What Foreign Banks Need to Know About the Law and Taxes in Myanmar Sebastian Pawlita 9 February 2015

Transcription

1 What Foreign Banks Need to Know About the Law and Taxes in Myanmar Sebastian Pawlita 9 February 2015

2 INTRODUCTION

3 Regulatory framework of the banking sector Sources of law: New Banks and Financial Institution Law (still at draft stage) Financial Institutions of Myanmar Law, 1990 Financial Institutions of Myanmar Rules, 1991 Regulations for Financial Institutions, 1992 Central Bank of Myanmar Law, 2013 Foreign Exchange Management Law, 2012 Notifications 13, 14, 15/2012 on forex management Mobile Money Directive (notification 4/2013) Foreign Exchange Management Regulations (notification 7/2014) Eradication of Money-Laundering Law, 2014

4 Regulatory framework of the banking sector Sources of law: Card payment regulation, 2012 Letters issued by the Central Bank to financial institutions

5 Regulatory framework of the banking sector Local banks operate in a tight regulatory corset: In 2003, banks collapsed. Ever since, institutions have operated under close oversight of the Central Bank. Trust in local banks is low Allowed activities are limited - in practice: Granting loans, taking deposits, processing credit card transactions, issuing payment cards, processing money transfers, exchanging foreign currency, issuing and accepting letters of credit The term of a loan must not be in excess of one year. Loans must be collateralized (usually, mortgage of immovable property; sometimes pledge of gold or agricultural produce)

6 Regulatory framework of the banking sector Local banks operate in a tight regulatory corset: Restrictions on advertising Minimum interest rate on deposits: 8% Maximum interest rates on loans: 13% Foreign currency exchange rates are determined by daily auctions of foreign exchange held by the Central Bank; money changers can set their exchange rate within a range of plus or minus 0.8% of the auction price

7 Foreign banks in Myanmar Foreign banks can have representative offices: Legally, a representative office is a branch whose business scope is "liaising with the headquarters and doing market research for the headquarters" or similar as there is an administrative procedure only for the establishment of a branch, not of a representative office The foreign bank files an application for branch registration with the Directorate of Investment and Company Administration ("DICA") and, at the same time, an application for a rep office license with the Central Bank The representative office must not engage in commercial activities

8 Foreign banks in Myanmar Nine preliminary, restricted onshore banking licenses have been granted to foreign banks One year "probationary period" Minimum capital: USD 75 million May offer services (e.g. deposit accounts, working capital financing, trade financing, foreign exchange transaction) only to foreign-investedinvested companies; may not offer loans in kyats Local banking services may be offered in partnership with a local bank Only one branch is allowed Income tax rate for a branch is 35% (may be reduced to 25% if the 2015 Tax of the Union Bill is voted into law)

9 Foreign banks in Myanmar Nine preliminary, restricted onshore banking licenses have been granted to foreign banks Minimum interest rate on deposits (8%) and maximum interest rate on loans (13%) probably do not apply to foreign banks

10 GETTING STARTED

11 Getting started as a branch in Myanmar (if you are one of fthe foreign banks with an onshore license) Name change and change of the business scope: The name (from " Bank (Myanmar Representative Office" to " Bank (Myanmar Branch)" and the business scope of the branch has to be changed to reflect the contents of the onshore license This requires approval from the Central Bank and registration with DICA

12 Getting started as a branch in Myanmar (if you are one of fthe foreign banks with an onshore license) Review your templates and forms for compliance with Myanmar laws: This is not a problem. There are hardly any laws that your templates and forms could be in contravention of. Contract Act contains no surprises; recognizes the freedom of contract Consumer Protection Law not applicable as the foreign banks will only have commercial clients Banking laws contain no provisions relevant to contracts Hardly any case law on commercial matters, most of it from colonial times Stamp duty applies (usually, kyats 300 per instrument)

13 Getting started as a branch in Myanmar (if you are one of fthe foreign banks with an onshore license) Review your templates and forms for compliance with Myanmar laws: Include clauses that protect you against (i) changes of the law and administrative practice, (ii) risk that administrative approval may not be granted, (iii) risks from the lack of physical infrastructure, (iv) force majeure, (v) tax exposure, e.g. changes to the Commercial Tax Law Problem: Applicable law; enforcement of foreign arbitral awards?

14 Getting started as a branch in Myanmar (if you are one of fthe foreign banks with an onshore license) Implement "know your client" procedures The Eradication of Money-Laundering requires banks to scrutinize the customer by free and reliable sources, supporting documents, data and information; verify the customer's national registration card; understand the objective of the economic relationship and collect information related thereto; know and scrutinize the beneficiary of the transaction; verify whether the person acting for the customer is authorized to act; obtain corporate data of the company (name, establishment procedure, address, directors)

15 Getting started as a branch in Myanmar (if you are one of fthe foreign banks with an onshore license) Implement compliance with American sanctions

16 CROSS-BORDER LOANS

17 Cross-border loans Cross-border loans require the following approvals: If the borrower operates under an investment permit from the Myanmar Investment Commission ("MIC"): The MIC has to approve the draft loan agreement. The MIC will ask the Central Bank for its opinion on the matter If the borrower does not operate under an MIC permit: The Central Bank has to approve the draft loan agreement Central Bank approval seems to be also required before a drawdown is made

18 Cross-border loans In large transactions, the borrower usually seeks approval from the MIC and the Central Bank through local counsel In smaller transactions, ti the locall borrower submits documents required in the approval procedure to the borrower's bank who inspects them and files the application with the Central Bank

19 Cross-border loans The Central Bank usually wishes to see copies of the following documents: draft loan agreement (which must specify the loan amount, interest rate, repayment schedule and securities offered) loan repayment schedule MIC permit (if any) income statement of the borrower the borrower s audited financial statements or, if the borrower is a new company, its estimated income for the next 3 years, business plan and cash flow statement company registration certificate, permit according to section 27A Companies Act (if the company is foreign-invested), forms 6 and 26

20 Cross-border loans Does the Central Bank only accept long-term (3 years and more) cross-border loans? Cap on interest rate? Permitted debt/equity ratio?

21 Security for cross-border loans Laws from the colonial period contain a variety of comprehensive provisions on taking security: Theoretically, the legal system for taking security is there. Practically, there are a lot of hurdles: Transfer of Immovable Property Restriction Act prohibits mortgages of immovable property for the benefit of foreigners Theoretically, the MIC could approve a mortgage over leased land and buildings erect on such land for the benefit of a foreign lender. However, in practice no such approval seems to have been granted yet

22 Security for cross-border loans The Companies Act requires registration of certain mortgages and charges with DICA, but DICA has no registration system in place Officers at the Registration of Deeds Office are not familiar with registering security documents in connection with cross-border loans Would a local bank accept to handle a pledge over a bank account? Proper stamp duty rate cannot be determined by looking them up in the Stamp Act and Schedule I as information there is ambiguous Enforcement mechanisms are entirely untested

23 Security for cross-border loans A local bank can act as security agent of a foreign y g g lender, e.g. the local bank could hold a mortgage of immovable property on behalf of the foreign lender

24 REPATRIATION OF FUNDS

25 Payment of dividends Itispossible to repatriate profits after tax If the company operates under an MIC permit, the Foreign Investment Rules provide an explicit procedure. Submit audited financial statements and bank account balance statement to the MIC in order to obtain approval for the money transfer If the company does not operate under an MIC permit, there is no explicit procedure. Submit company registration certificate, BoD resolution, audited financial statements and to local bank; the local bank may ask the Central Bank for approval

26 Payment of dividends It is legal to exchange kyats into foreign currency in order to make dividend payments. In practice, however, there may be problems if big amounts have to be exchanged.

27 Payment of dividends Presently, no withholding tax on dividends Should dividend withholding tax be introduced: protection under double taxation treaties

28 Other payments According to notification 7/2014, the following transactions require Central Bank approval Myanmar residents opening a bank account abroad Advance payment for goods and services without sufficient documentation Payment for business trips, etc. if the amount exceeds USD 10, Investments abroad made by Myanmar residents Loans from abroad taken up by a resident Myanmar financial institutions engaging in foreign investments Payments in excess of USD 10,000

29 Other payments Unilateral transaction requested by a Myanmar company Export or import of cash

30 DEBLOCKING FUNDS

31 Deblocking funds The foreign parent company carelessly transferred working capital to the bank account of the Myanmar subsidiary without asking the bank first whether the subsidiary could withdraw the money: The local bank blocked the funds. Solutions: Negotiations with the Central Bank Alternatively, the subsidiary can increase its paid-up capital

32 FOREIGN DIRECT INVESTMENT

33 Foreign direct investment Three alternative methods to invest: Without investment permit from the Myanmar Investment Commission (MIC) With MIC permit Business in a special economic zone (presently, Thilawa SEZ)

34 Foreign direct investment Investment without MIC permit Available for businesses that do not involve the long-term lease of land (usually, services companies) Minimum capital: USD 50, Advantages: Fast procedure, not many reporting requirements, low minimum capital Disadvantages: Max. 1 year leases, no tax benefits, no protection against adverse changes of the law/administrative practice in the future

35 Foreign direct investment Investment with MIC permit Available for businesses that involve the long-term lease of land (e.g. factories, hotels, real estate development, mining, oil and gas, production of electricity) Minimum capital: At the discretion of the MIC Advantages: Leases up to 50 years (renewal 2 x 10 years possible); tax benefits; certain protection against adverse changes of the law/administrative practice in the future Disadvantages: Complicated and lengthy procedure; reporting requirements; higher investment amount

36 Foreign direct investment Investment in a special economic zone Presently, only the Thilawa SEZ has started operations Minimum capital: At the discretion of the SEZ management committee Advantages: Leases up to 50 years (renewal 1 x 25 years possible); tax benefits; certain protection against adverse changes of the law/administrative practice in the future; procedure easier than MIC procedure; one-stop service Disadvantages: Presently, probably only available for production businesses; reporting requirements; higher investment amount

37 Foreign direct investment Market access Foreign Investment Rules and notification 49/2014 of the MIC contain restrictions Ultimately at the discretion of the ministry in charge of the sector in which the investment is to be made Foreigners and foreign-invested companies presently cannot engage in trade

38 Foreign direct investment M&A Locals cannot sell shares to foreigners (exceptions: local target company operates under an MIC permit and the MIC approves the share transfer; shares in a local/foreign joint venture company on a case-by-case basis) Foreigners can sell shares to foreigners and locals If the target company operates under an MIC permit, the MIC has to approve the share transfer Acquisition of a local business usually through an asset deal Alternative: local company can increase its capital and allow foreigners to subscribe to the new shares

39 Foreign direct investment Exit Problem: 40% capital gains tax for non-resident seller Solution: Holding company in Singapore and/or holding company in Myanmar Problem may disappear if 2015 Tax of the Union Bill is voted into law

40 Foreign direct investment Taxation (Corporate) income tax: 25% of the income (35% if non-resident) Tax benefits if investment is done with an MIC permit, in particular 5 years exemption from (corporate) income tax Tax benefits if investment is done in an SEZ, in particular 5 years exemption from (corporate) income tax (7 years for export- oriented businesses), subsequent reduction of the (corporate) income tax rate Commercial tax (similar to VAT, but offsetting input tax with output tax often not possible): usually, 5% of the turnover. 26 services are exempt, amongst them banking services)

41 Foreign direct investment Taxation (Personal) income tax: 0-25% of the income (resident), 35% (non-resident) Stamp duty

42 Foreign direct investment Land issues Land laws and administrative practice concerning land are complicated With few exceptions, no private ownership of land Locals can obtain a "land grant" for (usually) up to 60 years which resembles ownership Foreigners and foreign-investedinvested companies can only lease land No established system for a local joint venture partner to contribute land to a joint venture company Land due diligence essential

43 Joint ventures Important aspects: Due diligence of the local partner recommended, but often not done Local counsel has to review the joint venture agreement as: customizing the articles of association of the joint venture company is often not possible; it is necessary to reconcile the joint venture agreement with the Myanmar Companies Act, but the Act is completely outdated; the directors of the joint venture company have, by default, a very strong position.

44 Intellectual property p IP law is being debated Trademarks can be registered as a matter of practice with the Registration of Deeds Office (under the Registration Act of 1908) Remedies against infringements: Civil (injunction, damages) Criminal (sections Penal Code)

45 LABOUR LAW

46 Labour law Morepractical than legal issues Lack of skilled staff (e.g. marketing staff) Job-hopping Strikes (more in the manufacturing sector than in the services sector)

47 Labour law Countermeasures Adequate salary Training within the country and abroad Career prospects Expression of the employer's esteem of the employee's services Flexibility concerning working hours to suit the needs of mothers

48 Labour law Recruitment process: Through the township labour office or private search; new employees must be registered with the township labour office Regular working hours: 8 hours per day/44 (shifts: 48) hours per week (factory workers), 8 hours per day/48 hours per week (shop assistants, office workers)

49 Labour law Permitted overtime per day: Factories - 2 hours, shops/offices - 3 hours; weekly regular working hours must not be exceeded Pay for overtime/work during holidays: twice the normal salary; alternatively: time off in replacement for hours worked overtime

50 Labour law Paid leave: Public holidays: 21 days/year Annual leave: in practice 10 days/year (can be carried forward for 3 years) Casual leave: 6 days/year Medical leave: 30 days/year Maternity leave: 6 weeks before and 6 weeks after giving i birth Paternity leave: 15 days

51 Labour law New Social Security Law (31 August 2012): Sickness benefits, maternity and paternity benefits should be paid by social security carrier; in practice probably: employer advances first and claims back from the social security carrier later

52 Labour law Probation period: 3 months Termination: 30 days notice/3-5 months basic salary as compensation; no notice period/compensation if breach of contract; no notice period/compensation if the term of a definite term labour contract expires.

53 Labour law Foreign employees Foreigners employed at an MIC company may legally apply for a stay permit (valid for up to 9 months, fee USD 270 including special multiple re-entry visa that is in practice usually also required) Other foreigners usually enter and stay in the country on the basis of business trips with business visas (maximum stay period: 70 days per stay) No work permit system implemented yet No foreigners may be employed for jobs requiring no or low skills 25% / 50% / 75% of an MIC company's skilled employees must be Myanmar citizens in the first and second / third and fourth / fifth and sixth year of operation Obligation to annually submit a training plan

54 Labour law Social security contributions Presently max. Ks. 9,000/month for the employer and Ks. 6,000/month for the employee (if monthly salary is Ks. 300,000 or more)

55 Myanmar +95 (9)