ECONOMIC SUBSTANCE REGULATIONS UAE

Economic Substance Regulations(ESR) & ESR Reporting Services in Dubai, UAE

Economic Substance Regulations in the UAE

Economic Substance Regulations is another compliance requirement for entities registered in the UAE. The United Arab Emirates (UAE) Ministry initially enacted the Cabinet Resolution no. 31/2019 with effect from 30th April 2019 on Economic Substance Regulations in the UAE. This was followed by the Ministerial Decision 215 for the year 2019 giving directives for the implementation of the provisions of Cabinet Decision no. 31/2019. However, On 10th August 2020 New Economic Substance Regulation was introduced in the UAE via Cabinet Resolution 57/2020 which repealed and revoked Cabinet Decision no. 31/2019. Also, Ministerial Decision No 100 for the year 2020 replaced Ministerial Decision 215 for the year 2019.

So, Entities will now have to comply with Cabinet resolution 57/2020 & Ministerial Decision 100 for the year 2020 giving directives for the implementation of the provisions of Cabinet Decision no. 57/2020.

One of the four criteria in the framework of OECD is the absence of a requirement that the activity is substantial. In addition, the European Union is working to have a Tax Governance at Global Level in order to curb Tax avoidance, evasion. The Economic Substance Regulations is in consonance with the global standard set by the Organization for Economic Co-operation and Development (OECD) on Harmful Tax Practices. UAE also joined the all-inclusive framework of OECD on Base Erosion and Profit Shifting (BEPS) and is committed to having the minimum standards in the State. UAE is “No or Only Nominal Tax Jurisdiction” (NOON’s) environment and is in line with other jurisdictions with the same environment who are parties to this framework.

Applicability of Economic Substance Regulations in the UAE

Economic Substance Regulation is applicable to all Licensee & Exempted Licensee carrying on the Relevant Activities in the UAE, including the Free Zone or Financial Free Zone; with effect from the year 2019.

What are the Relevant Activities under Economic Substance Regulations in the UAE?
  • Banking Business
  • Insurance Business
  • Investment Fund Management Business
  • Lease-Finance Business
  • Shipping Business
  • Headquarters Business
  • Intellectual Property Business
  • Holding Company Business
  • Distribution & Service Centre Business

Economic Substance Regulation UAE | ESR Reporting Dubai, UAE

Economic Substance Regulation UAE

Emirates Chartered Accountants Group - Economic Substance Regulation(ESR) Advisory and Reporting Services in Dubai, UAE.

 

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CA. Dhara Yagnik I Consultant
Mob: +971 56 5956836
Email: dhara@emiratesca.com

 

 

Exempt Licensee as per Cabinet Resolution 57/2020

The Scope of Exempted Licensee as per Cabinet Resolution No. 57/2020 is extended. Following entities fall in Exempted Licensee:

  • An Investment fund
  • A licensee that is Tax Resident in a Jurisdiction other than in the UAE
  • A licensee that is wholly owned by one or more UAE Resident and meets the following conditions:
    » An entity should not be part of MNE Group
    » An entity should carry business only in the UAE
  • A licensee that is the branch of a foreign entity the Relevant Income of which is subject to tax in a jurisdiction other than UAE

How to meet the Economic Substance Test?

  • Check whether the entity conducts/ performs Core Income-Generating Activity (CIGA) in the State.
  • Check whether the entity is directed and managed in the State in relation to that activity.
  • Check whether the company employs an adequate number of qualified full-time employees or incurs an adequate level of operating expenditure and adequate physical assets in the state.
  • If CIGA is conducted by another entity for the relevant licensee, then check whether the Licensee has full control and is be able to monitor the activities of another entity.

Authorities as per CRN 57/2020:

I.Functions of Authorities as per ESR

1. Regulatory Authority:

  • Collect information through Notification, Substance Report and supporting documents
  • Review the information obtained from Licensee & Exempted Licensee
  • Undertake assessment on the determination of Exempted Licensee
  • Other functions as per Article 4 of the Cabinet Resolution 57/2020

2. National Assessing Authority:

  • Federal Tax Authority is hereby appointed as National Assessing Authority
  • To undertake assessments to determine the Economic Substance Test
  • Impose the administrative penalties
  • Hear and decide on appeals
  • Other functions as per Article 5 of the Cabinet Resolution 57/2020

3. Competent Authority:

  • Providing information of Licensee or Exempted Licensee that has not met Substance test to Foreign Competent Authority
  • Providing information in relation to high-Risk IP Business Licensee to Foreign Competent Authority
  • Such other functions as per the Resolution

Why is the Assessment of Activities important?

Assessing whether the Entity is engaged in Relevant Activity will determine whether the Entity is required to comply with Economic Substance Regulation in the UAE. Substance over form approach is to be considered in assessing the activities. It is significant to note that even Passive Income from any of the activity falling within the definition of relevant activity would require an entity to comply with the regulation. Going incorrect with the Assessment may lead to the filing of inaccurate information with the Authorities. This may further lead to penalties.

ESR Notification should be filed by all Licensee and Exempted Licensee annually providing the following details:

  • Date of commencement and end of Financial Year
  • Relevant Activity being carried
  • Whether Revenue generated from such Relevant activity during relevant Financial year
  • Other information as required by the Regulatory Authority

Exempted Licensee to also provide all the information and documents for claiming the status of Exempted Licensee.

Notification must be filed within 6months from the end of its Financial Year of Licensee or exempted licensee. For e.g.:

Financial Year-End

Due Date for ESR Notification

December 2020

June 2021

March 2021

September 2021

September 2021

March 2022

The penalty in case of failure to submit the notification

An administrative Penalty amounting to AED 20,000 shall be imposed on Licensee or Exempted Licensee who has failed to submit the notification or any information or document required to be filed

How Emirates Chartered Accountants can help you?

Our experts will conduct a preliminary check on your business on the applicability of Economic Substance Regulation.

How can Emirates Chartered Accountants Group support you for assessment on Economic Substance Regulation in the UAE?

  • If Economic Substance Regulation is applicable for your company, then we support and guide you to check whether the criteria on the satisfaction of Economic Substance are met or not.
  • If the criteria are not met, then to identify the gaps. Providing suggestions and improvements to ensure the compliance of Economic Substance Regulation in the UAE.
  • To assist the Licensee to file Information Notification with the Relevant Authorities.

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Economic Substance Regulations UAE - FAQ

People usually ask

Ans: No, if Income is not earned from the Relevant Activity during the Financial Year, ESR Reporting is not required only ESR notification is mandatory.

Ans: Not necessarily, as per Article 6 clause 2( c) states that it can be employed by the licensee or by another entity and whether on temporary or long-term contracts.

Ans: As per Ministerial decision no. 215 for the year 2019, 4.3 (b) provides that it is expected at least one meeting must be held in a Financial Year in the UAE. So, in absence of meeting as per the requirements of applicable law at least 1 meeting must be in the UAE.

Ans: No, as Regulation clearly specifies that Directors should possess adequate knowledge and expertise to take the strategic decisions for the business. Appointing proxy in place of directors will not suffice the requirement.

Ans: In ESR Reporting information on the amount of revenue, operating expenditure, assets used, employees & so on are to be furnished for Relevant Activity. It is not mandatory to maintain separate books of accounts but bifurcation for Relevant & other than Relevant Activity should be maintained as it will be easier for licensee for Reporting purpose.

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