Actual Information
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ACTUAL INFORMATION TAX REFORM 2020 IN UKRAINE – 7. July 2020 OVERVIEW OF CHANGES IN INTERNATIONAL TAXATION On May 23, 2020, the Law of Ukraine No. 466-IX of 16 January 2020 on enhancement of tax administration, removal of technical and logical inconsistencies in tax legislation became effective. This law introduced many changes to the provisions of the Tax Code of Ukraine (Tax Code) related to international taxation. The overview of the key changes is provided below. ACTUAL INFORMATION 7. JULY 2020 1. Changes in Taxation of Transactions with Nonresidents The principal purpose test was introduced as a condition for the application of reduced withholding tax rates and exemptions from tax under double tax treaties. Such benefits will now be available only if obtaining of the treaty benefits was not the principal or one of the principal purposes of the transaction with a nonresident and granting these benefits would be in accordance with the object and purpose of the provisions of the international treaty of Ukraine (Sec. 3 Par. 103.2 of the Tax Code). A “look-through” approach was implemented for the purposes of application of the double tax treaties, if the immediate recipient of Ukrainian-source income is not the beneficial owner of the income. For the application of the treaty with the country of which the beneficial owner is a resident, the recipient of the income and the beneficial owner must file applications and provide documents confirming the status of the beneficial owner (e.g. licenses, agreements, letters of competent authorities) (Sec. 4 Par. 103.2, Sec. 5 Par. 103.3 of the Tax Code). The “beneficial owner” definition was updated (Par. 103.3 of the Tax Code). A person qualifies as the beneficial owner, if such person has the right to receive such income and to actually receive the benefit of the income concerned. An agent, nominee or a person performing intermediary functions is not considered as the beneficial owner. A person is presumed to be acting as an intermediary, if: (i) a person does not have sufficient authorities or, as may be evidenced by the facts and circumstances, does not have a right to use and to dispose of such income, and/or (ii) a person passes the income or most part of the income received to other person, regardless of how such income transfer is executed, and such person does not perform significant functions, does not use significant assets and does not assume significant risks in such transfer transactions, and/or (iii) a person does not have appropriate resources (qualified personnel, own or leased fixed assets, adequate equity capital), necessary for the actual performance of functions, use of the assets and management of the risks connected with receipt of respective income type, which are only formally performed (used, assumed) by such person in connection with the transfer transaction. A limitation on deduction of expenses in transactions with nonresidents which lack business purpose was introduced (Subpar. 140.5.15, Par. 14.1.231 of Tax Code). Transaction is assumed to have no business purpose, if, among others: (i) the principal or one of the principal purposes and/or outcome of the transaction is non- payment (reduced payment) of tax and/or decrease of taxpayer’s taxable profit; (ii) in comparable conditions a person would not be willing to purchase (sell) works (services), intangible assets, other items different from goods, from unrelated persons. The burden of proof that a transaction lacks business purpose rests on tax authorities. A new tax adjustment was introduced which requires increasing financial result before tax by 30% of the value of goods (works, services) sold to nonresidents from low-tax jurisdictions (the list of such jurisdictions is approved by the CMU Resolution No. 1045 of 27 December 2017) and to nonresidents who are not paying corporate tax in their home countries (the list of legal forms of such nonresidents is approved by CMU Resolution No. 480 of 4 July 2017 and includes, among others, a German GmbH & Co. KG). The taxpayer may not increase the financial result before tax, if respective transaction is not a controlled transaction and the taxpayer can demonstrate that the amount of income received from sale of goods (works, services) complies with “arm’s- length” principle (Subpar. 140.5.51 of the Tax Code). This tax adjustment also does not apply to taxpayers whose annual income is below UAH 40 million, net of VAT, and who opted not to adjust the financial result for the tax adjustments. 2 ACTUAL INFORMATION 7. JULY 2020 From 1st January 2021, thin capitalization rules are changed. According to new rules, the limitation on tax deductibility of interest expenses will apply to interest paid on a loan from a nonresident lender, whether related or not. The amount of non-deductible interest will be determined with the reference to the taxable profit (taking into account all tax adjustments, except for loss carry-forward and interest expenses of current period), increased by the amount of financial expenses and depreciation allowances. The amount of interest which may not be deducted in the current period will be the interest amount exceeding by 30% the taxable profit of current period (Par. 140.2 of the Tax Code). The definition of “dividends” was amended. Starting from 1st January 2021, the following amounts shall be considered as dividends with respective taxation in Ukraine (Sabpar. 14.1.49 of the Tax Code): (i) payments to nonresidents for securities (corporate rights) in controlled transactions in excess of the “arm’s-length” price; (ii) the value of goods (works, services) purchased from a nonresident in controlled transaction which exceeds the “arm’s-length” price; (iii) the value of goods (works, services) sold to a nonresident in controlled transaction which is below the “arm’s-length” price; (iv) a cash or in-kind payment to a nonresident shareholder (participant) in connection with decrease of charter capital, buyback of corporate rights in own charter capital, exit of participant from the company or other similar transaction between the company and its participant resulting in decrease of retained earnings of a legal entity. The payments in mentioned in items (i) - (iii) above shall be considered as dividends, if such transactions are performed between a taxpayer and related nonresident persons, nonresidents from low-tax jurisdictions and nonresidents which do not pay corporate income tax in their countries of registration. An obligation of tax registration in Ukraine was introduced for a nonresident buyer of the shares (corporate rights, participation interests) in a foreign company purchased from a nonresident seller, except for shares listed on stock exchange approved by the Cabinet of Ministers of Ukraine, if at any time during the 365-days period preceding the sale (alienation) 50% or more of the value of the shares (corporate rights, participation interests) in the foreign company is derived from the shares (corporate rights) in a Ukrainian company, and at any time during the same period the shares (corporate rights) in a Ukrainian company derive 50% or more of their value from owned or leased immovable property situated in Ukraine. The non-resident buyer is liable for withholding and paying the tax on capital gain realized by the nonresident seller in Ukraine (Subpar. 141.4.2 of Tax Code). The definition of income from sources in Ukraine which is subject to tax in Ukraine was extended. The income from alienation of rights on extraction and development of deposits of mineral resources, mineral springs and other natural resources and the capital gain from the alienation of shares, participation interests, corporate or other similar rights in foreign companies were added to the list. The capital gain from the alienation of shares (participation interests, corporate or other similar rights) in foreign companies is considered as Ukrainian- source income, if at any time during the 365-days period preceding the sale (alienation) 50% or more of the value of the shares (participation interests, corporate or other similar rights) in the foreign company is derived from the shares (corporate rights) in a Ukrainian company, and at any time during the same period the shares (corporate rights) in a Ukrainian company derive 50% or more of their value from owned or leased immovable property situated in Ukraine (Subpar. 14.1.54, Subpar. 141.4.1 of Tax Code). The obligation to deduct and remit to state budget withholding tax from nonresident’s income was extended to resident individuals registered as private entrepreneurs, individuals carrying on 3 ACTUAL INFORMATION 7. JULY 2020 independent professional activities, as well as legal entities and individuals which are subject to simplified tax system (Subpar. 141.4.2, 141.4.4, 141.4.5, 141.4.6 of the Tax Code). The mutual agreement procedure implementation mechanism was added to the Tax Code (Article 1081 of the Tax Code). Both resident and non-resident taxpayers may initiate the mutual agreement procedure, if there are grounds for initiating the procedure and respective provisions are contained in the double tax treaty of Ukraine. The mutual agreement can be initiated no later than within 1095 days after the tax liability assessed during the tax audit, including the transfer pricing audit, became final. The request for the initiation of the mutual agreement procedure can be rejected, if there is an ongoing administrative or judicial proceeding related to the same matter (Article 1081 of the Tax Code). 2. Changes in Taxation of Permanent Establishments The rules for determination of profits of permanent establishment have been changed. Under the new rules, the profits of the permanent establishment shall be determined on a general basis (using the direct method) in accordance with the “arm’s-length” principle.