Existing companies should have complied with the regulations by now, since the starting date was 30th April 2019.
(If an entity fails to meet the requirements or if inaccurate information is given to the regulatory authority, annual administrative penalties of AED 10,000 to AED 300,000 will apply. If they fail to meet the requirements for consecutive years, the penalties will increase and might force the authorities to suspend, revoke or deny renewal of an entity’s license.)
(In the case of new entities, regulations must be complied with upon receiving its trade license.)
This legislation (collectively, referred to as the “Economic Substance Regulations“) were issued in response to the UAE’s inclusion in the European Union’s list of non-cooperative jurisdictions for tax purposes, and their aim is to facilitate tax transparency and fair tax competition in the UAE’ The Economic Substance Regulations apply to natural or juridical (legal) persons, including all UAE onshore and free zone companies, branches, foundations, non-profit organisations and partnerships (referred to as “Licensees“) that carry out one or more of the following “Relevant Activities” in the UAE -see below for the details. With the introduction of ESR, UAE has been removed from the blacklist of tax havens.
BEPS [Base Erosion Profit Shifting)] Base Erosion Profit Shifting directives are regulations issued by the Organization for Economic Cooperation and Development [OECD] to combat corporate policies for Tax Planning which would shift the profits of companies from low tax rate jurisdictions to high tax jurisdictions. Thus “eroding” the tax base in high tax jurisdictions.
The appropriate regulatory authority varies depending on the type of Relevant Activity and the location in which it is undertaken. Each regulatory authority will set out the form of the reports to be filed and the mechanisms for submitting such forms.
What is the economic substance test?
The economic substance test requires a Licensee to demonstrate that:
• the Licensee and the 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 an adequate number of employees and adequate physical assets and expenditure in the UAE.
Licensees carrying out a holding company business or a high risk IP business are subject to different economic substance test requirements.
See: https://www.mof.gov.ae/en/StrategicPartnerships/Pages/ESR.aspx for some useful documents including a flow chart.
The Regulations require UAE onshore and free zone companies and other UAE business forms that carry out any of the “Relevant Activities” listed below to maintain an adequate “economic presence” in the UAE relative to the activities they undertake.
Relevant Activities:
• Banking Business
• Insurance Business
• Investment Fund management Business
• Lease – Finance Business
• Headquarters Business
• Shipping Business
• Holding Company Business
• Intellectual property Business (“IP”)
• Distribution and Service Centre Business
The Regulations provide a definition to each of the above Activities. The provisions of the Regulations shall not apply to Companies in which the Federal Government of the UAE or the Government of any Emirate of the UAE, or any governmental authority or body or any of them has at least 51% direct or indirect ownership in their share capital.
Entities that are governed by the Regulations will need to submit a notification to their Regulatory Authority (defined under Cabinet Decision No (58) of 2019 issued on 4 September 2019) from 1 January 2020 onwards, and prepare and submit to the same Regulatory Authority an economic substance declaration within 12 months from the end of their financial year (e.g. 31 December 2020 for entities with a financial year ending 31 December 2019).
An entity is not required to meet the economic substance test and file an economic substance declaration for any financial period in which it has not earned income from a Relevant Activity. Failure by an entity to comply with the Regulations shall result in administrative penalties, spontaneous exchange of information with the Foreign Competent Authority (as defined in Article 1 of the Regulations), and potential suspension, revocation or non-renewal of its registration.
In the DIFC, the ESR will be administered by the Registrar of Companies (“Registrar”) for all DIFC entities, including entities that are regulated by the DFSA. Key points to note about ESR and how to prepare your business for it :
1. All DIFC entities are required to submit an economic substance notification by 30 June 2020 in the DIFC Client Portal
2. The UAE Ministry of Finance has issued a Relevant Activities Guide which should assist you in determining whether your business conducts a relevant activity and falls within the scope of the ESR.
3. Your business may also be required to file an economic substance return (“ES Return”), within 12 months of your financial year end, to demonstrate that your business meets the ESR requirements. Information relating to the ES Return will be issued in the second half of 2020.
There is a requirement for a business to use the “Substance over Form” approach when evaluating whether they undertake a relevant activity or not. This means that companies will not only be evaluated on what activities are stated on their commercial license but their activities will be evaluated and ESR applied accordingly.
It is not a requirement that a UAE entity is directly engaged in the performance of a relevant activity directly. When an entity is earning income passively from a relevant activity, it will be sufficient for the application of Economic Substance Regulations [ESR].All Entities which assess that they are involved in the performance of a Relevant Activity will carry out the Economic Substance Test for Economic Substance Regulations [ESR].
The Economic Substance is composed of two parts:
1. The Direct and Managed Test:
The Entity needs to be directed and managed in the UAE with regards to the relevant activity carried out in the Emirates.
2. The Core Income Generated Activities Test [CIGA]:
1. The Entity that performs the relevant activities for the purpose of application of Economic Substance Regulations [ESR], need to demonstrate that the CIGA’s are undertaken in the UAE.The activity which constitutes as a CIGA varies with the activity being performed.
The Entities which exist in the United Arab Emirates and carry out relevant activities within its jurisdiction need to follow certainly and comply with certain reporting requirements. The entities will be required to submit an annual notice to their Regulatory Authority indicating that they are carrying out a Relevant Activity in the preceding Financial Year and whether there has been any Income from the Relevant activity that has been subject to Taxation outside the United Arab Emirates.
UAE entities that qualify for an exemption from the Economic Substance Regulations, or those that did not earn any income from their Relevant Activities will still be required to file a notification with the Relevant Authority.
UAE Entities which qualify for submission of notification, and those that earned any income from the same, will also be required to file an Annual Economic Substance Return. The purpose of the Return is to make an assessment of the requirements of economic substance regulations are met, the income earned, qualifications of the staff involved, and information about the premises and other assets used in carrying out the relevant activity.
What are the Penalties for Non-Compliance of [ESR]?
In addition to an exchange of information by the UAE with countries which are a member of Organization for Economic Cooperation and Development [OECD] to remove the possibility of Base Erosion and Profit Shifting, failure to comply will cause the levy of administrative penalties not less than 10,000 AED and not more than 50,000 AED for failure to comply for the first year. In case of failure to comply with ESR, the minimum amount of penalty will be increased to 50,000 AED and the maximum amount to 300,000 AED. In addition to this, additional penalties, such as suspending, revocation of UAE Trade License may also be levied.
