Russia and Offshore
Contributed by Amanda Banks
11 May, 2010
Although Russia has (or had) its own domestic 'offshore' in the form of tax-haven territories which were much used by manufacturing and extractive businesses in the early 1990s to shelter income from taxation, legislation has now largely removed such possibilities, and in any case the horrible fate of Yukos acts as a major disincentive to any Russian company thinking of using home-grown tax shelters.
That is not to say however that 'offshore' is out of bounds for Russian companies, or for foreign companies investing in Russia. Far from it - almost any major exporter or importer, whether of capital, goods or services, can hardly do without the use of offshore international financial centres (OIFCs) if they are not to commit fiscal suicide. In this feature we will first examine the characteristics of the Russian corporate taxation system which govern the use of OIFCs, we will describe the types of structure that can be used by Russian and foreign investors, and finally we will survey key features of some of the OIFCs which have been particularly used for Russian business purposes.
The Russian Corporate Taxation System
A fuller description of Russian corporate taxation will be found in our Knowledge Base; here we will just summarize those features of the system that are most relevant to the use of OIFCs. In most 'high-tax' OECD countries, fiscal consolidation practices, 'Controlled Foreign Corporation' (CFC) rules and transfer pricing legislation operate to constrain the use of OIFCs. This situation is the result of 50 years of tangoing between multinational businesses and national tax authorities. As tax rates have risen and the multinationals have become more adept at minimizing tax, so have the rules gradually tightened. A typical Western multinational will be unable to retain untaxed profits in its foreign subsidiaries, will be unable to price international sales so as to maximize profits in low-tax countries, and will be unable to mix foreign profits and losses at will in its home jurisdiction in order to reduce its tax bill. This is not - yet - the situation in Russia. Tax consolidation is available in very limited circumstances, and there are limitations on loss carrybacks - there are no CFC rules at all, and the transfer pricing legislation used to be virtually toothless. However, in January 2012, transfer pricing provisions in line with OECD principles came into effect. A Russian-owned business is taxable on its world-wide income, so that the income of a foreign subsidiary would not as such be taxable in Russia - of course, income received into the foreign bank account of a Russian company is taxable, as are dividends received from a foreign subsidiary. Foreign taxes paid on such income is creditable against Russian tax only to the extent that this is provided for in a tax treaty. For a foreign company operating as a taxable permanent establishment in Russia through a Representative Office - the usual scheme for all but the most substantial businesses - only income received by the Representative Office, whether from Russia or abroad, is taxable. Its remittances abroad will usually be subject to withholding tax, and will fall under a tax treaty if appropriate. In fact, Russia over 80 tax treaties, many of which have highly favourable withholding tax rate provisions, and these are a key part of tax-planning both for Russian international businesses and for foreign investors.
Russians Investing Overseas
We are not concerned here with the complications of moving money out of Russia. This is not easy to achieve legally without incurring costs, sometimes substantial ones. However, in one way or another many Russian individuals and businesses have accumulated overseas assets, and have the problem of how best to utilize them in a tax-efficient way, whether that be by re-investing them in Russia, or by investing them internationally. OIFCs play a key role in intermediating both types of investment. Typically, a Russian investor will use an OIFC company to hold business operations or assets whether in Russia or abroad. If the income-earning asset is abroad, there will of course be the problem of local taxation, but gains or profits once safely harvested by the offshore holding company may remain untaxed perpetually due to the absence of CFC rules, as long as they are not repatriated to Russia. In the situation that a Russian investor has an importing business, the lax transfer pricing rules allow much of the profit inherent in the importation of, say, an electronic device from Taiwan to Russia to be harvested in an intermediate OIFC. Hong Kong springs to mind. In the case of a Russian investor re-investing overseas assets into Russia - much more frequent nowadays than previously - the use of a holding company or financial intermediary in one of the IOFCs with a good Russian tax treaty - for instance Cyprus or Luxembourg - will allow the remittance of Russian profits, royalties or interest with minimal tax cost, and once again the money is safely offshore. It is no coincidence that the early-1990s saw a rush of Russian banks to Cyprus, in support of schemes to expatriate Russian capital and profits, whether legal or otherwise; later, Malta and Gibraltar became popular for the same reasons. Now, Russian holding companies or IBCs (International Business Companies) are to be found in a wide variety of OIFCs.
N.B. At the behest of President Medvedev, in 2009 the Russian Ministry of Finance prepared an amendment to Article 7 of the Tax Code to crack down on tax avoidance by means of offshore companies set up to benefit from lower tax rates granted under double taxation treaties.
The primary objective of the legislation would be to deny Russian residents who set up offshore companies for the purposes of tax avoidance the benefit of lower treaty withholding tax rates.
Foreign Investors In Russia
As can be seen from the table of Russian tax treaties, most OECD countries have such treaties, and there is nothing to prevent an investor based in any of those countries from investing directly into Russia, and relying on the tax treaty to minimize Russian withholding taxes on repatriated profits (dividends), interest or royalties. Usually this will result in a withholding tax rate of between 5% and 15% on dividends, and between nil and 10% on interest or royalties. That doesn't sound too bad, but then the income is in the investor's high-taxing home jurisdiction. For this reason, most foreign investors choose to use a holding company in a low-tax OIFC through which to finance a Russian involvement. Providing that capital injections to the Russian operation have been correctly recorded by the Russian authorities, repatriation of the capital will be untaxed; in the absence of a tax treaty, the normal rate of Russian withholding tax on a dividend paid by a Russian company or Representative Office to its foreign parent (if that parent is a company) is 15% (exempt if for companies with a participation of at least RR500m in the paying company, provided they do not appear on the 24-nation 'blacklist'). Interest payments would be taxed at 20%. However, Cyprus and Luxembourg both have tax treaties with Russia, making them the favourite OIFCs for foreign investment into Russia. In the case of Cyprus, the treaty rate of withholding tax on dividends is 5% if the original investment was greater than USD100,000, and 10% otherwise, while the treaty rates for interest and royalty payments are nil. With Luxembourg, the treaty rate of withholding tax on dividends is 10% for a participation which is greater than 30%, and 15% otherwise. The treaty rates for interest and royalty payments are nil. Both Cyprus and Luxembourg have local taxation regimes and corporate structures that allow foreign income to be very lightly taxed or untaxed if the beneficial owners of the holding company are non-resident. Cyprus is therefore apparently the best place in which to locate a holding company for a Russian investment, and indeed very many such holding companies exist. The best structure for any particular foreign investment will however depend on complex factors such as the tax domicile of the individual investor, the nature of the business to be carried on, etc, and other OIFCs or even OECD countries may have their place in the structure. A number of European Union high-tax countries nonetheless have very attractive holding company regimes which taken together with their Russian tax treaties may qualify them to be used in a Russian investment structure. Denmark is the most obvious example, but there are others.
N.B. In April 2009, Russia and Cyprus signed a new double taxation avoidance agreement which, once it was ratified in 2012, secured Cyprus's removal from a new Russian 'blacklist' of jurisdictions which have not demonstrated a sufficient level of cooperation with the Russian tax authorities.
Cypriot Finance Minister Charilaos Stavrakis said that the new agreement maintains "the very low and competitive factors Russians are enjoying today concerning investments through Cyprus" although he conceded that Russia succeeded in winning "a significant number of concessions" that they had been asking for.
A major concession won by Russia will see capital gains made by Russian subsidiaries of Cypriot holding companies with more than 50% of their assets in Russian property taxed at the prevailing rates in Russia.
Ilya Trunin, a senior tax official in the Russian Finance Ministry remarked that the amendments ensure that the double tax agreement will not be used "in an inappropriate way" by residents and investors in Cyprus and Russia, but would nevertheless result in Cyprus's removal from Russia's "list of offshore jurisdictions" which he stopped short of calling a "blacklist."
OIFCs Used In Russian Investment Structures
Cyprus is an independent democratic republic, and a member of the Commonwealth. It is prosperous: GDP USD27,000 per head. The economy is dominated by services, with tourism particularly important. Unemployment is low. The Cyprus Government has worked hard to create a favourable offshore tax regime while at the same time maintaining a normal-looking domestic economy, albeit with rates of taxation that are low by international standards. The success of this programme is attested by the nearly 50,000 offshore companies registered in Cyprus since 1975. However, the island's entry to the EU in 2004 meant a restructuring of the tax regime, which took place on January 1, 2003. Domestic and offshore companies alike now pay 10% tax, although income from foreign sources is exempt for non-residents. Cyprus has double-tax treaties withmore thna 40 other countries, including most major Western 'high-tax' countries, and most Central and Eastern European states. This is unusual for an international offshore financial centre and the effect is that Cyprus is a very effective location for holding and investment companies aimed at emerging markets. Cyprus has a good, European-standard business infrastructure, and English is widely spoken. However, it is a relatively expensive jurisdiction for offshore operations, and many documents need to be filed in Greek. The legal system is predominantly based on English law, and provides for various types of trust. The division of the island into Greek Cypriot and Turkish Cypriot zones separated by a UN buffer zone following the Turkish invasion of 1974 does not seem to impede normal commercial or offshore operations, which take place in the Greek zone. In November, 2002, the United Nations presented a plan for a 2-state federation under a common government intended to resolve the problem before Cyprus's admission to the EU. Even after the Copenhagen summit in December which confirmed the island's admission to the EU in 2004, negotiations between north and south continued; but they broke down in early 2003 and the island signed its EU accession treaty in April. The European Commission and the US strenuously supported the United Nations' Annan Plan for reunification, but it was rejected by a Greek Cypriot referendum in April, 2004. Reunification, it if takes place, may form part of Turkey's negotiation to join the EU. The island's listing by the FATF in June, 2000, as one of 15 offshore jurisdictions said to have inadequate defences against money-laundering hastened a process of adjustment to international standards of banking supervision and information exchange. After the EU finally agreed its Tax Directive in June, 2003, Cyprus announced that it would implement the 'information sharing' provision of the Directive on entry to the Union in 2004. This means that information about savings returns received in Cyprus by nationals of other EU countries is now passed to the tax authorities in the individuals' home countries. In late 2003 the government also announced plans to weaken previously tight banking confidentiality, although these were strongly attacked by the banks. See the Cyprus section of lowtax.net for a full description of Cyprus's tax regime.
Luxembourg is a constitutional monarchy, has a land area of about 1,000 sq miles, a population of 486,000, and is sandwiched between Belgium, France and Germany. With Belgium and the Netherlands, it forms part of Benelux, which was a precursor of the EU. Luxembourg was a founder-member of the EU and hosts many of the EU's financial institutions. Languages spoken are French, German and English, with Luxemburgish the everyday language of Luxembourgers. Luxembourg's economy was dominated by steel production, but since the Second World War the Government has successfully encouraged development of a diversified financial sector. Tourism is also important. In Europe, Luxembourg has the second most extensive banking industry after London. The Luxembourg private banking industry is possibly Europe's biggest. The Stock Exchange specialises in collective investment funds and many of the 7,000 Luxembourg-registered funds are also listed there. According to figures released by the World Bank in May, 2001, Luxembourg was the richest country in the world in 1999 when it came to purchasing power per capita with an average wage of USD41,230. Luxembourg was also listed as the wealthiest country in terms of gross national income (GNI) in 1999 at USD42,930 per head. With GDP per capita now approaching USD85,000 it remains a wealthy enclave. Unemployment is rising slightly but is less than 4.5%, and inflation is on the European average at 2%. Luxembourg is a high-tax country, but has specialised types of 'holding' company which are tax-exempt (although these are being phased out at the behest of the European Union). There are 18,000 of these - they are suited to holding international investments, but are not allowed to trade themselves. UCIs (collective investment funds) are also tax-exempt. As a member of the EU, Luxembourg finds itself in an uncomfortable situation squeezed between the EU/OECD attack on harmful tax competition and its dependence on its successful 'offshore' sector. The EU's Savings Tax Directive also threatens problems for Luxembourg banks and UCIs, although after threatening to veto the EU's plans at the end of 2002 because competitor Switzerland had not offered 'equivalent' measures, the country fell into line in January, 2003, and has applied a withholding tax to non-residents' investment returns since the Directive came into force in 2005. After the OECD issued its final list of offshore jurisdictions in April 2002, it made threatening noises towards Luxembourg, and considered what sanctions could be imposed on the country after its 2003 deadline for the removal of 'harmful' tax practices. Income Tax, Municipal Business Tax on Profits and a corporate surtax give a combined corporation tax rate of about 30%; the rates for individuals are higher, and they pay a wealth tax in addition. The tax system is mostly based on German originals, apart from VAT which is of course an EU-inspired tax. EU citizens have freedom of movement in Luxembourg of course, but other nationals need residence and work permits. See the Luxembourg section of lowtax.net for a full description of Luxembourg's tax regime.
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