Written by Vikas Arora, Co-Founder and CEO, CXO Factor

As per the announcement on 31 January 2022, a corporate tax is being introduced in UAE, effective from 1 June 2023. There have been lots of discussions and debates around the expectations from the tax laws, and from the taxpayers. Although the final law is still not published, the Ministry of Finance released a public consultation document outlining the key features of the tax law.

As we continue to discuss with corporates on their readiness to adapt to the new tax law, we do advise them on key matters they should be mindful of and consider while they welcome the law next year*.

The Ownership Structure of Your Business
If you own multiple businesses, especially having operations in different countries, through separate legal entities, it may be an opportune time to revisit the ownership structure and streamline it in a way that makes your businesses tax efficient. A few points to consider will be the countries you operate in, double tax treaties with those countries, and whether you operate through a branch, subsidiary or any other form.

As per the draft law, UAE businesses will be subject to tax on their worldwide income, except for businesses conducted through foreign subsidiaries and branches, therefore you may want to assess if your businesses currently sit within an optimal tax-efficient structure. Also for your businesses within UAE, it is worth contemplating whether you need to have a consolidated holding company structure rather than multiple companies owned by different/same family members. This may help in setting off losses of one entity with another entity’s profits (up to a maximum of 75% of taxable income) and filing consolidated holding company results for tax purposes.

Free Zone Companies
Although the free zone companies are currently exempt from UAE corporate tax (subject to certain rules), it is required for them to file tax returns. They will be exempt from tax on income from transactions with businesses located outside UAE, or from trading with businesses in the same or another free zone. A free zone company which has a branch in mainland UAE will be taxed on its mainland sourced income.

However if the free zone entity is earning income from mainland UAE (other than passive income – dividends, interest, capital gains from shares), it will be taxed at normal rates. Therefore, it may be the right time to look at the business transactions with the mainland and restructure them to ensure taxes are paid only on mainland sourced income and there is no ambiguity around the income sources, expense deductions etc.

Transfer Pricing / Arms’ Length Related Party Transactions
The UAE tax law will include transfer pricing rules to ensure any transaction between related parties follows the internationally recognized arms’ length principle. Payments to related parties (such as shareholders, directors – called ‘connected persons’), will be allowed as a tax deduction if the business can demonstrate that such payment is incurred wholly and exclusively for the business and is at the market price of the product/service provided. Therefore, it is important that you have suitable documentation to support such payments, and obtain tax deduction benefits.

Capital Structure
Businesses would have been funded through equity, debt or a combination of both. In a lot of businesses, we have seen shareholder capital also provided as a debt to the company rather than equity. Although there is no issue with that, the tax law will want to ensure any interest payments made are not in excess to avoid tax, and thus the law proposes to limit such interest payments.

As per the initial guidelines, there is a cap on such payments to 30% of EBITDA (earnings before interest, tax, depreciation and amortization). Therefore, one may want to back-calculate and see the optimal level for related party debt and capitalize the balance of funding if needed. This may also strengthen the balance sheet and help the businesses to raise equity/debt from third parties at an opportune time.

Foreign Companies Doing Business in UAE
To assess the taxability of foreign companies doing business in the UAE, the tax regime has been designed on basis of the OECD Model Tax Convention. A foreign company may be treated as a UAE resident for tax if it is effectively managed and controlled within UAE, ie where are the directors / key decision makers of the business based, which may create a Permanent Establishment (PE) for the foreign company in UAE.

The key tests for PE are two-fold:
Fixed place of business test – If the foreign company has a branch, office, or factory in UAE; however a fixed place will not include a place only for preparatory work (eg marketing, promotional activities) or a place to store/deliver stock of goods.

Dependent agent test – Where UAE-based persons have the authority to conclude contracts on behalf of the foreign company.

Therefore it is extremely important for the foreign company to ensure they outline and plan how their business within UAE is conducted in a manner that may not create a PE. Above are some key points that organizations should start addressing ahead of time so as to ensure they stay a tax-compliant business and also are able to do efficient tax planning.

* Please note above points are not to be treated as exhaustive in nature, and are subject to the final tax law

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