16 August 2016, Cayman Finance announced that the number of active companies on the Cayman Islands company register had exceeded 100,000 for the first time. At the end of the second quarter, 101,430 companies were listed as active, 3% more than a year earlier and 2.6% more than at the end of 2015. The newly introduced limited liability company form attracted 21 registrations in its first month.
The number of registered companies reached 99,459 in 2014 but this figure declined because company terminations were 64% higher in 2015 in the wake of a new company licensing regime. New company registrations reached a high of 14,240 in 2007 but fell back during the financial crisis to 7,863 in 2009. Since then, new company registrations have recovered steadily to 11,864 in 2015.
As of 1 July, new partnership registrations significantly exceeded 588 partnership terminations and resulted in more than 19,000 active partnerships registered in Cayman. However, the number of trusts on the register dropped by 1% to 1,784 in the first two quarters of this year, continuing a trend of small declines since 2014.
3 August 2016, the Model 1 intergovernmental agreement (IGA) between Curaçao and the US implementing the US Foreign Account Tax Compliance Act (FATCA) was brought into force. The Curaçao Tax Department will therefore be required to exchange any information that would have been reportable by Curaçao financial institutions under the IGA on 30 September 2015 with the IRS by 30 September 2016, together with any information that is reportable under the IGA on 30 September 2016. There is also a provision for the exchange of information to be reciprocal.
30 August 2016, the European Commission concluded that Ireland had granted undue tax benefits of up to €13 billion to US tech giant Apple. This is illegal under EU state aid rules because it allowed Apple to pay substantially less tax than other businesses. Ireland must now recover the illegal aid.
Following an in-depth state aid investigation launched in June 2014, the Commission concluded that two tax rulings issued by Ireland to Apple in 1991 and 2007 “substantially and artificially lowered the tax paid by Apple in Ireland”. The rulings endorsed a way to establish the taxable profits for two Irish-incorporated companies – Apple Sales International (ASI) and Apple Operations Europe (AOE) – that were fully owned by the Apple group and ultimately controlled by the US parent, Apple Inc.
ASI was responsible for buying Apple products from equipment manufacturers around the world and selling these products in Europe, the Middle East, Africa and India. Customers were contractually buying products from ASI in Ireland rather than from the shops that physically sold the products to customers. In this way Apple recorded all sales, and the profits stemming from these sales, directly in Ireland.
The two tax rulings issued by Ireland concerned the internal allocation of these profits within ASI and AOE. Under a so-called “cost-sharing agreement” with Apple Inc., ASI and AOE made yearly payments to Apple in the US to fund research and development efforts conducted on behalf of the Irish companies in the US. These payments amounted to about US$2 billion in 2011 and significantly increased in 2014. These expenses, mainly borne by ASI, contributed to fund more than half of all research efforts by the Apple Group in the US to develop its intellectual property worldwide. The expenses were deducted from the profits recorded by ASI and AOE in Ireland each year, in line with applicable rules.
As a result, the vast majority of profits were internally allocated away from Ireland to a "head office" within ASI, where they remained untaxed. The "head office” was not based in any country and did not have any employees or own premises. Its activities consisted solely of occasional board meetings. In 2011, for example, ASI recorded profits of US$22 billion but under the terms of the tax ruling only around €50 million were considered taxable in Ireland, leaving €15.95 billion of profits untaxed. ASI paid less than €10 million of corporate tax in Ireland in 2011 – an effective tax rate of about 0.05% on its overall annual profits. In subsequent years, ASI's recorded profits continued to increase but the profits considered taxable in Ireland under the terms of the tax ruling did not. The effective tax rate decreased further to only 0.005% in 2014.
On the basis of the same two tax rulings, AOE benefitted from a similar tax arrangement over the same period of time. The company was responsible for manufacturing certain lines of computers for the Apple group. The majority of the profits of this company were also allocated internally to its "head office" and not taxed anywhere. The 2007 tax ruling was terminated when ASI and AOE changed their structures in 2015.
The Commission concluded that selective tax treatment of Apple in Ireland was illegal under EU state aid rules, because it gave Apple a significant advantage over other businesses that were subject to the same national taxation rules. More specifically, profits allocated between companies in a corporate group, and between different parts of the same company, should be in line with arrangements that take place under commercial conditions between independent businesses – the "arm's length principle".
The Commission's investigation showed that the tax rulings issued by Ireland endorsed an artificial internal allocation of profits within ASI and AOE, which had no factual or economic justification. Only the Irish branches of ASI and AOE had the capacity to generate any income from trading and therefore their sales profits should have been recorded and taxed there. As a result, the tax rulings enabled Apple to pay substantially less tax than other companies, which is illegal under EU state aid rules.
The Commission can only order recovery of illegal state aid for a ten-year period preceding the Commission's first request for information in this matter, which dates back to 2013. Ireland was therefore ordered to recover the unpaid taxes in Ireland from Apple for the years 2003 to 2014 of up to €13 billion, plus interest.
In fact, the tax treatment in Ireland enabled Apple to avoid taxation on almost all profits generated by sales of Apple products in the entire EU Single Market. This structure was outside the remit of EU state aid control but, said the Commission, if other countries were to require Apple to pay more tax on profits of the two companies over the same period under their national taxation rules, this would reduce the amount to be recovered by Ireland. The amount of unpaid taxes to be recovered by the Irish authorities would also be reduced if the US authorities were to require Apple to pay larger amounts of money to their US parent company for this period to finance research and development efforts.
The ruling prompted a furious response from Apple and the US government. The US Treasury said the decision threatened the business climate between the US and Europe. Apple chief executive Tim Cook said the ruling would strike a devastating blow to the sovereignty of EU member states over their own tax matters and to the principle of certainty of law in Europe.
The Commission has been investigating the tax ruling practices of Member States since June 2013. In October 2015, it concluded that Luxembourg and the Netherlands had granted selective tax advantages to Fiat and Starbucks, respectively. In January 2016, it concluded that selective tax advantages granted by Belgium to least 35 multinationals, mainly from the EU, under its "excess profit" tax scheme were illegal under EU state aid rules. The Commission also has two ongoing in-depth investigations into tax rulings in Luxembourg, in respect of Amazon and McDonald's.
23 August 2016, former banker Rudolf Elmer was handed a 14-month suspended jail sentence by a Zurich court after being found guilty of forgery and making threats in a long-running legal battle with Swiss bank Julius Baer. However, the court rejected charges that he had violated Swiss banking secrecy laws.
Elmer, a former chief operating officer with Julius Baer in the Cayman Islands, was sacked in 2002. In 2008, he allegedly handed internal bank data on tax evaders to WikiLeaks, international tax authorities and the media.
In 2011, a court in Zurich found Elmer guilty of violating Swiss banking secrecy, rejecting his claim that Swiss courts had no jurisdiction because the documents he leaked referred to accounts in Cayman. On appeal Elmer argued that he was not employed by Julius Baer in Switzerland but by an independent Julius Baer entity in the Cayman Islands. Swiss media reported in July that prosecutors had accidentally omitted Elmer’s Cayman employment contract from court documents.
The appeals court found Elmer guilty of threatening the bank by email and fax after he was fired. His prison sentence was suspended for three years. But it dismissed charges alleging breach of bank secrecy laws. It also refused to ban Elmer from taking up employment in the banking industry. He currently works as an asset manager. Elmer said he would appeal to the Federal Supreme Court in Lausanne.
10 August 2016, the Government of India ratified a Protocol to its tax treaty with Mauritius, which was signed on 10 May to “tackle the long-pending issues of treaty abuse and round-tripping of funds attributed to the India-Mauritius treaty, curb revenue loss, prevent double non-taxation, streamline the flow of investment and stimulate the flow of exchange of information between India and Mauritius."
The Protocol provides India with the right to tax capital gains arising from the alienation of shares acquired on or after 1 April 2017, in an Indian company with effect from the 2017/18 financial year. Investments made prior to 1 April 2017 have been grandfathered and will not be subject to capital gains tax in India.
The Protocol provides a two-year transition period to March 2019 during which the tax rate will be 50% of prevailing domestic tax rates. After March 2019, tax will be charged at full domestic tax rates. Capital gains on derivatives and fixed income securities will continue to be exempt.
The Protocol also updates the exchange of information article in the tax treaty, introducing a new Article 26A in the treaty to facilitate collection of taxes in line with current international exchange of information standards.
On 24 August, the Indian cabinet approved for signing an Agreement and Protocol between India and Cyprus for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income. The new agreement, which will replace the 1994 treaty, will enable Indian authorities to tax capital gains from sale of shares on investments made by Cyprus-based companies after 1 April 2017 in line with the recent changes notified in the India-Mauritius tax treaty.
It will also lead to the removal of Cyprus from an Indian government blacklist India as a non-cooperative jurisdiction for effective exchange of information. Cyprus was notified by the Indian Finance Ministry on 1 November 2013 following failed discussions to secure the desired level of cooperation. It is the only country to have been so blacklisted by India.
India is also currently renegotiating its 1994 tax treaty with Singapore. “They are under the same protocol as Mauritius. So, now that we have renegotiated Mauritius, Singapore is under discussion,” said Rani Singh Nair, chairperson of India’s Central Board of Direct Taxes. Mauritius and Singapore accounted for $17 billion of the total $29.4 billion India received in FDI during April-December 2015.
1 August 2016, the Knesset Finance Committee approved a series of regulations drawn up by the Finance Ministry to provide for full implementation of the US Foreign Account Tax Compliance Act (FATCA) under the intergovernmental agreement (IGA) that was signed between the two countries in 2014.
FATCA will require Israeli financial institutions (FIs) to report US citizens – including legal entities in which US citizens have substantial holdings – who hold accounts in Israel containing more than $50,000 to the Israel Tax Authority, which will in turn hand over tax information to the IRS by 30 September.
Under the IGA, US citizens holding accounts in Israel of less than $50,000 are exempt from the reporting requirements unless the IRS suspects the banks are withholding information. FIs must give clients 30 days’ notice that their information will be handed over to the US authorities.
22 August 2016, the Italian government gazetted a Ministerial Decree of 9 August 2016 amending the list of countries and territories "allowing an adequate exchange of information with the Italian Tax Authorities" to include 51 new countries. These include Anguilla, Aruba, Bermuda, British Virgin Islands, Cayman Islands, Curacao, Gibraltar, Guernsey, Hong Kong, the Isle of Man, Jersey, Liechtenstein and Switzerland.
Foreign residents and institutional investors located in White List countries can benefit from favourable special tax regimes on the proceeds from certain investments made in Italy, generally resulting in an exemption from Italian withholding taxes or substitute taxes levied at source on income from capital and on capital gains.
The Decree also introduces a provision enabling the Italian Ministry of Economy and Finance to strike off countries that are not compliant with exchange of information obligations, in case of repeat violations.
22 August 2016, a law to modernise the law on commercial companies and introduce a new alternative investment fund vehicle, the Reserved Alternative Investment Fund (RAIF), entered into force three days after its publication in the official gazette. They were approved by the Luxembourg parliament in July.
RAIF vehicles are similar to Luxembourg’s existing Specialised Investment Funds (SIFs), but do not require approval from the Luxembourg regulator, the CSSF, and instead are supervised by an alternative investment fund manager (AIFM), which must submit regular reports to the regulator. This will facilitate speed to market. The RAIF may also be structured as an umbrella fund or become a contractual fund (FCP).
The RAIF regime provides all the existing benefits associated with the specialised investment fund (SIF) or Société d’investissement à capital variable (SICAR) regimes in a pragmatic legal environment. It is available to Luxembourg AIFs that are adequately diversified and is limited to well-informed investors – institutional, professional and other investors that confirm their status as well-informed investors in writing and either invest a minimum €125,000 or have their expertise certified.
A RAIF can be organised in any form available under Luxembourg law. The law provides detailed regulations for RAIFs organised in the form of an FCP or in the form of an investment company with variable capital (SICAV). Whatever the legal form, the minimum capital requirement of €1,250,000 must be reached by the RAIF within 12 months of its creation.
Depending upon its investment policy, the RAIF will follow SIF or SICAR risk requirements and tax regimes. If the RAIF elects to adopt the SIF model, it will be subject to an annual subscription tax of 0.01% on its net assets (with certain exemptions available) and will be exempt from municipal business tax, corporate income tax and net wealth tax. If adopting the SICAR model, the RAIF will be fully subject to tax but income arising from qualifying investments in risk capital is exempt.
RAIFs must appoint a Luxembourg-based central administration agent, a Luxembourg depositary bank and an external auditor.
The Company Law amendments modify the public limited company (SA) and private limited liability company (Sàrl) regimes in some areas, and introduce a new form of company.
The regime involving shares without voting rights for SAs is modified to preserve the rights of shareholders seeking to hold only economic rights in a company. SAs will also be able to issue shares below par value or with unequal values.
The regime for a Sàrl is amended so as to increase the maximum number of shareholders from 40 to 100, confirm the ability to issue tracking shares and enable the board to increase the share capital, subject to certain limitations. A Sàrl will also be able to issue both redeemable and profit shares, with or without voting rights.
A new form of company – société par actions simplifiée (SAS) – will be introduced to provide greater contractual freedom than is permitted under the existing SA.
25 August 2016, the OECD announced that Burkina Faso, Malaysia, Saint Kitts and Nevis, Saint Vincent and the Grenadines and Samoa had signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters, bringing the number of participating jurisdictions to 103.
The Convention was developed jointly by the OECD and the Council of Europe in 1988 and amended in 2010 to respond to the call by the G20 to align it to the international standard on exchange of information and to open it to all countries.
It now serves as the primary instrument for implementing the Standard for Automatic Exchange of Financial Account Information in Tax Matters and can also be used to implement the transparency measures of the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project such as the automatic exchange of Country-by-Country reports under Action 13 as well as the sharing of rulings under Action 5 of the BEPS Project.
In addition, Andorra, Saint Kitts and Nevis and Senegal deposited their instruments of ratification of the Convention. Liechtenstein also deposited its instrument of ratification on 22 August. The Convention will enter into force in each of these jurisdictions on 1 December 2016.
Kuwait joined the 83 current signatories to the OECD Common Reporting Standard (CRS) Multilateral Competent Authority Agreement (CRS MCAA) on 19 August, re-confirming its commitment to implement automatic exchange of financial account information in time to commence exchanges in 2018.
22 August 2016, the OECD issued a discussion draft for consultation on the treatment of branch mismatch structures under Action 2 (Neutralising the Effects of Hybrid Mismatch Arrangements) of its BEPS Action Plan. Comments are requested by 19 September.
The draft sets out recommendations for domestic rules designed to neutralise mismatches in tax outcomes that arise in respect of payments under a hybrid mismatch arrangement. The recommendations in Chapters 3 to 8 of that report set out rules targeting payments made by or to a hybrid entity that give rise to one of three types of mismatches:
The report includes specific recommendations for improvements to domestic law intended to reduce the frequency of such mismatches, as well as targeted hybrid mismatch rules which adjust the tax consequences in either the payer or payee jurisdiction in order to neutralise the hybrid mismatch without disturbing any of the other tax, commercial or regulatory outcomes.
The draft identifies five basic types of branch mismatch arrangements and sets out preliminary recommendations for domestic rules, based on those in the Action 2 Report, which would neutralise the resulting mismatch in tax outcomes.
4 August 2016, prosecutors in Luxembourg launched a general appeal against all three verdicts in the so-called Luxleaks case. They are seeking tougher sentences for two former PwC employees found guilty and also to challenge the acquittal of French journalist Edouard Perrin, who first reported on the leaks and was accused of being an accomplice.
In June, Antoine Deltour and Raphael Halet received 12 and nine-month suspended sentences respectively for leaking documents that exposed highly advantageous tax arrangements between major international companies and the Luxembourg authorities. Perrin was acquitted.
Both Deltour and Halet have since appealed against their verdict, arguing that their actions should be viewed as a form of public service. The move by the public prosecutor to lodge a general appeal means all three, including Perrin, will now have to respond. The appeal is expected to be heard in late 2016 or early 2017.
19 August 2016, HMRC published further consultation documents on proposed changes to the taxation of non-UK domiciled individuals (non-doms) that will come into force from 6 April 2017. The deadline for responses is 20 October 2016.
Under proposals first announced at the 2015 Summer Budget, long-term non-doms will have to pay UK tax on their worldwide income, while those born in the UK and with a UK domicile of origin will no longer be able to claim non-dom status for tax purposes while they are living in the UK, even if they have subsequently left the UK and acquired a domicile of choice in another country.
Non-doms that have been tax resident in the UK in 15 out of the last 20 tax years will become deemed UK-domiciled for all tax purposes. Individuals will need to determine whether they have been UK resident by reference to the rules in place for the relevant years. Individuals will no longer be deemed domiciled for income and capital gains tax purposes if they cease UK residence for six complete tax years (or four complete years for inheritance tax (IHT) purposes).
Non-doms who become UK deemed domiciled on 6 April 2017 will be able to re-base foreign assets held directly such that they will only pay capital gains tax on any increase in the value of the asset from 6 April 2017 to the date of sale, subject to certain conditions. This will only be available to individuals who have previously paid the remittance basis charge in any year before April 2017. They will also be given one tax year – from 6 April 2017 to 5 April 2018 – to re-arrange offshore mixed bank accounts to separate out any clean capital in those accounts.
Non-UK trusts set up by non-doms prior to becoming UK deemed domiciled will enjoy limited protections. Settlors will be protected from a charge on capital gains as they arise provided that no additions of property have been made and the settlor, their spouse or minor children receive no any actual benefits from the trust. Settlors of settlor-interested trusts will be protected in respect of foreign income arising to a non-resident trust, provided the income is retained within the trust. Any distribution to the settlor, their spouse, minor children or another relevant person will be taxed on the settlor.
Non-doms who were born in the UK with a UK domicile of origin and who return to the UK will be subject to income and capital gains tax on an arising basis as soon as they return but will have a two-year grace period on resuming UK residence before their worldwide assets, including any offshore trusts, become subject to IHT. Returning non-doms will not benefit from asset rebasing or relief for mixed fund bank accounts.
All UK residential property held by a non-dom, whether directly or indirectly, including UK residential property held by offshore companies, offshore trust and company structures and non-UK partnerships will no longer be considered “excluded property” for IHT from 6 April 2017. An obligation to report and pay the IHT will be imposed on any person who has legal ownership of the property. There will be no transitional relief for de-enveloping existing residential property.
2 August 2016, the UK revenue authority (HMRC) issued a clarification that partnerships are included as reporting entities for the purposes of the new country-by-country reporting regulations applicable to large multinational enterprises (MNEs) under the OECD BEPS initiative.
HMRC said the government was committed to implementing the OECD recommendations on country-by-country reporting and referred to the OECD update, published 29 June, which states that partnerships are within scope as reporting entities. An MNE should use the accounting consolidation rules to determine if a partnership is a constituent entity subject to country-by-country reporting.
The guidance also specifies how to account for a partnership that is tax transparent and has no tax residency, and how to account for a reverse hybrid partnership that is considered to be tax resident in its jurisdiction of organisation by a partner’s jurisdiction but which is tax transparent in its jurisdiction of organisation.
The UK government will propose amendments to the regulations in the autumn to include partnerships. These will be applicable to periods beginning on or after 1 January 2016, in line with the OECD recommendations and previous UK government commitments.
29 July 2016, UK Inheritance Tax (IHT) receipts were a record £4.7 billion in 2015-16, an increase of 22% compared to 2014-15, according to statistics released by HMRC. This is almost double the 12% year on year growth observed from 2013-14 to 2014-15. Overall, deaths in 2015 were 6% higher than in the previous year.
IHT receipts have increased year-on-year since 2009-10, on average by 12% each year. HMRC said this was primarily due to rising asset values. Each year, residential property makes up approximately a third of the total value of taxpaying estates and the ongoing rise in property prices has contributed to a rise in overall tax take.
At the same time, as the average value of estates rises, an increasing number of estates will now be valued over the IHT threshold (or nil rate band), which has been frozen at £325,000 since April 2009. HMRC said an increasing number of estates could, therefore, potentially be liable for IHT.
Last year former Chancellor George Osborne announced the introduction of an additional Residential Nil Rate Band (RNRB), giving individuals the opportunity to pass on additional £175,000 of residential property to their direct descendants free of IHT by 2020. This, in effect, will raise the IHT threshold to £1 million for a married couple, provided that at least £350,000 of the estate comprises a primary residence.
17 August 2016, the UK Treasury published an HMRC consultation document containing proposals for a new penalty regime applying to accountants, tax planners and advisers who are involved in schemes found to be illegally avoiding tax. Enablers of tax avoidance would have to pay a fine of up to 100% of the tax the scheme’s user underpaid.
HMRC said that tax avoiders currently face significant financial costs when defeated in court but those who advised on, or facilitated, the avoidance bear little risk. It is therefore acting to make sure that tax avoidance is rooted out at source by targeting all those in the supply chain of tax avoidance arrangements.
The new measures include proposals to name and shame companies that have been identified as enabling avoidance to “alert and protect taxpayers”. Penalties would be charged not just to the designers of avoidance schemes, but also the independent financial advisers who market them and the lawyers and bankers who facilitate implementation.
The consultation document also seeks to make it easier to impose penalties when avoidance schemes are defeated by obliging suspected tax avoiders to demonstrate that they took reasonable care to avoid errors in their tax returns. Currently the burden of proof rests with HMRC. This, said the Treasury, “creates an incentive for tax avoiders to make it difficult for HMRC to gather evidence to show their true motives”.
2 August 2016, US President Barack Obama and Singapore Prime Minister Lee Hsien Loong pledged to negotiate and sign a tax information exchange agreement (TIEA) as well as to expand their intergovernmental agreement (IGA) under the Foreign Account Tax Compliance Act (FATCA) to provide for reciprocal automatic exchange of financial account tax information by the year-end.
Under the existing US/Singapore FATCA IGA, which has been in force since March 2015, the US is not required to share account information on Singaporean citizens using US banks with the Singapore government.
The leaders said the countries would also continue to discuss whether to negotiate a tax treaty to avoid double taxation and to prevent base erosion and profit shifting by multinationals.