Gearing up for VAT - Do you have the answers?

Gearing up for VAT - Do you have the answers? Gifts Contractual Obligations Imports VAT Regulations Cross Border Transactions Reverse Charge Reverse Charge Foreign VAT Reversal of Invoices Staff Claims Audits Sale of Company Assets

Gearing up for VAT Presentation to the Association of Corporate Council - Middle East Presented by John Peacock Senior Associate VAT Compliance, Corporate & Real Estate Services 9 April 2017

Topics of Discussion 1. Background 2. What we know GCC 3. What we know - UAE 4. Common Principles & Provisions 5. Existing Legislation 6. VAT Compliance Litigation 7. Tips 8. Questions and Answers

Background GCC VAT Framework Agreement signed by all GCC member states - still await official release What we know All GCC members must implement VAT between 1 January 2018 and 1 January 2019 Allows for a general framework within which member states can formulate their VAT legislation but also prescribes certain agreed terms, such as the standard VAT rate at 5%, prescribes mandatory exemptions and determines zero rated industry sectors Grants each GCC member state the right to formulate their own legislation and concessions applicable within that state

Background Legislative Framework in the GCC Civil Law systems - codified, classified and structured codes but often lack detail as these often only deal with general principles as influenced by Sharia Law National or Federal Laws applicable within each GCC state as a whole Emirate Laws (in the UAE) applicable only to the respective Emirate in which promulgated Free Zone Laws, Rules and Regulations applicable only within the particular free zone Hierarchy of Laws in the UAE - Federal Laws, Emirate Laws, Free Zone Rules and Regulations VAT legislation will be implemented at national / federal level

Background VAT is a self assessment system requiring little effort from the respective states and tax authorities Responsibility for compliance is the sole responsibility of the taxable person for each aspect from registration obligations to the submission of returns to the payment to the tax authority in accordance with the legislation provided What do states and tax authorities need to do to facilitate implementation? Provide the legislation Provide a registration platform Provide a platform on which to submit returns Provide a platform for payment The legislation is not yet available for any of the GCC states however VAT is not an unknown concept and the essential elements and legislative provisions are mostly constant throughout the world

Background VAT legislation for will consist of a composite of : Empowering legislation creation of a tax authority (see UAE Federal Decree No. 13 of 2016 Regarding the Establishment of the Federal Tax Authority) Procedural legislation creation of the rules and regulations regulating the procedural aspects relating to taxes, tax reporting and the collection thereof (a Tax Procedures Law expected in the UAE in under 2 weeks) VAT laws, Rules and Regulations promulgation of the laws containing the definitions, provisions, and supplemented by the rules and regulations ( expected in a few months ) Directives mainly used to set out matters not specifically dealt with in the VAT law and to supplement procedural matters Rulings to regulate and categorize particular circumstances or transactions not contemplated in the legislation and to obtain clarity in advance of transactions Supplemented by existing legislation (Commercial Companies Law, the Penal Code and the Commercial Transactions Law)

What we know - GCC The UAE will be ready to implement their VAT system on 1 January 2018 and other GCC countries should implement by the end of the 2nd quarter of 2018 Various Government Ministers have announced various fact at press conferences, the UAE Ministry of Finance has delivered briefings (and has a number more planned in the next months) and also various VAT forums have been held at which various accounting firms involved in the planning stages have intimated certain specifics It appears evident that the European VAT model will substantially be followed in the GCC and thus the provisions and regulations applied in the European Union countries will be used as the VAT blueprint in the GCC

What we know - GCC Different rules will apply in each of the GCC states different jurisdictions with different rules will be especially relevant for imports and exports also see GCC Common Customs Law Common reporting system will operate between GCC states imports and exports will be reported between GCC states New VAT legislation for the UAE is likely to have similar provisions as contained in the commercial companies law and the penal code will apply as it does not appear that special provisions will be passed to decriminalize VAT related offences

What we know - UAE There will not be any grandfathering provisions and liability for VAT will be either the time of supply of services or delivery of the goods - except for certain property lease agreements entered into before the implementation date in the normal course of business Determination of jurisdiction for VAT responsibility place of supply Determination of time of supply upon delivery of goods or completion of delivery of services (with invoice to be issued within 14 days) Penalties for evasion up to 500% and up to 72 hour business closure Definition of a Taxable Person includes offshore companies (implication to licensors and franchisors) No special provisions for free zones in the UAE fenced and unfenced free zones may have different/special rules but only regarding goods imported and exported therefrom

What we know - UAE Error corrections on VAT Returns will be allowed to be done online if done within 30 days of submission date (may still incur penalties) Objections/Appeal process firstly to Federal Tax Authority (within 20 days) then to review Committee of the Federal Tax Authority then to Courts The seat of jurisdiction for VAT disputes will be the local courts and thus all submissions and proceedings will be conducted in Arabic The taxable person (company) is the responsible collection agent for the Tax Authority VAT not collected does not excuse payment to Tax Authority

Common Principles & Provisions REGISTRATION Take law as presented analyze both thresholds and classifications of goods/supplies into standard rated goods and supplies, zero rated supplies/goods and exemptions Registration of VAT Groups will be allowed understood that wide discretion will be allowed to group different businesses even in different industry sectors however that this will only be allowed if: the entities keep separate accounting records are separately identifiable entities under same ownership (unsure of subsidiaries) domiciled in the same country Group registrations can be frustrated by multiple sponsors Group registrations will require and limit extent of consolidated group financials and frustrate inter group entries

Common Principles & Provisions INVOICES AND INVOICING - The invoice is everything correct invoicing is essential to claim legitimate input VAT credits, avoid penalties and audits Provisions will allow for simplified invoices ( till slips ) but generally invoices must contain the following: reflect the VAT Registration Numbers of both supplier and customer contain a stipulation of services/goods delivered contain the address of supplier contain the delivery address The quotation of relevant Article in cases of an exemption foreign currency invoices must reflect local currency equivalent Coding will allow for easy change in legislation provisions Apportionment of Input VAT on certain expenses Unclaimable Input VAT (caution on posting of entries and disallowance)

Common Principles & Provisions RETURNS - Will be due quarterly (i.e. first return due 1 April 2018) Will be filed online Information required to be included in VAT Returns will differ from jurisdiction to jurisdiction VAT Return (UAE) must contain declaration of revenue per Emirate VAT Returns usually require the amount of revenue income at the standard rate and the Output VAT amount the amount of zero rated revenue income the amount of exempt revenue income / deemed supplies the Input VAT amount a declaration of accuracy of information submitted Deemed supplies Output VAT is payable (e.g. gifts, enterprise assets taken for own use, proceeds of execution sales, insurance claims, rights to use goods, intra-group transaction (unless under same registration))

Common Principles & Provisions OTHER ITEMS TO CONSIDER - Implementation Law check definitions Appointment of responsible officer/representative taxpayer/public officer VAT Rulings approval of anticipated transactions Bad Debts and VAT Recovery Disallowance of output VAT - procedures Penalties and Late Payment Evasion and Avoidance - restructure Record retention (Insurance?) Retention of an audit trail for entries, amendments and corrections 5 year audit period by Tax Authority

Existing Legislation There are numerous provisions contained in existing legislation that will be used to supplement and facilitate the efficiency of the imminent VAT legislation, The most prominent is Federal Law No 2 of 2015 On Commercial Companies which inter alia provides for: Restriction against exemption from personal liability of office bearers (Article 24) Maintenance and retention of accounting records (Article 26) Preparation of Annual Financial Statements by auditor(s) (Article 27) Every shareholder in a limited liability company and any Director in a joint stock company shall be responsible for any fraudulent acts committed and shall be liable for any damages, losses and expenses incurred by the company, its co-shareholders, co-directors or third parties due to the contravention of any law or any gross errors committed by them (Articles 84 & 162)

Existing Legislation Some punitive provisions contained in the Commercial Companies Law applicable to managers, directors and auditors include: AED 10,000 AED 100,000 for failure to provide access to documentation to inspectors from the Ministry of Economy or the Securities & Commodities Authority (Article 347) AED 50,000 AED 500,000 for failure to keep accounting records (Article 348) AED 20,000 AED 100,000 for failure to keep accounting records for the period determined by the law (Article 367) AED 100,000 AED 500,000 and/or a sentence of 3 months to 2 years for concealing the true financial position of a company (Article 364) and Article 371 states The penalties as provided in this Law shall be without prejudice to any severer penalties imposed in any other Law.

Existing Legislation Federal Law No. 3 of 1987 The Penal Code states: Article (26) Crimes are of three types: felonies, misdemeanors and contraventions. The category of the crime shall be determined in accordance with the penalty thereto provided by law Articles (28), (29) & (30) sets out the classification more fully by stating the punishments Article (31) The practical element of a crime consists of a criminal activity resulting from commission or omission of an act where such commission or omission is classified as a criminal offense Article (32) A person shall not be answerable for a crime if it is not a result of his own criminal activity; however, he may be answerable for a crime even if his criminal activity and another proceeding, contemporary or subsequent cause have contributed to its occurrence, where such a cause is expected to happen or likely to happen in the ordinary course of things

Existing Legislation Article (38) The moral element consists of the intent or error. An error arises if a criminal result occurs by reason of the offender s error whether such an error is negligence, inadvertence, carelessness, recklessness, imprudence or non-compliance with laws, regulations, rules or orders Article (43) An offender shall be answerable for a crime whether he has committed it with or without intention, unless the law explicitly provides for intention Article (65) provides that juridical persons are responsible for any criminal act committed for their account or in their name by their representatives, director or agent. This Article also explicitly states that a financial penalty imposed on a corporate offender does not prohibit punishment of the individual offender Article (399) fraud is defined as taking or gaining from another, property or money or anything or value by deception, lying or trickery which is supported by verbal means or written documents

VAT Compliance Litigation Exempt Goods - Jaffa Cakes case is it cake or a biscuit? (England vs Ireland results) Zero Rated vs Deemed Supply Online supply of services from offshore was zero rated tax authority audited and found that the supply was zero rated by company Disallowed Input VAT/Credit Definition of a motor vehicle and does a 4x4 qualify for a deduction?

Tips What should the legal department be doing? Get up to speed with general VAT principles as soon as possible - if not already done Consider the business of the company with regard to registration compliance operations When the legislation is available carefully consider the definitions carefully consider the provisions prepare and adopt an action plan for compliance Keep up to date with continuing developments

Questions and Answers john.peacock@bsabh.com

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