Category: Blog
UAE Introduces New stimulus package
Jay Krishnan, Partner
13 August, 2020
The United Arab Emirates has brought in a new measure to strengthen the economy by delivering a three-stage “flexible package”, which will include steps to support the labor market and to encourage investment as well.
The “studied” stimulus packages include 33 initiatives that are to be implemented by the end of the year 2020. The flexible packages are introduced in order to ensure the sustainability of the economy, to expand emerging sectors, and to create new ones, using the best available technology and as per the leadership visions.
The initiatives were introduced by the new Minister of Economy, Abdullah Bin Touq Al Marri. He will also lead the new committee that will monitor the implementation and progress of all the 33 initiatives. This was approved by the UAE cabinet in a meeting held at the presidential palace on 3rd August 2020.
The ministry has taken measures to protect jobs and to help businesses survive, including budget allocations to small and medium-sized enterprises, to reduce employer recruitment costs, to establish a virtual labor market, and to automate visa renewal of workers.
Business conditions for the non-oil private sectors in UAE has improved during the month of July as the lockdown restrictions were eased which was enabled to control the spread of the pandemic. Even though the businesses have shown signs of survival, job generation is still a hideous task in UAE, Saudi Arabia, and Egypt despite the improvements in the non-oil private sector, according to the HIS Markit.
The state news agency said that the first stage of the plan will focus on providing support for Small and Medium-sized Enterprises (SMEs), to promote tourism. The remaining two steps will be for sustainable long-term economic growth. The UAE Central Bank in June stated that the country’s non-oil economy is expected to contract 4.1% this year due to the pandemic.
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Economic Substance Regulations Reporting in UAE
Jay Krishnan, Partner
28 July, 2020
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
Sajin Rasheed, Director
16 July, 2020
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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VAT for E-commerce in UAE
Jay Krishnan, Partner
11 July, 2020
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
Sumesh Krishna, Partner
2 July, 2020
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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Economic Substance Regulations Notification in UAE
Jay Krishan, Partner
27 June, 2020
Key facts on UAE Economic Substance Regulations Relevant activities
Investment Fund Management Business:
The definition of an Investment Fund Management Business encompasses Licensees that provide discretionary investment management services in relation to domestic or foreign “Investment Funds”.
Discretionary Investment Fund Management services include making investment, divestment, and risk-related decisions on behalf of an Investment Fund. UAE businesses providing fund administration, custodian, investment advisory, and other Investment Fund related services are not considered engaged in an Investment Fund Management Business.
The Investment Fund itself is not considered an Investment Fund Management Business unless it is a self-managed fund (the Investment Manager and the Investment Fund are part of the same entity).
Where an Investment Fund is structured as a partnership and has both a corporate General Partner and an Investment Fund Manager, only the Investment Fund Manager would be subject to the Regulations if the General Partner does not undertake business activities separate from its role as General Partner of the Investment Fund.
Some key highlights:
- Should be self-managed fund
- Should conduct discretionary investment management services
- Investment fund management under fiduciary capacity, ie, pooled funds from third parties
Lease Finance Business:
The definition of a Lease-Finance Business encompasses Licensees that offer credit or financing for any kind of consideration and includes intra-group financing.
Offering credit or financing includes making loans to related or unrelated parties, entering into finance leases in relation to assets other than land, and providing credit in the form of hire purchase agreements, long term credit plans, and other types of financing arrangements.
Some key highlights:( Leasing Business )
- Only finance lease arrangements will be falling under this
- No operating lease
- The general definition of a finance lease needs to follow and interpret
- Should have the relevant clauses in the lease agreement to qualify as a finance lease
- Normal building lease for rental for a shorter period is not covered under this
- Should have been licensed by the relevant authority
- Lease of land is not included
Some key highlights:( Finance Business )
- Related party or non-related party doesn’t matter
- Lending with consideration
- The investment in bonds or similar securities or debt instruments that are traded on a the regulated exchange would also not be considered a Lease-Finance Business.
- Any lending in the normal course of activity with the intention of consideration, even if such lending is ancillary to main business, would qualify for the finance business unless these are not essential to maintain the main business.
- Should have been permitted by the Relevant Authorities
Licensees engaged in Banking, Insurance, and Investment Fund Management Business may also perform lease or financing activities as a normal part of their business operations. To prevent duplicate reporting, such Licensees are not also considered engaged in a Lease-Finance Business and will not need to separately demonstrate economic substance in respect of any ancillary Lease-Finance activities.
Headquarters Business:
A Licensee is regarded as carrying on a Headquarters Business if the Licensee provides services to foreign group companies, and through the provision of such services:
- The Licensee takes on the responsibility for the overall success of the group; or
- The Licensee is responsible for an important aspect of the overall group’s performance.
In order for a UAE business to be seen as having “taken on the responsibility for the overall or an important aspect of the overall group’s success or performance”, the services provided by the entity must involve:
- The provision of senior management;
- The assumption of control of material risk for activities carried out by foreign group companies; or
- Substantive advice in relation to the assumption of control of such risks.
A Licensee’s position in a group’s corporate structure is not relevant for determining whether it is engaged in a Headquarters Business. The Licensee does not need to be the direct or ultimate parent of a group company for it to be considered a Headquarters Business; whether an entity carries on a Headquarters Business is entirely dependent on the nature of the services it provides to foreign group companies.
Some key highlights:
- Headquarters services provided to foreign group Entities only
- The entity is responsible for the overall performance and or success of the group
- Group corporate structure is not relevant for this purpose and the actual service provided under the headquarter services needs to consider
Shipping Business:
To undertake a Shipping Business, a Licensee must operate one or more ships in international traffic, for the transport of either passenger, cargo, or both.
Further, the following activities will be considered a Shipping Business only where they are undertaken by a Licensee in connection with the business of operating a ship, or ships, in international traffic:
- The rental on a charter basis of ships
- The sale of tickets or similar documents
- The use, maintenance or rental of containers
- The management of the crew of ships.
The chartering of ships on a bareboat basis does not fall within the scope of a Shipping Business because the entity in which charters the ship does not operate the ship. This activity may, however, fall within the scope of a Lease-Finance Business (depending on the terms of the bareboat charter arrangement.
Key highlights:
- Ships and vessels used in international traffic for goods or passengers or both
- Should be engaged in chartering and operating ships
- Ships on the rental basis used for chartering will be considered as a shipping business
- Travel agencies and international ship agents/brokers will not be falling under these regulations
- Should operate themselves the ship or vessel
Holding Company Business:
Holding Company Business is defined under Article 1 of the Regulations as a business that:
- Is a Holding Company in accordance with the law applicable to the Licensee carrying out such activity
- has as its primary function the acquisition and holding of shares or equitable interests in other companies
- does not carry on any other commercial activity
Equity interests include shares in a company and interests in an incorporated partnership, as well as any other instrument which gives the Licensee a beneficial ownership interest in a company.
Key highlights:
- The primary function is to acquire the equity interest in other entities
- Doesn’t carry any other commercial activity
- The Entity should own beneficial equity ownership interest in a company
- The general definition “beneficial ownership” should follow for this purpose
- Percentage of shares or equities doesn’t matter
- Reduced compliance requirements
Intellectual property Business:
A UAE business is regarded as carrying on an Intellectual Property Business if it holds, exploits, or receives gross income from “Intellectual Property Assets”.
An Intellectual Property Asset is defined as any intellectual property right in intangible assets, such as copyrights, patents, trademarks, brands, and technical know-how, from which the Licensee earns separately identifiable income in the form of royalties, license fees, franchise fees, capital gains and any other income from the sale or exploitation of the Intellectual Property Asset.
Most UAE businesses will own some form of Intellectual Property Asset (e.g. their trademark, technical know-how relating to their processes, copyright in their works, etc.), but not earn separately identifiable income from such assets. Instead, the Intellectual Property Assets contribute to or protect the value of, the goods or services these UAE businesses provide. The ownership of such Intellectual Property Assets would not be considered as carrying on an Intellectual Property Business as the Intellectual Property Asset is merely auxiliary to the main business of the UAE business.
Key highlights:
- The entity should own any intellectual property right
- The entity should generate separately identifiable revenue from such intellectual property right
- Should be able to identify the revenue from Intellectual property
- Should follow normal substance regulations for the compliance purpose
High-Risk IP Licensee
Where a Licensee is carrying on an Intellectual Property Business, it will also have to consider if it is a High-Risk IP Licensee. A High-Risk IP Licensee is defined under Article 1 of the Economic Substance Regulations as a Licensee which carries on an Intellectual Property Business, and under condition (a) of the definition meets all of the following three requirements:
- The Licensee did not create the Intellectual Property Asset which it holds for the purpose of its business, and
- The Licensee acquired the IP Asset from either;
- A group company, or
- In consideration of funding research and development by another person situated in foreign jurisdiction, and
- The Licensee licenses or has sold the IP Asset to one or more group companies or otherwise earns separately identifiable gross income (e.g. royalties, license fees) from a foreign group company in respect of the use or exploitation of the IP asset.
Any High-Risk IP Licensee is, by default, deemed to have failed the economic substance test, resulting in the Competent Authority exchanging information on the High-Risk IP Licensee with the relevant Foreign Competent Authorities (where the Parent Company, Ultimate Parent Company and the Ultimate Beneficial Owner of the High-Risk IP Licensee are resident.
The Licensee is required to have an adequate number of full-time employees, with the necessary qualifications, who permanently reside and perform their activities in the UAE, and would need to provide the following information:
- A business plan showing the reasons for holding the ownership in the Intellectual Property Asset in the UAE;
- Employee information, including;
- level of experience;
- type of contracts;
- qualifications; and
- duration of employment of the Licensee;
- The above information would have to prove that in the UAE there is more than local staff passively holding intangible assets whose creation and exploitation is a function of decisions made and activities performed outside of the jurisdiction. As such, the business would need to evidence that decision making is taking place in the UAE (note: periodic decisions made by non-resident directors or board of members would not be sufficient
Key highlights:
- By default, high-risk IP business is considered as failed on economic substance test
- Automatic reporting of information to a foreign competent authority
- Should demonstrate a high level of a substance in UAE, as defined in the regulations
Distribution & Service Centre Business:
A Licensee is considered engaged in a “Distribution Business” if the Licensee purchases raw materials or finished products from a foreign group company, and distributes those raw materials or finished goods.
Key highlights:
- An entity buying from a company which is not under the Group will not be considered
- An entity buying from local group companies are also not to be considered
- Raw materials or finished products
- Importing raw materials from foreign group companies, manufacture or alter the raw materials and re-export to another entity will be falling under the distribution license category.
A Licensee is considered engaged in a “Service Centre Business” if it provides consulting, administrative or other services to a foreign group company, and those services are in connection with the foreign group company’s business outside the UAE
Key highlights:
- Any services (administrative or consulting etc) to foreign group company
- Those services are in connection with the foreign group company’s business outside the UAE
- Service provided to nonconnected or nongroup entities are not to be considered for this purpose
- Special care on “group company’s business outside UAE” is to be taken and according to the circumstances, needs to decide whether this falls in the regulations or not.
An entity that undertakes a transaction that falls within the scope of a “Distribution and Service Centre Business” would not be required to demonstrate economic substance in the UAE if it can evidence that the transaction was not in the ordinary course of its business (e.g. a one-off transaction) and the transaction is recharged to the relevant foreign group company at cost or less.
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UAE’s employee and employer supportive measures to combat COVID-19
David Kambo
27 June, 2020
The entire world is united and fighting a pandemic that has disrupted lives and locked us inside our homes. Governments all over the world are announcing relief packages to support their citizens and economies; and UAE is no exception. The country is on a mission to contain the crisis and safeguard the lives of citizens and residents and ensure business continuity. Numerous relief packages and initiatives that aim to soften the impact of COVID-19 have been announced by the government of late. Here we will discuss some of the initiatives taken by the government with regards to HR and payroll.
What are the initiatives launched by the Ministry of Human Resources and Emiratization (MOHRE) to support employees and employers?
In March 2020, the ministry of Human Resources and Emiratization issued a series of ministerial Resolutions in response to the outbreak of the Novel Corona Virus. We will look at the impact of the Resolutions in relation to the employers and employees based in UAE.
- Ministerial Resolution No. 279 of 2020 regarding the employment stability by private sector companies during the period of application of precautionary measures to help combat the spread of COVID-19.
- Implement the Telecommuting system (Work from home procedures)
- Granting Paid leave
- Granting leave without pay
- Temporary reduction of wages during the period referred to
- Permanent reduction of wages
- Amend the labor contract between the two parties by preparing a “temporary additional appendix” according to a form issued by the MOHRE provided it expires with the period of expiry of the contract or at the expiry of the Resolution, whichever comes earlier.
- Renew the appendix referred above subject to approval by both parties.
- Prepare the appendix referred above in two copies, with each party keeping a copy and the employer shall submit to the ministry whenever required to.
- Ministerial Resolution No. 280 of 2020 concerning the creation of a committee for considering the stabilization of citizen conditions in the private sector.
- Introduce support packages that ensure the presence of UAE nationals in the labor market
- Supervise and ensure the implementation of Ministerial Resolution No. 212 of 2017 regulating the work of citizens in the private sector
- Review the termination cases as provided from Tawteen
- Provide recommendations for termination cases and submit them to the minister
- Ministerial Resolution No. 281 of 2020 concerning the temporary guide regulating the remote work in private establishments during the period of application of precautionary measures to stop the spread of COVID-19
- Perform tasks as per the specified timelines
- Obtain employer approval to work remotely
- Return to work upon request
- Maintain confidentiality of information, documents, and papers
- Be contactable on phone or email
- pregnant women
- those aged 55 and above
- people of determination
- people suffering from respiratory or chronic diseases; and
- mothers of children in grade 9 and below
This Resolution was introduced to protect the positions of non-UAE citizens employed by private sector companies during the period of application of COVID-19 precautionary measures issued by the federal government. The Resolution confirmed the measures already regulated via the Federal law No. 8 of 1980 and introduced new measures to be adopted by employers who are affected by the precautionary measures taken by the government. Under this Resolution, employers can take the following procedures.
Paid Leave
The Resolution grants the employer the entitlement to ask employees to use their annual leaves in accordance with the provisions of the UAE labor law.
Unpaid leave
With employee written consent, the Resolution grants employers the right to place employees on unpaid leave. Unpaid leaves are not provisioned in the UAE labor law. The Resolution does not mention the maximum period the employer can issue the unpaid leave.
Temporary salary deductions
Companies that are willing to temporarily reduce the wages of non-citizen employees must adhere to the following measures:
Permanent salary reduction
The Resolution allows the employer and the employee to agree on permanent salary reduction. Employers who wish to permanently reduce employee salaries are obligated to apply on the “Employment contract data modification” service to obtain the approval of the ministry in accordance with the procedures in force.
Redundancies
The Resolution makes provisions for redundancy. The Resolution provides that the employer shall continue to provide housing allowance and other entitlements to the employees until they are able to exit the country or are employed by another company. Companies that are not able to retain their employees due to the crisis need to register their redundant workforce in the ‘Virtual Labor Market System’. This will enable other firms to employ the workers based on their requirements.
Companies willing to hire during this period shall present their job openings at the virtual labor market system, search for the available labor database, and choose the ones available to them. The authorization to hire such employees can then be obtained electronically for the necessary work permit, transfer to a new employer, temporary work permit, or part-time work permit.
Wages Protection System
MOHRE has also instructed private sector companies to pay their employees’ wages on time via the Wages Protection System. “We stress on the importance of the private sector’s commitment to pay their employee wages through the wage protection system, documented per the agreement with the worker, & early leave included in the temporary contract available on smart app & website,” said the ministry.
The Resolution No. 280 aims to protect UAE nationals working in the private sector through the creation of a committee assigned with the following mandate:
Resolution No. 281 offers guidelines and regulations concerning the remote work in the private sector affected by the precautionary measures taken by the government to help stop the spread on COVID-19.
Employers are required to provide the technical equipment and mechanisms necessary for the employee to perform their work remotely.
Are employees granted permission to work from home?
Under this Resolution, employees have certain obligations that they will be required to follow including:
The option to work from home will be granted to employees whose physical presence is not required at work. Priority will be given to:
These initiatives and packages will help in reducing the impact of the current global economic situation on businesses & people and make recovery post-COVID 19 easier. These are legislative steps taken by MOHRE as part of wider measures taken by the federal government to help support businesses in the private sector that are affected by the precautionary measures. With time, the precautionary measures will ease as the spread of COVID-19 is contained but we cannot predict when that will happen, neither can we predict if more ministerial Resolutions will be published.
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Economic Substance Notification in UAE; Addressing your key concerns
Jay Krishan, Partner
27 June, 2020
Economic Substance Regulations Reporting Period:
The Reportable Period is always the financial period preceding the financial period in which the Economic Substance Notification is due.
Reportable period is the financial year defined in the Memorandum and Articles of Association of the Entity. In case the entity doesn’t have Memorandum and Articles of Association as part of incorporation, for example, sole proprietorship, etc., then the financial year can be defined in the form of a Board Resolution.
Different Free Zones in UAE issued separate guidance on reporting period and the entities should follow such circulars or economic substance notifications from relevant Free Zone authorities. If there are no specific circulars on the reportable period, it’s suggested to follow the provisions issued by the ministry of economy.
For Mainland companies in UAE, a reportable period ending on or before the due date of notification as prescribed in the circulars should follow.
- A Licensee whose financial year corresponds to the calendar year would include the following:
Start date: 1 January 2019 End date: 31 December 2019 - A Licensee incorporated on 1 July 2019 with a 31 March 2020 financial year-end, would include the following:
Start date: 1 July 2019 End date: 31 March 2020
An entity incorporated in January 2020 with financial year ending with December 2020 – such entities are not required to comply with the economic substance notification deadline of 30 June 2020 and for free zone entities, it’s recommended to verify and follow the circulars or guidelines issued by the relevant free zone authorities.
What if an entity holds 2 licenses from same license issuing authorities?
Each Licensee must file an Economic Substance regulation Notification on a stand-alone basis, irrespective of whether the Licensee is part of a consolidated group for accounting purposes.
Economic Substance Regulation Notification should be conducted for each license separately.
If an Entity holds 2 separate licenses which carry different license numbers, but with the same/different name of the entity and with one set of incorporation statutes, then its highly recommended to notify separately with each license, unless the Relevant Authority comes up with a separate guideline on this.
Who needs to submit a Economic Substance Notification?
An Economic Substance regulation Notification must be filed if you are a UAE business that undertakes any of the following Relevant Activities during the relevant accounting period;
- Banking business
- Insurance business
- Investment fund management business
- Lease and finance business
- Headquarter Businesses
- Shipping Businesses
- Holding Company Businesses
- Intellectual Property Businesses
- Distribution and Service Centre Businesses
However, the entities that operate in the mainland of UAE engaged in the above activities holding a valid licenses from relevant authorities (example: central bank of UAE, etc) should notify to such authorities.
Most of the free zone authorities in UAE has given the mandate to the entities to notify on all relevant activities with the free zone authorities through the form issued by such authorities. However, certain free zones issued a separate guideline on who should be the relevant authority for notification purposes, and its recommended to follow such circulars or notifications.
Substance over form approach:
A ‘substance over form’ approach must be used to determine whether the Licensee carried on a Relevant Activity. This means looking beyond what is stated on the commercial license, trade license, or permit to the activities actually undertaken during the Reportable Period. Income from a Relevant Activity means all gross income earned from that activity as recorded in the books and records of the Licensee for the Reportable Period prepared under applicable accounting standards, including income that is generated outside of the UAE.
A licensee conducts additional business from Intellectual Property rights and the license issued by the authorities are for commercial activities – for the notification purpose of Economic Substance Regulations(ESR), the licensee should notify under both the activities.
Passive and non-recurring income will also qualify for notification for Economic Substance Regulations.
Fully or partly subject to tax in a jurisdiction other than UAE
Please indicate whether the gross income from the Relevant Activity(ies) was fully or partially subject to tax in a jurisdiction other than the UAE. For example, income from a Relevant Activity could be subject to tax outside the UAE if the Licensee has a taxable presence / permanent establishment in a foreign country that reports all or part of the income from the Relevant Activity in its tax return.
Such provisions should be read in conjunction with the relevant tax laws and provisions prevailing in such countries on residence and taxability on foreign incomes and its highly recommended to check in those countries before the economic substance notification filing in UAE.
Tax Resident in other countries?
A Licensee is regarded as tax resident in a jurisdiction other than the UAE if the entity is subject to corporate income tax on all its income from a Relevant Activity by virtue of its tax residence, domicile or any other criteria of a similar nature in that other jurisdiction. Where a Licensee notifies that it is tax resident outside the UAE, it will be required to provide the Regulatory Authority with appropriate evidence to support that foreign tax residence. This may include copies of tax returns filed in the foreign jurisdiction, a tax residence certificate from the foreign jurisdiction, or proof of payment of corporate income tax paid in the foreign jurisdiction.
Such provisions should be read in conjunction with the relevant tax laws and provisions prevailing in such countries on residence and taxability on foreign incomes and its highly recommended to check in those countries before the economic substance notification filing in UAE
Contact person:
The dedicated contact person can be anyone who has the authority to respond to queries raised by and provide further documents to the Regulatory Authority. Examples of a “Designated Contact Person” include:- The Licensee’s General Manager;- The Licensee’s Director; or- The Licensee’s Compliance Officer.
It’s recommended ensuring the authority or mandate on the contact person through any document (example: commercial license/board resolution/Memorandum and Articles of Association etc)
Companies under liquidation:
Licensees that no longer have a commercial license, trade license or permit before the Economic Substance Regulation Notification filing deadline for a relevant Reportable Period are not required to file a Notification for the Reporting Period ending on the date of liquidation.
The license termination with the relevant authorities is important for this purpose and its highly recommended to ensure that the authorities have issued the license termination letter before the notification due date, for availing the exemption on the notification. “Under liquidation” companies as on the due date of notification are recommended to complete the notification.
Incorrect notification:
Providing incorrect or false information in the Economic Substance Notification is subject to penalties ranging from AED 10,000 to AED 50,000. Knowingly providing incorrect or false information or incorrectly claiming an exemption from the Economic Substance Regulations can result in the Licensee being deemed to have failed the Economic Substance Test for the relevant accounting period.
Disclaimer:
Whilst every effort has been made to ensure the accuracy of this information, HLB HAMT will not accept any liability arising out of errors or omissions. Please note that this blog is not all-inclusive. Our guidance is designed only to give general information on the issues/topics covered. It is subjected to change and not intended to be a comprehensive summary of all laws which may be applicable to your situation.
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The outcome of the crisis on business and economy is still to be realized, but businesses must prepare for and respond to this “new normal” to emerge stronger.
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UAE Federal Law on Foreign Direct Investment
Lavin Nalinababu, Business Consultancy
The UAE government had come up with a landmark initiative last year, allowing complete ownership to foreign investors. Along with 100 percent ownership, the law also grants many incentives & competitive advantages. It is not applicable to financial and non-financial free zones.
Benefits and Guarantees
- The property won’t be confiscated unless it is for public benefit and with a fair compensation.
- Project funds won’t be seized without a court hearing.
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Additional privileges
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Steps involved in licensing an FDI Project (from positive list)
- Choose the business activity of the firm
- Once you receive the initial approval, a foreign direct investment license application should be submitted.
- Reserve the trade name. An indication of the legal form of the company and the expression ‘Foreign Direct Investment (FDI)’ must follow the name of the company.
- Obtain approvals from authorities concerned
- Submit proof of submission to join Tawteen Partners Club
- Pay the fee and get approval and FDI license
- Start a bank account on behalf of the company and deposit minimum 20 percent of the capital.
The FDI capital should not be less than the specified minimum capital value.
Procedures for approving a project license application that is not specified under the positive list
- The investor need to submit the application for approval of the project license to the competent authority of foreign direct investment. The authority will submit the request to the FDI committee for consideration, which might approve or reject the application. The licensing authority and the local government in the concerned emirate will be involved in the process.
- Once the request is submitted to the FDI committee, the committee will submit a recommendation to the UAE cabinet. If the cabinet approves the request, the same will be notified to the investor via the competent authority. The investor needs to provide certain data, information and documents once the request is approved.
- The competent authority will issue approval of the license with in five working days from the date of meeting the required documents and procedures.
- If the competent authority rejects the license request, the decision will be final and not subject to appeal.
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