GIBRALTAR: DOMESTIC CORPORATE TAXATION

In addition, and subject to EU clearance, two sectors of the economy only were to pay a new tax on profit. The sectors were financial services providers and utility companies.

Since the taxes were to be capped at 15%, local companies which used to pay 20% or 35% profits tax would have been better off, while 'offshore' companies would be worse off only if they employed staff or occupy premises locally. Many companies, particularly those used to hold Spanish property interests, do neither.

In March, 2003, the EU's Council of Finance Ministers confirmed that the reforms did not constitute harmful tax measures. However, in April, 2004, the Commission argued that the new rules would give companies domiciled in Gibraltar an unfair advantage over their counterparts in the UK, under a principle known as 'regional selectivity'. The Commission also took issue with the fact that since the taxes were based on payroll and the occupation of business premises, offshore companies registered in Gibraltar would be unlikely to incur any tax liability. The EC therefore rejected the reforms, effectively suggesting that for taxation purposes, Gibraltar should be considered part of the United Kingdom.

Gibraltar dissolved its qualifying companies tax regime in January, 2005, as negotiations continued in Brussels. In a move that cost the Gibraltar government an estimated GIP1.5 million in annual tax revenues, the remaining qualifying companies, of which there were about 80, switched to the ‘exempt’ companies regime. “Each qualifying company has been dealt with on an individual basis and alternative arrangements made,” Caruana added.

Later that month, it was announced that Gibraltar had been given until 2010 (2007 for new companies) to phase out its exempt company tax regime after the European Commission ruled that the scheme violated EU state aid rules.

Major changes to Gibraltar's corporate tax regime were announced in Chief Minister Peter Caruana's June 2007 Budget speech.

Mr Caruana explained that:

"The Tax Exempt Company has been the backbone of the development and growth of both our finance centre and the online gambling industry, and thus of a very significant part of our economy. It continues to underpin thousands of jobs in Gibraltar and large amounts of Government revenue."

"In order to comply with EU law we must phase out the tax exempt company in 2010. However, in order to sustain our successful economic model we must retain a commitment to a very competitive corporate tax model."

Since it is no longer legally acceptable to have one tax model for ‘local’ companies and a different one for ‘foreign’ companies it is necessary to have a low tax system for all companies because without a low tax system for overseas companies they will leave, and our economy will suffer hugely. Thousands of jobs would be lost, as well as significant Government revenue. I have therefore already said, and I reaffirm now, that the Gibraltar Government is irrevocably committed to the principle of ‘low tax’ for our economic operators."

"By mid-2010 the Government will have introduced an across the board flat, low corporate tax rate. This will most probably be set at 10%, but in any event not higher than 12%. This will be similar to arrangements that already exist in Ireland, Cyprus, Malta and other EU Countries."

"In the intervening period, the Government will engage in an intensive, detailed and lengthy process of consultation with the different economic sectors."

"In order to signal the Government’s seriousness of purpose in this respect I am today taking the first step in the process of reducing corporate tax rates in Gibraltar, by 2% for the year of assessment 07/08 from 35% to 33%, and with effect from the year of assessment 2008/09 by a further 3% from 33% to 30%."

"I would also signal the intention of a further reduction the year after that to 27%, in anticipation of the introduction of the flat low tax rate in 2010."

In December 2008, the European Court of First Instance ruled in favour of Gibraltar, stating that the European Commission was wrong to argue that the tax reforms proposed in 2002/03 were in breach of state aid rules, and effectively giving the jurisdiction licence to set its own tax rules.

The Court dismissed the EU Commission’s case, and stated that although the UK is representative of Gibraltar, Gibraltar does, however, have fiscal autonomy from the UK, and therefore can introduce its own individual tax system (the aforementioned 10-12% corporation tax).

In a statement to the press at the time, Peter Caruana, Gibraltar's Chief Minister, said he was "overjoyed" by the outcome.

"The Court has found in Gibraltar’s favour and has accepted our arguments on each and every issue, relating both to regional selectivity and material selectivity, and has ordered the commission to pay the Gibraltar government’s legal costs.”

“This needs to be clearly understood. Had Gibraltar lost the Regional Selectivity case, we would have had to adopt the UK’s company tax system and company tax rates. That would result in the bulk, if not all, of the finance centre and gambling companies leaving Gibraltar. That would have meant the loss of thousands of jobs throughout our economy, and a very large fall in government revenue. This in turn would have rendered unsustainable our current level of public services and public sector employment.”

“This is a huge and vital victory for Gibraltar. A threat to our economic, social, and thus political well-being, has, once again, been successfully seen off. I believe that the economy of Gibraltar now has the opportunity to forge ahead to the next level of growth and development, to fulfil its great potential and thus to guarantee that we shall bequeath economic and social prosperity and stability to our children, grand children and future generations. “

”Once again, this small community has demonstrated that, when right is on our side, and we hold our nerve and we behave reasonably and intelligently, we have the ability and determination to defend our rights and interests as a people, even when they are challenged by more powerful entities and forces.”

”On behalf of the people of Gibraltar, I wish to thank all those companies in the financial services and gambling sectors and other sectors of the economy that have had the faith and confidence in us to stay with Gibraltar during these difficult and uncertain times.”

“The threat that Gibraltar has faced cannot be understated, nor therefore, can the importance of this victory to Gibraltar and its people and our future.”

In his budget in June 2008, Peter Caruana announced his intention to bring forward a 3% cut in corporate tax originally scheduled to take place in 2009, meaning that the corporate rate would drop by 6% that year.

"Last year, and in order to signal the Government’s seriousness of purpose in reducing corporate tax rates, I reduced corporate tax rates to 33%, and said that I would reduce it further this year to 30%, with a signalled reduction to 27% next year," Caruana told Parliament in his budget speech.

"In order to further signal the Government’s commitment I am advancing that timetable by one year, and therefore the corporate tax rate is now reduced by 6% from 33% to 27% with effect from this year that is the year of assessment 2008/09," he added.

Caruana explained that he envisaged a further cut in the rate in 2009, before moving to the rate of between 10% and 12% from 2010, adding that: "My strong preference will favour the bottom end of that range."

The Situation in 2010

The rate of corporation tax is 22%. But with effect from January 1, 2011 a new rate of 10% will apply to all companies except energy and utility providers who will pay a 10% surcharge and will thus suffer a rate of 20%. These will include electricity, fuel, telephone service and water providers.

A start up rate of 10% will apply to all businesses established in Gibraltar after the July 1, 2009. Tax will be assessed on an actual year basis.

However, businesses that have recently been established are also able to take advantage of the start up scheme if they meet the following conditions:

Small companies whose taxable profits do not exceed GIP35,000 are charged at the lower rate of 20%. If their profits fall between GIP35,000 and GIP44,333 corporation tax will be charged at 22% less relief of 3/40 on the difference between GIP44,333, and the amount of taxable profits.

The definition of a "small company" is a company whose trading activities has a minimum of 80% of its trading receipts derived directly or indirectly from sources other than; (i) dividends, interests or discounts; (ii) rents, royalties, premiums and any other profits arising from property.

In his 2009 budget announcement, Caruana outlined the salient features of the new regime, which will include:

Gibraltar Scope Of Corporation Tax

Corporation (income) tax was levied under the Companies (Taxation and Concessions) Ordinance. Ordinarily resident companies pay income tax on their worldwide income. As applied to a company, 'ordinarily resident' means:

• a company the management and control of whose business is exercised in Gibraltar; or
• a company which carries on business in Gibraltar and the management and control of which is exercised outside Gibraltar by persons ordinarily resident there within the meaning of the Ordinance; or
• in the case of an investment company (ie whose income mainly arises other than from the gains or profits derived from any trade, business or employment), which is domiciled anywhere outside Gibraltar, where control of the company, through shares or voting powers, is exercised by persons ordinarily resident in Gibraltar.

A non-resident company was defined as: a company which is incorporated in Gibraltar (whether or not exempt), owned by non-residents of Gibraltar and managed and controlled by directors who reside and hold board meetings outside Gibraltar.

A non-resident company paid Gibraltar corporation tax only on its income derived from or remitted to Gibraltar.

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Taxable profits were charged with corporation tax at 35%. From the 1999/2000 tax year there was a scale of lower rates between 20% and 35% for companies with profits between GIP35,000 or less and GIP105,000, providing 80% of turnover is from trading activity. (See Offshore Tax Regimes for further details of the duty and taxes payable by non-resident and exempt companies, and 'qualifying' companies.)

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Gibraltar Calculation of Taxable Base

Gibraltar Taxation of Trusts

Trust income is exempt from tax under the Income Tax (Allowances, Deductions and Exemptions) Rules 1992 if:

NB: Interest income received from a Gibraltar bank is normally exempt from taxation.

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Gibraltar Filing Requirements and Payment of Tax

Assessments are issued by the Commissioner of Income Tax; 50% of the tax payable is due within three months of the issue of the assessment, and the remainder within six months, or by 30th April in the year of assessment, whichever is the later.