Companies in the UAE are expected to ensure their compliance with the new Economic Substance Regulations (ESR) starting from July 1, 2020, and failure to do so will invite hefty penalties. Amid a number of financial challenges came with the Covid-19 pandemic, adhering to the UAE's new ESR is now a mandatory and another reality for businesses to operate in the country.
Aimed at facilitating build business transparency, the UAE introduced ESR on April 30, 2019, and issued the guidance on the application of the regulations on September 11 2019. The regulations require companies and other business forms registered in the UAE that carry on one or more "Relevant Activities" (together, "relevant activities"), to have economic substance in the UAE in relation to these activities, and to comply with notification and return filing obligations.
The objective for introducing ESR is to avoid shifting of profits from high tax jurisdictions to low or no tax jurisdictions. ESR has been implemented to tax heaven countries such as BVI, Cayman Islands, Jersey, Bermuda, Bahrain etc. to cooperate with high tax jurisdictions countries where corporate taxes should have been paid for transactions where economic substance would not be present in the UAE. ESR shall ensure that profits are taxed where economic activities are performed and where actual value is created.
ESR is applicable to 9 relevant activities and substance over form approach shall be applicable while assessing and identifying the applicability of relevant activities. The nine listed activities are insurance, banking, investment fund management, lease-finance, headquarters, holding company, shipping, intellectual property business, and distribution & service centre business.
ESR Compliance shall be performed in 3 phases: Identification and assessment of relevant activity & submission of notification; action plan to meet economic substance test (assess whether business meet; compliance requirements and substance test); and reporting to relevant authority.
Distribution & Service Centre, one of the relevant activities of ESR shall cater to plethora of Companies in UAE. Since UAE is strategically located globally, which provides access to companies to trade in or outside the UAE and procuring the goods from the manufacturing plant outside UAE which is mainly foreign connected companies of the UAE based Entity. Such kind of transactions would tantamount to applicability of Distribution & Service Centre Relevant Activity.
The Economic Substance Test requires a Licensee to demonstrate that: the Licensee and Relevant Activity are being directed and managed in the UAE; the relevant Core Income Generating Activities (CIGAs) are being conducted in the UAE; and. the Licensee has adequate employees, premises and expenditure in the UAE.
The biggest challenge in ESR Compliance is to identify income from core income generating activities. Core Income Generating Activity must be conducted in UAE to substantiate the economic substance test in UAE. Other challenge is to prove that the Entity is being managed and directed in the UAE which is also required to substantiate the economic substance test.
Companies must assess all the transactions cautiously and vigilantly to identify the relevant activities and must follow substance over form approach while making the assessment of relevant activities. Understanding of Corporate structure, Business Model and then finally identify the applicability of Relevant Activity are the pre-requisites to file the ESR Notification. The deadline for filing ESR Notification is June 30, 2020 for most of the Free Zones and Mainland Companies for the reportable period January 1 to December 31, 2019. There are few free zones which has extended the deadline to July 31, 2020.
All the licensees need to comply with return filing obligations if income from the relevant activity is earned during the reportable period. It is imperative for the licensees to calculate the income and prepare the financial statements to compute the operating expenditure, net profits, assets held by the Licensee with respect to relevant activity only. The compliance is indispensable and records and details to be maintained for each reportable period. Non-compliance of Economic Substance Regulations shall not only result in monetary penalties but could also lead to suspension, revocation of the license which can lead to major disruptions.
Chirag Agarwal is Founder & MD, Earningo Accounting & Tax Consultancy. Views expressed here are his own and do not reflect on newspaper's policy
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