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Tony Wickenden: Tax advantage and corporate residence- the common mistakes

Tony WickendenMany wrongly believe simply registering a business in another country will be enough to secure a
UK tax advantage

From time to time, the question of corporate residence and the resulting tax implications is raised. Often, it is in the context of an enquiry about registering a company abroad in a low-tax jurisdiction to reduce corporation tax on trading profits.

Generally speaking, unless a company is centrally managed and controlled from the proposed low-tax jurisdiction, there will be absolutely no UK tax benefit.

So if the business is transacting in the UK, and the real management and control is in the UK, the idea of registering the company abroad is really not worth pursuing

Even if the central management and control of the company are outside of the UK (not an easy test to satisfy), there are other issues to consider in light of the Organisation for Economic Co-operation and Development attack on the erosion of taxable profits generated in the UK.

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The HM Revenue & Customs briefing on this subject from 2016 states the general rule is that a company not resident in the UK (and, remember, it is first necessary to overcome the “central management and control” test mentioned above) has to pay UK corporation tax only if:

  • It has a permanent establishment in the UK;
  • The economic activity that generates its profits is carried out in the UK.

The briefing also answers questions in the following key areas.

What is a permanent establishment?
A permanent establishment is where a company has a presence in a country through which trade is carried out.

There are two types of permanent establishment:

  • A fixed place of business;
  • A dependent agent.

A fixed place of business is generally a building or site which the non-resident’s personnel have at their disposal and use to carry out the non-resident’s business.

An office, factory or shop could all be a fixed place of business.

A dependent agent is a person who is not independent of the non-resident company and regularly does business for the company, usually by concluding contracts on its behalf.

What determines the location of economic activity?
Many different elements contribute to a multinational’s economic activity, including sales, employees, technology, physical assets and intellectual property. The tax authorities need to work out which of these are developed or take place in a particular country and how much profit is attributable to them.

Simply having customers in the UK does not mean a company is carrying out its economic activity here. This is because having UK customers is not the same as having a permanent establishment in the UK. There is a difference between a non-resident company that is trading from abroad with customers in the UK and one that is actually trading here.

Websites and group companies
Having a UK website does not mean a non-resident company has either a fixed place of business in the UK or a dependent agent in the UK. All trading activity could be taking place outside the UK.

Most multinational businesses are not single companies, but a group of companies, only some of which will be operating in the UK.

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For example, sometimes a company from outside the UK sells to UK customers via the internet.

Another group company in the UK provides warehousing, distribution or other services, and support to the selling company. Where this takes place, the UK service company will be taxed only on the profits of its own business, i.e. the services it provides to the selling company.

UK companies operating overseas
Most major economies operate corporation tax in the same way as the UK, so UK-resident companies are treated in a similar way in other countries. In other words, UK companies do not pay corporation tax to another country on the profits from sales in that country, unless they trade through a permanent establishment there. Instead, they pay corporation tax on those profits in the UK.

What is happening now?
The concept of a permanent establishment and how multinationals are taxed in different countries is not new. As far back as the 1920s, the League of Nations created draft tax treaties to prevent companies from being taxed twice on the same income in different countries. These rules are now part of modern tax treaties, which follow a model developed by the OECD.

What has changed is the way in which businesses operate, not least because of their ability to sell online in different countries.

This has raised questions about whether the tax rules for permanent establishments need to be updated.

The UK has led the way in initiating and implementing the OECD/G20 Base Erosion and Profit Shifting project, which was set up to review and improve the function of international tax rules.

Ninety-two countries are working together on an instrument designed to implement the revised definition by amending existing tax treaties.

Further OECD/G20 work on the guidance on the principles for attributing profits to permanent establishments is also in progress.

So you can see that merely registering in another country and satisfying the requirements of the law of that country to establish residence there will not be enough to secure a UK tax advantage.

The central management control test and the generation of profit from trading in the UK are likely to provide significant barriers to legitimate and permissible avoidance of UK tax for businesses run from and trading in the UK.

Tony Wickenden is joint managing director of Technical Connection. You can find him Tweeting @tecconn

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