Recent G.C.C VAT updates

February 16th, 2019 by Stephen Jones Leave a reply »

Passive interest and dividends
The Federal Tax Authority (FTA) asserted that passively earned interest income from bank deposits and dividend income are outside the scope of Value Added Tax (VAT), and there is no requirement to report these in the VAT return.
VAT is a tax imposed on the import and supply of goods and services at each stage of production and distribution, therefore, VAT implications arise only when there is a supply – when there is no supply, there is no VAT implication.
The FTA explained that the Federal Decree-Law No. (8) of 2017 on VAT and its Executive Regulations have included specific provisions on what would constitute a supply of goods and a supply of services and also included a definition for taxable supplies. As such, where any transaction falls outside the scope of these provisions, it would, as a consequence, fall outside the scope of VAT.
The FTA also noted that although Article (42) of the Executive Regulations outlines the tax treatment of financial services, stating that the payment or collection of any amount of interest and dividend is considered to be a financial service and is therefore exempt from VAT, this would only apply where there is, in fact, a supply.
The Authority had issued the “VAT Public Clarification on Bank Interest and Dividends” as part of its Public Clarifications service, which are available on the FTA website and seek to educate taxpayers on all technical issues surrounding taxes, allowing them to implement the tax system efficiently.
In a press statement the Federal Tax Authority noted that if, for instance, a retail business deposits its income into a bank account and earns interest on the deposited amount, and the said retail business does not do anything to earn this income aside from merely depositing the money in the account, it can then be said that the interest was earned passively. In this case, the retail business is not considered to have made a supply to the bank, and the interest income received is not a consideration for a supply, which, in turn, means that the retail business is not required to declare this income on its VAT return, as it is outside the scope of VAT.
The Authority noted, however, that the above position only applies to interest derived from bank deposits and does not have any bearing on the interest generated from extending loans or credit, which are exempt supplies for VAT purposes.
Dividend income:
• The FTA explained that the payment of a dividend by a company is a distribution of its profits to its shareholders, where the holder of a share is not entitled to a dividend until the company has declared a dividend.
• Dividend income becomes due for shareholders in a company by the mere ownership of shares in that company and if the company makes any profits and declares dividends.
• The shareholder then receives the dividends and does not make any supply in order to be eligible for a payment of dividends, making the dividend a generally passive income.
• Accordingly, dividend income is outside the scope of VAT, and is therefore, not required to be reported on the VAT return. T
• he Authority noted, nonetheless, that while dividend income is generally outside the scope of VAT, any amount charged as a “management fee” would be subject to VAT. For example, management fees charged by a holding company to its subsidiaries would be subject to VAT.

The Public Clarifications service can be accessed through the Federal Tax Authority’s official website by clicking the “Help” button, then choosing the “Public Clarifications” tab, and selecting the required document. (https://www.tax.gov.ae/en/public-clarification.aspx)

Deregistration
The Federal Tax Authority (the “Authority”) explained that the Federal Decree-Law No. 8 of 2017 on Value Added Tax has defined the cases for tax de-registration. As such, when a registrant stops making taxable supplies or if the value of the taxable supplies made by the registrant over a period of 12 consecutive months is less than the voluntary registration threshold of AED 187,500 and it is not expected that the total value of the registrant’s anticipated taxable supplies or expenses subject to tax in the coming 30-day period will exceed the voluntary registration threshold, then the registrant must submit a de-registration application to the Authority within 20 business days of the occurrence of any of these cases using the Authority’s e-Services portal, knowing that failing to submit the de-registration application within the period specified in the tax legislation will lead to the imposition of administrative penalties as stipulated in the Cabinet Resolution No. 40 of 2017 on Administrative Penalties for Violations of Tax Laws in the UAE. This was the subject of a press release issued by the Authority to clarify the conditions and procedures for de-registration for Value Added Tax, after more than a year of its implementation. The Authority confirmed that registrants will not be de-registered unless they have paid all due taxes and administrative penalties and filed all required tax returns for the period in which they were registered as stipulated under the tax legislation.

The Authority went on to assert that the UAE Tax System is based entirely on voluntary compliance by Taxable Persons, whether it being with regards to registration, filing Tax Returns and payment of due tax or de-registration, noting that these services are available free of charge.
The Authority also mentioned that these procedures can be completed within few minutes through simple steps via the e-Services portal, available 24/7 on the Authority’s website (www.tax.gov.ae).

KSA
Reduction of the value-added tax (VAT) registration threshold to SR 375,000 from January 1, 2019, will increase the taxpayer base by about 150,000
The 2018 base was over 140,000 VAT-registered taxpayers.

Non-resident taxpayers are required to appoint a tax representative to act on their behalf and to assume joint liability for VAT debts. This requirement is posing some challenge to some non-resident taxpayers. Hopefully, progress in this area can be made soon.

VAT audits have commenced and assessments issued for contraventions of the regulations such as late registration and filing of VAT returns as well as incorrect declarations.
The global trend is towards tax authorities accessing taxpayer data directly and, in some territories, preparing the return for the taxpayer. Saudi taxpayers need to be prepared. Expect an increase in the level of scrutiny as GAZT continues to build its resources to challenge the VAT treatment of specific transactions.

Foreign Business VAT recovery
In a new guide on “VAT Refunds for Business Visitors”, published on its official website, the Federal Tax Authority (FTA) outlined four conditions that allow foreign businesses to recover Value Added Tax (VAT) incurred in the UAE To be eligible for the VAT refund.
1.The first condition is that foreign businesses must not have a place of establishment or fixed establishment in the UAE or in any of the VAT-Implementing GCC States that fully comply with the provisions of the Common VAT Agreement of the Cooperation Council for the Arab States of the Gulf.
2.Second, such foreign businesses must not be a Taxable Person in the UAE.
3.Third, they must also be registered as an establishment with a competent authority in the jurisdiction in which they are establishe
4. The fourth condition is that they must be from a country that implements VAT and that equally provides VAT refunds to UAE businesses in similar circumstances.

FTA Director General His Excellency Khalid Ali Al Bustani described the refund procedure as clear and transparent, noting that it supports economic activities in the areas in which the visiting business of the country participates, which is reflected positively on many sectors including tourism, trade, exhibitions, conferences, etc. He stated that the mechanism is in accordance with the Federal Decree-Law No. 8 of 2017 on Value Added Tax and the terms and conditions set in its Executive Regulations, which call for refunding taxes paid on supplies or imports made by a foreign entity not residing in the UAE or any of the Implementing States, subject to meeting certain conditions. He further explained that reciprocity is a key condition for the procedure, whereby the Authority will refund the VAT to businesses resident in countries that refund VAT for UAE businesses visiting their territories.

The Federal Tax Authority clarified that the period of each refund claim shall be a calendar year, noting that for claims in respect of the 2018 calendar year, refund applications can be made as of April 1, 2019. However, for subsequent calendar years, the opening date for accepting refund applications will be March 1st of the following year; this means that for the period from January 1 to December 31, 2019, applications will be accepted as of March 1, 2020.

The FTA went on to stress that the minimum claim amount of each VAT refund application submitted by business visitors is AED2,000, which may consist of a single purchase or multiple purchases. The Authority urged potential applicants to hold on to the original tax invoices on the purchases for which they would like to reclaim VAT, as they will be required to be submitted along with the refund applications.
Businesses residing in any GCC State that is not considered to be an Implementing

State may still submit a VAT refund application to reclaim VAT incurred in the UAE under this scheme, the FTA assured, outlining only 3 situations where VAT cannot be reclaimed,
1,The first situation is if the Foreign Business in question makes supplies in the UAE, unless the recipient is obliged to account for VAT under the Reverse Charge Mechanism.
2. Second, a VAT refund cannot be processed if the Input Tax in respect of any goods or services is “blocked” from recovery and, therefore, not recoverable by a Taxable Person in the UAE.
3. The third situation where a refund is not possible is if the Foreign Business is a non-resident tour operator.

The guide on “VAT Refunds for Business Visitors” can be accessed on the FTA’s official website via the link:
https://www.tax.gov.ae/pdf/VAT%20Refund%20User%20Guide-Business%20Visitors_EN.pdf (See Public Ax 2012 Finance Vat folder)
Independent Directors Services

Independent Directors’ services
The Federal Tax Authority (FTA) has confirmed that the date of supply for Value Added Tax (VAT) with regard to Independent Directors’ services is determined either in accordance with the general rules or the special rules, depending mainly on whether the fees for the said directors were known from the outset or not.
Where such fees are known from the outset, the date of supply shall be determined in accordance with the provisions of Articles (25) and (26) of Federal Decree-Law No. (8) of 2017 on VAT, depending on whether or not there will be periodic payments. If such fees are not known from the outset, they shall be determined upon conclusion of the Annual General Meeting and the date of supply shall be established only when such fees become known.
The date of supply prescribes the point in time when a VAT Registrant needs to account for VAT, the Authority explained in the Public Clarification on the Date of Supply for Independent Directors. This is part of the “Public Clarifications” service available on the FTA’s website to introduce taxpayers to all aspects of the tax system and facilitate compliance. The service can be accessed via the link: https://www.tax.gov.ae/public-clarification.aspx
The FTA explained that in instances where the Board Fees are known at the outset and involve periodic or multiple payments, the date of supply would be determined as per Article (26) of Federal Decree-Law No. (8) of 2017 on VAT, where the date of supply would be the earliest of the following three: The date of issuance of the tax invoice; the date the payment is due as shown on the tax invoice; and the date of receipt of payment. If 12 months have passed from the date of provision of services and none of the aforesaid events has occurred, the date of supply will be triggered at the end of the 12th month.
As for the instances where Board Fees are known at the outset but there are no periodic or multiple payments, the date of supply would be determined as per Article (25) of the Federal Decree-Law No. (8) of 2017 on VAT. Accordingly, the date of supply would be the earliest of the following three: The date of issuance of a tax invoice; the date on which the provision of services was completed; and the date of receipt of payment.

Profit Margin Scheme
The UAE Federal Tax Authority (FTA) asserted that only those goods which have previously been subject to VAT before the supply in question may be subject to the profit margin scheme. As a result, stock on hand of used goods which were acquired prior to the effective date of Federal Decree-Law No. (8) on Value Added Tax (“VAT law”), or which have not previously been subject to VAT for other reasons, are not eligible to be sold under the profit margin scheme. VAT is therefore due on the full selling price of such goods.

The taxable person will not be allowed to apply the profit margin scheme in such cases where he has issued a tax invoice or any other document mentioning an amount of VAT chargeable in respect of the supply.
• The profit margin is the difference between the purchase price of the Goods and the selling price of the Goods,
• The profit margin shall be deemed to be inclusive of Tax
• A VAT registered business may apply the profit margin scheme to eligible goods when:
o the goods must have been purchased from either a person who is not registered for VAT;
o or a taxable person who calculated VAT on the supply by reference to the profit margin i.e. a VAT registered business, which already applied the profit margin scheme on the same goods.
o In addition, the profit margin scheme may also apply when the taxable person made a supply of the goods where input tax was not recovered in accordance with Article 53 of Cabinet Decision No. 52 of 2017.
Suppliers should be confident that a good has previously been subject to tax in order to apply the profit margin scheme. Such evidence or information of this position could include but is not limited to.:
o information relating to the date the good was first manufactured, sold or brought in to use
o e.g. in the case of a car, the date the car was first registered would indicate its sale would have been subject to VAT if it was registered on a date after 1 January 2018;
o Evidence that the supplier paid VAT on their original purchase e.g. by asking the supplier for a copy of the tax invoice relating to their purchase of the good.
Where a Taxable Person has charged Tax in respect of a supply with reference to the profit margin, the Taxable Person shall issue a Tax Invoice that clearly states that the Tax was charged with reference to the profit margin, in addition to all other information required to be stated in a Tax Invoice except the amount of Tax.

Transportation

As per the Clause (4), Article (45) of the Federal Decree-Law No. 8 of 2017 on Value Added Tax and as per Article (34) of Cabinet Decision No. 52 of 2017 on the Executive Regulations (“VAT Executive Regulations”): The supply of the means of transport shall be subject to the zero rate in the case of, a supply of bus or train that is designed or adapted to be used for public transportation of (10) or more passengers.

One such qualifying means of transport includes the supply of a bus or train that is designed or adapted to be used for public transportation of 10 or more passengers. This Public Clarification discusses the definition of ‘public transportation’ and its interpretation for the purposes of identifying those buses or trains which qualify to be supplied at the zero rate under this provision.As a result, those means of transport which are designed to transport a specific category of individuals, such as school students or employees of a business, do not meet the conditions to be treated as a qualifying means of transport for the purposes of the zero-rating provisions. Such means of transport shall therefore be subject to the standard rate of VAT.
This denotes that, any supplies of means of transport (e.g. supply of buses) made for the use of schools or business are subject to 5% tax at the time of its purchase.
It has also been clarified by the FTA that, whether or not the original supply of the means of transport qualified for zero rating has no impact on the VAT liability of any charges made for the supply of transportation services. The VAT treatment of the means of transport when purchased does not determine the VAT treatment of any supply of transport services made using that vehicle. Providing services to business for transporting its employees from one place to another still remains exempt under law. Therefore, where local transport is made for a charge to a defined group of people, any VAT incurred on the costs of purchasing the means of transport, fuel etc. in order to provide that service is not recoverable.

Difference between private transportation & public transportation in the VAT Law:
What is Private Transportation?

FTA defines ‘Private Transportation’ as ‘all means of transportation used to transport a specific group of people under contracts.’
What is Public Transportation?
The transport used for ‘public transportation’ shall be interpreted by the FTA as, ‘all means of mass transportation used to transport all individuals without specifying any category.’
The difference between the two forms of transportation therefore means that public transportation should be available for all individuals without exception. Public transportation would not include transportation which is only available to a specific category of user.
To summarize, if a bus or train is designed or adapted for a specific class or group of people, or is only available for use by a specific class or group of people, then it shall be considered to be designed or adapted for use for private transportation. And thus, the supply of such means of transport will be taxable.
Factors relevant to identify Public Transportation:
In order to determine whether a bus or train is designed or adapted for use for public transportation, the following factors would be relevant:
1. Features exist which allow passengers to pay for the transportation or to indicate they possess a ticket e.g. a payment booth, ticket scanner or device to take payment;
2. There is branding either within or outside the vehicle advertising the transport service, indicating the transportation is available to all;
3. There is branding or other features indicating regulation of the means of transport by the entity regulating public transportation in the Emirate of operation;
4. The intended use of the means of transport is to transport members of the public without exception or limitation to a specific group.
By considering above points, the following means of transports are not be considered to be used for public transportation:
1. School buses;
2. Buses used to transport groups of employees or workers to or from a place of work;
3. Shuttle buses used to transport hotel guests to other locations e.g. a mall, airport, park, or other tourist attraction.
Hence the and the supply of such means of transports shall be subject to VAT at the standard rate.
VAT Liability of Transportation Services:
To add on, services related to transportation shall be governed by Clause 4 of Article 46 of the VAT Law and Article 45 of the Executive Regulations which state that any supply of local passenger transport shall be exempt from VAT where the supply is of local passenger transport services in a qualifying means of transport by land, water or air from a place in the UAE to another place in the UAE.
For the purposes of the exemption from tax, one of the qualifying means of transport listed includes a motor vehicle, including a taxi, bus, railway train, tram, mono-rail or similar means of transport, designed or adapted for transport of passengers.

Emirati Nationals – Home owners
The Federal Tax Authority issued a guide Apr2018 with details for home owners on how to claim the refund.
Emirati house owners have the right to a five per cent value added tax (VAT) refund when constructing their homes, the Federal Tax Authority (FTA) has stated. The Authority has issued a guide with details for home owners on how to claim the refund. It clarifies that only UAE citizens have the right to ask for the refund. They need no new account on the Authority’s website, and only need to download and fill a form and submit it back so the Authority
t UAE nationals can claim the VAT refund against the construction expenses for a residential building, when they construct it either for themselves or for their family members.
UAE nationals can claim the refund against a newly constructed building to be used solely as residence, under Article (66) of Cabinet Decision No. (52) of 2017 on the Executive Regulations, of the Federal Decree-Law No (8) of 2017 on Value Added Tax,”.
The VAT refund is not allowed in relation to a building that will not be used solely as a residence by the person or the person’s family. For example, it is not to be used as a hotel, guest house, hospital, or if the property is to be used for rental purposes or for any other purpose not consistent with it being used as a residence,
According to the guide issued by the FTA, an Emirati owner has the right to ask for the VAT refund if he bought a piece of land and allowed an authorised person or company to establish a housing unit on it. The guide says that the VAT refund only includes the money spent on establishing the unit, adding that it includes the amounts paid as building materials, except for electricity products of furniture or green areas.
On the other hand, the refund also includes VAT paid for doors, fire alarms systems, floors, kitchens, health units, bathrooms, windows, and electricity cables. A third entity is going to review the housing units to approve the refund and its amount after the Emirati owner submits the form. Moreover, the owner needs documents that prove his ownership for the unit, show the date of issuing the certification of establishment, prove the ownership of the land and show the value of VAT paid during the process.
It should be noted that the VAT refund will be claimed after completion of the new building which is ready to use. The owner must file a VAT refund application after getting registration with the FTA within six months from the date of completion of the newly built residence. Processing can take up to 20 days.
A newly built residence is considered complete at the date the residence becomes occupied, or the date when it is certified as completed by a competent authority in the state, or as may otherwise be stipulated by the Authority.
Also where the Authority has repaid tax and following the receipt of such repayment, if the person used the building for rental or any other commercial purpose, then he will be required to repay the amount of the tax that was claimed by him. The UAE national can claim VAT against construction related expenses excluding furniture or electrical appliances.

Grants and Sponsorships
The VAT treatment of donations, grants and sponsorships depends on whether the donor, grantor or sponsor, as the case may be, received any benefit in return for such payments.
o Where any benefit is received in return for the payments, VAT implications will arise.
o However, where no benefit is received, the payments will be treated as outside the scope of VAT as they will not be seen as consideration for a supply.
The VATP011 clarification states where donation and grants do not have any supply, they are considered as out of scope.
Generally, sponsorship will be subject to VAT as there is usually associated supply to such sponsorship.

Pre Vat Orders and post Vat supply
As per the FTA’s statement, the only case where consumers are directly responsible for paying VAT on services are those that were delivered fully or partially after VAT went into effect from January 1 and it was contractually/ stated that the amount due is exclusive of tax.
According to the FTA’s statement, suppliers will be liable for VAT in two cases:
o if the contract states that the amount received against the good or service is inclusive of VAT;
o or if the contract issued to the consumer did not refer to VAT.
In the latter case, when the goods or services recipient is registered for tax, the amount due is treated as exclusive of tax. So the supplier has to ascertain whether the recipient is registered, and the recipient ability to recover tax as per Article 70 of the VAT Executive Regulations.
The authority stressed that in all cases, the supplier remains liable for accounting for the tax and paying it to the FTA.

Bahrain and Utility Bills
A Bahraini lawyer has insisted that the recent decision by the Electricity and Water Authority (EWA) to apply Value Added Tax (VAT) on subscribers’ bills are unconstitutional, demanding immediate cancellation of the decision. This came as lawyer Mohammed Al Thawadi appeared before the High Administrative Court, which is examining a complaint lodged by him against the authority. The court said that it would issue its final verdict in the case on February 24.
In his statements, the lawyer asserted that the decision is unconstitutional, claiming that Articles 15 and 17 of the Constitution of the Kingdom stipulate that taxes should only be imposed through legislation. Mr. Al Thawadi also accused EWA of not adhering to the Unified GCCVAT Agreement.
“Article 29 did not stipulate the imposition of taxes on electricity supply services, but on the contrary, it gave each state the right to exempt some sectors in accordance with local law. “Additionally, Article 30 stipulates the exemption of government bodies from paying taxes, and therefore it is not permissible for the authority to collect taxes.” The lawyer’s last statement came after the authority denied the accusations during the previous hearing.
“The authority does not exercise its functions as sovereign and there is no monopoly of providing electricity and water supply services in the Kingdom,” the authority’s counsel had told the court. Further supporting his accusations against the authority, Mr. Al Thawadi said: “The authority’s claim that it does not operate in a sovereign manner and that there is nothing preventing competition with it from any other party in providing its services is incorrect.

Advertisement

Comments are closed.