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EY-TA-KZ-Significant Changes in the Legislation Regarding CFC Taxation-E

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EY-TA-KZ-Significant Changes in the Legislation Regarding CFC Taxation-E 20 December 2020 Tax Alert Kazakhstan Tax Legislation Update Guide to recent changes in tax legislation of the Republic of Kazakhstan In this issue, we would like to draw your attention to the new provisions of the Tax Code with respect to the Kazakhstani controlled foreign companies (“CFC”) rules. On 10 December 2020 the President of the Republic of Kazakhstan K.J.Tokayev signed the Law of the Republic of Kazakhstan № 382-VI "On amendments and additions to the Code of the Republic of Kazakhstan "On taxes and other obligatory payments to the budget" (“Tax code”) and the Law of the Republic of Kazakhstan "On enforcement of the Code of the Republic of Kazakhstan “On taxes and other mandatory payments to the budget”. In particular, the changes affected the provisions of Chapter 30 "CFC taxation rules" of the Tax Code, including those of a retrospective nature. Below is the short summary of key amendments with respect to the CFC taxation rules and their permanent establishments ("PE of CFC"), in particular: 1. There are several exclusions from CFC taxation rules for the following entities (i.e., entities listed below are not considered as CFC): 1.1 Starting from 1 January 2020 (i.e. retrospectively), foreign entities registered in 39 countries, including Russia, the Netherlands, Singapore, Luxembourg, and some Swiss cantons, where the corporate tax rate is more than 15%, are excluded from the definition of a CFC. The basis for inclusion of certain foreign country in the corresponding list of countries is the simultaneous fulfillment of the following conditions: such foreign country has an effective convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital (“Double Tax Treaty”) with Kazakhstan; the nominal income tax rate in such foreign country is more than 15%. The nominal income tax rate is defined as the fixed rate of foreign income tax (or other tax similar to corporate income tax) established by the tax legislation of a foreign country. If the tax legislation of the foreign country establishes a progressive tax scale, the upper level of the tax rate is taken as the nominal rate, without considering special tax regimes and other tax benefits (if any). If the tax legislation of the foreign country establishes a system of taxation of several levels, including national, federal, state, cantonal, local, regional, municipal, communal, provincial, prefectural and other territorial taxes, the sum of the corresponding tax rates at all levels is taken as the nominal rate. 1.2 Foreign entity is not considered as CFC/PE of CFC, provided that it is not registered in a black- listed jurisdiction, and the total income of such foreign entity, according to stand-alone (unconsolidated) financial statement, is less than 150,495 MCI (“Monthly calculation index”) (i.e. about 1 million US dollars); 1.3 Starting from 1 January 2018 (i.e. retrospectively), a foreign entity is not considered as CFC/PE of CFC, provided that at the end of the period in a stand-alone (unconsolidated) financial statement, such foreign entity is in loss-making position. 2. There are several exemptions from taxation of CFC profits (i.e., entities listed below are recognized as CFC, however they have the right to exempt their financial profits from taxation in Kazakhstan): 2.1 Starting from 1 January 2020 (i.e. retrospectively) CFC/PE of CFC has the right to fully exempt its financial profit from taxation in Kazakhstan, provided that such CFC/PE of CFC is not registered in a black-listed jurisdiction, and the share of passive income (dividends, royalties, interest, etc.) in the total amount of income of such CFC is less than 20%; 2.2 Starting from 1 January 2020 (i.e. retrospectively), the taxable financial profit of a CFC / PE of CFC can be adjusted for Kazakh-sourced income, including the following: 2.2.1 Dividends, interest, royalties and capital gains received by the CFC from sources in Kazakhstan previously taxed and / or exempt from withholding tax in accordance with domestic legislation; 2.2.2 Dividends received by a CFC from another CFC or a foreign entity, that were previously adjusted in accordance with the above paragraph; 2.2.3 Capital gains received by a CFC from sale of another CFC that is the shareholder of a Kazakhstani company eligible for withholding tax exemption under domestic law. 2.3 Starting from 1 January 2020 (i.e. retrospectively), if there are no approved stand-alone (unconsolidated) financial statements of the CFC/PE of CFC until March 31 of the second year following the reporting year, and the taxable financial profit of the CFC/PE of CFC is determined based on cash received to the bank account, the "paper income" of the CFC/PE of CFC is not taken into account. 3. There are several changes in the administration and documentation requirements for CFC/PE of CFC, as well as for the purposes of applying the above benefits, among other things: 3.1 transformation document certified by the resident's signature and seal and containing the following information: 3.1.1 a single organizational structure of the consolidated group of which the resident is a member, reflecting all names, jurisdictions of incorporation, registration identification numbers and respective shares; 3.1.2 financial profit and the aggregate amount of income of each CFC/PE of CFC; 3.1.3 financial loss of each CFC / PE of CFC (if available); 3.1.4 each type of income and expenses excluded from the financial profit of the CFC/PE of CFC; 3.1.5 other information depending on the applied incentives in terms of exemption/determination of the CFC's financial profit. 3.2 copies of documents confirming the indirect participation or control of the resident in the CFC / PE of CFC; 3.3 a copy of the document disclosing a single organizational structure of the consolidated group of which the resident is a member, including all names, incorporation jurisdictions, registration identification numbers and participation shares, signed by the chief executive officer of the resident; 3.4 a copy of the approved stand-alone (unconsolidated) financial statements of the CFC, as well as a document signed by the chief executive officer of the CFC, or an explanatory note to the audited financial statements, certified by the person who conducted the audit (if there is an audit); 3.5 a copy of the document confirming that CFC paid taxes in a foreign country; etc. Based on the above, in order to assess the extent to which the updated provisions of the CFC rules will be applicable to your foreign companies, as well as to prepare for the administration of your CFC/PE of CFC, we will be glad to invite you for a more detailed discussion and provide you with our appropriate consulting support. Contact information: EY | Building a better working world Doniyorbek Zulunov EY exists to build a better working world, Partner, Head of the Transaction Tax Services helping to create long-term value for clients, Department people and society and build trust in the capital markets. Tel.: +7 727 258 59 60 Enabled by data and technology, diverse EY teams in over 150 countries provide trust [email protected] through assurance and help clients grow, transform and operate. Working across assurance, consulting, law, Saltanat Dauletova strategy, tax and transactions, EY teams ask Associate partner, Head of the International Tax better questions to find new answers for the Services Department complex issues facing our world today. Tel.: +7 727 258 59 60 EY refers to the global organization, and may refer to one or more, of the member firms of [email protected] Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. Olga Pak Information about how EY collects and uses personal data and a description of the rights Manager of the International Tax Services individuals have under data protection Department legislation are available via ey.com/privacy. For more information about our organization, Tel.: +7 727 258 59 60 please visit ey.com. [email protected] EY works together with companies across the CIS and assists them in realizing their business goals. 5,500 professionals work at 19 CIS offices (in Moscow, Ekaterinburg, Kazan, Miras Sandykbayev Krasnodar, Novosibirsk, Rostov-on-Don, St. Senior of the International Tax Services Petersburg, Togliatti, Vladivostok, Almaty, Department Atyrau, Nur-Sultan, Baku, Bishkek, Kyiv, Minsk, Tashkent, Tbilisi, Yerevan). Tel.: +7 727 258 59 60 [email protected].
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