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26/06/2020

Brief Snapshot on Economic Substance Regulations (ESR) in United Arab Emirates.

Background:

The UAE introduced Economic Substance Regulations to honour the UAE’s commitment as a member of the OECD Inclusive Framework on BEPS (Base Erosion and Profit Shifting), and in response to a review of the UAE tax framework by the EU which resulted in the UAE being included on the EU list of non-cooperative jurisdictions for tax purposes (EU Blacklist). The issuance of the Economic Substance Regulations on 30 April 2019 (the Regulations), and the subsequent release of the Guidance on the application of the Regulations on 11 September 2019, was a requirement for the removal of the UAE from the EU Blacklist on 10 October 2019. The purpose of the Regulations is to ensure that UAE entities that undertake certain activities are not used to artificially attract profits that are not commensurate with the economic activity undertaken in the UAE.

Applicability:

It is applicable to all Licenses (Natural or Juridical Person) located in Mainland, Freezone (Including offshore companies) or Financial Freezone carrying out relevant activities.

Relevant Activities:

ESR is applicable to entities engaged in the below mentioned activities whose financial years starting from 1st January 2019:
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 Center Business

Purpose of ESR:

Identification of Paper Companies / Shell Companies
Identification of Profit Shifting to Low / No Tax Jurisdiction

Exemption from ESR in UAE:

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.

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Its a positive change
10/06/2019

Its a positive change

IMF saying the rate 5 % is low by global standards.
17/05/2019

IMF saying the rate 5 % is low by global standards.

21/01/2019
06/12/2018

UAE and India on Tuesday sign a currency swap agreement.

12/11/2018

*Overseas entity having Server in India is considered to be a fixed place PE and accordingly have to pay taxes in India*

Global payments companies such as Visa, Mastercard and American Express may have to pay around 15% tax on their India income as they set up servers locally to comply with a central bank directive on data storage.

The Reserve Bank had ordered payments companies to locally store data on all transactions taking place within India from October 15. Visa, Mastercard and American Express said they had taken steps to comply with the regulation.

These companies are currently out of the tax net in India, as they do not have a ‘permanent establishment’ in the country — they operate here through offices in jurisdictions such as Singapore and store data on servers located in countries like the US and Ireland. Permanent establishment, or place of business, is a concept in taxation that determines where an organisation is required to pay tax.

After they move servers to India, the companies will be treated as having a permanent establishment here, triggering domestic taxes, said experts.
“As per tax treaties India has with various countries, the server on which a website or data or software is stored and through with it is accessible is a piece of equipment having a physical location. Such location can be considered as a fixed place of business of the enterprise that owns or leases and operates the server,

While the corporate profit of Indian companies is taxed at 30%, these payment companies may be taxed at about 15%, the rate levied on companies that have invested in India through their arms in countries like Singapore with which India has tax treaties.

10/11/2018

*The India–Japan, Currency Swap Agreement*

Last week, India and Japan entered into a currency swap agreement to the tune of US$ 75 billion, which might help in controlling the steep fall in the Indian rupee’s value.

*How does it work?*
The agreement is signed between the central bank of two countries, where the terms and costs of the swap are decided. Under a currency swap, one country will be able to exchange its currency with an equivalent value of the other country’s currency, at a pre-determined exchange rate and for a predetermined period. In the present case, Reserve Bank of India (RBI) will have access to US dollars of up to 75 billion (or Japanese Yen of an
equivalent amount) from the Bank of Japan. In return, Bank of Japan will also get an equivalent amount of Indian rupees or US dollar from the Reserve Bank of India (RBI). The arrangement will be used only when required, and will help the government in meeting short term liquidity requirements. Since the exchange rate on the swap is
fixed, foreign currency risk is also mitigated.

*What are its benefits?*
1) Will help in managing the fall of the rupee:
So far, the government and the central bank have taken several measures to contain the rapid fall of the rupee. In addition to intervention in the forex markets, they have discouraged some non-priority imports by
increasing customs duties on them, reviewed certain restrictions on Foreign Portfolio Investors (FPI) investments in debt, relaxing rules for raising money through masala bonds (rupee denominated paper sold
overseas) and external commercial borrowings, and easing overseas borrowing restrictions for the manufacturing sector. However, the currency market was unmoved due to these changes. The bilateral
currency swap, therefore, ensures that there are enough foreign currency reserves available with the government to meet future unprecedented volatilities.

2) Will help in improving market sentiment towards the rupee:
The continued fall of the rupee, despite the measures of the government and central bank, increased the
speculative pressure on the rupee. The bilateral currency swap agreement increases the buffer of foreign
capital available with RBI, which in turn will help assuage the concerns of foreign investors. Foreign Institutional Investors (FIIs) have pulled out a net Rs. 1,13,262 crores from the Indian market so far in the financial year.

*Conclusion*
The currency swap adds to the tools the government and central bank have in managing the fall of the rupee.
The currency swap agreement is the largest in the world, and comes against the backdrop of rise in interest rates
in the US that led to strengthening of the US dollar against other currencies and flight of capital from emerging
countries. The move, therefore, aims at instilling confidence in India’s foreign exchange and capital markets.

Sources: NSDL, RBI and other publicly available informations.

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