Beneficial recipient of dividends – non-resident and final beneficial owner of the company: is it possible to equal these notions?
The Law of Ukraine No.1701-VII1as of October 14, 2014 amends a number of laws regarding identification and recording of final beneficiaries of the companies. Thus the Commercial Code of Ukraine (hereinafter – “the Commercial Code”) was amended by Article 641 which stipulates that all companies except for public utility and state-owned enterprises are obliged to submit to the state registrars information regarding final beneficiary owner (controller)2.
The abovementioned definition sounds similar to the definition indicated in the regulations of the tax legislation.
Thus para. 103.2 of the Tax Code of Ukraine (hereinafter – “the Tax Code”) establishes the right on tax exemption or reducing of tax rate on the basis of the international treaty directly during paying of income to non-resident if such non-resident is a beneficial (actual) recipient (owner) of income.
Qualification of income recipient as a beneficiary is a precondition of applying reduced rate of taxation in a number of regulations of many tax treaties of Ukraine.
Hence, there is a question, in particular, whether non-resident which received income may be recognized as a beneficiary for the purposes of application of convention on avoidance of double taxation in case if the Unified State Register (hereinafter – “the USR”) contains information that the beneficiary is another entity or that the beneficiary cannot be defined.
The definition of “beneficiary”
Definitions of “beneficiary owner” for the purposes of the Tax Code and the Commercial Code are not equal and substantially differ by their contents.
Thus, Article 641 of the Commercial Code stipulates that the definition “final beneficiary owner (controller)” is understood in the meaning which is used in the Law of Ukraine “On Prevention and Counteraction of the Legitimization (Laundering) of the Proceeds of Crime and the Financing of Terrorism” (hereinafter – “the Law on legitimization”).
We can mark out from the definition “beneficial owner” estimated in subpara. 20 of para. 1 of Article 1 of the Law on legitimization the following criteria of the beneficiary for the purposes of the Commercial Code:
1) this can be only a natural person (such person is not necessarily has to be the formal owner);
2) such person is, directly or indirectly, entitled to exercise ultimate control over management or business activity; ultimate control is exercised, in particular, by:
- the right of ownership or the right of use of all assets or their sufficient part;
- the right of ultimate control over governing board formation and voting results;
- execution of contracts which allow to specify conditions of business activity, issue obligatory for fulfilment instructions or perform functions of governing board;
- direct or indirect (through other physical or legal entity) shareholding of 25 or more percent of statutory capital or voting rights of such legal entity by one entity or jointly with related physical and/or legal entities.
3) such entity is not an agent, nominal recipient (nominal owner) or intermediary in relation to the income.
At the same time the definition of “beneficiary” for the purposes of the Tax Code is stipulated in para. 103.3 of the Tax Code in the following way:
1) it is a legal entity or natural person;3
2) entitled to receive income;
3) such entity or person is not an agent, nominal recipient (nominal owner) or intermediary in relation to the income.
Thus, on the basis of the abovementioned it is possible to distinguish the following differences between definitions of “beneficiary owner” for the purposes of the Tax Code and for the purposes of the Commercial Code.
Firstly, according to the Tax Code both natural person and legal entity may be recognized as beneficiary whereas the Commercial Code defines the beneficiary exclusively as a natural person. This is related to the aims pursued by the legislator who introduced the institute of the beneficiary to the Commercial Code and the Tax Code, namely: to the Commercial Code for the purpose of counteraction of money laundering and to the Tax Code for the purpose of avoiding of double taxation (for more details see below).
Thus, following the position that convention is applicable only when the recipient of income indicated as beneficiary in the USR will practically limit the effect of the convention only for natural persons.
Secondly, actual receiving of the income is the attribute for specifying beneficiary pursuant to the Tax Code, while on the other hand the Commercial Code establishes various numbers of attributes (assets ownership, ultimate control over governing bodies, ownership of 25 percent in the statutory capital, etc.) for recognition of entity as a beneficiary.
Thus, for example, a person may receive income with the right of its disposition but at the same time may not own 25 percent of the statutory capital of the income payer. In such case the recipient of the income will be recognized as the beneficiary for the purposes of the Tax Code, but won`t be recognized for the purposes of the Commercial Code.
We would like to note that the only attribute which does not differ in the definitions of the “beneficiary” in the Tax Code and the Commercial Code is that the entities cannot be agents, nominal recipients/ owners or intermediaries in relation to such income. However, analyzing the abovementioned will lead to the conclusion that the criteria for definition of beneficiaries for the Tax Code and the Commercial Code substantially differ. Actually the definition of the beneficiary in the Tax Code is considerably wider that in the Commercial Code.
Thus, the beneficiaries stated in the USR which are defined pursuant to the Commercial Code cannot be equaled to the definition of the beneficiary for the purposes of tax legislation.
Please note that by analogy even in the meaning of tax legislation the same definitions “by ear” may have different meanings.
Thus, subpara. 14.1.156 of the Tax Code defines “tax liability” as an amount of funds which the tax payer shall pay to respective budget as a tax or a duty on the basis, in the order and in the terms prescribed by tax legislation. And subpara. 14.1.179 defines “tax liability” for the purposes of Chapter V of the Code as a general amount of value added tax received (accrued) by the tax payer during the reporting (tax) period.
Hence “tax liability” as well as “beneficiary” may have different meanings.
Historical aspect and the purpose of introduction of the beneficiary institution in the Tax Code and the Commercial Code
The definition of beneficiary owner was introduced in tax legislation for the purposes of prevention of tax evasion or avoidance4. Not to go deeper in the history of integration of this concept we would just note that it was caused mainly by extensive use of tax planning through jurisdictions with low tax burden.
Thus, for decreasing of tax burden the groups of companies often establish conduit structures (legal entities) which, in fact, do not carry out business activity in a full meaning of this definition but simply act as intermediaries between parent company and subsidiary company mainly for obtaining of the benefits of the respective convention and for reducing cumulative taxation in such a way. Actually such structures are not real disponents of received income. The notion of beneficiary was introduced in tax legislation mainly for counteraction to such practices.
On the other hand, introduction of the concept of beneficiary owner into the Commercial Code was directed to reducing of the level of corruption and counteraction of money laundering. Thus, this was directly stated in the explanatory note to the draft law integrating this definition in the Commercial Code.
Moreover, the notion of beneficiary in the Commercial Code corresponds to the Directive of the European Union Parliament No. 2015/ 849 as of May 20, 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorism financing. The purposes of introduction of the notion “beneficiary owner” in the EU legislation are defined in paragraphs 14 and 34 of the Preamble; in particular, it is stated that receiving of accurate and up-to-date information on “beneficiary owners” are essential measures for tracking of persons (natural precisely) which are suspected in money laundering and terrorism financing.
Thus, the definition of beneficiary for the Tax Code and the Commercial Code differ essentially from the historical point of their origin as well as from the point of aims which were followed by the legislator integrating such institutes.
Considering the abovementioned the integration of the institution of beneficiary in the Commercial Code and indicating information on beneficiary in the USR shall not lead to applying by the taxpayers the convention regarding avoidance of double taxation. The definition of beneficiary in the Commercial Code is significantly narrower than in the Tax Code which applied other criteria for beneficiaries. At last regulations on beneficiaries in the Tax Code and Commercial Code have different aim of application.
Thus, indicating the beneficiary owner of the company in the USR shall not influence on the definition of such beneficiary for the purposes of applying tax conventions during payment of income to non-residents.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
1The Law of Ukraine “On amendments to some legislative acts of Ukraine concerning the definition of final beneficiaries of legal persons and public figures”.
2Hereinafter in this article we use common/ single term “beneficiary” instead of “final beneficiary owner (controller)” used in the Commercial Code and “beneficial (factual) recipient (owner) of income” used in the Tax Code.
3Para. 103.3 of the TC of Ukraine does not directly stipulate that legal entity and natural person may be beneficiary. However, this paragraph contains the definition “entity” which, according to the provisions of the Civil Code of Ukraine, includes both legal entities and natural persons.
4Such conclusion is also stated in para. 12.1 p. 187-188 of brief commentary to the Model Convention of the OECD on avoiding of double taxation in the version as of July 15, 2014.