The issuance of Federal Decree-Law No. 47 of 2022 on the Taxation of Corporations and Businesses ("Corporate Tax law") on 9th December 2022, provides businesses operating in the UAE with a framework for understanding how the corporate tax regime will impact their business model.
The Corporate Tax law is broadly in line with the public consultation document that was issued in April 2022, however, one of the notable changes is the release of the conditions to be satisfied by UAE Free Zone entities to be eligible for the 0% rate (rather than being taxed at the headline 9% rate).
It is expected that the Corporate Tax law will be supplemented by further cabinet decisions and implementing decisions that would aim to provide further detail on the application of various provisions as well as expand upon definitions that are contained within the Corporate Tax law.
UAE Free Zones
Article 18 of the Corporate Tax Law states that a Free Zone company should be viewed as a Qualifying Free Zone Person (that is eligible for the 0% tax rate) if it has adequate substance in the UAE, derives Qualifying Income and complies with the UAE transfer pricing requirements.
Qualifying Income is generically defined as any income received by the Free Zone entity. Therefore, it remains to be seen the definition that would be provided in the supplementary cabinet decision and if this provides any restrictions on the income that is eligible for the 0% tax rate.
In addition to this, it would appear that a mainland entity should be allowed to take a deduction for payments made to a UAE Free Zone entity (which in some instances was not permitted).
Whilst businesses should be actively considering how best to structure their business operations in light of the Corporate Tax law, there is the inclusion of a general anti-avoidance rule (Article 50) that aims to capture transactions that are entered into which do not reflect economic reality and the main purpose is to gain a tax advantage.
This rule applies with effect from the issuance of the Corporate Tax law and is, therefore, already effective. Where businesses are already performing restructuring projects, they should take notice of these provisions.
The Corporate Tax law will also introduce the need for taxpayers to adhere to the arm’s length principle for all transactions and arrangements with related parties, meaning that appropriate transfer prices must be charged between related parties for all arrangements. The transfer pricing methods that are specified in the law are generally consistent with the OECD Transfer Pricing Guidelines.
Taxpayers will also need to document and report how the arm’s length principle is applied to related-party transactions. The reporting will be done in two ways: through a disclosure form that should be filed together with the tax return, and for certain taxpayers, through transfer pricing documentation in the form of a master file and a local file, which should be submitted upon request. The (financial) threshold for preparing documentation in the form of the master file and local file is not specified, and neither are the requirements for the contents of the transfer pricing documentation. It is likely that this will be consistent with the OECD Transfer Pricing Guidelines.
Other features of the Corporate Tax law
Some other key features that are confirmed in the Corporate Tax law include the ability to create a tax group, group relief provisions, the ability to carry tax losses forward, no gain, no loss transfers and business restructuring relief.
As expected, the Corporate Tax law does not address the potential adoption/implementation of the global minimum tax Model Rules. Therefore all businesses should be preparing for the impact of UAE Corporate Tax until such a time it is announced that the global minimum tax rules are adopted.
Immediate considerations for businesses
Where businesses have already performed an initial impact assessment based on the public consultation, a top-up review of this assessment should be performed to assess the impact of the Corporate Tax law.
If an impact assessment has not been performed (due to the potential application of global minimum tax or awaiting the legislation), now is the key time for businesses to take action and perform an impact assessment.