Ultimate guide on GCC Taxation. Павел Игоревич Герасимов

      A deduction is allowed for R&D expenditure incurred during the tax year in connection with the generation of income that is subject to tax. Such expenditure relates to technical, scientific, and engineering experiments; computer systems; or similar research. This provision does not apply to the acquisition of land and facilities, or to equipment used for research. Such facilities and equipment are subject to depreciation under the law.

      FINES AND PENALTIES

      Fines and penalties related to income tax, paid or payable in Saudi Arabia or to other countries, are not deductible.

      Financial fines or penalties paid or payable to any party in Saudi Arabia, such as traffic fines or fines for causing damage to public utilities, are also not deductible.

      Fines or penalties paid for breach of contractual obligations, such as fines on delayed or defaulted completion of contracts, are deductible, provided they are documented by the contracting party and the income from such penalties is reported in the year of recovery.

      TAXES

      Income taxes are not deductible.

      NON-DEDUCTIBLE EXPENSES

      The following expenses are non-deductible:

      ● Wages, salaries, and whatever is so deemed, in cash or in kind, paid to an owner, partner, or shareholder, or to a member of their families, being a parent, spouse, sons/daughters, and siblings (this provision does not apply to stockholders in a stock company).

      ● Compensation in cash or in kind paid to a partner, shareholder, or to a family member, including a parent, spouse, sons/daughters, and siblings, for a property or service to the extent that the compensation is higher than the fair market value of such property or service at time of transaction.

      ● Entertainment expenses incurred for events such as parties, sports competitions, entertainment trips and activities, etc.

      ● Expenses of a natural person for personal consumption, such as personal withdrawals, dependants’ cost of living, or education.

      ● Any bribe or similar payment, which is considered an illegal practice in Saudi Arabia, even if paid abroad.

      ● Insurance commission in excess of 3 % of total premiums collected in Saudi Arabia through an agent or others and regardless of whether or not the agent is a partner.

      NET OPERATING LOSSES

      A taxpayer may carry forward operational losses, as adjusted, to the years following the loss year until the cumulative loss is fully offset. The maximum profit percentage of any year that could be used to offset cumulative losses should not exceed 25 % of the year’s taxable profit as reported in the taxpayer’s return. Carryback of losses is not allowed.

      PAYMENTS TO FOREIGN AFFILIATES

      Payments made to head offices located abroad by local branches are not deductible. Such payments include:

      ● royalties or commissions

      ● loan charges (interest expense) or any other financial fees (except loan charges paid by branches of foreign banks in Saudi Arabia to their non-resident head offices, which are considered as tax deductible expenses), and

      ● indirect administrative and general expenses allocated on an estimated basis.

      The value of goods or services delivered to the taxpayer by related parties is not deductible to the extent that it is in excess of an arm’s-length value.

      CORPORATE – GROUP TAXATION

      The income tax rules in Saudi Arabia do not allow for consolidation or grouping of taxpayers. For Zakat purposes, the concept of consolidation is acceptable, and relief may be obtained for wholly owned subsidiaries by Saudi/GCC companies that are subject to Zakat.

      Note that an entity operating in Saudi Arabia that has undertaken more than one project under the same commercial registration is required to consolidate the results of such projects into the financial statements of that entity and subject them to taxation as a single operation.

      TRANSFER PRICING

      On 15 February 2019, the GAZT published the Transfer Pricing By-Laws (the By-Laws) in final form as well as an accompanying frequently asked questions (FAQs) document.

      The By-Laws are effective from their date of publication in the official gazette. It has also been clarified in the FAQs (in question 8) that the By-Laws will apply to the reporting year ended 31 December 2018 and all subsequent reporting years.

      The By-Laws and the FAQs refer to the GAZT’s own Guidelines in many places. Whilst none have yet been published, we expect that these Guidelines will be issued in due course to provide further practical guidance to help businesses comply with the procedural aspects of the By-Laws.

      Persons subject to the By-Laws

      Article 2 confirms that, notwithstanding any provision to the contrary, the By-Laws shall apply to all taxable persons under the Law. The ‘Law’ means the Income Tax Law issued by Royal Decree No. (M/1) dated 15/1/1425H and its amendments. This is the Corporate Income Tax Law in the Kingdom of Saudi Arabia.

      The By-Laws will therefore apply to entities that are subject to tax only, and to mixed ownership entities that are subject to both Zakat and tax, and this is stated in the FAQs (question 3). Generally, therefore, the By-Laws do not apply to entities that are subject to Zakat only.

      However, Article 2 now includes additional wording to confirm that whilst the By-Laws generally apply to taxpayers (and mixed ownership entities subject to Zakat and tax), it does not prevent the country-by-country (CbC) reporting requirements as prescribed in Article 18 from applying to Zakat payers.

      Scope of the By-Laws: Domestic transactions

      Question 7 of the FAQs states that unless expressly exempt in the By-Laws, all related party transactions, regardless of the place of residence, nationality, or domicile of the persons are within the scope of the By-Laws.

      Our understanding is therefore that alongside cross-border controlled transactions, domestic controlled transactions are also within the scope of the By-Laws.

      Scope of the By-Laws: Retrospective application

      Question 8 of the FAQs state that whilst the By-laws apply to reporting years ended 31 December 2018 onwards, under the Income Tax Law, the GAZT has the right to request information, documents, or perform an audit for years prior to the effective date of the By-Laws.

      Question 1 of the FAQs confirms that transfer pricing is not a new concept in the KSA’s income tax regime, with Articles 63 and 64 of the Law having addressed related-party transactions long before the introduction of these By-Laws.

      Non-arm’s-length pricing

      In circumstances where the terms, conditions, or remuneration of a controlled transaction are not consistent with the arm’s-length principle, the GAZT has the ability to reallocate or disregard the result of the controlled transaction.