Software Tax Characterization Helpdesk Quarterly June 2008

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1 & McKenzie Software Tax Characterization Helpdesk Quarterly June 2008 Characterizing foreign software revenues is a complex challenge for large and small software firms alike. Variations in the rules around the world affect the best way to do business in a given market. LawInContext s Software Tax Characterization Helpdesk is an online resource for software companies seeking to quickly access relevant legal and tax information in order to more efficiently manage their global withholding tax exposures in 40 countries around the world. This newsletter highlights a few of the recent updates and developments from the period of April June 2008 that are covered in more detail within the Software Tax Characterization Helpdesk. For more information on the Software Tax Characterization Helpdesk please visit or contact us at INSIDE THIS ISSUE Key Country Developments for : Africa and the Middle East Israel The Americas Mexico Asia Pacific India Japan New Zealand Europe Czech Republic France Netherlands Poland Russia Software Tax Characterization Country Coverage LawInContext Contact Information

2 Key Country Developments Africa and the Middle East ISRAEL Taxation of Software-Related Services The applicable tax rate for provision of software related services was reduced from 29% to 27% (for companies) and 48% to 47% (for individuals). See topic: Application of Law, subtopics: Maintenance Contracts and Software-Related Services. The Americas MEXICO Single Rate Business Tax On January 1, 2008, Mexico enacted the single rate business tax. This new tax, known in Mexico as IETU for its acronym in Spanish, is an alternative minimum tax against income tax, payable only if it is greater than the income tax. The IETU is imposed on a cash basis, that is, inasmuch as the price or consideration agreed upon in a given transaction has been received. See topic: Country Summary and topic: Statement of Law, subtopic: Domestic Law. Services rendered by nonresidents are subject to the IETU only when the nonresident has a permanent establishment in Mexico. See topic: Application of Law, subtopic: Software-Related Services. The temporary use or enjoyment of goods or rights that result in the payment of royalties between related parties are not subject to the IETU. However, the temporary use or enjoyment of commercial, industrial, commercial or scientific equipment will be subject to IETU. See topic: Country Summary and topic: Application of Law, subtopic: Software Reproduction Licenses. Asia Pacific INDIA Tax Ruling A recent ruling by the Delhi Income Tax Appellate Tribunal (ITAT) may have a marked impact on global electronic commerce. The ITAT has ruled that a non-resident company having a server providing software and hardware to sell goods online in India can be said to have a permanent establishment in India and is accordingly subject to tax. For more information, see topic: Application of Law, subtopic: Software-Related Services.

3 JAPAN Fees for Technical Services The new Japan Pakistan tax treaty for the avoidance of double income taxation introduced a withholding tax on fees for technical services similar to that in the Japan- India tax treaty. The tax treaty for the avoidance of double income taxation between Japan and the Islamic Republic of Pakistan was signed on January 23, 2008, and will be effective on December 31, The Japanese withholding tax on fees for technical services will be taxed on and after January 1, See topic: Application of Law, subtopic: Software-Related Services. NEW ZEALAND Reduced Income Tax Rate Starting tax year 2008/2009, the corporate income tax rate for New Zealand sourced profits is 30% (as reduced from the 2007/2008 rate of 33%). See topic: Statement of the Law, subtopic: Domestic Law and topic Application of Law, subtopics: Single vs. Multiple User Licenses, Perpetual vs. Limited Duration Licenses, Direct vs. Indirect Software Transfers, Software-Related Services and Know-How. Europe CZECH REPUBLIC Withholding Tax As a part of the tax reform effective as of January 1, 2008, the withholding tax of 25% applicable on certain software royalties was reduced to 15%. Further reduction to 12.5% will take effect by January 1, See topic: Statement of Law, subtopic: Domestic Law and topic: Application of Law, subtopics: Single vs. Multiple User Licenses, Perpetual vs. Limited Duration Licenses, Physical vs. Electronic Delivery, Maintenance Contracts, Standardized vs. Customized Software, Direct vs. Indirect Software Transfers, Software- Related Services, Software Reproduction Licenses and Know-How. FRANCE Penalty for Non-withholding of Royalties Royalties exceeding EUR600 per year and per beneficiary paid by French payors should be reported to the French Tax Administration annually by April 30 of the year following the year of the payment. Failure to comply with this obligation may trigger a penalty amounting to 50% of the undeclared sum. However, such penalty will not apply on the

4 first failure within the last three years (excluding current year) provided that the tax return is adjusted either on a voluntary basis or upon the first request of the tax authorities. Moreover, failure to levy the withholding tax will trigger the penalty provided under the French tax Code, i.e., 10% upon mere failure, increased to 40% upon failure after express notification, or 80% in case of undisclosed activity plus interest at the rate of 0.4% per month (4.8% per year). See topic: Statement of the Law, subtopic: Domestic Law. NETHERLANDS Statutory Corporate Income Tax Rate The current Dutch statutory corporate income tax rates are: 20% of the first EUR40,000 of the taxable income, 23% of the taxable income in excess of EUR40,000 but not over EUR200,000, and 25.5% of the taxable income in excess of EUR200,000. See topic: Statement of the Law, subtopics: Domestic Law and Treaty Law; and topic: Application of Law, subtopics: Other Relevant Contractual Terms and Software Reproduction Licenses. POLAND Software-Related Services Databases In a ruling dated January 8, 2008, the tax administration issued an interpretation on the applicability of withholding tax to payments for the use of an electronically-available database containing information on prices of certain materials and products on international markets. The tax administration determined that the payments should not be characterized as royalties subject to withholding tax because the license was limited and the licensee could not distribute the collected information to other persons. The tax administration stated that its characterization would be different if the use of the database were merely an instrument of transfer of know-how. For more information on this ruling, see topic: Application of Law, subtopic: Software-Related Services. RUSSIA VAT-Exempt Transactions Starting January 1, 2008, the assignment of exclusive rights to software, databases and know-how under license agreements, as well as the assignment of limited rights to use software, databases and know-how under license agreements, are exempt from Russian VAT. See topic: Statement of the Law, subtopic: Domestic Law.

5 The Software Tax Characterization Country Coverage The Americas Argentina Brazil Canada Chile Colombia Mexico Peru United States Venezuela Africa and The Middle East Israel South Africa Asia Pacific Australia China Hong Kong India Indonesia Japan Korea (South) Malaysia New Zealand Philippines Singapore Taiwan Thailand Europe Austria Belgium Czech Republic France Germany Greece Hungary Italy Netherlands Poland Portugal Russia Spain Sweden Switzerland United Kingdom

6 Contact Us For more information, site demonstrations or pricing, please contact: LawInContext c/o LawInContext Pte. Ltd. (Zurich branch) Zollikerstrasse Zurich, Switzerland +41 (0) Unsubscribe Should you have questions or comments, please To unsubscribe to this newsletter, please respond with "UNSUBSCRIBE" in the subject line #27-01 Millenia Tower, 1 Temasek Avenue. Singapore (Registration # R) LawInContext Pte. Ltd. ( LawInContext ) was created by the global law firm of Baker & McKenzie and provides cost-effective access to online legal information and training tailored to select communities of clients. LawInContext is neither a law firm nor authorized to practice law. No attorney-client relationship will be formed or deemed to be formed with Baker & McKenzie or contributing law firms through the use of LawInContext s legal information, knowledge management, and training services. This may, in some jurisdictions, be considered Attorney Advertising for Baker and McKenzie and other contributing firms. A full disclaimer is available at

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