The Black Listed Countries and Planning Ideas. Juan Guillermo Ruiz. May 30, 2014

Transcription

1 The Black Listed Countries and Planning Ideas Juan Guillermo Ruiz May 30, 2014

2 Tax havens Controlled Foreign Company Exchange of information Incorporation of the concept in 2003 No current legal development on the matter Growing number of agreement entered into by Colombia Court precedent: No referral to OECD s list on tax haven jurisdictions New regulation to come into force is expected Global Forum on Transparency and exchange of information for tax purposes October 7, Tax haven list OECD - BEPS OECD - BEPS New rules on sanctions to tax haven jurisdictions could be expected New faculties and responsibilities given to Tax Authorities for the collection of taxes due in other jurisdictions New rules enhancing Tax Authorities capabilities are expected to come into force

3 Tax haven Colombian criteria Tax haven list Implications on investment structures Implications on contractual structures Transfer pricing Effects on the General Anti-Avoidance Rule Implications on residency of Colombian citizens

4 Colombia follows the criteria set in the 1998 OECD report No or nominal tax on the relevant income Lack of effective exchange of information Lack of transparency No substantial activities Wide room for new principles being developed (Tax Code) In addition to the fore-mentioned criteria, the Colombian Government may have as reference the internationally accepted criteria to determine tax havens OECD, UN and other criteria set by the G20 Colombia is formally applying to belong to the OECD (campaign launched on October 25, 2013)

5 Black list Tax havens Tax havens Tax havens 1. Anguilla 2. Antigua and Barbuda 3. Archipelago of Svalbard 4. The Territorial Collectivity of Saint-Pierre and Miquelon 5. Commonwealth of Dominica 6. Commonwealth of the Bahamas 7. Kingdom of Bahrain 8. Nation of Brunei, the Abode of Peace 9. Independent State of Samoa 10. Grenada 11. Hong Kong 12. Isle of Man 13. Qeshm Island 14. Cayman Islands 15. Cook Islands 16. Pitcairn, Henderson, Ducie and Oeno Islands 17. Solomon Islands 18. British Virgin Islands 19. Bailiwick of Jersey 20. Labuan 21. Macau 22. Principality of Andorra 23. Principality of Liechtenstein 24. Principality of Monaco 25. Hashemite Kingdom of Jordan 26. Co-operative Republic of Guyana 27. Republic of Angola 28. Republic of Cape Verde 29. Republic of Cyprus 30. Republic of the Marshall Islands 31. Republic of Liberia 32. Republic of the Maldives 33. Republic of Mauritius 34. Republic of Nauru 35. Republic of Seychelles 36. Republic of Trinidad and Tobago 37. Republic of Vanuatu 38. Republic of Yemen 39. Lebanese Republic 40. St. Kitts & Nevis 41. Saint Vincent and the Grenadines 42. Saint Helena, Ascension and Tristan da Cunha 43. St. Lucia 44. Sultanate of Oman Grey list 1. Barbados 2. Bermuda 3. United Arab Emirates 4. Kuwait 5. Qatar 6. Guernesey 7. Panama

6 Panama Inclusion conditioned to the execution of an exchange of information agreement The tax haven list is subject to review after one year of it being enacted Chances of subscription of an exchange of information agreement

7 TAX IMPLICATIONS Remittance of dividends and profits Holding (Tax Haven) Investments (Colombia) Sale of the Colombian investments Applicable tax Income tax withholding

8 Investment structures Trust Private Foundation Holding (Tax Haven) Holding (Tax Haven) Investments Investments

9 Other Assets Trust/Private Foundation Trust/Private Foundation Trust/Private Foundation Holding (Tax Haven) Holding (Tax Haven) Holding (Tax Haven) Real Estate Local Trust Local fund

10 Portfolio Investment Investment made through local custody accounts Investor (Tax Haven) Custody account Listed shares Securities Government Bonds Taxation by means of the withholding system General withholding rate of 14% If the investor is located in a tax haven, the withholding rate would be 25%

11 Payments or deposits for any concept Interests Royalties Rent payments Technical services Technical assistance services Consultancy services Software benefits Any other payment Costs and deductible expenses Conditioned to income tax withholding Not applicable to financial operations Requires evidencing and supporting of the functions, assets and risks assumed by the service provider

12 Transfer Pricing Payments to tax havens Related or not Individuals, companies, or entities in tax havens. Regardless of their gross equity Regardless of their gross income Obligations Formal Substancial Informative return Supporting documentation

13 With two other, there could be a tax abuse Operations entered into and between related entities Price or consideration differs in more than 25% of the value under market conditions Involve any of the following: (i) Special tax regime entity; (ii) Exempt entity; (iii) An entity not subject to tax; (iv) An entity whose applicable tax rate is different from the ordinary one Lack of a material clause, person, or act, that may derive in an abusive tax advantage

14 Residents of tax haven jurisdictions are deemed Colombian residents Taxation over worldwide income and asset Eventual double taxation

15 Aim: Full exchange of information on requests in all tax matters without regard to a domestic tax interest requirement or bank secrecy for tax purposes (OECD Countering tax evasion) Obligations attributed to the Tax Authorities of all member States Collection of taxes and other mutual assistance between Tax Authorities