Author: Paschalis Paschali

Digital nomads, international remote working and tax implications (Part II)

Posted on | by Paschalis Paschali

In the previous part, we briefly touched upon the type of tax issues that digital nomads (and/or their employers) might encounter. In this part, we review the legal position in Cyprus. We also review how some jurisdictions have dealt with some of the tax implications affecting international remote workers for non-resident companies and whether they gave rise to a permanent establishment.

So far, the Cyprus tax authorities have adopted a light touch approach. This is facilitated by the Cypriot legislation’s objective test for tax residency of individuals. As of 2017, an individual is a tax resident of Cyprus if it satisfies either the ‘183-day rule’ or the ‘60-day rule’ for the tax year. The 183-day rule is satisfied for individuals who spend more than 183 days in any one calendar year in Cyprus. The 60-day rule for Cyprus tax residency is satisfied for individuals who, cumulatively, in the relevant tax year do not reside in any other state for a period exceeding 183 days in aggregate, are not considered tax resident by any other state, reside in Cyprus for at least 60 days, and have other defined Cyprus ties.

During the COVID-19 pandemic, the Cyprus tax authorities followed the OECD’s non-binding guidance and as such, the presence of persons within Cyprus (or abroad) due to restrictions related to the pandemic were not taken into account when assessing the existence of a permanent establishment. Similarly, the tax residency of a foreign company or a non-resident individual were not affected by extended stays in Cyprus as a result of the pandemic. However, the provisions of this guidance are no longer relevant after the lifting of all restrictions. Therefore, the 183-day rule and the 60-day rule are to be strictly adhered.

For digital nomads working from their holiday home in Cyprus or from a temporary location, even if they do not meet the test for tax residency, they could still trigger a permanent establishment for their employer/company. For this, an assessment of all the facts needs to be made to determine whether the arrangement has sufficient permanency. Furthermore, Cyprus legislation and any underlying tax treaties between Cyprus and the state of the employer need to be reviewed.

It is useful to keep abreast of how other jurisdictions have dealt with some of the tax issues relating to digital nomads.

In 2022, the Spanish tax authorities issued guidelines and later on a binding ruling to confirm that individuals who stayed at home to work remotely during the COVID-19 pandemic were doing so by an extraordinary event. This was not at the employer’s request. The activity lacked a sufficient degree of permanency or continuity and as such, it did not create a permanent establishment for the employer.

Whether after the termination of the public health measures the home office in Spain would give rise to a permanent establishment in Spain, this depended on whether the home office was at the disposal of the foreign employer (in this case a UK employer).

In assessing this, a number of factors were taken into account, such as whether the activity previously performed by the employee changed after he moved to Spain, whether the move was for a purely personal decision, whether the employer had asked the employee to move to Spain for a specific business reason, whether the employer bore the costs of the move, whether the employer had an office in the UK which could be used by the employee etc.

In 2022, a number of rulings were given by the Danish tax authorities relating to international remote work. One ruling found that a CEO of two Norwegian companies who was working from home three days per week was a permanent establishment. By contrast, in another ruling, it was found that a managing director working from home due to personal reasons was not a permanent establishment. One important factor was that the director was not involved in sales-related activities taking place in Denmark. Similarly, a CFO working from home two days a week for a Swiss employer was not a permanent establishment for similar grounds. Although the CFO was also a member of the board of directors, this was not determinative as his functions primarily related to activities in Switzerland.

The Swedish tax authorities have also updated their guidance on remote working. According to the updated guidance, working from home due to government restrictions or force majeure cases (e.g. the COVID-19 pandemic) will not give rise to the existence of a permanent establishment. Similarly, if an employee works from home for personal reasons and this is not required or imposed by the foreign employer and there is no commercial interest for the foreign employer, then the employee’s home will not be considered to be at the disposal of the foreign employer and as such, will not give rise to a permanent establishment.

More recently, the Dutch tax authorities issued a ruling accepting that a foreign EU company did not have a Dutch permanent establishment as a result of having three employees who worked fully remotely from their home offices in the Netherlands. It was crucial that the home offices were not at the disposal of the employer. It was also important that the employees had no authority to bind the company, the foreign company was subject to tax where it was based and, very importantly, the employer offered an office but the employees preferred to work from home. This appears to be the first ruling involving multiple employees.

Of course, these rulings do not bind the tax authorities of other countries, including Cyprus, but they provide useful guidance. It would appear from some of the rulings issued so far that someone generating sales, or a management team or senior staff could give rise to a permanent establishment in Cyprus for the employer/company. For senior management or employees creating significant value for the employer, it is advisable to obtain a tax ruling from the Cyprus tax authorities before any international remote working arrangement is approved by the employer.

We can help you in this process and protect you and your employee from triggering any unexpected tax liabilities. Of course, given Cyprus’ very competitive tax regime and relatively low tax rates, it might be tax efficient to create a permanent establishment in Cyprus, or even transfer your tax residence. Currently, many incentives are offered by the Cypriot government for relocation to Cyprus, especially for non-domiciled individuals, which might make the change of tax residency a very appealing option. However, the transfer of tax residence, whether by an individual or a company needs to be carefully planned, in order to avoid creating dual tax residency. A relocation before you break your previous tax residency could give rise to double taxation of the employee’s worldwide income.

Our experienced lawyers can help you navigate this complex area whether you prefer to avoid the creation of taxable presence in Cyprus, or whether you wish to transfer your tax residency as an employer or that of your employees in Cyprus. We can assist you with all the technical formalities (e.g. registration as a local employer, maintaining payroll in Cyprus etc.) and we can help you obtain any necessary tax rulings from the tax authorities for a seamless transition.

For more information, please get in touch with us.

Digital nomads, international remote working and tax implications

Posted on | by Paschalis Paschali

Digital nomad arrangements are becoming very popular. Although there is no single definition of a digital nomad, the concept tends to encompass remote workers who regularly travel while working. These could be employees or self-employed people who use digital telecommunications technology to carry out their work. Traditionally, digital nomads were mostly self-employed people but since the start of the COVID-19 pandemic, the number of digital nomads who are employees has increased exponentially.

There is a wide range of digital nomads. Some could live completely nomadic lives with no permanent home base, moving from one jurisdiction to another. Others might only work remotely for short periods of time, or during workcations. The rise of digital nomads means that the workplace is no longer geographically restricted, with flexible location-independent working arrangements on the rise. A working environment with remote work is now the rule rather than the exception. However, complete freedom for international remote work is still rare due to a number of obstacles such as local immigration rules, employment, tax, social security etc.

Although many digital nomads might rely on tourist visas to work from a jurisdiction, working on a tourist visa for extended periods might be against local law. Getting a work permit or work visa each time a nomad goes to a new jurisdiction might also be too cumbersome. In order to cut down on red tape and boost the economy through tourism, many countries now give out digital nomad visas. The conditions of such visas vary and could include a minimum earnings threshold, private health insurance, proof of employment, police background checks etc. Cyprus also has a digital nomad visa scheme and in March 2022 increased the number of available visas from 100 to 500.

Taxation is one of the biggest obstacles to international remote work.

Depending on each country’s tax residency rules, a digital nomad might be found to be tax resident in the jurisdiction they are working from. This could lead to double taxation if the jurisdiction of his employment continues to tax him/her as resident. Sometimes, double taxation is eliminated through tax treaty mechanisms or agreements between tax authorities, but this is not always the case.

Even if the digital nomad is not found to be tax resident in the jurisdiction they are working from, or if they are found tax resident, double taxation is avoided, a travelling employee could trigger taxation for the employer in the form of a permanent establishment. Generally, countries can tax non-resident companies or individuals if they have a permanent establishment in another jurisdiction. Therefore, the foreign employer could be taxable in the jurisdiction where the employee is working from if under local rules, the activities and overall working arrangements of the employee give rise to a permanent establishment.

Although each jurisdiction might have its own rules in determining when a permanent establishment is established, there are several common triggers derived from the OECD Model Tax Convention, which jurisdictions tend to follow. An employee who has an office or fixed place of business in another jurisdiction could trigger a permanent establishment for their employer. This can include a co-working space, hotels, Airbnb spaces, if they are paid and chosen by the employer and especially if they are used repeatedly by the same employee or other employees of the same firm. In some jurisdiction, a home office might also be considered as a giving rise to a permanent establishment.  

A permanent establishment might also be triggered by having someone locally who has the authority to sign contracts on the employer’s behalf, or who has an executive or senior management role, or who provides core business services or undertakes sales activities.

If a permanent establishment is established in the jurisdiction where the remote work is taking place, then profits of the employer/company might be allocated (and taxed) by that jurisdiction. This could have serious cost implications, especially if the remote worker is in a senior management position. Let us not forget that prolonged presence of a director of a company in another jurisdiction could affect that tax residence of the company.

Apart from the taxes that may be due (which could be negligible), an employer who has a permanent establishment abroad might need to register the permanent establishment according to local rules. This can be a significant burden especially for partnerships. The employer might also have to run a local payroll and undertake transfer pricing analyses to show the allocation of profits to the permanent establishment. This is likely to be costly, especially if the employer has no foreign presence elsewhere.

EU nationals who wish to work remotely within the EU obviously do not need a digital nomad visa, as they benefit from the EU’s freedom of establishment and the free movement of workers. Nevertheless, EU nationals face the same tax issues, as far as the possible change of tax residency, or creation of a permanent establishment. It is up to Member States to decide whether a remote worker is tax resident in their jurisdiction, or generates a permanent establishment of their employer. EU law and the fundamental freedoms are not triggered, unless there is discrimination (i.e. different treatment of a foreign remote worker with a resident remote worker).

In order to mitigate the tax risks, companies/employers need to assess and approve requests for travel on a case-by-case basis, as the threshold for triggering a permanent establishment might vary under local rules. So far, tax rulings in this area have gone in all directions. We will be reviewing these and the situation in Cyprus in the next instalment of this newsletter.

New EU Directive on improving the gender balance among directors of listed companies and related measures (EU 2022/238): Women on Boards of Listed Companies

Posted on | by Paschalis Paschali

In the context of the EU Gender Equality Strategy 2020–2025, the EU Parliament has adopted a new directive aiming to close the gender gap on corporate boards of large (the “Directive”), with listed EU companies imposing at the same time the obligation for transparent assessment procedures on the basis of the candidates’ merits, irrespective of their gender.

Pursuant to the said Directive, Member States must set an objective to ensure that at least 40% of non-executive director positions at listed companies are held by members of the underrepresented sex. If Member States choose to apply the new rules to both executive and non-executive directors, the target would be 33% of all director positions.

 Listed companies that are not subject to this latter objective, must set individual quantitative objectives with a view to improving the gender balance among executive directors. Also, Member States must ensure that listed companies which do not achieve the objectives referred to above (40% and 33% respectively), as applicable, adjust the process for selecting candidates for appointment or election to director positions. Hence, if the targets set are not being met, companies will need to explain how they intend to meet these objectives.

To ensure compliance with the requirements of the Directive, listed companies will be obliged to provide information, once a year, regarding their respective boards’ gender representation and measures being undertaken to achieve the applicable quotas. On the basis of the information provided by the listed companies, a list of those companies satisfying either of the Directive’s requirements (executive, non-executive directors, all directors) annually will be published by each Member State.

The Directive exempts from its application SMEs, i.e. companies that employ fewer than 250 persons and have either an annual turnover not exceeding EUR 50 million or an annual balance sheet total not exceeding EUR 43 million.

Finally, Member States are required to implement “effective, proportionate and dissuasive” penalties for infringements by listed companies. Τhe Directive further obliges Member States to ensure that in the performance of public contracts and concessions, listed companies comply with applicable obligations relating to social and labour law in accordance with the applicable EU law.

Key dates:

The Member States must adopt and publish the laws, regulations and administrative provisions necessary to comply with the Directive by 28 December 2024.

Listed companies in the EU must meet the targets set above by 30 June 2026.

Comment:

Generally, Cyprus enhanced its position in the gender equality field (there has been an increase in women actively involved in politics) having of course considerable room for improvement while laying solid foundations at a socio-political level. Cyprus has adopted a National Action Plan on Gender Equality 2019 – 2023 setting various measures aiming the promotion of equal participation in decision-making. It remains now to be seen how the Directive’s provisions will be implemented at national level, undoubtedly bringing about a positive effect for the country’s economy and a safeguard of equal labour opportunities especially for women’s employment in the companies concerned.

Navigating EU sanctions – overview and predictions for 2023

Posted on | by Paschalis Paschali

European Commission President Ursula von der Leyen has recently announced that the EU is preparing a 10th package of sanctions on Russia and is planning to have it in place by 24 February 2023 – the 1 year anniversary of Russia’s actions in Ukraine. The new package is said to be focusing on technology that may be used by the military of Russia and in cutting sanctions circumvention. It may further include financial sanctions against four Russian banks. Overall, the EU has progressively imposed sanctions against Russia since 2014, in light of the annexation of Crimea and the non-implementation of the Minsk agreements.

EU sanctions do not apply extraterritorially. The Sanctions Regulation applies, inter alia, to any person inside or outside the territory of the Union who is a national of a Member State, and to any legal person, entity or body, inside or outside the territory of the Union, which is incorporated or constituted under the law of a Member State.

The measures forming part of the various sanctions packages as found and developed under the two main EU regulations, namely Council Regulation (EU) No 833/2014 (a.k.a. economic or sectoral sanctions) and Council Regulation (EU) No 269/2014 (a.k.a. individual or targeted sanctions) are complex and multi-layered, and understanding their full scope and compliance is becoming an increasingly challenging exercise for the stakeholders involved.

The EU economic sanctions regime imposes prohibitions and limitations via the targeting of specific sectors of the Russian economy as a whole including inter alia prohibitions on new investments in the energy sector; prohibitions on certain operations in the aviation sector; prohibitions on imports of iron and steel; prohibitions on the financing of the Russian government and Central Bank as well as banning all those transactions related to the management of the Central Bank’s reserves and assets; prohibitions on a range of financial interactions, financial rating services and transactions with Russia; prohibitions on accepting deposits; prohibitions on trust and a number of business-related services.

The EU individual sanctions regime imposes the freezing of assets belonging to, owned, held, or controlled by listed persons or entities: all their assets in the EU are frozen and EU persons and entities cannot make any funds available to those listed. Both Regulations have broad anti-circumvention provisions, pursuant to which it is prohibited to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent prohibitions as found under the Regulations. Additionally, any person who facilitates the circumvention of sanctions by others, may now be included in the sanctions list himself – and this includes EU natural and legal persons.

The year ahead

It seems unlikely that developments in sanctions policy and regulations will be slowing down in 2023. On the contrary, we expect to see more packages but also enforcement actions as regulators and prosecutors come under increasing pressure to show more “teeth” rather than simply introducing and drafting new policies. The controversial idea of ceasing and not only freezing assets has also been increasingly under discussion.

On 28 November 2022, the European Council unanimously decided to add violations of EU sanctions to the list of “EU crimes”. On 2 December 2022, the European Commission introduced a proposal for an EU Directive which sets out minimum rules concerning the definition of criminal offences and penalties in respect of violating EU sanctions. The willingness to introduce such a Directive is reflective of the EU’s objective for stronger harmonization in the enforcement of sanctions by Member States and for dissuading circumvention at the EU level. Of course, for the Directive to take effect, Member States will have to incorporate it via the passing of national legislation. The Commission has also recently launched an EU whistle-blower tool enabling the anonymous reporting of possible sanctions violations, including circumvention.

Additionally, a Directive on asset recovery and confiscation has been proposed with the aim to tackle “the serious threat posed by organised crime” and provide the means to competent authorities to “effectively trace and identify, freeze, confiscate and manage the instrumentalities and proceeds of crime and property that stems from criminal activities.” Should such proposal solidify further, EU member states would be required to make substantial changes to their national laws and confiscation regimes for instance, the confiscation of unexplained wealth – enabling judicial authorities to confiscate property when they are convinced it derives from criminal activities, even if it cannot be linked to a specific crime. Such confiscation measures will inevitably be raising inter alia various property and human rights considerations, which will eventually have to be determined by the member state courts.

At the moment, while EU regulations set out the prohibitions and licensing grounds with respect to sanctions, it is implementing legislation at each Member state level which imposes the applicable penalties. Cyprus currently adopts The Implementation of the Provisions of the United Nations Security Council Resolutions or Decisions (Sanctions) and the European Union Council’s Decisions and Regulations (Restrictive Measures) Law (Law 58(I)/2016) which renders violation of any provisions of such sanctions/restrictive measures a criminal offence subject to imprisonment and/or penalties.

The above information and challenges make it even more important that businesses adopt their own robust and up-to-date sanctions compliance measures. It is the individual responsibility of each person and organisation to carefully examine risks potentially arising under the EU sanctions regime and verify whether any of the listed individuals or entities are part of their business relationships or whether their activities violate sanctions.

The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. It is recommended to seek independent legal advice when considering participating in activities or transactions which may give rise to sanctions-related matters. Engaging in thoughtful due diligence at the outset of any investment/transaction will help you to prevent pitfalls further down the line.

The Evolving Cyprus Corporate Tax Landscape

Posted on | by Paschalis Paschali

Cyprus has long enjoyed a relatively stable fiscal environment, especially as far as the corporate tax regime is concerned. Changes to the tax code have traditionally been scarce and far between. Changes are however afoot mostly as a result of international developments. In this newsletter, we examine some of the recent changes and also discuss what possibly lies ahead.

Transfer pricing documentation and APA procedure

One of the biggest developments last year was the introduction of transfer pricing documentation requirements, effective from 1 January 2022. Under the new provisions, broadly, Cyprus tax resident companies and permanent establishments of non-resident companies are required to prepare on an annual basis transfer pricing documentation supporting their controlled transactions with related parties. The documentation consists of the “Master File” and the “Cyprus Local File”. Furthermore, taxpayers are required to complete a summary information table containing high-level information on related-party transactions.

There are certain exemptions to the filing requirements. For example, only Cyprus tax resident entities that are the ultimate parent (or surrogate parent) entity of a Multi National Enterprise (“MNE”) group falling under the scope of country-by-country reporting (i.e. with a consolidated revenue above €750 million), have an obligation to prepare and maintain a Master File.

Also, persons that engage in controlled transactions with an arm’s length value of less than €750,000 annually, in aggregate per transaction category (e.g. sale/purchase of goods, provision/receipt of services, financing transactions and receipt/payment of IP licencing/royalties) are exempt from the obligation to prepare a Local File.

There are penalties for non-compliance with the new obligations.

A formal Advance Pricing Agreement (“APA”) procedure has also been introduced. Cyprus tax resident persons and non- resident persons with a permanent establishment in Cyprus can submit to the Cyprus tax authorities an APA Request with respect to current or future domestic or cross-border transactions. The APA request could be bilateral or even multilateral involving tax authorities in other jurisdictions.

The tax authorities must examine the application and reach a decision within 10 months from the date of the application (in certain cases a longer time period of up to 24 months may be allowed).

APAs are valid for up to 4 years. The APA may be revised, upon application by the taxpayer or at the discretion of the tax authorities. Under certain circumstances, the tax authorities may revoke or cancel an APA.

In granting APAs, the Cyprus tax authorities will obviously need to take into consideration the state aid prohibition under the Treaty on the Functioning of the European Union (Art 107) and the recent high-profile litigation on over-generous tax rulings conferred to multinationals by some Member States. Taxpayers requesting an APA should also be aware that under certain circumstances set out in EU legislation adopted by Cyprus, tax authorities are obliged to automatically exchange information on advance pricing agreements issued by them to other Member States and the European Commission.

Although the new transfer pricing documentation requirements and especially the Master File are likely to affect MNEs with limited exposure to Cyprus, in general, good documentation of related party transactions is a recommended practice for transfer pricing compliance. There may also be in-scope Cypriot group companies that have to file the Local File. Affected groups could strive to have some of their overall transfer pricing documentation obligations catered for by Cypriot advisors, to benefit from lower operating costs compared to other jurisdictions.

For more information on how these changes might affect your business, please get in touch with us.

Future Developments

As part of our newsletters we shall attempt to keep you up to date on what is being discussed in the field of taxation of both businesses and individuals.

15% Minimum Effective Tax Rate

For the past few years, the international tax community has been working on the so-called Two-Pillar Solution to deal with the taxation of the digital economy (also, sometimes referred to as BEPS 2.0). Pillar One focuses on rules for taxing profits and rights, with a formula to calculate the proportion of earnings taxable within each relevant jurisdiction. Pillar Two focuses on a global minimum tax of 15% which is to be implemented through domestic and treaty-based rules. The domestic rules are also called the Global Anti-Base Erosion (GloBE) rules.

After several discussion drafts and a consultation document, a global agreement on tax reform was eventually reached in July 2021.

Following this global agreement, the OECD released the Pillar Two Model Rules which defined the scope and key mechanisms of the GloBE rules. On 22 December 2021, the European Commission published its own proposal for an EU directive on global minimum taxation for multinationals, which broadly mirrored the OECD’s GloBE rules. This draft was subsequently revised in compromise texts and eventually adopted in December 2022.

With the adoption of this Directive in the EU, it is widely thought that the much needed ‘critical mass’ for the adoption of Pillar Two by other countries has been reached. Pillar One still seems to be lagging behind, even though it was the front runner in the early discussions at the OECD/G20 level.

One important difference between the new Directive and the OECD’s rules is that the EU rules will apply to ‘large-scale domestic groups’ with a threshold of €750 million consolidated revenue in at least two of the four preceding years. The OECD rules do not apply to domestic groups.

Cyprus, as an EU Member State, will be obliged to incorporate the provisions of the new Directive into domestic legislation by 31 December 2023. There are transitional rules which delay the application of the rules for MNE groups and large-scale domestic groups at the initial phase of their international activity.

Under the system set out in the new Directive, the parent entity of an MNE located in a Member State would be obliged to apply the so-called Income Inclusion Rule (IIR) to its share of top-up tax relating to any entity of the group that is low-taxed (i.e. below the 15% threshold), whether that entity is located within or outside the European Union.

There is also the very controversial Undertaxed Payment Rule (UTPR) which acts as a backstop to the IIR through a reallocation of any residual amount of top-up tax in cases where the entire amount of top-up tax relating to low-taxed entities could not be collected by parent entities through the application of the IIR. The UΤPR will apply in situations where a group is based in a non-EU country and that country does not impose the minimum rate. The constituent entities of such an MNE group that are located in a Member State will have to pay in their Member State a share of the top-up tax linked to the low-taxed subsidiaries of the MNE group. The calculation and allocation of the UTPR top-up tax in the Directive is based on the number of employees and the carrying value of tangible assets.

The Directive provides Member States the option to apply a qualified domestic minimum top-up tax (QDMTT). The domestic top-up tax allows the Member State in which a low-taxed entity is resident to levy the top-up tax before application of the IIR at the level of the parent company (in another jurisdiction). It is expected that most Member States will opt for such tax.

There are detailed rules on the calculation of qualifying income or loss, the computation of adjusted covered taxes and the calculation of the effective tax rate and the top-up tax. There are also special rules for mergers and acquisitions as well as distribution regimes.

Unsurprisingly, there are many reporting obligations which increase the already heavy compliance burden of in-scope MNEs. Each constituent entity of an MNE group located in a Member State must file a top-up tax information return, unless the return is filed by the MNE group in another jurisdiction, with which the Member State has an exchange of information agreement. The constituent entity might also designate another entity located in its Member State to file on its behalf. The returns must be filed within 15 months after the end of the fiscal year to which they relate. 

Member States will introduce penalties for failures to file the information return within the prescribed deadline or for making false declarations. The 5% fixed penalty which was suggested in the original version of the Directive has now been withdrawn.

Whilst the impact of this new Directive on Cypriot companies might seem minimal at first instance, the combination of the aforementioned rules (i.e. the IIR, the UTPR and the QDMTT) make it imperative that such companies continuously monitor whether or not they fall outside the scope of the rules. Cypriot constituent entities of in-scope groups could be subject to top-up taxes on the basis of a Cypriot imposed QDMTT. In addition, Cypriot constituent entities of in-scope groups would need to file a top-up tax information return. There might also be restructuring needs or acquisition/divestment opportunities, to ensure reduction or elimination of top-up taxes through jurisdictional blending. The unique structure of the new regime will lead to the creation of new valuable tax attributes that MNEs will strive for. It is important for tax advisors to identify whether a Cypriot company has such valuable tax attributes or how it could develop such attributes in order to minimise the impact of the new rules and the imposition of top-up taxes.  

For more information on how these changes might affect your business, please get in touch with us.

What lies ahead for tax in 2023

A “War” against Tax Abuse

Notwithstanding these ground-breaking developments in 2022, it is likely that there will be further developments in 2023 due to the various projects that the European Commission has in the pipelines.

The “Unshell” Proposal

One such project is the “Unshell” proposal which introduces rules on the misuse of entities. The aim of this proposal, which was first published as a draft Directive in December 2021, was to establish transparency standards around the use of shell entities, so that abuse could more easily be detected by tax authorities. The proposal introduces a complex filtering system (gateways) comprising of several substance indicators. Undertakings will need to show that they satisfy the substance indicators, otherwise they will be presumed to be “shells”. Such a finding could lead to penalties, a denial of a tax residency certificate and unavailability of exemptions under the Parent-Subsidiary and Interest and Royalties Directive.

If adopted as proposed, the Unshell proposal will introduce a heavy compliance burden of reporting, preparation of rebuttals and appeals, not just for MNEs but also for smaller undertakings involved in cross-border transactions. The European Commission is widely expected to publish a revised version of this draft Directive in 2023 to meet some of the concerns expressed by several stakeholders. However, the structure of the proposal and the reporting obligations are unlikely to change significantly.

Traditional holding company jurisdictions like Cyprus or Malta are likely to be affected by this proposal. Advisors would need to assess which undertakings may come within the scope of the rules, whether they can benefit from any carve-outs and how they can ensure they remain low-risk in order to be exempt. If reporting of minimum substance is inevitable, then diligent preparation of documentary evidence will be crucial to ensure the rebuttal of the presumption of a shell.

Once the Unshell proposal has been finalised and is expected to be adopted, we will publish a newsletter on how this will affect Cypriot companies.  

Anti-Facilitation Measures

In addition to the above, the resolve of the European Commission in fighting abuse is further evident from the fact that it is working on a follow-up initiative aimed at tackling the role of enablers in setting up complex structures in non-EU countries with the objective of eroding the tax base of Member States through tax evasion and aggressive tax planning. The proposal will likely include criteria for defining the forms of aggressive tax planning that should be prohibited. This initiative is heavily supported by the European Parliament.

If this proposal goes ahead, it will impose more onerous due diligence obligations on tax intermediaries (lawyers, accountants, general tax advisors). Non-legally trained intermediaries would likely need legal advice to navigate the new rules.

BEFIT Measures – A Proposal for a New Framework for Business Taxation in the EU

Another major initiative to watch out for is the new proposed framework for business taxation in the EU: the ‘Business in Europe: Framework for Income Taxation’ (or BEFIT). This will replace the previously proposed Common Consolidated Corporate Tax Base and will provide a common corporate tax base for group companies and consolidation. The European Commission recently published a call for evidence for an impact assessment and asked for public feedback. A legislative proposal for a new corporate tax system is expected later on this year.

We are closely monitoring these and other international developments to ensure our clients are in the best position to comprehend and comply with any new obligations whilst at the same time continuing to benefit from efficient and legitimate tax structuring.  

Court of Justice (EU) ruling on accessing information of beneficial owners (AML Directive)

Posted on | by Paschalis Paschali

On 22 November 2022 the Court of Justice of the European Union (“CJEU”) ruled that the provision of Directive (EU) 2015/849, as amended (“AML (EU) Directive”) providing that Member States must ensure that information on the beneficial ownership of legal entities is accessible in all cases to any member of the general public is invalid.

In addition to granting access to the public on beneficial owner information, the AML (EU) Directive also allows Member States to provide for an exemption to the public’s access on a beneficial owner’s information where the access would expose the beneficial owner to “disproportionate risk, risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or where the beneficial owner is a minor or otherwise legally incapable”. This exemption for restricting access “in exceptional cases” and on a “case-by-case basis”, did not prevent the CJEU from ruling that the provision for granting the right to such access is invalid.

The judgement concerned CJEU’s joined Cases C-37/20, Luxembourg Business Registers and C-601/20, Sovim. The two cases were referred to the CJEU following a request for a preliminary ruling from the tribunal d’arrondissement de Luxembourg (Luxembourg District Court) pursuant to Article 267 of the Treaty on the Functioning of the European Union.

The concerned provision

The question referred to the CJEU concerns, inter alia, the provision of Article 30(5)(c) of the AML (EU) Directive which reads as follows:

Member States shall ensure that the information on the beneficial ownership is accessible in all cases to:

(a) […]

(b) […]

(c) any member of the general public.

The persons referred to in point (c) shall be permitted to access at least the name, the month and year of birth and the country of residence and nationality of the beneficial owner as well as the nature and extent of the beneficial interest held.

[…]

Conflict with the EU’s Charter of Fundamental Rights

In declaring invalid the provision permitting the general public’s access to information on beneficial ownership, the CJEU stressed in its decision that the concerned provision constitutes a serious interference with the fundamental rights enshrined in Article 7 (Respect for private and family life) and Article 8 (Protection of personal data) of the EU’s Charter of Fundamental Rights.

Effect on Cyprus AML legislation

The Cyprus AML Law transposing the respective AML (EU) Directive includes a similar provision permitting members of the general public to have access “in all cases” to information on the beneficial owner’s name, the month and year of birth, the nationality, the country of residence and the nature and extent of the beneficial interest held.

The CJEU’s decision is expected to impact the general public’s access “in all cases” on information concerning beneficial owners. It remains to be seen whether the AML (EU) Directive will provide express grounds for the public’s access to such information or whether such grounds will be left to the discretion of each Member State, however, such grounds must be based on a proportionate and balanced approach without violating the Charter’s rights.

In the meantime, the Cyprus AML Law will need to be amended so that access of the public to information on beneficial owners is subject to grounds which are aligned with the EU’s Charter on Fundamental Rights and specifically Article 7 (Respect for private and family life) and Article 8 (Protection of personal data).

As of 23 November 2022, the Cyprus Department of Registrar of Companies and Intellectual Property suspended the access to the register of beneficial owners for the general public, in response to CJEU’s decision. Obliged entities will continue to have access to information maintained in the beneficial owner’s register by submitting a solemn declaration confirming that the information is requested within the context of performing customer due diligence.

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Ioannides Demetriou LLC advises on matters concerning regulatory AML compliance and the protection of fundamental rights such as your right to the protection of personal data and your right for private and family life.

Reach out to our team to ensure that your regulatory obligations are protected in a manner that respect and safeguard your fundamental rights.

You can contact us directly by calling + 357 22 022 999 or by email at [email protected]

The information provided in this article does not and is not intended to constitute legal advice; instead, all information contained in this article is for general informational purposes only. If you require assistance with any legal matter, including a matter referred to in this article, you should contact one of our attorneys to obtain advice tailored to your specific circumstances.

Introducing the Cyprus Shipping Limited Liability Company (SLLC)

Posted on | by Paschalis Paschali

With an attractive location lying just a few miles from the Suez Canal and in the crossroad of the European – African and Asian markets, Cyprus grew to one of the main maritime players of the world with the 3rd largest fleet in the European Union and the 11th largest worldwide. The country’s business minded policy coupled with the evolving needs of the shipping industry led to the creation of the Shipping Deputy Ministry in 2018.

In 2021, the Ministerial Counsel approved the Strategic Vision for Cyprus Shipping dubbed “Sea Change 2030” which included the development of a regulatory and administrative framework for the incorporation of shipping entities. As a result of this strategy, the Cypriot parliament voted in favour of the Cypriot Shipping Limited Liability Company Law (the “SLLC Law”).

The SLLC Law was published in the Official Gazette of Cyprus, issue no. 4916 on 27 October 2022 and was shaped after the Cypriot Companies Law, Cap.113 (the “Companies Law”), thus offering shipping entities a familiar regulatory framework and corporate environment.

Shipping Limited Liability Company

The purpose of the SLLC Law is to simplify the procedures and operation of shipping companies for the ownership and exploitation of ships. To that effect, the SLLC Law introduces a new type of legal entity, the Shipping Limited Liability Company (“SLLC” or «ΝΕΠΕ – Ναυτιλιακή Εταιρεία Περιορισμένης Ευθύνης») which is the equivalent of a limited liability company.

The SLLC Law applies to newly incorporated SLLCs and to shipping companies incorporated under the Companies Law that wish to transfer on the SLLC register under the SLLC Law.

Administration and management of SLLCs

The objective of the SLLC Law is the creation of a “one-stop-shop” within the Shipping Deputy Ministry for the servicing of shipping companies and their shareholders, and the handling of matters which were previously under the responsibilities of the Registrar of Companies. In effect, SLLC Law maintains the advantages and flexibility offered under the Companies Law as it includes provisions for the administration and management of SLLCs and provisions regulating matters which concern SLLCs from their incorporation up to their liquidation.

Features of the SLLC Law

The SLLC Law mirrors a number of functions exercised by the Registrar of Companies. The following list outlines some of the matters regulated under the new law:

  • The creation of the Registrar of SLLCs as the competent authority for the registration of SLLCs and any other corporate matters relating to SLLCs, for the promotion of a “one-stop-shop”;
  • The creation of the SLLC register;
  • Provisions on the incorporation of SLLCs, their share capital and other management arrangements;
  • The appointment of a secretary of the SLLC who, as per the SLLC Law, must be a lawyer;
  • Provisions for the transfer of companies registered in the register of the Registrar of Companies under the register of the Registrar of SLLCs;
  • The power of the Registrar of SLLCs to approve the use of electronic signatures in relation to documents submitted to or issued by the Registrar of SLLCs;
  • The power of the Registrar of SLLCs to impose administrative fines.

Why incorporate or convert into an SLLC?

Despite the seemingly identical legal frameworks between a limited liability company (incorporated under the Companies Law) and a SLLC (incorporated/transferred under the SLLC Law), the SLLC Law contains small but rather significant differences which are tailored to the operations of SLLCs:

Simplified procedures for the increase and reduction of share capital

The Companies Law requires a court approval for the reduction of a company’s share capital.

On the other hand, the reduction of share capital for SLLCs does not require a court order and is achieved under a simpler and time-effective manner.

Simplified procedures for amending the SLLC’s memorandum

Under the Companies Law, a change in the memorandum of association is not effective unless approved by the court following a related application.

In contrast, the memorandum of SLLCs is based on a template prescribed under a notification of the Registrar of SLLCs and its amendment is permitted only in circumstances specified under the LLC Law.

A law tailored to SLLCs

SLLCs have the opportunity to benefit from a legal framework distinct from other entities. The SLLC Law is tailored to their business activities and creates a sustainable environment for SLLCs by setting the ground for further targeted improvements in the shipping industry.

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  • Incorporation and administration of SLLCs;
  • Advice on Environmental, employment and safety requirements;
  • Acquisitions and financing services;
  • Sanctions and export control advice;
  • Ownership, acquisition, chartering and selling of superyachts.
  • Corporate and commercial advice.

Get in touch for a free consultation with our team.

The information provided in this article does not and is not intended to constitute legal advice; instead, all information contained in this article is for general informational purposes only. If you require assistance with any legal matter, including a matter referred to in this article, you should contact one of our attorneys to obtain advice tailored to your specific circumstances.

“An Evolving Profession” by Andrew Demetriou, Co-Founder, Managing Director, Ioannides Demetriou LLC

Posted on | by Paschalis Paschali

“The days of the lawyer as ‘Jack of all trades’ – and, dare I say it, ‘master of none’ in many cases – are long gone” Andrew Demetriou, Co-Founder, Managing Director, Ioannides Demetriou LLC

Read more about the evolving legal landscape, the developments in technology and the skillset that lawyers need to master in Mr. Demetriou’s recent interview in Gold Magazine.

An_Evolving_Profession_ADemetriou_GoldMagazine_TheLrgalEdition_Issue137-August2022

Download the article here

Major overhaul of the Cypriot legal system

Posted on | by Paschalis Paschali

There are a number of monumental (as far as the Cypriot legal system is concerned) changes afoot in relation to the modus operandi of the courts in Cyprus, with most of them coming into effect in the coming year. These sorely needed changes, some of which are remedies for longstanding ills, are meant to usher the Cypriot legal system into a new age of speedy, effective justice and ultimately enhance Cyprus’ reputation as a regional business centre. 

Below I will provide a brief overview of three major changes, which in my opinion are the ones that will have a profoundly positive effect on litigants, lawyers and the country’s economy.   

Re-introduction of English as a litigation language

Last month the Cypriot House of Representatives amended the constitution to allow for English to be used as a legal language in the Cypriot Courts. This is actually quite a development. English was used in the Cypriot Courts, due to Cyprus’ colonial heritage, up to the late 80s. Then, based on some misplaced sense of nationalism we ushered it out. Some thirty years later the House of Representatives has, to my mind, seen sense, and has brought back English as a language to litigate in. The benefit of litigating in one of the “world” languages in a common law jurisdiction is plainly evident. It makes Cyprus much more “litigation friendly” for both foreign parties and foreign lawyers.

The newly formed Commercial Court

The re-introduction of English is only part of the plan. The second part of the plan is the formation of a dedicated Commercial Court and a dedicated Admiralty (Maritime) Court. Previously there was no Commercial Court and admiralty actions were dealt with by Supreme Court judges sitting alone. This of course ate in to the time of the Supreme Court and elongated appeal times in both the Criminal and Civil divisions. It was a situation that was in dire need of remedial action.

The newly formed Commercial Court will be a court of first instance and will:

a) hear cases of the highest scale (€2.000.000 and above), which is the highest Court scale in the Cypriot Court system. In short it will try the most important civil cases.

b) hear “Commercial disputes”, which are deemed to be disputes in relation to:
(i) a business document or contract,
(ii) purchase, sale, import and export of goods,
(iii) transport of goods by land, sea and air,
(iv) natural resources,
(v) insurance and reinsurance,
(vi) financial markets, stocks, shares and other financial instruments and investment instruments,
(vii) contracts of service, excluding contracts for the provision of medical services and any contract in which service is rendered through an employment contract,
(viii) automotive production,
(ix) contracts of agency,
(x) Competition law,
(xi) entities regulated by the Republic of Cyprus,
(xii) intellectual property and patents,
(xiii) arbitration.

c) be staffed by the most senior District Court Judges, namely Presidents of the District Courts. Presidents usually have about 20 or so years of experience since it takes about that long to get promoted to the level of President (which is the level before becoming a Supreme Court Judge),

d) try cases in English if a party to an action requests it. This means that the pleadings, testimony and judgment will be in English,

e) allow the parties in an action now before the District Courts to apply to have their case heard by the Commercial Court if the value of the claim is €2.000.000 and above,

f) shorten trial times drastically. Some early statistical speculations suggest that the Commercial Court will have the ability to issue judgments within a year to a year and a half.

New Civil procedure rules

Third on this list is the adoption of a totally new set of civil procedure rules which will come into force on the 1.9.2023. When Cyprus achieved independence in 1960 the newly formed Republic of Cyprus adopted the English civil procedure rules as they had been formulated in the White Book of 1958. Almost 70 years later this antiquated set of rules had remained largely unchanged. They were a cumbersome product of a bygone age with serious deficiencies, primarily because they were drafted at a time when technology was absent from the courts and then subsequently, they were not amended to cater to resolving disputes in the modern age.

About four years ago the Republic of Cyprus set about the task of essentially rewriting the civil procedure rules. Lord Dyson, Cypriot judges and advocates, academics and other experts all contributed to the endeavor through their involvement in the relevant committees and the cumulative result of their efforts is a new set of civil procedure rules which will drastically reduce trial times once they come into force.

The new rules are heavily modelled on the English civil procedure rules and in fact share the same pillar, the so called “overriding objective”. In short, the overriding objective, means that the purpose of the rules and what the Court seeks to achieve in applying them is the fair resolution of a dispute in a timely and cost-efficient manner.

Factors such as ensuring that the parties are on an equal footing, saving costs, trying a case with regard to the value of the claim, the seriousness of the case, the complexity of the issues to be decided and the financial ability of the parties are all factors the Court must now take into account when applying the “overriding objective” to the new rules.

Furthermore, a number of pre-trial protocols will be put in place, whereby a prospective claimant, before lodging an action for a debt will be required to demand payment in writing and at the same time furnish the prospective defendant with proof in relation to the debt itself.    

The new rules are also much more detailed. As far as rulemaking in concerned, more detail translates to fewer disputes over how the rules should be applied. This in turn creates a streamlined process, with less interim applications and therefore a case is helped along to trial much faster.  Finally, there is a sense of reserved optimism about these “modifications” in the circles of the legal practitioners on the island but I am confident that once this changes take effect the domestic legal landscape will change for the better.

The growing problem of mental health

Posted on | by Paschalis Paschali

Mental health has been at the forefront of discussions around the world for a while now, particularly because, according to the World Health Organisation, mental health conditions are on the rise, with possible contributing factors being the increasing use of social media and the COVID-19 pandemic.

In recent times, online interaction has been the preferred method of communication, leaving people paying more attention to the virtual world of social media, at the detriment of being present in the real world. People are nowadays constantly seeking stimulation, unable to be “in the moment” and agonizing over their social media presence, in an effort to maintain a picture-perfect life online, overlooking pillars of good mental health such as mindfulness and real connection with other human beings. Add to that the global pandemic which has led to even more social isolation and pushed people to immerse themselves even more in the world of social media, it is no wonder that in 2020 global prevalence of anxiety and depression increased by an immense 25%.

Mental health issues such as depression and anxiety are not as easily noticeable as physical injuries, but can be as limiting and frustrating, as they make it difficult for people to go about their everyday lives. This is especially true for athletes, who are constantly in the public eye and whose career is by nature competitive: since athletes are perceived as modern-day heroes bravely pushing past obstacles, they are expected not to let anything get in the way of their pursuit of victory. For this reason, too often mental health issues in athletes are ignored, with generations of athletes “toughing it out” and stifling their feelings in the name of fame and glory. In the words of soccer player Leeann Passaro, “the stigma is almost increased even further in our sports world because of the idea that weakness is something that you never show, weakness is not a part of being that athlete, of being elite, of being the best”. Indeed, in the eyes of many sports fans professional athletes are idols, but, in the midst of it all, we must remember one thing: athletes are humans. 

Up to 35% of elite athletes suffer from mental health issues which may manifest as stress, anxiety, burnout, depression or eating disorders. Back in 2018, Olympian Michael Phelps opened up at a mental health conference in Chicago highlighting his battle against anxiety and depression. In May 2021, in an unprecedented move, tennis superstar Naomi Osaka withdrew from the French Open to protect her mental health adding that “Michael Phelps told me that by speaking up I may have saved a life […] if that’s true, then it was all worth it”. More recently, gymnast Simone Biles sat out several events at the Tokyo Olympics acknowledging the tremendous pressure she had been facing as the “head star of the Olympics” and that she needed to focus on her mental health. Simone Biles stated that she was inspired by Osaka’s recent action, and encouraged people who are struggling to put their own needs first.

Of course, such actions brought about both positive and negative comments, but the more famous people talk about their mental health publicly, the more it will be accepted that this is a real problem. The fact that such high caliber athletes have shared their struggle with the world has sparked a global discussion which is changing the narrative about mental health in sports, increasing awareness on the mental health risks faced by professional athletes: pressure to win, expectations for perfection, constant improvement and uncertain short career spans to name a few. They are also encouraging people to be aware of the connection between mental health and peak performance, and more importantly to talk about mental health and be transparent about it. In the words of Phelps himself “it’s OK not to be OK”.