Analytics

Updated on December 6, 2013

The rules of determination of countries, which fall under the category of the states with low tax rate for the purpose of transfer pricing, experienced transformation with entering into force of the respective provisions of the Law of Ukraine of 24.10.13 No 657-VII “On introduction of amendments to the Tax Code of Ukraine regarding taxpayers’ registration and improvement of some provisions”.

In particular, according to the Final provisions of the Law, paragraph 5 of the Law on amendments in Article 39 of the Tax Code of Ukraine (hereinafter the “TC of Ukraine”) enters into force on the next day following its publication. In the official edition of “Holos Ukrainy” the respective Law was published on 12.11.2013, which gives grounds for application of the respective amendments since 13.11.2013.

Thus, the provisions of para. 39.2.1.2 of Article 39 of the TC of Ukraine currently imply that the controlled transactions for purposes of transfer pricing are “transactions, where one of the parties is non-resident, registered in the state (territory), where corporate income tax rate (corporate tax) is by 5 and more percentage points lower, than in Ukraine, or which pays corporate profit tax (corporate tax) under the rate by 5 and more percentage points lower, than in Ukraine”.

It means that henceforth controlled transactions include, among other things, business transactions with non-residents who are not considered to be related parties, but registered in the states, where corporate income tax rate is by 5 percentage points and more lower than in Ukraine. Let us remind that previously the legislator has determined such differentiation as 5 percent or more.

At the same time, the only substitution of the word “percent” with the phrase “percentage points” influences the taxation significantly.

By 5 percentage points and more – what does it mean?

Firstly we would like to differentiate between the notions “percent” and “percentage points”. Thus, by usage of the notion “percent” of a certain number, one means “a hundredth part of this number”. Such definition gives us the Ukrainian Wikipedia, and herewith explains that:

“When one refers to “an increase by 10%” or “decrease by 20%” it is assumed that the change is compared with the previous value.

…

• “a decrease by 50 % means halving (decrease of twice)
•  a decrease by 60 % means decrease in 2,5 times.

Moreover, with the purpose of clear differentiation between the notions “percent” and “percentage points” Wikipedia adds the following:

“when there is a need to  compare 2 values expressed as a percentage, their difference expressed in percentage points (pp). For example, if the deposit rate increased from 10 % to 12 %, they say that it has increased by 2 percentage points (pp). The statement “rate is increased by 2 %” is not correct, since 12 is greater than 10 by 20% rather than by 2 %”.

Hence, whereas in previous wording of para. 39.2.1.2 of Article 39 of the TC of Ukraine transactions with non-residents registered in states with corporate income tax rate of 18,05 % (19-19 * 5/100) and lower fell under the category of controlled transactions, now this rule refers to the states with substantially much lower corporate income tax rate.

Thus, by deduction from the corporate income tax rate in Ukraine (19 %) of 5 percentage points we have the following calculation:

19-5=14 (%)

Therefore, the respective regulation of para. 39.2.1.2 of Article 39 of the TC of Ukraine concerns operations with non-residents only of those countries, where the corporate income tax rate is 14 % and lower.

How the list of states with low tax rate, approved by the Cabinet of Ministers of Ukraine, will be applied?

The full answer on the list of states, transactions with residents of which would be qualified as controlled transactions for the purposes of transfer pricing, was provided by the Cabinet of Ministers of Ukraine after publication of the respective list. As in para. 39.2.1.2 of the Law it is specified that “the list of such states (territories) is approved by the Cabinet of Ministers of Ukraine”.

In general, according to the Regulation of the Cabinet of Ministers of Ukraine of 25.12.13 No. 1042-r, 73 states (territories) are included to the list of states with low tax rates (the list is provided at the end of this newsletter).

Аlong with the publication of such list the question arises: to which transactions it should be applied? Should it be all transactions which would be fulfilled after the date of publication of the list or only those that have been made since September 1, 2013 as a date when rules on transfer pricing entered into force?¹

For example, for regulations of transactions with non-residents with offshore status in subpara. 2 para. 161.2 of Article 161 of the TC of Ukraine it is well established that the respective rule “…starts being applied from the calendar quarter following the quarter of the  official publication of the offshore zones list established by the Cabinet of Ministers of Ukraine”.

However, for the respective provisions of paragraph 39.2.1.2 of Article 39 of the TC of Ukraine such rules have not been foreseen. Such uncertainty gives grounds to a dual interpretation regarding the date of application of the respective regulation. So there are the risks of applying this list to the transactions since September 1, 2013, which is the date of entry into force of this Law.

As you can see, the Law on transfer pricing includes many surprises, so, get ready for them!

Nevertheless, we emphasize that these “surprises” are relevant not for all cases of interaction with unrelated parties, but only for those relationships with counterparties which volume of transactions is equal or exceeds 50 million UAH per year for each individual counterparty, as it has been noted in the Newsletter of 09.08.13.

Therefore, in case of transactions with significant amount with unrelated parties which are residents of the states not included into abovementioned list of the Cabinet of Ministers of Ukraine, we recommend specifying in the agreements the corporate income tax rate applied in the state of residency of the counterparty. However, practical realization of such recommendation depends on counterpart’s position regarding inclusion of respective provision into the contract.

List of states (territories), in which the income tax (corporate tax) rate is by 5 or more percentage points lower than in Ukraine, according to the Regulation of Cabinet of Ministers of Ukraine of 25.12.2013 No. 1042-p

1. The Republic of Albania
2. Anguilla
3. Principality of Andorra
4. Antigua and Barbuda
5. Aruba
6. Commonwealth of the Bahamas
7. Barbados
8. Kingdom of Bahrain
9. Belize
10. Bermuda
11. Bulgaria
12. Bosnia and Herzegovina
13. The British Virgin Islands
14. Brunei Darussalam
15. Virgin Islands of the United States of America
16. The Republic of Vanuatu
17. Guadeloupe
18. Guernsey
19. Gibraltar
20. Grenada
21. Georgia
22. Jersey
23. Ireland
24. Autonomous Community of the Canary Islands Kingdom of Spain
25. The Republic of Cape Verde
26. Cayman Islands
27. State of Qatar
28. The Kyrgyz Republic
29. Republic of Cyprus
30. Autonomous Province of Kosovo and Metohija Republic of Serbia
31. Curacao
32. Kingdom of Lesotho
33. Republic of Liberia
34. Lebanese Republic
35. Principality of Liechtenstein
36. Grand Duchy of Luxembourg
37. Special Administrative Region of China Macau
38. The former Yugoslav Republic of Macedonia
39. Federal Territory of Labuan Malaysia
40. Maldives
41. The Republic of Malta
42. Kingdom of Morocco
43. Martinique
44. Republic of the Marshall Islands
45. Federated States of Micronesia
46. Republic of Moldova
47. Montserrat
48. The Republic of Nauru
49. United Arab Emirates
50. Sultanate of Oman
51. Isle of Man
52. Cook Islands
53.  Turks and Caicos Islands
54. Republic of Palau
55. The Republic of Panama
56. The Republic of Paraguay
57. Commonwealth of the Northern Mariana Islands
58. Madeira Autonomous Region of Portugal
59. The Republic of San Marino
60. Democratic Republic of Sao Tome and Principe
61. Republic of Seychelles
62. Saint Vincent and the Grenadines
63. Saint Kitts and Nevis
64. St. Lucia
65. The Republic of Singapore
66. Sint Maarten (Dutch part)
67. Republic of the Sudan
68. Democratic Republic of Timor-Leste
69. The Republic of Uzbekistan
70. French Guiana
71. Montenegro
72. Switzerland
73. Jamaica

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. 

Notes:

¹According to the Law of Ukraine “On introducing amendments to the Tax Code of Ukraine regarding transfer pricing” as of July 04, 2013 No. 408-VII.

Kind regards,

© TOV "KM Partners", 2013

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