Beneficial Owner: Ukrainian Approach

Introduction

It is well known that the application of tax reliefs and exemptions under double tax treaties is contingent on the concept of beneficial owner. In order to qualify for such a relief or an exemption, say, a reduced withholding tax rate on interest payment, the recipient of the interest payment must be its beneficial owner. Otherwise, the recipient will be liable to a full rate of source-country withholding tax.

Ukrainian tax law does contain the definition of beneficial owner. Under the Tax Code of Ukraine (para 103.3) a beneficial owner of interest and other income is defined as a person entitled to such income. It is also provided for in this para that a person that is even entitled to certain income cannot count as its beneficial owner where it acts merely as an agent, nominee or intermediary with regard to this income.

This article looks at how the concept of beneficial owner is understood and applied by Ukrainian judicial and tax authorities.

Formal approach

As the jurisprudence of Ukrainian courts shows, the courts and the tax authorities have so far been much concerned with the technical side of the definition of beneficial owner.

On the one hand, the tax authorities tried to challenge arrangements where a recipient of Ukrainian-sourced income was in a certain sense an agent or an intermediary. They were just trying to invoke the direct provision of the above para 103.3 of the Tax Code of Ukraine excluding agents and intermediaries from the scope of the definition of beneficial owner. This was by and large done in respect of sublicense arrangements. The tax authorities were attempting to equate foreign lessees sublicensing intellectual property rights to Ukrainian taxpayers to agents or intermediaries.

On the other hand, the courts, as usual, rejected the tax authorities’ claims on the following grounds:

1) Sublicense arrangements are intellectual property-related contracts under Ukrainian civil law. They do confirm the recipients’ entitlement to Ukrainian-sourced income, thereby rendering such recipients the beneficial owners of the income;

2) The reference made by the tax authorities to para 103.3 of the Tax Code of Ukraine is ill-founded, as the sublicense arrangements are not those governing the activity of an agent or an intermediary under Ukrainian civil law.

The judgment of the Highest Administrative Court of Ukraine (the “HACU”) dated 21 May 2013 in the so-called “Semki Case” is a classic example of such a formal approach to the understanding of the concept of beneficial owner.

For those who may be interested the full text judgment in this case is available at http://www.reyestr.court.gov.ua/Review/31368171 (in Ukrainian).

Economic-based approach

In May 2014 the HACU ruled on the Donbass Aero Case that completely changed the approach to the understanding of beneficial owner. The full text judgment in this is available at http://reyestr.court.gov.ua/Review/38106136 (in Ukrainian).

The case revolted around a sublease arrangement. A taxpayer which is a Ukrainian airline leased two aircrafts from two different foreign companies. The companies that provided the aircrafts into the lease of the Ukrainian airline were not legal owners of such aircrafts. They leased the aircrafts from other foreign companies and accordingly subleased them to the Ukrainian airline.

The airline did not deduct any withholding taxes from the lease payments made in favour of the foreign lessors by relying on relevant double tax treaties exempting such income from withholding taxation in Ukraine.

The tax authorities argued that the exempting provisions of the double tax treaties should not have been invoked by the airlines, as the foreign lessors could not qualify as the beneficial owners of the lease payments. The tax authorities pointed out to the sublease nature of the concerned arrangements making, to their way of thinking, the foreign lessors in question agents or intermediaries falling outside the scope of the beneficial ownership concept under para 103.3 of the Tax Code of Ukraine.

The court ruled in favour of the airline. It held that:

1) The term “beneficial owner” of income should not be construed in a narrow and technical sense. It should be understood in light of the object and purposes of double taxation treaties. In particular, as follows from international practice of the application of double taxation treaties, a beneficial owner is a person that does not only receive income, but also determine its further economic destiny;

2) The tax authorities failed to satisfy the court that the lessors were restricted in their ability to dispose of the leased payments received from the airline. That is, the tax authorities failed to substantiate that the lessors were unable to determine the further economic destiny of the Ukrainian-sourced income received.

Following the solution of the Donbass Aero Case on 31 October 2014 the State Fiscal Service of Ukraine (the “SFSU”) published its letter No 9033/7/99-99-10-02-02-17 on the application of the concept of beneficial owner.

In this letter, the SFSU guided itself by the judgment of the HACU in the Donbass Aero Case. It committed itself to a wide economic approach to the determination of beneficial owner set forth in the above judgment. In particular, pursuant to the SFSU’s letter the term “beneficial owner” should not be interpreted in a narrow technical meaning. To be considered a beneficial owner, a recipient of Ukrainian-sourced income must be a person who determines the subsequent economic destiny of the received income.

OECD Commentaries

It is noteworthy that the aforesaid wide economic approach to the understanding of beneficial owner appears to be in full accord with the 2014 OECD Commentaries to Model Tax Convention on Income and on Capital (the “Commentaries”).

The Commentaries, namely, state as follows:

1) The “beneficial owner” term is not used in a narrow technical sense and should be understood in its context in light of the object and purposes of double tax treaties;

2) No relief or exemption under a double tax treaty can be granted to a conduit company. A conduit company, though the formal owner, it has, as a practical matter, very narrow powers which render it, in relation to the income concerned, a mere fiduciary or administrator acting on account of the interested parties;

3) A direct recipient of the income is not considered the beneficial owner of this income if that recipient’s right to use and enjoy the income is constrained by a contractual or legal obligation to pass on the payment received to another person.

Conclusion

The shift from formal to economic-based approach in the understanding of beneficial owner is sure-fire step ahead for Ukrainian court jurisprudence and administrative practice. It aligns Ukraine with the countries of the developed world in this respect of the application of double tax treaties.

At the same time, the economic-based approach requires much greater efforts from the tax authorities. The mere interpretation of the Tax Code of Ukraine will no more work for them. They must resort to an international exchange of tax information and an economic analysis. Yes, it is time-consuming and difficult, but there is no other way out for the tax authorities should they really want to protect the Ukrainian tax base.

* Photo from http://cgrfsh.blogspot.com/

Ban on Recurring Tax Audits: How to Understand

Instead of Introduction

Major restrictions on the conduct of recurring unscheduled tax audits have been adopted in the framework of the so-called tax reform 2015.

The restrictions have been in force from 1 January 2015. They relate to both on-site and off-site unscheduled tax audits.

Brief History

It was not a rare occasion in my practice in the past that the tax authorities carried out an unscheduled tax audit in respect of the issues that had already been covered by a foregoing scheduled audit (a recurring audit). For instance, subject matter of such recurring tax audits was often the taxpayer’s dealings with a particular counterparty or particular counterparties.

Was the conduct of the above recurring tax audits lawful? It seems that rather yes, than not. Formerly, neither the Tax Code of Ukraine, nor any other piece of the legislation contained any restrictions on the conduct of recurring tax audits. The tax authorities appointed recurring audits on general terms and with having no regard to whether taxable periods subject to such recurring audits had already been checked within the scope of previous tax audits.

Of course, there are also those who would deny the lawfulness of recurring tax audits in the past. To bolster their point of view, they may make reference to para 4 of the "legendary" Presidential Decree "On Some Measures on Deregulation of Entrepreneurial Activities" (dated 23 July 1998 No 817/98) and para 78.1.12 of the Tax Code of Ukraine.

However, for the sake of fairness, it pays to say that the aforesaid provisions of the Tax Code of Ukraine and the Decree govern only a very specific and quite limited in number type of recurring tax audits. They have exclusively to do with recurring audits conducted by the tax authorities of a higher level with a view to check the accuracy of the findings made by the tax authorities of a lower level. In order for such recurring audits to be appointed, either an internal investigation or criminal proceedings against the employees of the tax authorities conducting the preceding tax audit is required. The provisions in question do not regulate a procedure for the appointment of "classical" recurring tax audits, i.e. tax audits performed by the same tax authorities that have already conducted the preceding tax audit.

After the reform

Since 1 January 2015 the situation has changed radically. The Tax Code of Ukraine was amended to provide expressly for a ban on some unscheduled tax audits of a recurring nature.

The ban is couched in terms of the grounds for unscheduled tax audits enumerated by Art. 78 of the Tax Code of Ukraine. The ban covers not all unscheduled tax audits, but only those of them that are appointed on the following grounds:

- The failure on the part of a taxpayer to furnish within 10 business days explanations or documentary evidence at the written request of the tax authorities sent in connection with the establishment of facts indicating either the violation of tax laws by the taxpayer or the unreliability of the data contained in his tax returns (paras 78.1 .1., 78.1.4 of the Tax Code of Ukraine);

- Filing a VAT return involving amounts of VAT refund/surplus of input VAT over output VAT in excess of UAH 100 thousand (para 78.1.8. of the Tax Code of Ukraine);

- the decision of a court / prosecutor’s office/ detective on the appointment of a tax audit in accordance with criminal procedural law (para 78.1.11. of the Tax Code of Ukraine).

Of particular importance is the definition “recurring tax audit”. In fact, there is no such term as "recurring tax audit” in the language of the Tax Code of Ukraine. The Tax Code of Ukraine operates a slightly different notion: "...  it is prohibited to carry out unscheduled tax audits… if the subject matter of such audits has already been caught during preceding tax audits of the concerned taxpayer”.

In many cases, it is rather difficult to determine whether the subject matter of a new tax audit has been already caught by preceding tax audits.

Let us consider the most typical situation for the sake of illustration. Suppose your company whose taxable periods from 1 January 2013 to 1 April 2014 have been already audited in the scope of a scheduled tax audit faces the appointment of a new tax audit. This time an unscheduled tax audit ought to be carried out. The new tax audit will explore the tax treatment of transactions between the company and its counterparty, X, LLC, conducted in March through August 2013. Has the tax treatment of such transactions with X, LLC been already covered by the preceding scheduled tax audit, given that the report of this scheduled tax audit has no mention of the counterparty at hand?

In this situation the taxpayer can naturally argue that given the comprehensive nature of the scheduled tax audit, it has covered the transactions conducted with X, LLC. The fact that X, LLC is not directly mentioned in the report of the scheduled tax audit is immaterial. Accordingly, there are no grounds for conducting the new tax audit in respect of dealings with X, LLC.

In contrast, the tax authorities may claim that the scheduled tax audit cannot be regarded as covering the issues of dealings with X, LLC. To support this point, the tax authorities may refer to the absence of the analysis of the relations with X, LLC in the wording of the report of the scheduled tax audit.

Owing to the ambiguity of the changes made to the Tax Code of Ukraine, each of the parties to the above hypothecated dispute is right to a certain extent. The issue is highly controversial. It can be easily assumed that this issue will “come to surface” again and again in series of "court battles” between taxpayers and the tax authorities.

There has been already first court jurisprudence on this subject matter.

For example, in the case initiated by "Techno-Bud Service", LLC against an order on the appointment of an unscheduled tax audit the Chernivtsi Circuit Administrative Court took the side of the taxpayer. The court found that the dealings with a number of the counterparties specified in the order on the appointment of the new tax audit have been already covered by the preceding scheduled tax audit. That is why, in the judgement of the court, there had been no grounds for the tax authorities to appoint the new tax audit.

Working for the future

The tax authorities not worse than taxpayers understand the ambiguity of the changes brought to the Tax Code of Ukraine regarding the prohibition on recurring tax audits.

They are taking proactive measures to minimize the risk of a successful appeal against the orders on the appointment of recurring tax audits.

The vivid evidence of such an approach of the tax authorities is the letter of the State Fiscal Service of Ukraine (SFSU) dated 28 January 2015 No 2463/7/ 99-99-22-02-04-17. In this letter the SFSU, “in order to prevent the contraction of the performance of further [recurring] unscheduled tax audits", urges the local tax authorities to clearly define in documents related to the appointment and conduct of tax audits the scope of issues amounting to the subject matter of such tax audits.

In place of conclusion

It is beyond any doubt that a ban on recurring tax audits makes up a very important change designed to ease the administrative burden placed on taxpayers by the tax authorities. However, as it often happens, the very progressive change somewhat “suffers" from the lack of clarity in the legal wording. It is hoped that court jurisprudence will do what is called “to dot the i's and cross the t's” in this area.

* Photo from http://blocktalk.wpengine.netdna-cdn.com