Following an announcement on 31 January 2022, the UAE Government released Federal Decree Law No. 47 of 2022 on Taxation of Corporations and Businesses (UAE CT Law) on 9 December 2022. This follows a first of its kind public consultation drive which began on 28 April 2022 seeking feedback from stakeholders on key features and principles of the planned UAE CT regime. The UAE CT Law has been supplemented by 158 Frequently Asked Questions (FAQs) which provide further guidance regarding the intent and principles of the legislation.
Though largely in line with principles contained in the public consultation document, provisions contained in UAE CT Law have addressed issues on key aspects which is indicative of the positive approach of the UAE Government for implementing a cohesive, straightforward and transparent legislative framework.
UAE CT is applicable on taxable income of resident and non-resident persons for financial years beginning on or after 1 June 2023. UAE CT will be applied at a rate of 0 percent on taxable income upto AED 375,000 and a general rate of 9 percent for taxable income above AED 375,000. Resident entities are taxable on worldwide income whereas non-residents would be taxable on UAE sourced income which could include income from a resident in the UAE, income derived from the UAE or income from activities performed or benefitted in the UAE.
The personal income of natural persons has been kept outside the scope of UAE CT, however, business income of individuals is within the ambit of UAE CT. The meaning of business and commercial activities in respect of natural persons would be notified in a separate Cabinet Decision.
UAE CT Law provides for exemptions for businesses engaged in extraction of natural resources, Government and Government controlled entities, charities and public benefit entities, investment funds, pension and social security funds, subject to conditions. Certain exempted categories are required to claim the exemption through an application process to be notified.
Free Zones are a key economic driver for the UAE and this fact has been appropriately addressed in the UAE CT regime through an incentive to Free Zone registered persons being taxed at the rate of 0 percent on Qualifying Income. Qualifying Income would be detailed in a specific Cabinet Decision which is expected imminently at the time of going to press. However the Free Zone Person incentive carries stringent conditions including maintaining substance in the Free Zone License, satisfying transfer pricing requirements and other compliances. These conditions may not be straightforward for many businesses to comply given existing holding structures, business models and operations.
Provisions for taxable income and its computation largely follow internationally accepted best practices including exemptions to dividends from domestic companies and participation interests, a cap on net interest deduction at 30 percent of EBITDA and a cap on business entertainment expenses at 50 percent. Reliefs for small businesses, intra-group transactions and restructuring has been provided. It is important to note that UAE CT Law explicitly states that expenditure is deductible only if it is incurred exclusively for business purposes and accordingly, expenditure which is personal in nature, or incurred for exempt or incentivized income may not be deductible.
The parent entity of a resident group of companies can make an application to form a tax group with its UAE subsidiaries, subject to meeting strict conditions. These conditions include a 95 percent ownership requirement and neither the parent nor a subsidiary can be an exempt or a Qualifying Free Zone person. The parent company of a tax group is responsible for administrative mandates under law and would submit a single tax return.
The UAE CT Law has been generous in respect of tax losses providing for indefinite carry forward for setoff against future taxable income capped at 75 percent of such taxable income provided certain conditions are met. Tax losses may also be transferred between resident companies with 75 percent common shareholding subject to the specified cap for set-off.
Persons subject to UAE CT are mandated to register with the Federal Tax Authority (FTA) and obtain a Tax Registration Number. Early bird registrations have been activated by the FTA on the Emara Tax portal. However, it is understood from authorities that a registration should be obtained prior to filing of tax returns.
All Taxable Persons subject to UAE CT, including Qualifying Free Zone Persons, will be required to file a tax return and pay any due tax within 9 months from the end of a tax year (which is the current financial year followed by such taxpayers).
As per Law, transactions with associated enterprises (related parties) and connected persons are required to comply with the arm’s-length principle which would be in line with OECD Transfer Pricing (TP) Guidelines. However, the definitions of related parties and connected persons are customized to suit the socio-economic climate of UAE and include kinship up to the fourth degree which may trigger TP requirements. UAE CT Law requires UAE businesses to maintain TP documentation which will be prescribed under a Ministerial Decision. TP documentation must be submitted to the FTA within 30 days of a request. Further, all taxpayers would be required to submit a TP disclosure form along with the UAE CT return detailing the controlled transactions of a tax year.
As per UAE CT Law, documentary evidence supporting tax positions taken by the taxpayer should be maintained for at least 7 years from the end the relevant tax year.
Additionally, UAE business may be requested to submit financial statements and other documentary evidence including transfer pricing to the FTA.
UAE CT Law includes a detailed general anti-abuse rule (GAAR) intended to disregard transactions or arrangements undertaken with the purpose of obtaining a tax advantage. GAAR applies from the date of publication of UAE CT Law in the Official Gazette.
As part of transitional provisions, the UAE CT Law also provides that the opening tax balance sheet would be the closing accounting balance sheet for the financial year immediately before the first tax year and should conform to the arm’s length principle.
The impact of a new business law or regime are far-reaching for an economy and considering that tax legislation is relatively new for UAE businesses, additional care should be taken while assessing implications under UAE CT Law. As further details would be forthcoming over the coming months through a series of Ministerial and Cabinet Decisions, businesses should closely monitor developments and prepare for change management well in advance to mitigate the probability of unfavorable outcomes. As part of the run up to the effective date of UAE CT on business activities, investors and entrepreneurs alike may consider assessing the impact of UAE CT on as is basis, structural changes (keeping in mind GAAR), modelling cash flow implications, consider exemption regimes, and developing processes and related procedures to manage compliance.
Natural persons undertaking a business activity should assess whether income earned could be regarded as business or commercial in nature and take steps to structure such activities to be tax efficient.
Every change is an opportunity to become more efficient in the way we do things and I believe this is true even in the case of implementing UAE CT in your business activities.
