew is tax exempt.
(ii) Taxation of partnerships
A partnership is not a legal entity and in this respect is not taxable as an entity. The partners who establish the partnership are those to be taxed for the profits of the partnership. If they are residents in Cyprus, they are taxable according to the regular rates. If they are not residents, no tax shall be levied in Cyprus on the distribution of profits to the partners of such partnership.
(iii) Taxation of collective investments schemes – mutual funds – international collective investment schemes
These are generally subject to taxation in Cyprus at the regular rates, applicable to tax resident companies – 12.5% on their net profits. There is full exemption on the taxation of profits from the sale of titles ie shares, etc.
Interest income received by such legal bodies will only be subject to income tax as trading income and not as interest income and such income is specifically exempted from special defence contribution tax.
(iv) Taxation of Cyprus international trusts
Income and profits of a Cyprus international trust which are gained or deemed to be gained from sources within and outside of the republic are subject to such taxation which is imposed in Cyprus in the case of a beneficiary who is a Cyprus resident.
In the case where a beneficiary is not a Cyprus resident, income and profits of a Cyprus international trust which are gained or deemed to be gained from sources within the republic are subject to such taxation which is imposed in the republic.
Withholding taxes on dividends, interest and royalties
There are no withholding taxes on payments to non-residents in respect of dividends and interest. There are also no withholding taxes on royalties arising from sources outside Cyprus. Royalties arising from the use of an asset in Cyprus are subject to 10% withholding tax.
Double taxation treaties – unilateral tax credit relief
The double taxation treaties that Cyprus has signed apply in full and resident companies may use their provisions and claim the relevant benefits. The law also adopts the credit method for the avoidance of double taxation. In addition, unilateral tax credit relief is also available.
Comments – conclusion
The tax legislation of Cyprus has been designed to balance the future competitiveness of Cyprus as an international business centre and its commitments towards the European Union. The result created a European jurisdiction where advantageous tax planning structures can be achieved. The Cyprus company has the lowest taxation in Europe and at the same time has acquired the European ‘stamp of respectability’.
12 Egypt Street, 1097 Nicosia
P.O. Box 22303, Nicosia 1520
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Fax +357 22 66 25 00
Danos & Associates has recently established a co-operation with a leading Chinese law firm based in Beijing and with offices at several other major Chinese cities. Our firm, with the assistance of our partners in Beijing, is organising and will make a presentation in Beijing to a Chinese audience about Citizenship by Investment in Cyprus.
Thousands of Chinese citizens have invested in Cyprus over the last few years, most of them investing in order to obtain Citizenship or Permanent Residency in Cyprus. Cyprus offers one of the most attractive schemes for non-EU citizens to obtain the citizenship directly while investing intelligently at the same time. For collective investment schemes, the minimum required investment per applicant is set at 2,5 Million Euros. For single investors the minimum required investment is set at 5 Million Euros. There are a number of possible ways of investment which include buying real estate, government bonds and Cypriot companies.
The schemes for the citizenship and permanent residency have brought more than 1 Billion Euros to the island over the last few years benefiting the economy of the country.
Onex Corporation has agreed to acquire SIG Combibloc Group AG for up to EUR 3.75 billion (USD 4.66 billion). EUR 3.575 billion (USD 4.44 billion) will be paid at the closing of the transaction, with an additional amount of up to EUR 175 million (USD 217 million) payable based on the financial performance of SIG in 2015 and 2016. The transaction is anticipated to close in the first quarter of 2015, subject to customary conditions and regulatory approvals.
Kyiv, 18 November 2014 - Avellum Partners announced that it has acted as the legal counsel to ING Bank N.V. ("ING") in connection with a USD100 million sunflower oil pre-export loan facility ("Loan") to Myronivsky Hliboproduct Group ("MHP").
VDB Loi assists as aircraft financing transaction closes in the wake of Cape Town Convention ratific
VDB Loi, a leading Myanmar law and advisory firm with offices in Yangon and Nay Pyi Taw, has assisted a foreign non-bank financial institution with a financing transaction involving a number of aircraft for use in Myanmar. The names of the lender and the borrower are not disclosed at this time. The firm acts as lender's Myanmar counsel and was charged with, among other things, Myanmar law advice on the facility document and security package, the funding structure and due diligence. The firm is also charged with the registration and perfection of the secured interests in Myanmar.
The Real Estate legal team at Gide advised P3, a specialist owner, developer and manager of European logistics properties, with an investment involving the creation of a production and storage facility for the furniture company Sofa.com in P3 Park Poznań. The building was opened on 1 September.
Effective strategies of restoring consumer property rights: how to collect damages for substandard c
The VEGAS LEX law firm has met with senior executives of major companies to discuss the protection of property rights in cases of substandard technological connection to electricity, gas, heating and water distribution grids.
On November 19, 2014, VEGAS LEX Partner Mikhail Safarov spoke at the OECD's annual Russian Corporate Governance Roundtable devoted to the key corporate governance issues, business ethics and related party transactions.
Head of VEGAS LEX Commercial Group Julia Tormagova spoke at the 2nd National Conference on Defense Procurement, one of the most high-profile events in the industry.
The VEGAS LEX law firm is working on a strategy to develop international airport hubs based on regional airports in Russia.
Head of VEGAS LEX's Dispute Resolution Practice Kirill Trukhanov spoke at the Legal Week Commercial Litigation and Arbitration Forum in London last week
Frankfurt, 19. November 2014 – Die globale Anwaltssozietät Baker & McKenzie hat die Flowserve Corporation, ein an der NYSE börsennotierten, führenden Anbieter von Produkten und Dienstleistungen im Bereich Medienfluss für die weltweiten Infrastrukturmärkte, beim Angebot zum Erwerb der SIHI-Gruppe, einem international tätigen Pumpenhersteller, von der Thyssen-Bornemisza-Gruppe beraten.
Die deutsche Beteiligungsgesellschaft DPE Deutsche Private Equity (DPE) hat zusammen mit dem Management den Vliesstoffhersteller J.H. Ziegler GmbH (Ziegler) mehrheitlich übernommen. Verkäufer waren die Staufen Invest GmbH sowie ein Family Office. Ziegler ist DPEs vierte Beteiligung in Fonds II.
The VEGAS LEX law firm is working on proposals concerning additional funding sources for regional air service programs in Russia
It has been around one year and a half since the Eurogroup decisions to recapitalise Bank of Cyprus via a bail-in on 25th of March 2013. Cyprus has worked hard since then to exit the financial crisis and to maintain its status and reputation as an international financial centre. Within October 2014, several positive developments which took place suggest that Cyprus is on a good path. These positive developments include:
VDB Loi, a leading legal and tax advisory firm in Myanmar, was this week able to register an unnamed non-resident foreign company without a branch in Myanmar for Commercial Tax (CT) purposes. According to Myanmar’s tax laws, 5% CT is due on, among other things, all services rendered in the country. This includes services that are performed in Myanmar by foreign or non-resident companies such as engineering, installation, drilling or consulting. Until recently, however, there was confusion about the implementation by foreign companies, many of which were under the impression that the CT did not apply to them, unless they formally opened a branch in the country. That confusion has now been lifted as the Internal Revenue Department (IRD) has issued the first CT registration for a foreign service provider who has no presence or branch in Myanmar.
Péter Köves has been elected as the Vice President of the Bar Issues Commission of the International Bar Association ("IBA"), the world's largest association for lawyers, law firms and bars.
We are pleased to inform you that, from 28.10.2014 onward, "Popov & Partners" Law office will be working and admitting clients at a new location. Striving to be closer to the clients, the business and the institutions, we have chosen a site situated at the heart of downtown Sofia, which has excellent transport links and is easily accessible from all parts of the city. The address is: Sveta Nedelya Square N 4, floor 4.We are pleased to inform you that, from 28.10.2014 onward, "Popov & Partners" Law office will be working and admitting clients at a new location. Striving to be closer to the clients, the business and the institutions, we have chosen a site situated at the heart of downtown Sofia, which has excellent transport links and is easily accessible from all parts of the city. The address is: Sveta Nedelya Square N 4, floor 4.
Baker & McKenzie hat Heidelberger Druckmaschinen beim Partnerschaftsvertrag mit chinesischem Maschin
Baker & McKenzie hat Heidelberger Druckmaschinen beim Partnerschaftsvertrag mit chinesischem Maschinenbauer beraten
Frankfurt, 12. November 2014 - Die globale Anwaltssozietät Baker & McKenzie hat die Heidelberger Druckmaschinen AG (Heidelberg) umfassend bei der Veräußerung des Postpress Packaging Business an Masterwork Machinery Co., LTD. (Tianjin, China) beraten.