Contents

Corporate and International 

ATAD 3 & Shell Entities – Helen Siqin and Miles Dean

The UK – Re-domiciliation Consultation Document – Helen Siqin and Miles Dean

To Treat or not to Treat – Andrew Parkes and Miles Dean

The US/UK – Hybrids Again! – Huw Griffiths

Tax Dispute Resolution

The 3 P’s – Spot the Difference – Andrew Park

Private Client

Portugal – The Non-Habitual Residence Regime – Tiago Cid 

Corporate and International

ATAD 3 & Shell Entities

On 22 December 2021, the European Commission (EC) presented an initiative to fight the use of shell companies. The objective of the initiative is to ensure that companies that have no or minimal economic activity are unable to benefit from any relevant tax advantages, thereby discouraging their use.

Shell companies, in the view of the EC, are often used for aggressive tax planning or tax evasion purposes. Businesses can channel financial flows through shell companies to tax havens or jurisdictions where taxes can easily be circumvented. Similarly, individuals can use shell companies to shield assets (e.g. real estate, intellectual property etc) from taxes, either in their country of residence or in the country where the property is located.

The proposal

Although the proposal is consistent and stands alongside other EU tax initiatives, including the Pillar 2 Directive, there are a few key differences. Firstly, this proposal establishes a minimum level of substance for entities to enjoy certain tax benefits, without reference to the level of taxation. The second is that no materiality threshold is included in the proposal, and it seems to apply to all EU corporations regardless of their size.

The proposal sets out three gateways. If a company passes through all three gateways, it will need to satisfy the minimum substance requirements otherwise it will be classified as a shell company.

The three gateways

1. is the bulk of the company’s income passive (i.e. dividends, interest or bonds, etc)? In this context, more than 75% of the entity’s overall revenue in the previous two years does not derive from the entity’s trading activity or more than 75% of its assets are real estate property or other private property of particular high value;
2. cross-border element – the company receives the majority of its relevant income through transactions linked to another jurisdiction or passes this relevant income on to other companies situated abroad; and
3. outsourcing – the company outsources its corporate management and administration services.

From the above, it’s obvious that corporate service providers are in the crosshairs and will be beefing up their substance offerings.

The proposal includes several caveats and exceptions including:

1. listed entities;
2. specific regulated financial entities;
3. certain holding entities of operational business in the same Member State; and
4. entities with at least five dedicated full-time employees exclusively carrying out the activities generating the relevant income.

Minimum substance requirements

Entities passing through each gateway will be required to report information on their tax return to prove they meet the minimum substance requirements:

1. premises available for the exclusive use of the entity;
2. the entity has at least one active bank account in the EU; and
3. the entity has at least one director/or the majority of relevant employees being resident close to its undertaking.

If an entity fails at least one of the above indicators, it will be presumed to be a ‘shell’.  Such a shell entity then has two opportunities to rebut this presumption as follows:

1. to prove that the entity has substance (despite not satisfying the minimum substance requirements); and
2. to prove it is not misused for obtaining tax benefits.

Consequences of being a ‘shell’

Shell entities face the following consequences:

1. tax benefits under relevant tax treaties between Member States and tax Directives (e.g. Interest and Royalty Directive, Parent subsidiary Directive) are denied;
2. a new CFC style charge applies to the shareholders of the shell company; and
3. the Member State of residence of the shell company will not issue a certificate of residence so that tax benefits cannot be claimed.

Perhaps unsurprisingly the proposal also includes an information exchange section which suggests all Member States have access to information on EU shell companies, at any time and without a need to request for information.

Although the proposed legislation leaves it to Member States to establish penalties, the EC recommends a minimum penalty for non-compliance of at least 5% of the entity’s turnover.

What’s Next

The EC has suggested a commencement date of 1 January 2024; however, the proposal needs to be adopted by all 27 Member States. As with previous Directives on direct taxation, it is expected that a number of Member States are likely to push back. Consequently, the final Directive, if adopted at all, could be very different from the current proposal.

Implications

Whilst this new proposal puts the ability of an EU Directive to override existing tax treaties to test, it may nonetheless indirectly help Member States with the application of the Principal Purpose Test (by applying the minimum substance requirements in the proposal).

Another aspect worth mentioning is that the proposal has significant compliance implications for both taxpayers and tax authorities in Member States.

As mentioned earlier, the proposal will now move to the negotiation phase among Member States. While it is hard to predict what the final agreement will look like, businesses that are potentially in scope could carry out an initial analysis based on the current draft.

Please contact Miles Dean or Helen Siqin for additional information with respect to this article.

Miles Dean
Head of International Tax
M: +44 (0)7785 770 431 or
E: miles.dean@uk.Andersen.com

Helen Siqin
Senior Manager
T: +44 (0)20 7242 5000 or
E: helen.siqin@uk.Andersen.com

Corporate and International

The UK: Re-domiciliation Consultation Document 

As part of the Autumn Budget, the UK government published a consultation to introduce a new UK corporate re-domiciliation regime.

What is corporate re-domiciliation

The domicile of a company is generally the jurisdiction under whose laws the company is incorporated or registered. Re-domiciliation is the process of a company relocating its domicile from one jurisdiction to another – in effect it ceases to exist in Country A but reappears in Country B.

Re-domiciliation of companies to and from the UK is currently not possible but has been a feature of a number of jurisdictions (high and low tax) for many years^[1]. As it currently stands, a foreign company wishing to relocate to the UK needs to adopt alternative strategies, typically involving the establishment of a new UK entity to acquire the business and assets of the non-UK entity, or a UK holding entity acquiring shares in the foreign entity. These mechanisms often trigger complex, lengthy and costly steps and undesirable or unnecessary tax consequences.

Consultation

To bring the UK in line with other international peers, and to strengthen the UK’s position as a global business hub and an open, competitive, free market economy, the government intends to introduce the corporate re-domiciliation regime.

The current proposal only allows foreign incorporated entities to re-domicile to the UK – it will not permit re-domiciliation from the UK.

There are various criteria the non-UK entity will need to meet, as follows:

Authorisation from departing country

The law of the entity’s incorporated jurisdiction must allow outward re-domiciliation. The entity needs to comply with all legal requirements in relation to the transfer of registration and this would need to be evidenced by a consent of the departing jurisdiction’s competent authority.

Corporate form

Re-domiciliation will be available only to bodies corporate. This means companies and potentially foreign Limited Liability Partnerships.

Director of good standing

Directors must be eligible to act as directors in the current country of incorporation and there must be no legal or enforcement action being taken against them. They will also be required to meet the requirements of UK company law.

The application is in good faith

The UK authorities will have discretion to assess the application and satisfy themselves that the application is being made in good faith and that it poses no other risk such as to national security.

Registration fee

The government will introduce a registration fee to recoup the administrative costs to process and assess re-domiciliation applications.

Reporting evidence

The entity must have passed its first financial period end and provide relevant documentation.

Solvency

Only solvent entities can re-domicile to the UK.

Wider impact

A report that explains the full legal and economic impact of the transfer and the implications for creditors, shareholders and key stakeholders.

Tax Issues

As part of the consultation process, the government is also seeking views on the following tax issues:

Company residence

Under UK law, companies incorporated in the UK or foreign companies with central management and control in the UK are treated as UK residents for corporation tax purposes.

The government asks whether a non-UK company re-domiciling to the UK should be treated in the same way as a UK incorporated company (i.e. automatically UK tax resident), or should it be treated as a non-UK incorporated company requiring central management and control in the UK to be treated as a UK resident.

Loss importation

When non-UK resident companies become UK resident, they may be able to offset foreign losses against the UK profit of other group companies under the UK’s group relief provisions. The government has asked how material this risk is and if any additional protections need to be introduced.

Capital gains and intangible asset base cost on inward domiciliation

The government has asked what cost base should be used (i.e. market value similar to the EU rules) for assets brought into the UK corporation tax net as a result of companies migrating their residence to the UK.

Next Steps

The proposal is still in the consultation stage with a lot of significant questions from both a corporate law and tax perspective. Additionally, the government is also consulting on the possibility of permitting the outward re-domiciliation of UK-incorporated companies to other jurisdictions. The government still has a long way to go before the introduction of a UK re-domiciliation regime, but the consultation is a promising first step.

^[1] Australia, Belgium, the British Virgin Islands (BVI), Canada, Cyprus, Guernsey, Jersey, Isle of Man Luxembourg, Malta, New Zealand, Portugal, Singapore, Switzerland, and several states within the United States.

Please contact Miles Dean or Helen Siqin for additional information with respect to this article.

Miles Dean
Head of International Tax
M: +44 (0)7785 770 431 or
E: miles.dean@uk.Andersen.com

Helen Siqin
Senior Manager
T: +44 (0)20 7242 5000 or
E: helen.siqin@uk.Andersen.com

Corporate and International

To Treat or not to Treat

The beginning is a very good place to start

We were recently asked a question that took us back to the first principles of UK taxation: when is a non-resident liable to UK tax upon their trade income? The client was a company that was tax resident in a country with which the UK doesn’t have a double taxation treaty – the upshot being that the UK tax net was wider than management were expecting…

If you are carrying on a trade then, if you are resident in the UK, you are liable to income tax upon the profits of the trade wherever you carry it on. But if you are non-resident, you are liable to income tax upon the profits of the trade carried on in the UK. The legislation isn’t particular and applies to anyone carrying on a trade, whether you are animal, vegetable or mineral. The question is, simply, whether anything else takes precedence.

Corporation tax does for companies that are chargeable to it. This is any UK tax resident company or a non-resident company that is trading through a UK permanent establishment (this is a place in the UK through which the trade is carried on and can be a huge industrial complex, all the way down to a mobile phone) or makes income from UK real estate.

Crucially, the Corporation Tax Act 2009 does not override the income tax legislation for companies that are carrying on a trade in the UK but not via a permanent establishment. The override for them is usually done by the UK’s double taxation treaties. They usually restrict the UK’s ability to tax a non-resident’s trade income to that earned through a UK permanent establishment. Therefore, if a company is resident in a country with which the UK has a double taxation treaty and it has not reached the threshold for having a UK permanent establishment, its (non-real estate) trade income is not liable to UK taxation.

In or with

The problem can be that people forget that although the UK has a very wide treaty network it doesn’t cover every country, with probably the biggest hole being Brazil. Furthermore, the UK’s domestic permanent establishment rule doesn’t apply to Brazilian companies (amongst others) that are trading in the UK but not via a permanent establishment.

The important question here is then whether the company is trading with or in the UK. This is always a favourite subject of tax nerds – sorry, experts – because you get to refer to the “Champagne cases” and delve back into Victorian decisions where this concept comes from.

As might be expected though, things have moved on since the Dowager Countess Grantham was a lass and the question to be asked is where the “operations take place from which the profits in substance arise”.

This can be a tricky question to answer for sales-based companies where the UK has some functions but the sales are agreed elsewhere (back to the Champagne cases!) and requires you to fully understand the business so you can see where the essential profit making activities are undertaken (plus, if the company/group is large enough, you have to overlay the Diverted Profit Tax rules).

Overall, the principles that apply are often similar to deciding if a company has a permanent establishment, just with a lower bar, but it is vitally important to remember that the bar can be lowered or the company could get a shock down the line.

If you have any queries regarding the UK taxation of non-UK companies please contact Miles Dean or Andrew Parkes.

Miles Dean
Head of International Tax
M: +44 (0)7785 770 431 or
E: miles.dean@uk.Andersen.com

Andrew Parkes
National Technical Director
M: +44 (0)7522 229 589 or
E: andrew.parkes@uk.Andersen.com

Corporate and International

US/UK: Hybrids Again!

The UK introduced its hybrid mismatch rules with effect from 1 January 2017 as part of its response to the OECD’s actions to counteract Base Erosion and Profit Shifting.
The broad aim of the hybrid mismatch rules is to counteract advantages obtained by multinational groups where national tax systems take differing views on whether a person is a separate taxable person and/or whether instruments are equity or debt in nature. These mismatches can lead to either:

• two deductions for the same economic expense; or
• a deduction in one territory without any corresponding income being included to the other.

Example of how a hybrid mismatch disallowance can arise

The following example illustrates the problem in a relatively simple (and typical) form:

• a US Inc owns a US LLC (this is a transparent entity for US tax purposes but an opaque/separate entity for UK tax purposes);
• US LLC in turns owns 100% of a UK Limited Company;
• UK Ltd has ‘checked the box’ for US tax purposes so that it is transparent for US tax purposes but, of course, remains opaque for UK tax purposes;
• US LLC lends money to UK Ltd on which interest is paid;
• the US doesn’t see the loan as the US LLC and UK Ltd are both considered transparent entities and US Inc cannot lend to itself; and
• there is a tax deduction in the UK for the interest payment without a corresponding inclusion of income in the US.

Taxpayers and advisers slow out of the blocks

We are now five years past the introduction of these rules and on due diligence we are continuing to see a great number of UK companies that have submitted returns without any consideration of these rules.

Even though the anti-hybrid rules are mechanical, the rules are incredibly complex and on most occasions the tax return preparer will have to understand the overseas tax position to ascertain if there is a tax mismatch.

There is no SME-type exemption or ‘de minimis’ threshold from these rules, so we regularly see small UK subsidiaries of US parent companies being dealt with by relatively small firms of accountants who are unlikely to have the technical expertise to deal with the issue. In many cases, the hybrid legislation is not even known to the accountants.

Another misconception amongst companies and their accountants is that these rules can only apply to related party expenses; however, this is not the case.

For example, if a UK company in a group is an internal service provider which has its costs reimbursed by a US group company a hybrid disallowance could arise for third-party rental payments made by the UK company as follows where both the UK and US entity are checked for US purposes:

• the UK and US see a deduction arising in the UK company for the rental expense;
• the UK taxes the income arising in the UK company from the reimbursement of costs by the US company;
• however, the US disregards the reimbursement of costs by the US company to the UK entity transaction as both parties are checked and the recipient and payer are the same person;
• a mismatch arises as the deductions on the rental expenses are allowed in the US and the UK but the income from the recharged costs is not taxed twice (notwithstanding that no deduction arises in the US in respect of the transaction giving rise this UK income); and
• a disallowance is made in the UK company for the rental expense under the hybrid rules to address this mismatch.

While steps have been taken to address this particular scenario, the relieving provisions only apply for accounting periods beginning on or after 10 June 2021 and we are seeing adjustments failing to be made for prior periods. Furthermore, the rules may still bite where there are third party expenses paid by a UK holding company whose income, usually from subsidiaries, is not recognised by the US regarded parent.

The consequences of failure to consider and apply the rules can be summarised as follows:

1. Additional UK corporation tax becoming payable from expenses previously claimed becoming disallowed under the hybrid rules (and debit interest for late payment, where relevant).
2. Tax geared penalties where the company has not taken reasonable care (up to 100% where the taxpayer behaviour leading to the inaccuracy was deliberate and concealed).
3. Loss of value where any adverse change in the UK position has a potentially beneficial impact on any overseas tax liability and the overseas position is closed to amendment.
4. In a M&A situation, uncertainty can lead to significant delays, price chips or even the collapse of the deal.
5. Additional professional fees in undertaking the analysis and rectifying the position in both the UK and relevant overseas territories.

Final take-away

If you are responsible for the tax returns for a UK company within an international group (as preparer or signatory) please consider the anti-hybrid rules.

If you would like to discuss the matter with us, please contact Huw Griffiths on:

Huw Griffiths
Director
T: +44 (0)20 7242 5000 or
E: huw.griffiths@uk.Andersen.com

Tax Dispute Resolution

The 3 P’s – Spot the Difference

I’m often asked whether there’s any difference between the various offshore leaks (otherwise known as the 3P’s – Panama, Pandora and Paradise).

The thing that really distinguished the “Panama Papers” from the “Paradise” leaks was that the Panama Papers provided complete transparency on a lot of obvious wrongdoing, whereas the Paradise Papers involved the leak of data from a reputable international law firm going about trying to do things properly. Now, notwithstanding the legitimacy of the planning and structures revealed by the Paradise Papers, the public didn’t necessarily like that Sir Lewis Hamilton achieved significant VAT savings on his use of a private jet even though the planning wasn’t illegal.

I know that Miles Dean, our Head of International Tax has spoken to journalists from across the political spectrum over the years wanting him to confirm that what they thought might be illegal was illegal – only for him to explain it was legitimate planning. I doubt much, if anything, ultimately emerged from the Paradise Papers (Appleby being the law firm in question) that wouldn’t similarly have emerged if the data had been leaked from one of the large London international law firms.

The Pandora Papers are a bit less clear because this leak only recently happened and apparently involves a mixed bag of 14 different firms – who may well have acted very differently from each other – maybe some with complete propriety and maybe some not. It’s very interesting that the ICIJ is still apparently being very cagey about which firms are involved and where the data came from.

ICIJ journalists now seem to conflate information in the hands of their journalists and made public by them with the wider (and often similar) information now in the hands of global enforcement bodies like HMRC. Although the likes of HMRC now have a lot of information they wouldn’t otherwise have because of leaks like the Paradise Papers, journalists don’t seem to appreciate how much information HMRC receives about the ownership of overseas companies, for example, by virtue of their access ownership registers in crown dependency “tax havens” (that journalists don’t have access to).

Journalists should also appreciate that they can’t expect to have a window on what HMRC does with the information. Most tax investigations, including those conducted into offshore matters, happen in total privacy between HMRC and the taxpayer. Normally they lead to tax settlements that remain totally private unless a tax dispute reaches the courts, or details require disclosure in some sort of public forum like a divorce court. So, the ICIJ may have lit a fire under some people, but that hasn’t resulted in their problems becoming public and potentially the press turning it into a public spectacle / public entertainment.

Tax is a matter of law and very often not as clear cut as journalists and the public might imagine, particularly where complex international structures are concerned. The press and the public should appreciate that the normal level of privacy with which UK tax investigations are conducted is conducive to the public good in preventing grandstanding and encouraging both sides to be reasonable and pragmatic rather than risk a public dispute in the courts that either side might unexpectedly lose, or which might embarrass the taxpayer or create unhelpful legal precedents for HMRC.

Please contact Andrew Park for additional information with respect to this article.

Andrew Park
Tax Investigations Partner
M: +44 (0)7956 715 098 or
E: andrew.m.park@uk.Andersen.com

Private Client

Guest Contribution From Andersen Portugal

Portugal: The Non-Habitual Residence Regime

Taxation of a Non-Habitual Tax resident (“NHR”) in Portugal

Since 2009, an inward expatriate tax regime has been in place in Portugal that designates the taxpayer benefitting from this regime as a NHR resident. This regime combines a reduced flat tax rate applicable on qualifying domestic-source income with an exemption (with progression) regarding qualified foreign sourced income aimed at eliminating double international taxation.

Conditions

To qualify for the regime, the individual needs to fulfil two basic requirements:

1. become a full Portuguese tax resident under Portuguese domestic law; and
2. must not have been taxed as resident during the previous five years before taking up tax residence in Portugal (in accordance with Paragraph 8, of Article 16 of the Portuguese Personal Income Tax Code, hereinafter “PPITC”).

To become a full Portuguese tax resident, the applicant must:

1. fulfil the 183 days test of physical presence in Portugal in a given calendar year; or
2. hold on 31 December a dwelling that implies an intention of setting up a permanent residence in Portugal (as established in Paragraph 1, of Article 16 of the PPITC.

Benefits

Thus, if the applicant fulfils the requirements set out above, they should be able to benefit from the favourable tax treatment for a maximum period of 10 years through their registration in the tax authority’s taxpayer register.

For Portuguese Personal Income Tax (“PIT”) purposes, taxable income is separated into six categories, namely:

• Category A (employment income)
• Category B (business income)
• Category E (investment income)
• Category F (real estate income) Category G (capital gains income) and
• Category H (pension and annuity income)^[1].

Tax Benefits of the NHR regime

Portuguese source income derived by NHR regime (per type of income)

Domestic source income derived from high added value activities (as defined by Ministerial Order 12/2010 and Order 230/2019) deemed to fall either under employment (category A)^[2] or business and professional income (category B)^[3] is taxed at 20% flat rate^[4], in accordance with Paragraph 10, of Article 72 of the PPTIC.

Other types of domestic income derived by a qualifying NHR resident are subject to either standard progressive rates (for example employment income falling outside the list of activities or domestic pensions), or at special flat rates for certain types of Portuguese source income (for example Portuguese sourced investment income and capital gains is taxed at 28% flat rate). This is because specific rules are not established for the NHR regime.

Foreign income derived by NHR regime (per type of income)

In accordance with paragraph 4, of Article 81 of the PPTIC, foreign source employment income (Category A) is PIT exempt as long as the income is either:

1. subject to tax in the source State according to the provisions of a tax treaty; or
2. in cases where no Double Tax Treaty (“DTT”) is in force, such income is subject to tax in the source state, and it is not deemed to be of a Portuguese source, as defined in the PPTIC.

There is no requirement for foreign source employment income that such income is derived from high added value activities exercised outside Portugal.

According to Paragraph 5, of Article 81 of the PPTIC, foreign sourced business or entrepreneurial income (Category B) is PIT exempt only if derived from high added value activities (as defined in Ministerial Order 12/2010 and Order 230/2019) and provided that either:

1. such income may be taxed at source under the provisions of a DTT; or
2. if no DTT applies, it may be taxed at source according to the OECD Model Convention, as interpreted by Portugal, is not derived from a blacklisted tax haven jurisdiction (as defined in Ministerial Order 150/2004, amended by Ministerial Order 345-A/2016), nor deemed as a Portuguese source under domestic law.

Paragraph 5, of Article 81 of the PPTIC also establishes that foreign source investment income (Category E)^[5], real estate income (Category F)^[6] and capital gains (Category G)^[7] is PIT exempt provided that either:

1. such income may be taxed at source under the provisions of a DTT; or
2. if no DTT applies, it may be taxed at source according to the OECD Model Convention, as interpreted by Portugal and is not derived from a blacklisted tax haven jurisdiction, nor deemed as a Portuguese source under domestic law.

Alternative Option for Foreign Income derived under the NHR regime

The holders of the above-mentioned exempted income obtained abroad may opt for the tax credit method provided for by the international double taxation referred to in Paragraph 1, of Article 81 of the PPITC, and in this case the income is compulsorily included for the purposes of Portuguese taxation, except for income provided under, paragraphs 1 and 6 of Article 72 of the PPITC, according to Paragraph 8, of Article 81 of the PPITC.

Note that, in most cases, capital gains from foreign sources are taxed in Portugal, when obtained by NHR holders, at a rate of 28%.

^[1] According to Article 1, of the PPITC.
^[2] Category A comprises of income from dependent personal services under an employment contract and includes any remuneration of members of statutory boards of entities, except of those exercising the role of statutory auditor.
^[3] Category B comprises of professional and entrepreneurial income which encompasses profits derived from individual trading/professional or self-employed activities or intellectual and industrial royalties derived by an individual.
^[4] The list of both Ministerial Order includes for instance, engineers and technicians similar, artists, actors and musicians, doctors and dentists, university professors, biologists, computer programmers, information technology consultants, management and operation of computer equipment, activities of information services, activities of news agencies, activities of scientific research and development, designers and investors, board members and managers of companies promoting productive investment.
^[5] Category E includes, amongst others, interest income, dividends, income derived from participating units in investment funds, IP income when not derived by the respective author or original owner and gains from certain swap agreements.
^[6] Category F comprises income from actual (not imputed) rents paid for the use land or buildings.
^[7] Category G comprises of income from capital gains (including sale of real estate) and certain income derived from indemnities.

For more information about the NHR regime, please contact Tiago Cid at Andersen Portugal on:

Tiago Cid
Lawyer
M: +351 211 318 958 or
E: tiago.cid@pt.Andersen.com