Uncategorized

Are You Aware Of Bank Guarantee In UAE?

alnuaimi July 16, 2022

379 Closed

Are You Aware Of Bank Guarantee In UAE?

It is a comfort, which is issued by the issuing bank to the beneficiary in whose favor the guarantee is issued to cover the losses if the principal debtor fails to abide by the terms of the agreement. Generally, it is issued in cases where either party requires strong business commitment and assurances that the other party will fulfill the contractual obligations envisaged in the contract. It is the most commonly used collateral in any international business.

UAE being most commonplace for international investors, the usage of bank guarantees is manifestly large in number. The Commercial Lawyers in Dubai have outlined various aspects of bank guarantee and the law of UAE governing the same. Federal Law number 18 of 1992 on Commercial Transactions Law regulates the very aspect of bank guarantee. It defines it under Article 411 as follows: “An undertaking issued by the bank to settle the customer’s debt to a third party in line with the conditions agreed upon and mentioned in the guarantee, which may be any given point of time or unlimited.”

Understanding the concept

A guarantee issued by the bank is considered a commercial activity irrespective of the person for whom the guarantee is issued. Thus, it is governed by the provisions of the Commercial Transactions Law. In addition, it also covers certain aspects of Civil Transactions Law (Federal Law Number 5 of 1985).

Each party involved in the bank guarantee has independent rights and obligations. The issuing bank or the guarantor has distinctive obligations as that of the principal debtor. Importantly, any guarantee issued by the bank is entirely separate from the contract or agreement entered into by the parties.

The bank or the guarantor is under an obligation to indemnify the beneficiary regardless of his position and the separate arrangement between the principal debtors or the beneficiary. The guarantor and the principal debtor have independent obligations towards the beneficiary, as the bank guarantee arises joint and separate obligations.

Accordingly, a bank guarantee is eminent from other guarantees mentioned under the Commercial Transactions Law which has the tendency to create contingent obligations dependent on the happening of a certain event.

Structure of a Guarantee

In accordance with the Commercial Transactions Law, a bank guarantee should be in a specified format and must entail the following details:

It must be of a certain specified amount. A bank guarantee without a specific amount or a vague amount shall not be enforceable;
There is no obligation to mention the time limit on the guarantee. However, it is pertinent to note that, if there is a time limit mentioned on the guarantee, it shall be deemed expired post the expiration of such time. This is in accordance with Article 418 of the Law, which states that unless otherwise expressly agreed to renew the guarantee prior to the expiry and a request for payment is received from the beneficiary, the guarantor should be allowed to discharge the liability vis-a-vis the beneficiary post the expiration of the bank guarantee;
Supposedly, the time limit is not mentioned on the guarantee; it shall be deemed expired in accordance with the UAE law which is 10 years from the date of issuing the guarantee.

It is indeed confirmed by the Commercial Transactions Law, that the Beneficiary is not empowered to assign his rights to any third party under the bank guarantee without the prior written consent of the guarantor. Alternatively, the beneficiary can be offered the right of the assignment while finalizing the bank guarantees thereby seeking prior permission from the guarantor to allow the beneficiary to transfer the rights in the bank guarantee.

The right transferred under the bank guarantee allows the assignee to act on the position of the beneficiary and possess all the rights as that of the beneficiary. Accordingly, the parties will be liable to the assignee, and the original beneficiary will have no rights or claims on the guarantor or principal debtor, post the transfer.

Invoking the Guarantee

Despite the fact that the issuance of a Bank Guarantee results in joint and a spate liabilities of the Guarantor and the Principal Debtor, the Guarantor is just at risk to pay to the Beneficiary upon the invocation of the Bank Guarantee by the Beneficiary and not upon default or act or oversight by the Principal Debtor. Primarily, a Bank Guarantee ought to be unrestricted; however, if it is subject to any conditions regarding the submission of any documents by the beneficiary, such conditions should be clearly outlined in the bank guarantee. The Beneficiary will not have the capacity to invoke the Bank Guarantee except if such conditions are not met or the required documents are not submitted. It is the obligation of the Guarantor to demonstrate that the Bank Guarantee is liable to such conditions.

Once the beneficiary invokes the guarantee in accordance with the conditions mentioned in the guarantee, the guarantor is obliged to make such payment unless otherwise restricted by the order of the competent court. It is, however, important to note that there is no time limit for the guarantor to make payments post the invocation of the bank guarantee. This is generally stipulated in the concerned document and agreed upon by the parties. The law has offered freedom to the parties to decide the time within which the guarantor will make the payments post the invocation of the bank guarantee at the time of issuance or signing the guarantee.

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Uncategorized

Appeal for ESR Penalty Imposed In UAE

alnuaimi July 12, 2022

285 Closed

Appeal for ESR Penalty Imposed In UAE

When you are aware of the reasons for attracting ESR Penalty, you should next be equipped with the steps to resolve it!

What if

The licensee or the exempted licensee did not commit the violation attributed to it?
The administrative penalty imposed is not proportionate to the violation?
The administrative penalty imposed exceeds the limited prescribed?

In such cases, the licensee or an exempted licensee can submit an appeal request to the Federal Tax Authority (The National Assessing Authority).

Is the whole system user-friendly? – Absolutely Yes. A user can easily follow the simple steps to file an appeal against the penalty imposed.

STEPS TO FILE AN APPEAL REQUEST

Step 1: Log in to the Ministry of Finance Portal. (You need to have a registered MoF Corporate account, or create a new account to access the Economic Substance Filing Portal).

Note: An appeal must be submitted for each administrative penalty separately.

Step 2: Click “File Appeal” to submit an appeal request.

Note: The system shows the deadline for submitting an appeal request and payment of the penalty.

(i) The deadline for submitting an appeal is (40) forty working days from the date on which such administrative penalty is levied.

(ii)The final deadline for paying the penalty is (40) forty working days from the date on which such administrative penalty is levied.

The calculation of the final deadline for paying the penalty is stopped upon submitting the appeal request, and it will be resumed if the appeal request is rejected or withdrawn.

Step 3: On the Appeal request page, the applicant must add a simplified explanation of the reason for submitting the appeal request and attach the supporting documents.

Step 4: Press “Next” and then send the request after reviewing the explanation and the attached documents by pressing “Send”.

Note: After sending the request, you will receive the message that your submission has been received.

WHEN TO EXPECT THE DECISION FROM THE NATIONAL ASSESSING AUTHORITY?

The National Assessing Authority makes a decision Within (40) Forty working days from the date of meeting all requirements. It informs the applicant of the decision within (5) working days from the date of issuance of the decision.

REQUEST FOR MORE INFORMATION / DOCUMENTATION BY THE ASSESSING AUTHORITY

The National Assessing Authority may request more information/documentation from Licensee and the applicant must provide the required information/documentation within (5) five working days from the date of such request.

Note: The National Assessing Authority has the right to reject appeals in case the information/documentation is not provided.

THE EXTENDED DATE OF DECISION

When providing the new supporting documents that were requested, the National Assessing Authority will review the appeal request and issue a decision within (40) forty working days from the date of receiving the required documents and the applicant will be notified within (5) five working days from the issuance of the decision.

SOME ADDITIONAL NOTES FOR YOUR INFORMATION

Up to 10 documents supporting the appeal can be submitted. However, must not be more than (40) Forty (MB) in total size.
The explanation provided in the portal would be best if it is short and accurate.
You can always follow up by sending an email to ftaesr@tax.gov.ae.
There is a Case ID provided for each appeal. You can find the appeal Case ID when you click on the “View Summary” on the Licensee Dashboard.

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Dubai Customs Declaration Clearing of consignments through Courier Companies

News

Dubai Customs Declaration No. (05/2022): Clearing of consignments through Courier Companies

alnuaimi July 5, 2022

310 Closed

Clearing of consignments through Courier Companies

In line with Dubai Customs’ strategy to be a global sustainable customs pioneering vision and to enhance the services provided by reducing costs for customers and facilitating and simplifying the procedures for clearing consignments through courier companies;

Dubai-Customs-Declaration-Clearing-of-consignments-through-Courier-Companies Download

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Source: Dubai Customs

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EXTP007: Excise Goods which are deficient/missing Process for

News, Public Clarifications, Tax

Excise Tax Public Clarification

alnuaimi July 2, 2022

324 Closed

EXTP007: Excise Goods which are deficient/missing – Process for the destruction of Excise Goods within a Designated Zone

There are certain limited cases envisaged under Cabinet Decision No. 37 of 2017 on the Executive Regulation of the Federal Decree-Law No. 7 of 2017 on Excise Tax (“the Executive Regulation”), where relief from excise tax is available for excise goods that are found to be deficient, or there is a shortage in their quantity, within an excise tax designated zone.

In addition, there may also be circumstances where a business may seek relief from the Federal Tax Authority (“FTA”) from paying the Excise Tax associated with goods destroyed within a designated zone.

In order to destroy excise goods and obtain the relief mentioned above, the FTA must be notified of the deficiency or shortage, and its approval must be obtained in line with the process outlined in this document.

Summary

In principle, goods that are considered ‘wastage’ or are deficient or there is a shortage of the expected quantity when located within a designated zone, will be treated by the FTA as having been released for consumption and, therefore, will be subject to excise tax.

As an exception to the above provision, the Executive Regulation allows for a relief to be granted from accounting for excise tax on goods located within an excise tax designated zone in certain cases. Such relief is available where the warehouse keeper responsible for the excise goods follows the process outlined in this document.

Relief will only be granted where the FTA is notified by the warehouse keeper within the specified timeframe and accepts that the deficiency in, or shortage of, the excise goods are due to a legitimate cause.

Where a taxable person intends to destroy excise goods located within a designated zone, they must first obtain prior approval from the FTA in order to destroy the goods.

Short Term Finance in the UAE and the Use of Trust Receipts

alnuaimi July 1, 2022

292 Closed

Short Term Finance in the UAE and the Use of Trust Receipts

With the strong focus on trading in the United Arab Emirates (“UAE”), traders often require short-term financing and this is where banks and financial institutions step in.

While typically most banks and financial institutions restrict short-term financing to the letter of credit facilities, the financing of the retirement of the letters of credit is also in great demand and more and more banks choose to extend the existing L/C facility to a trust receipt facility to enable the customer to make a payment towards the L/Cs and retire them by taking on a further short term loan. This type of financing is popular, especially in the UAE where the options for the creation of several types of security (that are otherwise available in most commonwealth countries) are not available. Financing by way of trust receipts does not amount to secured financing. However, it does create certain rights and obligations that put the lender in a better position than most other unsecured lenders.

From the customer’s perspective, financing by way of trust receipts is particularly relevant for importers of raw or semi-finished goods who require such materials for their manufacturing process. Given that a customer who is important of raw material would receive funds only once he sells finished goods in the market, such customers often seek financing from banks or other financial institutions for payments due to their suppliers during the manufacturing stage.

Typically under this structure, the financier pays the supplier of goods on behalf of the customer at the time the customer takes delivery of the goods (usually to retire the existing letters of credit). The ownership of the goods (being financed) is transferred to the financier and the customer is immediately provided with the authority to deal with such goods (under a trust receipt), including using the goods for manufacturing and selling the goods or the finished product.

While the customer is permitted to use the goods received from the supplier, the financier obtains and retains title to such goods, with the customer acting as an agent, trustee, and/or bailee on behalf of the financier in respect of such goods during the financing period. Any proceeds from the sale of the finished goods, shall, to the extent these are related to the raw material supplied under the trust receipts, be held by the customer for and on behalf of the financier and for remittance to the financier.

What are Trust Receipts?

Trust Receipts are not defined under UAE law. In practice, trust receipts are receipts issued by the owner of the goods permitting another party to deal with the goods on behalf of the owner.

UAE Law and trust receipts

The UAE is a civil law jurisdiction and does not recognize common law trusts. However, trust receipts are commonly used in the UAE and would be recognized under UAE law provided the ownership of the goods clearly lies with the financier and the trust receipt issued by the bank clearly permits the customer to deal with the goods as an agent of the financier.

Trust receipt facilities are commonly used in the UAE as documentary credit financing. Banks and financial institutions issue letters of credit on behalf of their customers in order for the customers to avail of their goods purchased (financed by such letters of credit) and enter into a trust receipt arrangement so that the goods may be released to the customer for sale in the local markets. The trust receipt ensures that the bank retains its title in the goods while releasing the right to deal in the goods to the customer.

The UAE Commercial Code and the UAE Maritime Code recognize bills of lading as the title and transport documents for the transport and shipment of goods. In practice, most trade finance (including documentary credit) is based on either bill of lading in the name of the importer (the customer) or bills of lading ‘to the order of’ the financier. We find that financiers in the UAE often require bills of lading to be made to the order of the financier. In the event the bills of lading are issued ‘to the order of’ the financier then ownership and title in relation to such bills of lading would already vest with the financier. When bills of lading are issued in the name of the customer, it is essential (for the purpose of entering into a valid trust receipt structure) that the ownership of the bills of lading and the underlying goods be transferred to the financier. This may be achieved in the UAE by using the appropriate structure and documentation.

The Commercial Code specifically permits banks to entrust their customers with taking delivery of goods on a trust/agency basis and selling them on behalf of the bank (and to the bank’s account) under terms and conditions agreed between the bank and the customer. The customer will act as a commission agent and the bank shall have all the rights of the principal on such goods or their value. To this end, the customer and the bank may enter into a trust receipt arrangement whereby the bank entitles the customer to release the goods under the bills of lading as a commissioning agent on behalf of the bank.

The term ‘trust’ as referred to in the Commercial Code is different from the concept of trusts as understood in common law jurisdictions. The term ‘trust’ is literally translated from the term ‘Amanah’. The term trust or Amanah is derived from the UAE Civil Code and relates to a custodianship or deposit arrangement created contractually where a party entrusts or deposits its property to another party for safeguard and preservation. The concept of Amanah and/or a deposit contract would apply to the operation of trust receipts.

Note that in a trust receipt structure it would be essential that the customer (as agent) should be required to abide by the compulsory and express instructions of the bank (as principal). If the customer violates such instructions without an acceptable excuse, the bank may reject the deal. The customer will also be responsible to the principal if the goods perish or there is any damage to the goods and other things that are in the customer’s possession unless the damage or perish results from a foreign cause beyond the control of the customer, or from an inherent defect in the goods.

The UAE Civil Code also contains detailed provisions on ‘deposit contracts’ under which a depositor authorizes another person to take care of his property and to maintain the said property (or use it under instructions of the depositor) and make restitution thereof in rem.
Enforcement Process

The trust receipt structure does not amount to security but does place the financier in a better position for recourse than other unsecured lenders so long as the goods related to the relevant bills of lading or the proceeds thereof are adequately traced and identified.

If the customer trades with the goods in its custody with the permission of the bank, the proceeds arising out of such trade shall then be transformed into a debt owed by the customer to the bank and will not be discharged except by returning the equivalent of the value of the goods to the bank.

Also, if the goods under the trust receipt arrangement are sold by the customer to a bona fide third party then the bank may not be able to trace such goods in the custody of such bona fide purchaser. Further, in the insolvency of the customer, if the proceeds of the goods have been co-mingled with the other assets of the customer, the bank will need to claim in the insolvency, as an unsecured creditor.

Any breach or consequence of such arrangement attributable to the customer may be seen as a breach of duties by the customer as the commission agent under the Commercial Code and a breach of trust under the Penal Code.

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VAT

How we can go wrong in determining VAT Treatment

alnuaimi June 27, 2022

349 Closed

How we can go wrong in determining VAT Treatment

Determining accurate VAT treatment is crucial in every business transaction hence; indispensable care is significant to determine the VAT treatment even if the organization is operating on a small or medium scale.

During my professional career, I came across various scenarios where business owners neglect to take professional advice related to VAT treatment and depend on what similar industry business is following which ends up in an FTA Audit, which obviously concludes with a massive penalty.

Here, I would share a VAT Treatment followed by business entities in the industry.

Introduction

On concurrent reading of Section 2 of Article 45 of the Decree-Law

“International transport of passengers and Goods which starts or ends in the State or passes through its territory, including Transport-related Services. “

And Section 1 of Article 33 of the Executive Regulation

“The supply of international transportation Services for Passengers and Goods and Transport-related Services shall be subject to the zero rates in the following cases:

a. Transporting passengers or Goods from a place in the State to a place outside the State.

b. Transporting passengers or Goods from a place outside the State to a place in the State.

c. Transporting passengers from a place in the State to another place in the State by sea or air or land as part of a supply of international transport of those passengers if either or both the first place of departure, or the final place of destination, is outside the State.

d. Transporting Goods from a place in the State to another place in the State if the Services are supplied as part, or for the purpose, of the supply of Services of transporting Goods either from a place in the State to a place outside the State or from a place outside the State to a place in the State. “

This decree implies that Transportation of goods or passengers from/to the state to/from a place outside the state, for such services of transportation, VAT is applicable at 0%. As well law considered “Transport related services” that will fall under the 0% VAT.

Referring to Sub Section (d) Section 1 of Article 33 of Executive Regulation “The supply of transportation service from/to Port in U.A.E to/from U.A.E mainland is treated as Standard-Rated Supply (5%).”

The falsification followed by interpreting Sub Section (d) Section 33 is that the transportation from port to mainland or vice versa is a part of international transport since the goods arriving from the port or departing from the port are in International transit. Hence, subject to Zero Rate.

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News, Public Clarifications, Tax

FTA Clarification Public Tax Excise

alnuaimi June 22, 2022

449 Closed

FTA: Clarification Public Tax Excise

There are certain limited cases envisaged under Cabinet Decision No. 37 of 2017 on the Executive Regulation of the Federal Decree-Law No. 7 of 2017 on Excise Tax (“the Executive Regulation”), where relief from excise tax is available for excise goods that are found to be deficient, or there is a shortage in their quantity, within an excise tax designated zone.

In addition, there may also be circumstances where a business may seek relief from the Federal Tax Authority (“FTA”) from paying the Excise Tax associated with goods destroyed within a designated zone.

In order to destroy excise goods and obtain the relief mentioned above, the FTA must be notified of the deficiency or shortage, and its approval must be obtained in line with the process outlined in this document.

Summary

In principle, goods that are considered ‘wastage’ or are deficient or there is a shortage of the expected quantity when located within a designated zone, will be treated by the FTA as having been released for consumption and, therefore, will be subject to excise tax.

As an exception to the above provision, the Executive Regulation allows for a relief to be granted from accounting for excise tax on goods located within an excise tax designated zone in certain cases. Such relief is available where the warehouse keeper responsible for the excise goods follows the process outlined in this document.

Relief will only be granted where the FTA is notified by the warehouse keeper within the specified timeframe and accepts that the deficiency in, or shortage of, the excise goods are due to a legitimate cause.

Where a taxable person intends to destroy excise goods located within a designated zone, they must first obtain prior approval from the FTA in order to destroy the goods.

FTA issued Public Clarification (VATP029) on Gold Making Charge

alnuaimi June 17, 2022

306 Closed

FTA issued Public Clarification (VATP029) on Gold Making Charge

Gold jewelers generally receive consideration for the supply of gold jewelers to cover the price of the gold as well as for a making charge.

In some instances, taxable persons supplying gold jewelry reflect the gold price and make a charge separately on the tax invoice issued for the supply, and in other cases, both are reflected as a total price.

This Public Clarification provides guidance on the application of the VAT legislation with regards to making charges received by gold jewelers

Tax registrants supplying gold are not required to impose VAT on the supply of gold and products which mostly consist of gold if the conditions of Cabinet Decision No. 25 of 2018 on the Mechanism of Applying Value Added Tax on Gold and Diamonds between Registrants in the State (“Cabinet Decision No. 25”) are met. In such instances, VAT in respect of the gold is accounted for under a special reverse charge mechanism which requires the registered recipient to account for VAT on the supply instead of the supplier.

The reverse charge mechanism only applies to the supply of goods by a registrant.

If the supplier charges separate considerations for the gold and the making service or reflects the price of these components separately, the supplier is required to impose VAT on the service component.

UAE Supreme Court orders cancellation of tax penalties

alnuaimi June 16, 2022

277 Closed

UAE Supreme Court orders cancellation of tax penalties for re-submission of returns

Facts

The taxpayer submitted tax returns for the prescribed tax periods as of January 2018, and these returns included supplies related to real estate owned individually to the taxpayer, as well as real estate owned in partnership with another person.

The taxpayer’s partner was not added to the tax registration from the beginning due to the absence of his name as an owner in all real estate.

The taxpayer registered a new account with the partner on the directives of the Federal Tax Authority during an audit and re-filed the tax returns under the new account.

Penalties

The FTA applied late payment penalties to the taxpayer as the new account required re-submission of the returns that had been filed previously by the taxpayer under the original account.

The FTA considered that the new submissions were the correct submissions as the original submissions were not correct in form and procedure because the account did not include the partner.

The FTA applied the late payment penalties to the new submissions tracing back to January 2018.

Supreme Court order

The taxpayer challenged this up to the Federal Supreme Court.

The Supreme Court found that the reopening of the new account did not result in damages to the State funds because the taxpayer had originally submitted and paid all tax returns, including the real estate in the partnership, on the legally prescribed dates.

The procedural deficiency did not manifest a circumstance where the payments had not been made.

In reasoning, the Supreme Court stated:

“Since this argument is in order, it is decided that tax procedures are not an end in themselves, but rather a means to achieve the goal of the lawgiver in collecting the legally due tax. Allegedly, the tax returns made under the wrong procedure that were subsequently corrected were not taken into account. Rather, the FTA’s right to collect the fine decided by the legislator on the wrong procedure only recedes, without this right going beyond that by imposing other fines for a tax collected on the date specified by the law, even under the aforementioned procedure.”

Significance

This judgment reassures the application of justice and equity in tax dispute proceedings before the Federal Courts of the UAE. Taxpayers must seek learned and practiced counsel when faced with a tax dispute.

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News, UAE Law

UAE Law on the Signing of Arbitral Awards

alnuaimi June 13, 2022

402 Closed

UAE Law on the Signing of Arbitral Awards

Rules Applicable to UAE-Seated Arbitral Awards

Historically, there has always been a risk that arbitral awards rendered in onshore UAE-seated arbitrations may be deemed to be unenforceable by the UAE courts if the arbitral tribunal does not sign every page of the award.

Prior to the enactment of the UAE Arbitration Law, the signature of the arbitral award was subject to Article 212(5) of Federal Law No. 11 of 1992 (UAE Civil Procedure Law), which required:

The arbitrators’ decision shall be delivered with a majority of opinions and it should be written together with the contradictory opinion, and it should particularly include a copy of the arbitration agreement and a resume of the litigant parties’ statements, their documents, the decision’s reason and its pronunciation, its delivery date, its delivery place, the arbitrators’ signatures, and if one or more of the arbitrators has refused to sign the decision that should be mentioned therein, and the decision shall be valid if the majority of the arbitrators have signed it.

Although this article did not expressly require a signature on all pages of the arbitral award, the Court of Cassation repeatedly held that the arbitral tribunal should sign both the dispositive section and the reasoning in support of the award and that a failure to do so would render the award invalid. However, the Court of Cassation, in Case Nos. 156/2009 Commercial (dated 27 October 2009) and 251/2010 Commercial (dated 18 May 2011), considered the enforcement of two UAE-seated arbitral awards and held that the signature of the arbitral tribunal did not have to be on every page of the award. In those cases, the Court of Cassation considered that it was sufficient that the arbitral tribunal had signed the dispositive section of the award, which also included, on the same page, part of the tribunal’s reasoning.

In June 2018, Article 212(5) of the UAE Civil Procedure Law was replaced by Article 41(3) of the UAE Arbitration Law, which states:

The award shall be signed by the arbitrators and in arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the Arbitral Tribunal shall suffice, provided that the reason for any omitted signature is stated.

Similar to Article 212(5) of the Civil Procedure Law, Article 41(3) of the UAE Arbitration Law does not expressly require the arbitral tribunal’s signature on every page of the award, or on the pages containing the dispositive section and reasoning for the award. However, based on the similar language of the laws and considering the decisions issued under the “old” law, the Court of Cassation has maintained the established position that both the dispositive section and the reasoning must be signed, and it has only agreed to enforce arbitral awards, which are not signed on every page, in limited circumstances.

In Case No. 1083/2019 Commercial, the Court of Cassation considered the enforcement of a UAE-seated arbitral award under the UAE Arbitration Law. Consistent with the earlier decisions rendered under Article 212(5) of the UAE Civil Procedure Law, the Court of Cassation held that, if the award is issued as a single document containing both the dispositive section and reasoning for the award, it is sufficient that the arbitral tribunal only signs the dispositive section, provided that the dispositive section contains part of the reasoning. However, the Court of Cassation also held that if the dispositive section and reasoning are contained in separate documents, the dispositive section, and all of the pages of the reasoning, must be signed by the arbitral tribunal.

It is unclear why the Court of Cassation differentiated between an award rendered in a single document and in separate documents in this manner; nonetheless, the Court of Cassation confirmed that it may be sufficient that an award is not signed on every page provided that the tribunal signs the page containing the dispositive section of the award and that page also contains part of the reasoning.

Application of UAE Law to the Enforcement of Foreign Arbitral Awards

In Case No. 403/2020 (dated 15 April 2020), the Court of Cassation refused to enforce an award rendered in a foreign-seated arbitration, which contained the signature of the arbitrator on the last page only and not on the pages containing the reasoning of the award.

In reaching this decision, the Court of Cassation referred to Article III of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention)—which provides for enforcement in line with the “rules of procedure in the territory where the award is relied upon”—and held that the applicable rules of procedure in the UAE included the provisions of the UAE Arbitration Law. For the purposes of Article 41(3) of the UAE Arbitration Law, the court held that signing the award means signing the dispositive and reasoning sections of the award and, if both sections have not been signed, the award is deemed invalid and enforcement would be contrary to UAE public policy. The court then relied upon Article V(2)(b) of the New York Convention—which provides that enforcement may be refused where the recognition or enforcement of the award would be contrary to the public policy of that country—as a basis for refusing to enforce the award.

In its recent decision in Case No. 109/2022, the Court of Cassation confirmed the position previously taken by the Court of Cassation in Case No. 403/2020. In Case No. 109/2022, the Court of Cassation considered the recognition and enforcement of an arbitral award issued in a foreign-seated arbitration, where the arbitrator had only signed the last page of the award. The Court of Cassation found that the arbitrator’s signature on the last page, which contained the dispositive section but not any part of the arbitrator’s reasoning, did not satisfy the requirements of Article 41(3) of the UAE Arbitration Law. Thus, the award was void and unenforceable as a matter of UAE public policy.

Analysis

The judgment of the Court of Cassation in Case No. 109/2022 reaffirms that, under UAE law, the arbitral tribunal must sign both the dispositive section and the reasoning of the arbitral award. In certain circumstances, the UAE courts may accept a signature on the dispositive section of the award, provided that the signed dispositive section contains part of the reasoning. However, the safest approach is for the tribunal to sign every page of the award in order to avoid the risk of a challenge to enforcement based on whether all of the required pages have been signed.

This case also serves to remind parties that the UAE procedural rules not only apply to arbitrations seated in onshore UAE, but they may also be relevant whenever a party seeks to enforce an arbitral award in the UAE through the onshore UAE courts. This includes foreign-seated arbitrations and arbitrations seated offshore in the UAE, such as the Dubai International Financial Centre of Abu Dhabi Global Market, notwithstanding that the arbitration laws applicable in those jurisdictions may not include the same signatory requirements.

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Tax, VAT, VAT Filing

Input Tax Recovery under VAT in UAE

alnuaimi June 10, 2022

302 Closed

Input Tax Recovery under VAT in UAE

Input tax is the tax paid by a person on purchases or inward supplies. A major element of VAT in UAE is the provision to recover the tax paid on inputs. This means that a person can reduce the value of input tax eligible for recovery from the tax payable and only pay the balance amount as tax. This ensures that tax is paid only on the value-added at each stage in the supply chain. Hence, the amount of input tax eligible for recovery plays an important role in the cash flow and operating expenses under VAT.

Let us first understand how input tax recovery works.

Process of input tax recovery

Example: In January ’18, Jehan & Co, in Abu Dhabi purchased 10 desktop computers @ AED 1,000 each. On this purchase, Jehan & Co. pays VAT @ 5% of AED 500. In the same month, Jehan & Co. supplies 20 desktop computers @ AED 2,000 to a consumer. VAT @ 5% is collected by Jehan & Co. on the supply, amounting to AED 2,000.

Here, the output tax payable by Jehan & Co. for the month of January ’18 is AED 2,000.

Input tax recoverable for the month of January ’18 is AED 500

Tax payable = Output tax payable – input tax recoverable

Hence, tax payable by Jehan & Co. for the month of January, ’18 is AED 2,000 (Output tax payable) – AED 500 (Input tax recoverable) = AED 1,500.

Here, as you can observe, the tax paid on purchase by Jehan & Co. can be used to reduce their output tax payable. Only the balance tax payable is required to be remitted to the Government.

Conditions for input tax recovery

A registered business can recover the VAT paid on the purchase of goods and services used for business purposes and subject to certain conditions. These conditions to be satisfied are:

Should be used to make Taxable supplies

The supplies on which tax is liable to be paid are called taxable supplies (i.e. supplies made at 5% or zero-rated supplies). Input VAT recovery is allowed to be claimed only on inputs used to make taxable supplies, not exempt supplies.

For example, Jehan & Co. purchase 20 units of Item A @ AED 50, for a value of AED 1,000. Out of the 20 units purchased, 10 units are used to manufacture Item B, which is taxable and 10 units are used to manufacture Item C, which is exempt.

Hence, Jehan & Co. can claim input VAT recovery only for the value of input used to make taxable supplies, i.e. 10 units used to manufacture Item B @ AED 50, which is AED 500.

The recipient receives and keeps the Tax Invoice

The recipient claiming input tax recovery on a supply should ensure that the Tax Invoice pertaining to the supply is received and kept in the records. The Tax Invoice should show the details of the supply related to the input tax recovery being claimed.

The recipient pays the consideration for the supply

The recipient claiming input tax recovery should pay or intend to make the payment of consideration for the supply within 6 months after the agreed date of payment for the supply.

Hence, the provision for input tax recovery is a very important component of VAT in the UAE. Businesses need to ensure that they are able to correctly identify supplies on which input tax can be recovered, ensure that they fulfill the conditions for a claim of input VAT recovery, and claim the input VAT recovery on time. This will help in ensuring optimum cash flow and working capital in the business. All this work can be made easier by the use of VAT software which will help automate each of these tasks with respect to input tax credit and leave you with enough time and resources for you to focus on your business.

For more information on these services, please contact us:

Tel: +971 43 23 1183
Mob: +971 55 899 5971
E-mail: mail@alnuaimiauditors.com

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News, UAE Corporate Tax

Recent changes to the UAE legal landscape: March 2022

alnuaimi June 8, 2022

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Recent changes to the UAE legal landscape: March 2022

The United Arab Emirates (UAE), which has made significant updates to its laws governing commercial activity in recent years, has again revised and refined the statutory landscape for companies in the country. The issuance of a new Commercial Companies Law, which entered into force on 2 January 2022, alongside the announcement of the implementation of corporate tax for financial years beginning 1 June 2023, provide businesses operating in the UAE with new elements to consider when charting their course in a post-pandemic world. Here, we summarize the major changes in the new UAE Commercial Companies Law and detail what is currently known about the impending corporate tax regime.

The UAE has seen some significant changes to its legal and social landscape in the last six months. These changes have been much more extensive and swift than anticipated, and illustrate the desire of the UAE to stay at the forefront of development in the region.

We recently detailed some of the adjustments that have been made in the employment sphere, following the entry into force of the new Labor Law at the beginning of February 2022. In this article, we will summarize some of the other newly-implemented changes in the UAE.

Commercial Companies Law

In late November 2021, Federal Law 32 of 2021 on Commercial Companies (the New CCL) was announced, replacing the 2015 law on Commercial Companies (as amended). The 2015 law was itself a landmark piece of legislation, heralding the largest overhaul of commercial regulation in the UAE in more than 30 years, including 2020 amendments, which removed the foreign ownership restrictions on certain onshore entities. The New CCL, which entered into force on 2 January 2022, takes that modernization further, by making the following changes:

Introducing the Special Purpose Acquisition Company (SPAC) as a valid form of entity in “onshore” UAE, along with creating the Special Purpose Vehicle as a separate company type. A SPAC will be classified as a public joint-stock company for the purposes of the New CCL but will be exempt from certain provisions of the new law. SPACs will require the approval of the UAE Securities and Commodities Authority (SCA), which has set out further guidance for the regulation of SPACs in the SCA Chairman of the Board Resolution No 1 of 2022 on the regulations for Special Purpose Acquisition Companies.
Amending certain provisions in relation to limited liability companies, including changes to the notice periods and quorum requirements for shareholder meetings, reducing by half the amount, which must be allocated to a statutory reserve annually, and granting power to the authorities to appoint temporary boards where a company fails to constitute a new board.
Amending certain provisions in relation to joint-stock companies, including removing the prescriptions on the nominal value of shares and the percentage of capital for which the founders are permitted to subscribe, and adjusting director remuneration limits.

The New CCL brings the UAE’s onshore commercial regime further in line with international best practices and shows that the UAE is open to the kinds of transactions being undertaken elsewhere in the world. SPACs, in particular, is a feature of the M&A landscape in many jurisdictions, and it will be fascinating to see the uptake in the UAE.

Corporate Taxation

On 31 January 2022, the UAE Ministry of Finance (MOF) announced that federal corporate tax will be implemented on business profits for financial years, which start on or after 1 June 2023, meaning that the first profits to be taxed will be for financial years ending on or after 31 May 2024. The UAE has hitherto been a jurisdiction in which most companies – with the exception of oil and gas companies and branches of foreign banks – have not been subject to corporation tax. The initial press release contained only limited details, but the salient elements currently known are as follows:

The tax will apply to all businesses and commercial activities, and be levied at 9 percent on profits over AED 375,000 (with zero percent applied to profits under this amount).
No corporate tax will be levied on personal income from employment, real estate, and other investments, or on any other income earned by individuals not arising from businesses or commercial activities licensed in, or permitted to be undertaken in, the UAE.
Companies incorporated in free zones in the UAE, which are the recipients of guarantees to be free of corporate taxation for a period of 50 years from the date of incorporation of that free zone, will continue to benefit from this exemption to the extent that they are in compliance their regulatory obligations, including the proscription on conducting business in mainland UAE.
Generous loss utilization rules will be put in place, which will allow UAE groups to be taxed as a single entity or to apply for group relief in respect of losses and intergroup transactions and restructurings.
The UAE will not impose withholding taxes on domestic and cross-border payments or subject foreign investors who do not carry on business in the UAE to corporate tax.
UAE businesses will be exempt from paying tax on capital gains and dividends received from qualifying shareholdings.
Foreign taxes will be allowed to be credited against UAE corporate tax payable.

The implementation of corporate tax raises a number of questions, particularly following so closely after the removal of the restrictions that required onshore entities to be at least 51 percent owned by UAE nationals or companies classed as UAE domestic entities. The interplay between these two developments will be critical: Will UAE domestic ownership be incentivized, potentially with a reduced corporate tax burden for majority-UAE-owned entities? Will the continued use of nominee structures be considered to be tax avoidance or evasion?

Historically, free zone companies, particularly those providing services, have been operating, and deriving most of their income, from clients in mainland UAE. This has not been policed by the authorities but given the new distinction between a tax-free free zone and a taxed mainland, companies may need to be much more careful in how they operate and serve their clients. It is not clear, for example, if a free zone company’s profit referable to a mainland client will be taxed and, if so, how much profit will be determined and what records will need to be maintained.

Clients will likely need to examine their accounting policies and systems to ensure compliance with their corporate tax obligations, in addition to their reporting obligations in respect of Value Added Tax. We await further legislative issuances on this matter and will provide updates when available.

Other changes

Possibly the most significant change was not a legislative one: the December 2021 announcement that UAE government entities and all schools would transition to a 4-and-a-half-day week, with rest days on Friday afternoons, Saturdays, and Sundays, bringing the Saturday/Sunday weekend in line with much of the rest of the world. This alignment has already positively impacted UAE businesses, while hospitality operators have also reported a boost as a result of the change in the working week, which has been adopted by much of the private sector.

The UAE also announced a wide-ranging social legislative reform program in early December 2021, adopting a new Federal Crime and Punishment law that amended the UAE’s position on social issues. These changes, along with the commercial adjustments examined earlier and employment law changes outlined recently, can be seen as part of a concerted program to align the UAE with much of the rest of the world from both economic and social perspectives. It is clearly hoped that these changes will drive economic activity in the UAE, and cement the country’s place as one of the most prominent international commercial hubs in the next decade and beyond, and we expect these changes to be welcomed by businesses and investors, as well as the individual employees they affect.

Next steps

While the full impact of the myriad amendments to UAE law will not be known immediately, in the short-term businesses may wish to engage advisors in connecting with adjusting their constitutional documents to reflect the provisions of the new CCL. Companies might also consider whether they wish to make any changes to the ownership structures they have in place if these were designed to be in compliance with previous versions of the Commercial Companies Law.

For more information on these services, please contact us:

Tel: +971 43 23 1183
Mob: +971 55 899 5971
E-mail: mail@alnuaimiauditors.com

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