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Tax Transformation, Partnership, and Corporate Governance — Answers to the Questions of Private Clients

Sourse: Ukrainian Law firms

The implementation of tax and corporate legislation changes announced and launched in 2019-2020 has already started. Many business people being previously skeptical about implementing these changes started considering and restructuring their businesses and personal assets. The main areas of concern for businessmen are taxes, joint investment and partnerships, asset protection, and ownership transparency.

Tax Transformation 

Tax Reform for Individuals

On June 15, 2021, the Law of Ukraine “On Amending the Tax Code of Ukraine to Stimulate the De-Shadowing of Incomes and Enhancing the Tax Culture of Citizens Through Introduction of Voluntary Declaration by Individuals of Assets Belonging to them and Payment of One-Time Dues to the Budget” No. 1539-IX was adopted.

This reform is called to stimulate the unshadowing of income and increase the tax culture of citizens. Another purpose of the reform is to introduce a starting point before the mandatory exchange of information within the CRS framework. Moreover, a government draft law that will introduce a mechanism to control the income and the expenses of individuals is being prepared for submission.

All tax residents of Ukraine are offered to voluntarily provide the tax department with information on their savings if these savings were not declared before or were previously received from undeclared income.  The declaration campaign has started on September 1, 2021 and will last till September 1, 2022.

The proposed law stipulated reduced rates for the savings that will be transferred to Ukraine — 2.5% when placed in government bonds for at least one year, 5% — for funds set on deposits in Ukrainian banks for at least one year, and 9% — for assets (in cash or in-kind) declared but placed outside of Ukraine while the regular tax rate for personal income in Ukraine is 18%.

Furthermore, the Law allows the payment of a one-time (special) voluntary declaration fee in three equal installments annually, but the fee rates will increase to 3%, 6% and 11.5%, respectively. And “early birds” who declare their foreign assets by March 1, 2022 will be able to pay a related fee at a rate of 7%.

As part of the declaration campaign, the government guarantees exemption from liability for tax and currency legislation violations if one has been committed during formation the assets. And the government introduces a ban on using information received during the declaration campaign as evidence in criminal and administrative proceedings.

The “preferential” declaration of the personal income campaign began before its official announcement because of a one-time (special) declaration. Amendments to the Tax Code, introduced by Law №466-IX in May 2020 and Law №1117-IX shortly before 2021, have allowed some Ukrainians to declare their “offshore” income in 2021.

The so-called “tax-free liquidation” of a foreign company assumes that income received from the liquidation of a foreign company in 2020 or 2021 is not included in taxable income of the ultimate beneficiary — natural person. In this respect, an individual, resident of Ukraine, is obliged to include the received income into his/her annual tax return. However, with appropriate justification, this income is not subject to personal income tax at the rate of 18%, and only the 1.5% Military Fee.

This is an alternative option for businessmen to declare their foreign assets, previously accumulated on offshore accounts.

Those Ukrainians who prefer to keep saved their foreign structures, starting as from 1 January 2022, will be required to declare their participation in such controlled foreign companies with the Ukrainian tax authorities.

Tax Transformation for Corporations

Tax legislation regarding companies has changed — Laws No. 466-IX, No. ­786-IX and No.1117-IX made adjustments to the activities of foreign companies on the territory of Ukraine.

As from 2021, income generated from the sale of corporate rights (shares) of Ukrainian companies, where the value of 50% or more is formed from immovable property owned or used by such Ukrainian company under a long-term lease, financial lease, or similar agreement, is subject to taxation in Ukraine. This rule also applies to the sale of corporate rights (shares) of foreign companies — owners of such Ukrainian companies. Therefore, the structuring of transactions on the sale of assets in Ukraine is subject to significant changes, especially when it comes to real estate in Ukraine.

Furthermore, in 2021, the criteria for recognition of permanent establishment have been changed. Now, neither a branch nor subdivision is responsible for the activities of a foreign company in Ukraine but the foreign company itself, and the foreign company should be registered with the tax authorities in Ukraine. The Tax Code has described the types of activities, which constitute the evidence of a permanent establishment — construction, agency, service, warehouse. Special attention requires service and agency of a permanent establishment, where broad criteria of recognition are stipulated. Such as office premises lease, warehouse or other place of business; server availability; use of a foreign company’s corporate e-mail by Ukrainians; conclusion of contracts on behalf of or in the interests of associated foreign companies; provision of services by the personnel located in Ukraine, etc. And the list of criteria is not exhaustive.

At the same time, the tax authorities were granted broad authority to identify a permanent establishment and to oblige the relevant foreign company to get tax ID in Ukraine, with subsequent informing the tax authorities of the state, where such foreign company was registered. Any public information related to possible facts of conducting business through a permanent establishment in Ukraine may result in a tax audit.

It is important to take these changes into account for those foreign companies that choose Ukraine for their resource base, R&D center, personnel outsourcing location, etc.

Transparency and Protection 

In addition to tax stiffening, the global trend towards disclosure of beneficiaries within the framework of the OECD requirements leads to the fact that it is no longer possible to hide the assets behind the veil of offshore companies. Offshore jurisdictions — British Virgin Islands (BVI), Belize, Bahamas, and non-offshore jurisdictions — Great Britain, Austria, Poland, Cyprus created local registers of beneficial owners.

The BVI launched the Economic Substance Portal integrated with the Beneficial Ownership Secure Search System (“BOSS(ES)s”) in June 2020. Information about all BVI company beneficiaries shall be disclosed at the request of the authorized bodies — the Financial Investigation Agency, the Financial Services Commission, the International Tax Authority, the Attorney General’s Chambers.

On 12 March, 2021 the Registrar of Companies of Cyprus issued Regulatory Administrative Act No.112/2021 and a Guidance note for completing the Electronic Beneficiary Record System. Initially, only customs and tax authorities have access to the UBO register. The Cyprus Beneficiary Register will, however, not include the beneficiaries of Cyprus International Trusts.

Ukraine has already begun the implementation of trusts, as structures of common law, into Ukrainian legislation. The definitions of the trust, settlor, trustee, protector, and ultimate beneficiary are already in the Law of Ukraine “On prevention and counteraction to legalization (laundering) of income received criminal financing, terrorist financing and financing the proliferation of weapons of mass destruction” and in the Tax Code.

 Law On Financial Monitoring and in the Tax Code.

Trusts allow protection of the interests of beneficial owners and, with the proper structuring, to reduce the tax burden. Asset protection issues have great relevance in Ukraine, especially as to relations between the owners and their heirs.

Partnership and Corporate Governance

The period of initial accumulation of capital in Ukraine is coming to the end. The first generation of businessmen, which appeared along with the revival of Ukraine’s independence, has already started to transfer the “reins of power” to their heirs. This is probably the most critical turning period — when the owner, the head of the family, needs to prepare a legal successor, introduce him into the business, and ensure the further management of the family business.

Many family businesses believe that succession means developing leadership in the next generation. And in most cases, the succession is regulated by certain instruments of corporate governance: the Board of Directors, the Charter, the Supervisory Board’s decisions. In Ukraine, corporate governance is just starting to develop. Nevertheless, significant legislative changes contribute to this.

Structuring assets through a foreign holding is convenient if the business and assets are located in different countries, and the beneficiary can easily travel. But, if the business is mainly located in Ukraine or closely relates to Ukrainian assets or resources, the management of such structure becomes problematic. Previously the most popular tool, “shareholders’ agreement”, at the level of an international holding company, did not always cover specific issues.

Holdings with a significant value of Ukrainian assets are structured through corporate and mutual investment funds registered under Ukrainian law. Small holdings are usually structured through limited liability companies. And new changes in corporate legislation make it possible to apply corporate governance tools within the framework of Ukrainian legislation.

The corporate agreement as a corporate governance vehicle has been implemented by the new Law “On Limited and Additional Liability Companies” recently, and is still underestimated. In particular, corporate agreement may offer a solution for disagreement points, voting procedure, terms for the purchase and sale of shares, determine a succession procedure, and other matters that the Charter cannot provide for. The implementation of corporate agreements and corporate governance will help to structure assets and ensure assets ownership transparency, which is in line with global de-offshorizations. For structuring family assets and to keep assets saved for future generations, the use of corporate governance in family businesses is highly recommended.