Myanmar Tax opportunities and pitfalls in a time of growth and change. Paul Cornelius Partner, PwC Singapore Lim Hwee Seng Partner, PwC Singapore

Myanmar Tax opportunities and pitfalls in a time of growth and change Paul Cornelius Partner, Singapore Lim Hwee Seng Partner, Singapore

Tax reforms 2015 2

Introduction tax reform 2015 (1/2) The Myanmar government has recently introduced a major tax reform in January 2015, particularly: Notification no. 180/2015 - amending the Commercial Tax Regulations - issued on 21 January 2015 - effective retrospectively from 1 April 2014 Notification no. 181/2015 - amending the Income Tax Regulations - issued on 21 January 2015 - effective retrospectively from 1 April 2014 3

Introduction tax reform 2015 (2/2) Notification no. 182/2015 - amending the Income Tax Rules - issued on 21 January 2015 - effective retrospectively from 1 April 2014; and Union Taxation Law 2015 - had been passed at the Parliament on 31 March 2015 - effective from 1 April 2015 We have outlined the significant changes that may impact most of the foreign investors doing business in Myanmar. 4

Union Taxation Law 2015 effective from 1 April 2015

Changes to corporate income tax rates Prior to 1 April 2015, different tax rates apply to resident and non-resident corporate entities Corporate income tax Capital gains tax Resident company 25% 10%* Non-resident foreigner (e.g. branch) 35% 40%* With effect from 1 April 2015, the tax rates for non-resident foreigner and resident corporate entities are now aligned Corporate income tax Capital gains tax Resident company 25% 10%* Non-resident foreigner (e.g. branch) 25% 10%* * Except oil and gas sectors where capital gains tax ranging from 40% to 50% will apply 6

Changes to personal income tax rates Prior to 1 April 2015, different tax rates apply to resident and non-resident individuals Resident national and foreigner Non-resident foreigner Personal income tax Progressive rates from 0% to 25% with personal reliefs Flat rate at 35% without any personal reliefs Capital gains tax 10% * 40%* With effect from 1 April 2015, the tax rates for non-resident foreigner and resident individuals are now aligned Resident national and foreigner Personal income tax Progressive rates from 0% to 25% with personal reliefs Non-resident foreigner Progressive rates from 0% to 25% without any personal reliefs Capital gains tax 10% * 40%* * Except oil and gas sectors where capital gains tax ranging from 40% to 50% will apply 7

Changes to personal reliefs There are changes to certain personal reliefs as follows Prior to 1 April 2015 With effect from 1 April 2015 Basic allowance 20% on total income, capped at Remains unchanged MMK10 million Spouse allowance MMK500k Increased to MMK 1 million Child allowance MMK300k Increased to MMK500k Parent allowance None MMK1 million for each parent staying together with the taxpayer Premium for life insurance Donation Social security contribution made by employees Premium paid by the taxpayer for the taxpayer and his/her spouse (no limit set) Donation made to approved charitable organisation or approved government sponsored event, capped at 25% of income Social security contribution made by the taxpayers Remains unchanged Remains unchanged Remains unchanged 8

Changes to commercial tax (CT) (1/2) With effect from 1 April 2015, the CT exemption threshold increased to MMK20 million from the previous threshold of MMK15 million Increase the CT rates for the 16 special goods from the current range of 8%-100% to the range of 5%-120% Introduce a new list of goods and services (78 items) that shall not be subject to CT 9

Changes to CT (2/2) Remove the provision relating to goods produced and sold by Myanmar owned company subjecting to 2% CT Add a provision stating jet fuel imported by the Ministry of Energy and resold within the country is subject t0 CT of 5% at the point of importation and sale Add a provision stating that sale of buildings constructed within the State is subject to CT at the rate of 3% on receipts 10

Changes to CT exempted services (1/2) Prior to 1 April 2014, services such as transport, entertainment, insurance, printing etc. are subject to CT at 5% of the total receipts With effect from 1 April 2014, all services rendered within the country were subject to 5% CT except 26 types of exempted services, e.g. - information and technology services - home rental services - life insurance - banking services - public transportation, etc. 11

Changes to CT exempted services (2/2) With effect from 1 April 2015, the list of exempted services is changed as follows: Four exempted services are removed, namely slaughterhouse container logistic services information and technology services technical and management consulting services Licence fee payable to the government organisations is added Please refer to the new list of exempted services overleaf 12

List of exempt services for commercial tax with effect from 1 April 2015 1. House rental 2. Car parking lot rental 3. Life insurance 4. Micro-finance 5. Healthcare services, excluding aesthetic and cosmetic surgery 6. Education 7. Freight and transportation 8. Employment 9. Banking services 10. Custom brokering services (i.e. custom and port clearance) 11. Hiring accessories/utensils for reception 12. Contract manufacturing business 13. Funeral assistance services 14. Childcare 15. Myanmar traditional massage/blind massage 16. Moving services 17. Toll fees collection 18. Animal healthcare and maintenance service 19. Public convenience fee collection 20. International airline transport 21. Cultural and artistic services 22. Public transportation (bus, railway, waterway) 23. Licence fees payable to government organisations 13

Changes to CT on export sales (1/3) Prior to 1 April 2015 The export sales (except natural gas, crude oil, jade, gem and teak log and wood) are not subject to commercial tax (i.e. exempted). With effect from 1 April 2015 The export sales (except the special goods above) are subject to commercial tax at the rate of 0% (i.e. zero rated). 14

Changes to CT on export sales (2/3) Prior to 1 April 2015 The export sales of natural gas, crude oil, jade, gem and teak log and wood are subject to CT ranging from 5% to 50%. With effect from 1 April 2015 The CT rates on export sales are changed as follows: Decrease in CT rate on export sales of the processed precious stones from the current 10% to 5%; and Increase in CT rate on the export sale of the raw precious stones from the current 10% to 15% The export sale of electricity is at the rate of 8% 15

Changes to CT on export sales (3/3) Prior to 1 April 2015 The commercial input tax to be offset shall not exceed the commercial output tax on sale under Section 42 of the Commercial Tax Regulations. With effect from 1 April 2015 The CT incurred on purchase of goods and production is creditable against the commercial tax due on the export sales and any excess is refundable. 16

Notification no. 180/2015, amending the commercial tax regulations effective from 1 April 2014 17

Commercial tax (1/2) Key changes under the Amended Commercial Tax Regulations 1. Input tax offsetting is now allowed for a service provider with effect from 1 April 2014 To clarify the following with the Myanmar tax authorities: On what expenses can commercial input tax be claimed, what about expenses incurred on capital equipment What are the procedures relating to the claim of input tax Is a refund available on any excess commercial tax paid after claiming input tax, it appears the answer is no other than for exports What are the offsetting rules in the case where an entity is undertaking both manufacturing/trading and services activities, it is an area of real concern. 18

Commercial tax (2/2) Key changes under the Amended Commercial Tax Regulations 2. The appointed representatives of the non-resident foreigners not registered in Myanmar are required to register for commercial tax To consider commercial tax implications that may arise from the onshore sale and services provided by the non-resident foreigners not residing in the country. To clarify if offsetting rule will be applicable to the non-resident foreigners and to what extent 19

Notification no. 181/2015, amending the Income Tax Regulations effective from 1 April 2014 20

Income tax (1/2) Prior to 1 April 2014 Under Section 13 of the Income Tax Regulations, a taxpayer entity is allowed to claim tax depreciation on the qualifying assets used for its business purposes based on rates prescribed under the Myanmar Income Tax Law as shown below: Initial depreciation allowance on new building and equipment: 15% of original cost of building 20% of original cost of equipment Tax depreciation rates prescribed under Section 13(f): Buildings: 1.5% - 10% Furniture and fittings installed in buildings: 5% -10% Machinery and plant: 5% (generally) to 6.25% (items such as electrical appliances) Machinery equipment: 2.5% - 20% Road transport vehicles: 12.5% - 20% Miscellaneous: 10% - 20% Other miscellaneous: 2.5%- 20% Other fixed assets that are not prescribed: 5% 21

Income tax (2/2) With effect from 1 April 2014 Paragraph 6 of the Notification 181/2015 has amended the tax depreciation rates prescribed under Section 13(f) of the Income Tax Regulations as follows: Buildings: 5% - 15% Furniture and fittings installed in buildings: 10% Machinery and plant: 10% Various kinds of vehicles : 5% - 20% Other fixed assets that are not prescribed: 5% The initial depreciation rates on new building and equipment remain unchanged as follows: 15% of original cost of building 20% of original cost of equipment 22

Notification no. 182/2015, amending the Income Tax Rules effective from 1 April 2014 23

Income tax Prior to 1 April 2014 Under Section 3 of the Income Tax Rules, a taxpayer entity is allowed to claim relief of MMK300,000 for each child, subject to certain conditions. Section 3 of the Income Tax Rules did not specifically mention whether the spouse of a taxpayer will not be allowed to claim relief on the same child whom the taxpayer has claimed relief. With effect from 1 April 2014 Paragraph 3 of the Notification 182/2015 has added a provision stipulating that the relief on the same child can only be claimed by either taxpayer or his/her spouse. 24

Other common key tax issues 25

Withholding tax (1/3) Common pitfalls and mitigating ways Failure to file and withhold will be regarded as defaulter under the Myanmar Income Tax Act Examine the nature of payments to be made and determine withholding tax implications To consider obtaining written confirmation from the IRD if it is not clear and the amount involved is substantial Withholding tax requirement during the construction period and income tax holiday period Adverse impact on cash flow; difficult to obtain refund at the end of the tax year To consider obtaining waiver from the IRD 26

Withholding tax (2/3) Common pitfalls and mitigating ways One contract includes both supply of goods and services (for nonresident foreigners) Both payments are subject to withholding tax given one contract includes both elements Segregate contracts for the sale of goods and provision of services Claim of tax treaty rates/ exemption The application of tax treaty rates is subject to agreement by Ministry of Finance at its discretion To consider obtaining written approval from Ministry of Finance by submitting supporting documents e.g. COR 27

Withholding tax (3/3) Common pitfalls and mitigating ways Other recommendations To include the withholding tax cost of 3.5% when pricing for projects or future contracts can be negotiated on a net of withholding tax basis. To support its claim for foreign tax credits in home countries, we should keep and prepare various documentary evidences, e.g. withholding tax receipts. 28

Advance income tax With effect from July 2013, the import and/or export of goods or equipment will be subject to advance income tax of 2% in Myanmar Pursuant to the notification, such withholding tax requirement is not applicable during the construction period of the MIC project Even though the advance income tax is refundable (upon the finalisation of tax assessment each year), it is advisable to seek waiver from the Myanmar IRD, covering the period from income tax holiday period Refundable? 29

Structuring into Myanmar 30

Your entry into Myanmar 1 Holding Structures. Direct investment vs. investment through holding company; wholly owned vs. joint venture (JV) Key Structuring Considerations 2 4 3 Investment through acquisition. Asset vs. share deal Financing of investment. Equity vs. debt financing; tax implications; foreign exchange rules Cash repatriation. Dividend, interest, royalty, management fees etc.; tax implications; foreign exchange rules 5 Exit strategies. Sale of shares (indirect or direct), liquidation 31

Holding structures Option 1 Direct investment (wholly foreign owned) Option 1a Direct investment (JV with local partners) Offshore Foreign investors Offshore Foreign investors Myanmar Myanmar Local partners Foreign company Foreign company 33

Holding structures Option 2 Investment through a holding company Option 2a Investment through a holding company (JV with local partners) Foreign investors Foreign investors Offshore Myanmar HoldCo (e.g. Singapore) Foreign company Offshore Myanmar HoldCo (e.g. Singapore) Foreign company Local partners 34

Acquisition of Myanmar company Local shareholders/ partners Myanmar company Business assets Foreign investors Foreign company Transfer of business Transfer of shares in a Myanmar company is not allowed Is asset deal required? What are the tax implications? Will foreign company inherit tax liability of Myanmar company? Is an approval from the Myanmar Investment Commission (MIC) required? Timeline 36

Acquisition of Myanmar company (1/2) Section 24 of the Myanmar Income Tax Act states: When a business is discontinued, every person who has a share in that business at the time of discontinuance shall in respect of the income of that business be jointly and severally liable to assessment of income-tax and for the amount of tax payable. 37

Acquisition of Myanmar company (2/2) Section 25 of the Myanmar Income Tax Act states: When a business is succeed by a person from the owner of that business an in case if there is difficulty in communication with that owner the successor shall be treated as the agent of the previous owner and income-tax shall be assessed for the following periods: 1. The period in the income year of succession within which the previous owner carried on the business; 2. The income year preceding the income year of succession 38

Acquisition of foreign company Foreign Shareholder (seller) Offshore holding company Foreign company 1 2 Foreign investors or through BidCo Transfer of shares in a foreign company may be allowed Two options available share transfer either at the level of offshore holding company or foreign company Which option is preferred? Capital gains tax and stamp duty implications? What are the registration and approval requirements? Is an approval from MIC required? 39

Financing of investment: debt vs. equity Debt/ Equity Debt/ Equity Foreign investors Holding Company Foreign Company 1. No specified debt to equity ratio in general (MIC/ relevant ministries may impose certain ratio on investment in certain industries) 2. Flexibility of returning capital/ loan repayment 3. Tax implications e.g. withholding taxes, deductibility of interest expenses 4. Strict foreign exchange rules 41

Repatriation of profits Foreign investors Singapore Holding Company Foreign Company Dividend/ interest Dividend, interest, royalty, service fees etc. 1. Various means to consider, e.g. dividend, interest, royalty, service fees 2. Tax implications e.g. withholding taxes, deductibility of payments 3. Consider moving certain functions to holding company 4. Strict foreign exchange rules 43

Exit strategies Foreign investors Holding Company Foreign Company 1 2 1. Indirect equity transfer vs. direct equity transfer which option is preferred? 2. Capital gains tax and stamp duty implications 3. Is tax exemption available under the relevant tax treaty? 4. What are the registration and approval requirements? Is an approval from MIC required? 45

Conclusion and Q&A 46

Contact us Paul Cornelius Partner Corporate and International Tax Singapore Tel: +65 6236 3718 paul.cornelius@sg.pwc.com Lim Hwee Seng Partner M&A Tax Singapore Tel: +65 6236 3118 hwee.seng.lim@sg.pwc.com 47

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