Economic Substance Regulations Reporting in UAE
Jay Krishnan, Partner
Economic substance regulations is not a novel thing anymore. Entities in UAE are aware of the regulations and most of them have already filed the notification. Some of them are still in the process of filing notification, by paying penalty since the deadline is already over.
But ESR notification filing is not the end to the process; it is just the beginning. Companies carrying out the Relevant Activity must submit an annual report within a year of the end of the fiscal year of the business. The report should include detailed information about the relevant activity. ESR reporting must be done within the time prescribed by the Regulatory Authority and should follow the form and manner as specified by the Authority.
The UAE economic substance regulations apply to all UAE onshore and free zone companies, branches, representative offices, and other business forms established or licensed in the UAE that engages in one or more of the ‘Relevant Activities’ and generate revenue from these activities.
Relevant Activities under ESR in UAE
- 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 economic substance regulations reporting should contain information related to the tax residence, status of the entity, the turnover, number of employees, amount of expenditure, address, etc. The information should be supported with documentary evidence.
Requirements to meet Economic Substance Test in UAE
A Licensee meets the Economic Substance Test in relation to a Relevant Activity in the following cases:
- If the Licensee conducts State Core Income-Generating Activity in the State.
- If the Licensee is directed and managed in the State in relation to that activity, provided the Licensee’s board of directors meets in the State at an adequate frequency having regard to the amount of decision-making required at that level.
- Having regard to the level of Relevant Activity, if there is an adequate number of qualified full-time employees in relation to that activity who are physically present in the State (whether or not employed by the Licensee or by another entity and whether on temporary or long-term contracts), or adequate level of expenditure on outsourcing to third-party service providers, whose activities, employees, expenditure, and premises are in the State; and these activities, employees, expenditures, and premises are adequate for carrying out the Relevant Activity being outsourced.
- If there is adequate operating expenditure incurred by it in the State, or adequate level of expenditure on outsourcing to third-party service providers whose activities, employees, expenditure and premises are in the State; and these activities, employees, expenditures, and premises are adequate for carrying out the Relevant Activity being outsourced.
- If there are adequate physical assets in the State or adequate level of expenditure on outsourcing to third-party service providers in the State, for the activities of the Licensee;
- In the case of State Core, Income-Generating Activity carried out for the relevant Licensee by another entity, if it is able to monitor and control the carrying out of that activity by the other entity.
What are the consequences of ESR non-compliance?
Late or non-reporting, as well as failure to comply with economic substance requirements, could result in penalties, spontaneous exchange of information with foreign authorities, and potential suspension, revocation, or non-renewal of its registration.
What HLB HAMT offers?
- Consulting on Economic Substance Regulation (ESR)
- Identify the qualifying entities for Economic Substance Regulation compliance
- Identify the qualifying business segments for Economic Substance Regulation compliance
- Report and advise on overall Economic Substance Regulation readiness by the Entity
- Ongoing Economic Substance Regulation compliance
- Secretarial services in connection with Economic Substance Regulation record maintenance
- Economic Substance Regulation filing with the authorities in the proper /prescribed format
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KSA Announces extension of Visas and Residency Permits for Expats
HLB KSA Payroll Team
The government of Saudi Arabia has extended expatriate visas and residency permits for a period of three months, without any additional charges. The initiative announced earlier this month was taken to extend the validity of visa and residence permits of expatriates who are locked up abroad and are unable to return into the kingdom due to the suspension of flights.
The Saudi General Directorate of Passports will collaborate with the country’s National Information Centre, an affiliate of the Interior Ministry, for the automatic extension of expatriates’ residence permits, without applying.
“The Kingdom’s government has issued several directives, including the categories exempted from fees and fines covering expatriates with valid iqamats who left the kingdom on exit-return visas, but could not come back and their iqamats or visas have expired,” chief of the General Directorate of Passports Maj. Gen. Sulaiman Abdulaziz Al Yahya said.
Below are the measures announced by the Ministry of Interior for Saudi Arabia;
- The validity of final exit visas for expats has been extended without any cost.
- The validity of expired Residence Permit (Iqama) for expats who are on an exit and return visa and currently not in the country, will be extended for three months without any charge.
- The validity of unused and expired exit and return visas for expatriates will be extended for a period of three months free of charge.
- Residence permits (Iqama) for expats who are inside the country and had arrived on a visit visa that expired during the travel ban period, will be extended for three months free of charge.
Foreigners make up a major part of Saudi Arabia’s total population. International flights to and from KSA were suspended in March as part of measures to combat COVID-19.
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Dubai Announces its Third Stimulus Package
Jay Krishan, Partner
Dubai has announced a third stimulus package worth Dh1.5 billion to support the economy at the time of Covid-19. Sheikh Hamdan stated that the stimulus package aims to help small and medium enterprises (SMEs) to cope with the situation and maintain continuity by alleviating operational costs. Numerous incentives are put forward by the emirates in different industries:
- In the health sector, the government hastened its payments to private hospitals.
- In the tourism and entertainment sector, there will be a refund on the municipality fees charged for hotel establishments and restaurants till the end of 2020.
- The ‘Dirham Tourism Fee’ has been halved till the end of the year.
- In the international sector, some of the customs fines will be reduced by 80 percent along with the option of paying in installments.
- In the construction sector, financial dues to the contractors will be expedited, and a refund of all financial guarantees for construction activities related to commercial licenses will be made.
- In the education sector, private schools will be exempted from penalties and a fee renewal of commercial and educational licenses until the end of the year.
Certain other incentives such as cancellation of all fines charged for late government fees, a freeze on the 2.5 percent of the market fees are also introduced. The renewal of commercial licenses can be made without mandatory renewal of lease contracts and any payment of penalties will not be required to renew commercial licenses during this period.
The cancellation of the 25 percent down payment requirement for paying government fees in installments will also made, in addition, businesses are exempted from fees for sales and special offers. Many other inducements are also made to stabilize the economy and to free the businesses from economic instability.
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VAT for E-commerce in UAE
Jay Krishnan, Partner
The citizens and business owners in the UAE are still processing the thought of being a VAT payer; it is applicable to every entity which has a minimum turnover of AED 375,000 per annum. The question of whether to pay VAT arises among the non-resident companies registered under the e-commerce online platforms as well.
A company which is listed in the e-commerce online platform that sells goods in the UAE can be enlisted as VAT payer. In order to sell their products in the country a company (seller) should follow certain procedures:
- The seller should deliver its goods at the warehouses provided by the e-commerce companies.
- The e-commerce companies should hold the stock in its warehouses on behalf of nonresident seller.
- When a UAE based customer places an order, it is the e-commerce company that dispatches the goods (anywhere within the country).
- The e-commerce company will send the money to the seller after deducting their applicable commissions.
- It is the seller who decides the price of the goods that is being sold through the platform.
- The e-commerce company does not take responsibility of the goods or hold ownership and will not issue an invoice on behalf of the seller.
- The customers who purchase goods might not be registered for VAT in the UAE.
There are certain laws to be considered to register the sellers for VAT. Below Articles need to be studied and applied where a non-resident company/individual which sells their products through an agent and can be enlisted as a VAT payer in UAE.
- Article 9 of the Decree-Law provides the rules for VAT treatment of supplies made through agents. Specifically:
- The Supply of Goods and Services through an agent acting in the name of and on behalf of a principal is considered to be a supply by the principal and for his benefit.
- The Supply of Goods and Services through an agent acting in his name is considered to be a direct supply by the agent and for his benefit.
- Article 13 of the Decree-Law sets out the conditions that obligate persons to register for VAT.
- Article 13(2) of the Decree-Law determines that persons, who do not have a place of residence in the UAE, may be required to register for VAT if they makes any taxable supplies in the UAE, unless there is another person in the UAE who is responsible for accounting for VAT on such activities. As such, for non-resident suppliers, the registration threshold is, in effect, nil.
- Article 27(1) of the Decree-Law determines that the place of supply of goods will be the UAE if the supply is made in the UAE.
Accordingly, a non-resident company that sells their products through an e-commerce online platform in the UAE should register for VAT. The e-commerce company only acts as an agent in dispatching the products and does not have the ownership of the goods. As most of the customers who purchase through such online platforms are not registered for VAT:
- The seller should pay VAT and
- The seller should also charge the customers on the taxable supplies.
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Auditor’s Risk Assessment during COVID-19 in UAE
Sumesh Krishna, Partner
COVID-19 has ceased the flow of businesses and has caused a tremendous effect on the economy. The disruption in the business has forced people to adopt new methods and techniques to overcome this crisis. The present-day world has never experienced this kind of situation before, and it has led them to a dilemma on how to cope up with this current scenario.
The unprecedented turn of events has put much pressure on the financial department of every entity. The auditor’s risk is at its peak in such cases as proper identification and assessment are necessary. Specific new issues may occur with such drastic situations at rising, which may include:
- Liquidity, access to capital, debt covenant compliance
- Cyber security
- Changes in internal controls over financial reporting as everything is done in the virtual environment
- Asset and goodwill impairment
- Fair value estimates
- Third-party vendor considerations
- Business interruption
The Auditor’s Risk
- A breakdown in the internal control over financial reporting could occur due to the change in the work atmosphere of the personals.
- Fraudulent practices may be high at this juncture due to changing incentives or increased pressures on management. Disruption on the internal control over financial reporting due to the override of managerial controls may all cause new risks of material misstatement.
- Investigations on fraud are one of the essential duties of an auditor, as the current circumstances do not allow any in-person inquiries; on the other hand, the virtual world provides us with vast opportunities of video conferencing which enables the auditors to monitor the body languages as well.
- Revision is to be considered due to the changing environment of COVID-19. Any situation demands proper review; in the current circumstance, the consumer behavior and the retail re-opening may have rapid changes throughout the year. It requires the auditor be to at alert and have constant updates on the changing environment.
- The assessed risks may not be adequate at times which requires the auditors to modify planned audit procedures or design new procedures. An auditor should be ready to face the consequences and should have a proper plan to deal with the same.
- Here are some reminders to the auditors in modifying procedures or designing new procedures;
- To enhance the direction and supervision of less experienced team members and to modify and review the nature and extent of their work.
- To seek the assistance of senior or experienced members during complex issues.
- To increase the involvement of specialists or include others with specialized skills.
- To include engagements where other auditors are involved.
- To develop alternative approaches, especially by making use of the available technology.
- The auditors are to create and exercise a questioning mind throughout the audit and develop professional scepticism in gathering and evaluating evidence. It is also vital for the auditors to check the relevance and reliability of the audit evidence.
Auditors are required to communicate with the audit committee to ensure risks are adequately identified, assessed and responded to.
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