UAE New Economic Substance Rules

UAE Mandatory Economic Substance Rules for Companies – Essential Things You Should Know and Steps You should be Taking Right Now!

February 2020

The main takeaway here is that after the deal of the UAE with the EU and the OECD, leading to its permanent removal from all international black lists, the UAE going forward offers something unique to investors not offered by mainstream jurisdictions:

Internationally acceptable problem-free regime of companies with officially assessed and real economic substance in a framework of certainty where investors can plan ahead albeit with higher expense within reasonable levels in return for enjoying the many advantages the UAE has to offer.

The Recently Adopted UAE Economic Substance Regulations: Your Company’s Obligations and Reporting Requirements and How they Affect Your UAE Company and You as its UBO

The New Substance Rules are, honestly speaking, absolutely great news for the UAE (and also for other no or low tax jurisdictions that now have adopted the same OECD/EU Mandatory Substance Rules) and globally in general as they end the period of uncertainty we lived during the last few years by having clear and enforceable rules of the game for proper business, whilst restricting abuse of entities by rogue parties. And enabling full acceptance of UAE corporate structures by the EU and internationally.

They elevate the status and acceptance of UAE entities, dispel the uncertainty, minimize banking and regulatory problems and allow you to enjoy with certainty going forward the unparalleled advantages the UAE offers to the international business. 

All this on condition that you make sure you comply – with our assistance and guidance –  with these new rules that apply internationally since this autumn to all low or no tax countries (like the UAE) globally as they are mandatory by the OECD and EU and non-compliance lands  a country in ‘black-list territory” immediately.

So, pragmatically, going forward there is no other viable option open now to international businesses operating in low or no-tax jurisdictions like the UAE than either to comply by these rules in these countries or repatriate operations back home / the EU respecting local rules, laws and regulations there.

Operating in no or low tax countries without problems and sanctions/risks means complying with these rules in substance without artificial arrangements aimed at circumventing the rules (cheap providers – arrangements, low local expenditure to operate a high profit/asset business). It also means to be prepared – and obliged really as the regulations state that clearly – to expend a significantly higher but nonetheless reasonable budget for local operating expenses and arrangements in order to demonstrate qualify to the authorities your substance as appropriate and adequate for the nature and size of the business (quoting the regulations).

But you need our help here as these are complex rules and demand the use of internationally seasoned experts in this field, such as our firm. We stand by your side to help and make the transition as smooth as possible!

The Regulations

The New Economic Substance Regulations do and will affect in a significant way your UAE Company and yourself as a UBO whether it is a new or existing company or whether it is a RAK ICC company or a Free-Zone Company or a Local LLC Company with a Sponsor. And whether you dissolve or liquidate your existing company as the reporting for 2019 (retroactively) exists and has to be made even if the company ‘closed’ subsequently. Sanctions and penalties will apply in these cases also.

You need to ACT immediately in order to comply with these rules. Significant Monetary Penalties as Well as Sanctions such as Officially Informing Your Home Country Tax Authority may apply in case of non-compliance (no reporting outside the UAE if the entity is compliant, which we highly encourage).

As the economic substance regulations came into effect recently pursuant to the Cabinet of Ministers Resolution No. 31 of 2019 (“Regulations”), and the Ministry of Finance guidelines to the Regulations no. 215/2019, it is important for ALL (FZ, RAK ICC, Local LLC) businesses operating in the UAE to:

• Consider the impact of the Regulations on their operations; and
• Ensure compliance with the Regulations before they are required to prove such compliance to authorities.

Notification and Economic Substance Report

The Regulations require entities holding a trade license in the UAE onshore or in a free zone or an offshore zone (RAK ICC) to:

1. Notify the Regulatory Authority (to be determined by a Cabinet Ministers’ resolution) on an annual basis as to whether they are carrying on a “relevant activity”; whether any income is subject to tax outside the UAE; and the date of the financial year end; and
2. Submit an annual report to the Regulatory Authority (each year) if they are carrying on a “relevant activity” providing details related to the activity, income, expenses and assets and declaring whether the economic substance test is met. The report must be submitted within 12 months of the end of each financial year.

The report will need to be submitted:

1. For financial years commencing on or after 1 January 2019. Therefore, for entities with a financial year ending on 31 December 2019, the first report will be required to be submitted by 31 December 2020;
2. By each UAE entity individually, rather than under one submission, even if a business has a number of entities registered in the UAE.

Requirement for Economic Substance

1. The Regulations primarily apply to companies carrying out a ‘Relevant Activity’, i.e., banking, insurance, investment fund management, lease-finance, headquarters, shipping, holding company, intellectual property, and distribution and service centers. Such companies must satisfy the Economic Substance Test as specified in the Regulations.
2. All offshore, onshore and freezone companies (including those in the financial freezones, i.e., the DIFC and the ADGM) in the UAE (“UAE Companies”) are required to notify the Regulatory Authority, in quarter 1 2019 on an annual basis thereafter, as to whether their activities fall within the ambit of a Relevant Activity. Companies that carry on Relevant Activities have additional annual disclosure requirements that will be part of a very detailed annual report the aim of which is for the company to demonstrate and justify that it is compliant with the Regulations.

Key Obligations of a UAE Business to Demonstrate to the Authorities and Justify Appropriate and Adequate Economic Substance

The key obligations imposed on UAE companies under the Regulations are as follows:

Have Economic Substance: An entity holding a trade license in the UAE onshore or in a free zone (“Licensee”) must, in particular:

1. 1. conduct “core income-generating activities” for each relevant activity in the UAE, without using people, resources and assets outside the UAE;
   2. be managed and directed in the UAE in relation to its business activity, e.g., hold board meetings, with a quorum of directors physically present, in the UAE; and
   3. have an adequate and appropriate (in relation to their business) number of full time employees, expenses and physical assets for carrying out the business activity, in the UAE or appropriate substantial outsourcing arrangements to that effect.

Failure To Comply 

A number of significant sanctions will be imposed by the authorities against a business that fails to comply with the Regulations framework, e.g.:

• A fine of AED 50,000, for failure to meet the economic substance test or to provide information;
• A fine of up to AED 300,000, suspension, revocation or non-renewal of the license for a repeated failure to meet the economic substance test; and/ or
• More Onerously: Disclosure by the Ministry of Finance, to foreign authorities in the country where the entity is incorporated or in which the parent company, ultimate parent or ultimate beneficial owner are resident, of information of the UAE entity concerning its lack of economic substance in the UAE.

What Should You Do Now? 

Since we understand that UAE businesses soon (quarter 1 2020) will be required to advise the Relevant Authority of their economic substance in respect of their financial year commencing on or after 1 January 2019 and will need to file the report within 12 months of the end of the financial year, you should:

• assess if the Regulations apply to your UAE entities;
• verify if the entity complies with the Regulations and, if they do not comply;
• take steps to remedy the incompliance so that you are aligned with the Regulations by the time you submit the report with the Relevant Authority.

How Can We Help?

N.B. UAE having a mature infrastructure and being a bigger country is unique compared with other low or no tax countries (small or little infrastructure)  in that substance can be obtained very easily (availability of premises, facilities, providers) AND can be evidenced without complications by official means. In my view UAE provides the only real alternative compared with similar jurisdictions.

 (a) Assessment

• Review whether or not your UAE entities are subject to the Regulations;
• If they are subject, assess if your UAE operations across all emirates, onshore / offshore (RAK ICC) / free zones, are currently expected to meet the requirements for economic substance under the Regulations; and
• Recommend solutions to remedy potential incompliance, in order for you to comply with the Regulations.

(b) Implementation

• Assist in implementing the recommended solutions to comply with the Regulations.

(c) Ongoing Compliance

• Prepare the notification and the report for submission with the Regulatory Authority.

(d) Outsourcing of Your Substance Obligations – Functions to our UAE office as Permitted by The Regulations, given we fulfill all requirements to act as an approved Outsourcing Provider with Adequate Resources to continue doing so in the future (scalability capacity of our operations). In this way your Company will have real economic and commercial substance acceptable internationally going forward

• Selection, recruitment, payroll and managing of local staff, commercial support in operations of any form (orders, quotations etc.), procuring premises and space, managing local operations, corporate law filings (company secretarial), arranging, evidencing and coordinating BOD meetings in appropriate locations, annual returns/reports, VAT, books and records, commercial records, accounting, financial statements, arranging for statutory audits, maintenance of proper company statutory books (registers of shareholders, directors, secretary, mortgages and charges etc.), Residence VISAS & PRO services, Corporate Work (POA, Contracts etc.).

The Key here is not what service relating to substance is done. It is that the Regulations stipulate it has to be actually done in the UAE and not outside by, satisfied by the Regulator to be and evidenced to be, UAE well-established and technically Competent Firms with adequate resources. And it would amount to circumvention to adopt short-cuts or artificial arrangements with low cost and of course the cost to relate to the volume/size of operations and revenues/profits/assets and specific nature of operations and related expertise demanded for that.

NEXT STEPS

• Read this notification carefully as well as the report below (please scroll down) and consider your actions relating to your UAE Company (or other non-EU low or no tax entities you may own) going forward.
• Contact Us to Start the Process ASAP in order to give your company the required appropriate and adequate substance. As a first port of call please contact Elena Charalambous at our UAE office so she can coordinate actions.
• We suggest you deal with this matter with utmost urgency.  Also we ask you to be understanding and patient that given our high number of clients we need to coordinate the process seamlessly, effectively and in an organized and prioritized manner so it might take a little more time and not on a routine ‘immediate response basis’ but rest assured we will manage this professionally with the goal that all clients will comply with the new rules.

• You must be prepared (and fully understand) however that: There are absolutely no viable options (other routes) available internationally for clients going forward if one wants to operate in a low or no tax country except in compliance with these rules in the UAE or elsewhere OR else by operation in their home country/region(EU) with the associated regulatory, commercial and tax rules there.

• The message OECD/EU and the international community is loud and clear: Paper companies or companies (and their UBO’s) without proper economic and commercial substance as well as proper corporate law, tax, audit filings operating in full compliance will be sanctioned by authorities, banks and providers. Same goes for countries that do not enact Substance Regulations as per the international standards. They will be black-listed with the same result/consequence on local companies.
• The level of expenditure (to continue to enjoy the unique and unparalleled advantages of the UAE) will increase with these developments (regulations actually stress that); however given we scope the work carefully after being furnished with complete and accurate documents and information from your side we will quote quite reasonable fees given of course the higher expertise, experience and competence of our executives (which actually ‘add substance to your set up’ as per the regulations and minimize risks of non-compliance, compared with the mean UAE average out there (no comment)… We are an essential element in ensuring you continue to enjoy the UAE benefits ‘problem-free’.

Essential Things You Must Know about the New UAE Economic Substance

Essential Things You Must Know about the New UAE Economic Substance Rules and How they Affect Your Company and You as the UBO

1. Background and Overall Outline / Summary
2. Important Things You Must Know about the New UAE Economic Substance Regulations
3. MOF Guidance (No.2015/2019) on the Economic Substance Regulations (no. 31/2019) sheds more light on the details of the provisions of the regulations and the Authorities’ practice to be followed.

*** SCROLL DOWN TO VIEW/READ THE RELEVANT SECTIONS ***

Background and Overall Outline / Summary

They do affect in a significant way your UAE Company weather a new or existing company or whether it is a RAK ICC company or a Free-Zone Company or a Local LLC Company with a Sponsor. You need to ACT immediately in order to comply with these rules. Significant Monetary Penalties as Well as Sanctions such as Officially Informing Your Home Country Tax Authority may apply in case of non-compliance (no reporting outside the UAE if the entity is compliant, which we highly encourage).

• Note: The new regulations, however, do allow outsourcing of substance obligations and functions to approved service providers so our local UAE Group Company (KOTSOMITIS CORPORATE AND MANAGEMENT SERVICES FZ-LLC) can assist you to fully comply with these regulations so you can continue ‘problem-free’ to enjoy the unique advantages of the UAE. We and our set-up expertise and resources are very well known to the local Authorities over here in RAK with who we are on a “first-name basis”. We operate for 7 years with significant substance, premises, staff, local expenditure as well as unmatched expertise and experience in these matters over many years being a top European origin firm with the most senior persons in the Group being residents locally. As such we fully comply with the “outsourcing requirement” of the regulations demanding outsourcing ONLY to providers that the Authorities are satisfied with their set up expertise and locally available resources being able to provide effective, adequate and appropriate outsourcing services to clients in order to comply with the regulations.
• The UAE recently enacted (and are in force now) the Cabinet Decision No. 31/2019 and Guidance No. 215/2019 concerning the economic substance regulations (the “Regulations” or the “Economic Substance Regulations”) in response to the European Union (EU) adding the UAE to the blacklist of non-cooperative jurisdictions for tax purposes in March 2019 for the exact same reason: not having Economic Substance Rules in line with international standards (OECD & EU standards). As a result of the introduction of these rules in the UAE, the OECD and the EU removed the UAE from their black list.
• So going forward no problems will be experienced by Banks or Authorities worldwide in conducting business with a UAE company transferring funds etc. without reporting outside the UAE. This however is on condition that your company is and remains fully compliant in the UAE with these rules. Heavy penalties apply if a company is not compliant and in addition non-compliant companies will immediately be reported by the UAE Authorities to the Tax Authorities of the home country of the UBO and the parent company. The aim of this communication is to guide you on how to do just that and continue to enjoy problem-free the unique and advantageous benefits of the UAE compared to other jurisdictions.
• The Regulations primarily apply to companies carrying out a ‘Relevant Activity’, i.e., banking, insurance, investment find management, lease-finance, headquarters, shipping, holding company, intellectual property, and distribution and service centers. Such companies must satisfy the Economic Substance Test as specified in the Regulations.
• All onshore and freezone companies (including those in the financial freezones, i.e., the DIFC and the ADGM) in the UAE (“UAE Companies”) are required to notify the Regulatory Authority, in quarter 1 2019 on an annual basis thereafter, as to whether their activities fall within the ambit of a Relevant Activity. Companies which carry on Relevant Activities have additional annual disclosure requirements which will be part of a very detailed annual report the aim of which is for the company to demonstrate and justify that it is compliant with the Regulations.
• Penalties for non-compliance entails a fine ranging from AED 10,000 to AED 50,000. Subsequent breaches entail additional fines up to 300.000 AED.
• Sanctions for non-compliance (abusive structures): Most importantly non-compliance results in immediate full disclosure about the UBO and non-compliant entity to the home country of the UBO and the parent company if applicable.

Important Things You Must Know about the New UAE Economic Substance Regulations

Why did the UAE adopt the Economic Substance Regulations?

The EU Code of Conduct Group as well as the Organization for Economic Cooperation and Development (OECD) which recently issued a new global standard on Base Erosion and Profit Shifting (BEPS) have been assessing the tax policies of jurisdictions with no or only nominal tax against the criterion of ‘economic substance’.  As such, the objective of EU and the OECD is to prevent tax planning strategies used by entities that exploit loopholes in tax rules to avoid paying tax.

In line with the above, the EU has published a list of non-cooperative tax jurisdictions which includes countries or territories that failed make sufficient commitments in response to EU concerns on tax fraud, evasion and avoidance.

In response to the regulatory developments, and to preserve reputation, governments of Bermuda, British Virgin Islands (BVI), Cayman Islands, Isle of Man, Jersey, Guernsey, Mauritius, Bahamas, and Seychelles enacted legislation introducing enhanced economic substance requirements for tax purposes, bringing the rules into force as from 1 January 2019.

Given that the UAE did not enact economic substance regulations, it was included in the EU blacklist in March 2019.  With a view to be removed from the EU blacklist, the UAE enacted the Economic Substance Regulations, in line with other international low to no tax jurisdictions and actually all are drafted after approval by the OECD  and are following the OECD’s model legislation model/template almost word by word. So the same laws apply to all non-black listed no or low-tax non-EU countries.

So using black-listed countries (countries that do not adopt the OECD’s Substance Regulations) is not an option any more as it is now and going forward impossible to operate and maintain bank accounts effecting transfers or using them to transact with the rest of the world without sanctions and considerable risks. Also using no or low tax countries (UAE, BVI, Seychelles etc.) whilst not being compliant with the local Substance Rules is again not an option (heavy monitoring and obligations). Neither circumventing nor avoiding these Substance Rules is an option as they contain strict anti-avoidance clauses authority audits and detailed reporting to prove you are compliant. Put simply you cannot BUT be compliant to avoid sanctions.

The takeaway message is clear and covers all jurisdictions globally “without any available escape routes” and leaves no other viable options to international businesses than the following:

1. Either you operate – and you can if you are compliant – in a no or low-tax non EU country (such as the UAE) BUT in compliance with local substance rules to avoid sanctions (loss of licence+fines+reporting to home authorities of UBO and parent company) as well as operating the company in full compliance with proper corporate law filings and accounting and audit regulations; OR
2. You operate within low tax EU countries but with EU rules of disclosure and control – rules; OR
3. You operate in your home country (repatriate operations)
4. The Regulations primarily apply to all UAE Companies that conduct “Relevant Activities” (although reporting and notifications is required by ALL entities).

Who Do The Substance Regulations Apply To?

The following are considered ‘Relevant Activities’ (“Relevant Activities”) under the Regulations:

(i)     Banking

(ii)    Insurance

(iii)   Investment Fund management

(iv)    Lease-finance

(v)     Headquarters

(vi)    Shipping

(vii)   Holding company

(viii)  Intellectual property

(ix)    Distribution and service center

Companies owned directly or indirectly by the government authorities, both federal and state, are excluded from the application of the Regulations.

Note that companies which do not carry out Relevant Activities are still obligated to provide annual notifications to that effect to the Regulatory Authority (please see answer to question 8). 

What are the Key Compliance Requirements?

An entity carrying out Relevant Activities (the “Relevant Entity”) must (i) comply with the economic substance test (“Economic Substance Test”), and (ii) provide the requisite information to the Regulatory Authority under the Regulations to prove and demonstrate that it is compliant.

Key Obligations of a UAE Business

The key obligations imposed on UAE companies under the Regulations are as follows:

1. Have Economic Substance: An entity holding a trade license in the UAE onshore or in a free zone (“Licensee”) must, in particular:
   1. conduct “core income-generating activities” in the UAE;
   2. be managed and directed in the UAE in relation to the its business activity, e.g., hold board meetings, with a quorum of directors physically present, in the UAE; and
   3. have an adequate number of full time employees, expenses and physical assets for carrying out the business activity, in the UAE.
2. Submit Economic Substance Report: The Licensee has an annual obligation to prepare and submit to the Regulatory Authority (to be determined by a Cabinet of Ministers’ resolution) a report (“Report”) to evidence that the Licensee satisfies the economic substance requirements. The Report should include: (i) information on the Licensee’s relevant activities (such as the nature and amount of revenue, expenses, place of business, and number of employees with qualifications); and (ii) a declaration on the satisfaction of the economic substance requirements.

 What if a UAE Company Does Not Comply With the Regulations?

1. Foreign Authorities Disclosure: If the Economic Substance Report indicates non-compliance with the Regulations, the UAE Ministry of Finance shall disclose information of the Licensee to the foreign authorities in the country in which the parent company and/or the ultimate beneficial owner of the Licensee is resident.
2. Monetary Sanctions:

Failing to meet the Economic Substance Test

Should a Licensee fail to meet the Economic Substance Test for a financial year, an administrative penalty of between AED 10,000 and AED 50,000 can be imposed by the Regulatory Authority. Repeated failure to meet the Economic Substance Test may lead to a penalty of up to AED 300,000.

Failing to provide information or providing inaccurate information:
Licensees who fail to provide information or provide inaccurate information under the Report may be subject to an administrative penalty of up to AED 50,000.

How Does a Relevant Entity Satisfy the Economic Substance Test?

An entity satisfies the Economic Substance Test by demonstrating that:

• it conducts its core income-generating activities (“CIGA”) in the UAE. Note that each of the Relevant Activities has its own CIGA specified in the Regulations, and the relevant CIGAs are set out under the response to question 6; (so clients can no longer use home-country staff or resources or home country accountants and lawyers or in-house staff for any work relating to the Company. It should all be done in the UAE)
• the direction and management of the entity is conducted in the UAE with respect to its CIGA; (so we must have proper and regular BOD meetings in the UAE with evidence as to location, properly-minuted and with all relevant decisions recorded)
• the entity has an adequate number of qualified full-time employees, with respect to the CIGA, who are physically present in the UAE OR there is an adequate level of expenditure (not nominal fees but proper professional fee levels with evidence of work performed) on outsourcing to third-party service providers such as our Group, whose activities, employees, expenditure, and premises are in the UAE and are deemed by the Authorities to have ample substance themselves and expertise to undertake such a task (so no option for cheap providers without expertise and Authority approval is allowed). In addition evidence (a proper outsourcing agreement detailing all work to be outsourced, meetings, emails, timesheets) of frequent interaction with providers must exist to prove the client is monitoring and supervising the provider’s work closely (no automatic mode essentially making the arrangement artificial). Real outsourcing must be in place with provider doing real company work and hard and adequate evidence in place (also frequent authority visits to view evidence and interview staff ensure no avoidance occurs);
• the entity incurs sufficient operating expenses in the UAE OR incurs an adequate level of expenditure on outsourcing to third party service providers whose activities, employees, expenditure and premises are in the UAE as mentioned above;
• there are adequate physical assets or adequate level of expenditure on outsourcing to third-party service providers for the company to provide the CIGA within the UAE;
• in the case of CIGA in the UAE is carried out for the relevant entity by another entity, the relevant entity is able to monitor and control the carrying out of that activity by the other entity. As mentioned above also.

What are examples of CIGA’s for each relevant activity?

Which is the Regulatory Authority in the UAE?

The Regulations has not specified the Regulatory Authority yet. The Regulatory Authority is likely to be indicated by the UAE Cabinet in it a later resolution but most probably will be your current Free Zone Authorities under supervision from the MOF.

What Information Must Be Provided to the Authorities?

Under Article 8 of the Regulations, UAE Companies are required to provide the Regulatory Authority with the following information on an annual basis:

(i)  whether the company is engaged in a Relevant Activity;

(ii)  If the entity is carrying out a Relevant Activity, whether or not its gross income from the Related Activity is subject to tax outside the UAE;

(iii) the date of the end of its financial year.

The format and the deadline for such notification will be specified by the Regulatory Authority.

Additionally, UAE Companies that are engaged in the Relevant Activities have to provide the following additional information in an annual report which has to be filed no later than 12 months from the financial year end of the company:

(i)    the type of Relevant Activity the company is engaged in;

(ii)   the value and type of income related to that Relevant Activity;

(iii)  the value and type of operating expenses and assets of the Relevant Activity;

(iv)   the location of the place of business and, if applicable, plant, property or equipment used for the Relevant Activity;

(v)    the number of full-time employees, including their qualifications, and the number of those responsible for the exercise of the Relevant Activity;

(vi)   information showing the CIGA in respect of the Relevant Activity;

(vii)  declaration of whether the company has met the requirements of the Economic Substance Test.

Additional information must be provided for those entities carrying out a high-risk intellectual property business or outsourcing their Relevant Activity.

MOF Guidance on the UAE Economic Substance Regulations

MOF Guidance (No.2015/2019) on the Economic Substance Regulations (no. 31/2019) sheds more light on the details of the provisions of the regulations and the Authorities’ practice to be followed.

In brief:

On 12 September 2019, the UAE published a guidance document (the “Guidance”) regarding the Economic Substance Regulations (“Regulations”) that were issued in April 2019 (Cabinet of Ministers Resolution No.31 of 2019). This “first level” Guidance clarifies certain aspects of the application of the Regulations, with further guidance expected to be issued in due course.

Importantly, the Guidance does not establish a “minimum” standard for what would be considered “adequate” or “appropriate” substance, which is consistent with the guidance issued by other jurisdictions that have introduced economic substance regulations.

In detail:

Who is within the scope of the Regulations?

The Guidance clarifies that a “Licence” includes “a commercial licence, certificate of incorporation, or other form of permit required to be procured prior to the Licensee being able to carry out a “Relevant Activity”. This means that any natural person registered with an onshore or free zone authority to carry out activities (e.g. sole proprietorships) and any juridical person established under UAE law (e.g. LLC, rep office, branches) is a “Licensee” and therefore within the scope of the Regulations (although not necessarily subject to the Economic Substance Test).

The Guidance clarifies that Licensees that are directly or indirectly at least 51% owned by the Federal or an Emirate Government, or a UAE Government body or authority, are exempt from the Regulations.

Whilst the Regulations were issued on 30 April 2019, the Guidance clarifies that the Regulations apply to Licensees with a financial year commencing on or after 1 January 2019.

Clarification regarding Core Income Generating Activities (“CIGAs”)

The Guidance clarifies that the CIGAs listed in the Regulations for each Relevant Activity do not comprise an exhaustive or definitive list. The CIGAs are meant as examples of core activities a Licensee may undertake in relation to a Relevant Activity, and it is not necessary for a Licensee to perform all of the CIGAs listed in the Regulations.

A Licensee should therefore consider what activities are important in the context of its Relevant Activity(ies), rather than focusing on the CIGAs listed in the Regulations.

A Licensee needs to derive income in order for the Regulations to apply

The Guidance includes a requirement for a Licensee to derive income from undertaking a Relevant Activity in order for the Regulations to apply. This ‘income derivation’ exemption is also included in the Economic Substance Regulations issued by some of the other jurisdictions (e.g. Jersey, Guernsey), and eliminates the requirement to meet the Economic Substance Test in years in which no income is earned from a Relevant Activity.

Meaning of ‘Directed and Controlled in the UAE”

In order for a Licensee to demonstrate that it is “directed and controlled” in the UAE, in addition to meeting the requirements listed in the Regulations (e.g. quorum of board members physically attend board meetings in the UAE, etc.), at least one board meeting in a financial year must be held in the UAE, and written board meeting minutes documenting all relevant decisions taken must be signed by the attendees and kept in the UAE.

No minimum standard for ‘Adequate or Appropriate’ Substance

The Guidance acknowledges that businesses vary in size and that there is no ‘bright-line’ test for determining what is “adequate” or “appropriate” substance (employees, expenditures and premises/assets). What is adequate and appropriate will depend on the nature and level of activities carried out, and the level of income earned, by the Licensee.

The Guidance provides that the Regulatory Authority shall take a pragmatic approach when assessing whether a Licensee has met the Economic Substance Test, recognising that CIGAs may fluctuate during the course of a financial year and from year to year. The Regulatory Authority shall consider various forms of documentary evidence (e.g. timesheets, sector statistics) and take into account that directors of a Licensee may also perform some of the CIGAs.

The approach of not including a “minimum” standard for what is considered “adequate” or “appropriate” is consistent with other jurisdictions that have introduced economic substance regulations.

Outsourcing to third-party service providers and related companies

The Guidance confirms that a Licensee can outsource CIGAs to a related company, which acknowledges the reality that many groups have centralised their resources and business infrastructure in one (or a few) company (ies) in the UAE. The Guidance also introduces an anti-avoidance provision which places the burden of proof on the Licensee to demonstrate that the outsourcing arrangement is not done for the purpose of circumventing the Regulations.

Annual Notification and Reporting

In addition to an annual reporting requirement for Licensees that undertake (and earn income from) a Relevant Activity, the Guidance confirms there is an annual notification requirement for all Licensees. No deadline has yet been set for the first notification which would be due after 1 January 2020. The prescribed form for both the notification and the annual economic substance return will be determined by the Regulatory Authorities.

Who are the Regulatory Authorities?

The Guidance does not confirm who are the Regulatory Authorities that will be tasked with administering the Regulations, but these are expected to include all Federal, Emirate and Free Zone authorities that issue business licenses.

Sector specific guidance for Holding Companies, Headquarter Businesses and High Risk IP

The Guidance includes additional commentary with respect to the above Relevant Activities. In particular, for Holding Company Businesses, the Guidance clarifies that a holding company that owns investments other than equity interests (e.g. real estate, bonds) does not benefit from the reduced Economic Substance requirements.

The Takeaway

The Guidance clarifies certain aspects of the scope and application of the Regulations, with further guidance expected to be issued in due course by the UAE Ministry of Finance (as the Competent Authority) and/or the Regulatory Authorities (in their own capacity as the first-line enforcer of the Regulations).

Importantly, the Guidance clarifies that the Regulations apply to Licensees with financial years commencing on or after 1 January 2019, that CIGAs can be outsourced, and that the Regulatory Authorities shall take a pragmatic approach when applying the Regulations. The Guidance does not provide transition rules, does not set a minimum standard for what is adequate or appropriate substance, and does not confirm who are the Regulatory Authorities. These areas may be clarified in subsequent guidance to be issued by the Ministry of Finance and/or the Regulatory Authorities.

All UAE entities will need to assess whether and which of their activities fall within the scope of the economic substance regulations, and how to ensure they meet the economic substance requirements in respect of each Relevant Activity. This is both a qualitative and quantitative assessment that would involve consideration of operational, financial, tax / transfer pricing, legal and governance matters.

Legal References – Click below:

(Useful for your advisors or for your OWN reference)

*** READ THE LATEST FULL TEXT OF THE UAE MOF QUESTIONS AND ANSWERS ON THE TOPIC OF UAE COMPANY SUBSTANCE – EASY PRACTICAL USEFUL ***

*** READ THE FULL TEXT OF THE COMPANY SUBSTANCE LEGISLATION ***

*** READ THE FULL TEXT OF THE REGULATIONS PERTAINING TO THE UAE COMPANY SUBSTANCE LAW ***