Originally Published in Euromoney Corporate Tax Handbook 2013 - August 2013.
M&A in Ukraine: Tax issues on the radar
Despite the financial crises and turmoil lately there has been some pick up in M&A activity on the Ukrainian market.
Tax issues always played its role in making decisions on acquisition of Ukrainian targets, and nowadays is no exception. Adoption of a new Tax Code which came into effect in 2011 did not dramatically change the tax landscape for M&A. However, some tax novelties influencing M&A structuring were introduced. Since its adoption the Tax Code has undergone a number of changes and is expected to be amended and improved further.
This article aims to outline key tax issues relevant for M&A process, to help a foreign investor who are considering M&A deals involving the Ukrainian targets to grasp the Ukrainian tax landscape and to navigate through the country's challenging tax environment.
Corporate profit tax
In 2012 the corporate profit tax rate is 21% and will gradually be reduced to:
Ukraine offers quite a competitive corporate tax rate as compared to other European jurisdictions. However, effective tax rate can be considerably higher due to deduction limitations and restrictions.
Ukrainian companies are taxed on their worldwide income. Withholding tax (which is part of corporate profit tax) can apply to income derived by non-residents in Ukraine.
The standard withholding tax rate is 15%. Dividends and interest paid to non-resident companies are subject to a 15% withholding tax. Withholding tax plays a major role for M&A tax planning and choosing a holding vehicle aimed to ensure tax-efficient repatriation of dividends and interest post-deal.
Double tax treaties usually reduce or eliminate withholding taxes. Ukraine has double tax treaties with other EU countries (excluding, however, Luxembourg, Ireland and Malta), as well as with the United States, several African, Middle Eastern and Asian countries, and CIS member states. Treaties are predominantly based on the OECD or UN model, however, the authorities seldom use the relevant commentaries for their interpretation.
Tax reduction or relief under a treaty is granted upfront, provided that a valid tax residence certificate is available. Starting from 2011, the Tax Code has introduced an additional requirement to verify that the recipient is the beneficial owner of the income to enjoy a reduced rate or exemption.
20% VAT applies to domestic supplies and imports (the rate is to be reduced to 17% in 2014). Export supplies are zero-rated. The VAT refund procedure is quite difficult and it may take few years to get VAT refund.
Capital and stamp duties
Ukraine imposes no capital and stamp duties.
The purchaser generally seeks to own Ukrainian target companies through treaty-protected countries to minimize withholding tax on dividends and capital gains. The most popular holding jurisdictions are Cyprus and the Netherlands with Cyprus being the most used one. Other treaty-protected countries are also used.
The tax structuring may vary depending on the type of the deal and industry involved.
An investment through an asset deal reduces the tax exposure. However, since capital gains on an asset transfer are subject to corporate profit tax in Ukraine and 20% VAT is applied on the value of assets sold, sellers prefer to structure the transaction as a share deal, usually at an offshore level via sale of shares of a foreign special purposes vehicle.
For the buyer the share deal may also be more attractive for VAT considerations: purchasing assets from the seller via a Ukrainian company may increase the financing required by VAT component. Furthermore, refund of VAT charged by the seller may take a long time resulting in cash outflow for the purchaser's group of companies.
Mergers though having a tax-neutral status are very rarely used for acquisition purposes. Spin-offs are sometimes used by the sellers within pre-sale restructurings as a tool to transfer assets prior to share deal.
When purchasing shares of an existing Ukrainian company, a full-scale tax due diligence is recommended in all cases, as many companies would have material historical tax risks. Identification of such risks can be factored in the price of business being sold as well as serve as a reason for an asset deal structure.
Share deals taxation
Tax Code envisages special rules for taxation of transactions related to purchase and sale of shares/securities/corporate rights.
The said rules envisage that capital gain derived from sale of shares is treated as taxable income in the reporting period of receipt/accrual of income. At the same time capital loss is deferred to decrease the capital gain to be derived in future from sale of the same type of shares.
Capital gain is the positive difference between the income from sale of the shares less expenses incurred on purchase of shares of the same type. Capital loss is negative difference between the income from sale of the shares less expenses incurred on purchase of shares of the same type.
Following provisions of Tax Code, the seller will suffer tax on the sale of shares. Consequently, there will arise no immediate effect for the purchaser upon acquisition of shares; the said expenses can be off-set further only against income from transactions with the shares.
Tax attributes and continuity of ownership of business
It is important to ensure that tax attributes of the target company such as tax losses, VAT credit, right to depreciation - can be utilized by the purchaser after the deal. To this end, full-scope tax due diligence is crucial to identify historical tax risks associated with tax attributes prior to the deal.
Unlike many other European jurisdictions there are no 'change of control' rules which would restrict or disallow tax losses or VAT credit at the level of Ukrainian target after control over the target company is assumed by the purchaser. Therefore, provided the tax attributes are legitimate as such, there are no further restrictions for the purchasers to utilize them.
It is quite typical that Ukrainian sellers undertake intragroup restructuring in anticipation of the deal. Usually the shares of the potential Ukrainian target are transferred under the ownership of the holding vehicle located in a treaty-protected jurisdiction with a friendly holding tax regime. In certain instances, pre-sale restructuring can involve both share and asset transfer where a new Ukrainian company is created under the roof of a foreign holding company and acquires the assets constituting the business to be sold.
As of now, Ukrainian tax legislation does not envisage any specific exit taxes which can affect the restructurings made by sellers prior to the deal. Transfer of shares and assets within pre-sale restructurings is taxed under ordinary rules. Capital gain derived on sale of shares or assets is treated as taxable income. Sale of shares is VAT exempt while sale/transfer of assets (including via capital contribution) is subject to 20% VAT. In general, the basis for VAT taxation is an arms length price.
Importantly, no specific 'business purpose' tests are addressed in the tax legislation aimed at preventing those pre-sale restructurings which are driven only by tax purposes. At the same time, Tax Code contains the definition of business purpose but does not contain any further explanation or implications applicable if business purpose test is not satisfied.
Transfer pricing considerations should be carefully considered for intragroup pre-sale transfer of shares/assets in order to minimize the tax risks including the deal invalidation. Though transfer pricing rules are undeveloped in Ukraine, in many cases, professional valuation of shares/assets is highly recommended to substantiate the sale price for tax purposes.
In general, current tax environment leaves room for pre-sale tax structuring which requires careful tax planning and also consideration of legal/regulatory requirements.
Under Tax Code corporate reorganizations (mergers, acquisitions split-offs, spin-offs and transformation) are generally tax-neutral and can be used as an efficient tool within M&A deals. In practice though despite all the tax benefits, reorganizations are rarely used for M&A deals as such but rather within pre-sale restructurings. Under certain reorganizations obtaining of tax ruling is recommended.
Financing the acquisition
Depending on the deal structure - whether it is done offshore or at the Ukrainian level, different financing scenarios may apply.
Typically, a foreign or Ukrainian acquisition vehicle would get the loan from an affiliated group company or a bank to leverage the acquisition. In some instances, equity is used to finance the purchase. Equity financing in part of nominal value of shares is tax-neutral. Share premiums can also be neutral and achieved tax-free. Ukraine does not impose capital duty on equity. Loans from non-residents are subject to registration with National Bank of Ukraine and interest on such loans is capped with maximum being 11% p.a for loans with maturity of over three years.
Interest-free loans are also possible tax-wise though for a limited period of time. To achieve it tax-free, provision and repayment of loan must be made within the same reporting quarter. Otherwise, negative tax implications may apply (imputation of income on the amount of non-repaid loan or deemed interest charge). Under the Tax Code, interest-free loan provided to a Ukrainian entity by its founder/participant (including non-residents) and repaid within 365 days from its receipt should not be taxable in the hands of Ukrainian entity.
Generally, deduction of the interest on loan attracted to finance the acquisition is not disallowed. Unless special deduction limitation applies, deductibility of the interest would depend on the satisfaction of general criterion ie it must incurred within business (income-generating) activities of the borrower. Therefore, ensuring there is a connection between the interest paid and income received by acquisition vehicle is crucial especially for share deals where income stream in the form of dividends or capital gains is not immediate following the acquisition. For more comfort, tax ruling may be recommended to confirm the deduction of the interest on share acquisition.
Interest deduction limitations (quasi thin-cap rules)
Tax Code of Ukraine (reiterating the previous legislation) imposes certain limitation on interest deduction on a related party debt. The limitation is not linked to debt-to-equity ratio.
Limitation applies to those Ukrainian entities in which 50% or more of the statutory share capital is possessed or managed by non-resident(s).
If such Ukrainian entity (at least 50% owned by non-resident/s) pays interest under loan to such non-residents (or their related entities), the interest deduction in the hands of Ukrainian entity is limited
The formula for calculation of deductible interest of the reporting period is the following:
Deductible interest = 50% x taxable income (without interest income received) + Interest income accrued
Interest expense beyond this calculated limit may be carried forward to future tax periods applying the same restrictions during each tax period without limitations.
The limitation is quite restrictive and in certain cases may be avoided under proper structuring.
Post-deal tax considerations
Following the acquisition, typical issues faced by the purchaser are:
tax-efficient flow of dividends
maximizing tax deduction of the interest on the loans attracted for acquisition ('debt push down').
Payment of dividends to certain jurisdictions (eg Cyprus and the Netherlands) can be achieved with the reduction of or exemption from withholding tax.
Ukrainian companies are unconditionally exempted from taxation of dividends received from Ukrainian companies.
Dividends received from foreign (non-offshore-listed) controlled companies are also exempt with no further conditions. Controlled foreign companies imply inter alia ownership of at least 20% of share capital.
One of anti-avoidance measures introduced by Tax Code was the introduction of beneficial ownership concept at domestic level. Previously, beneficial ownership existed as a part of international double tax treaties and not applied widely.
Beneficiary ownership test
Under Tax Code treaty exemption/relief are only available to non-residents which are:
beneficial (actual) recipient (owner) of the income
residents of the country which is the party to the relevant treaty with Ukraine.
For the purpose of the above provision the Tax Code contains a definition of the beneficial owner. Beneficial (actual) recipient (owner) of Ukraine-sourced income is the person which has the right to receipt of such income.
Tax Code also envisages that the following persons may not be treated as beneficial (actual) recipients even if they have right to receive such income:
mere intermediaries towards such income.
Tax Code contains no further explanations on what is meant by agents, nominee holders, mere intermediaries leaving room for interpretation.
Moreover, despite the fact that drafters of Tax Code most probably resorted to international tax practice when drafting beneficial ownership clauses (eg use of terms such "agents, nominees, mere intermediaries"), Ukraine does not officially respect OECD commentaries to MC, Report on Conduit Companies and the latter are applied selectively on case-by-case basis. Therefore, the above sources can hardly be employed in practice at the current moment as a reliable source of interpretation. Though it is not excluded that in future Ukraine will adhere to the MC Commentaries and Ukrainian tax authorities will use it as an official source.
Currently, tax authorities can resort to following interpretations of the beneficial ownership:
interpretation of the concept based on domestic legislation where the definition of beneficial owner, agent, nominee holder, intermediary will be derived and analyzed from civil and commercial law perspective looking into civil definitions, powers granted to agents, intermediaries under agency agreements of different type.
The question here is how domestic interpretation correlates with the treaty interpretation and which interpretation should prevail - a treaty one or domestic one? - or beneficial ownership should be satisfied under both treaty meaning and domestic one?
interpretation of the concept based on the Vienna convention on the law of treaties (Article 31) under which a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in the context and in the light of its object and purpose.
Such interpretation could lead to OECD MC commentaries and Report on Conduit Companies or even to common law concept of beneficial ownership which was derived for the Model Convention.
Given the existing unclarity and lack of practice, the beneficial ownership issues must be taken care of in advance of M&A deals and defence files should be prepared afterwards.
Pushing the debt down
Post-acquisition acquisition vehicle financed with debt would face the issue where interest incurred on loan is not matched with income derived by an operating subsidiary of such acquisition vehicle.
Consequently, strategies allowing to push the debt down to the operating company are required.
Typical solutions elsewhere would include fiscal unity and upstream/downstream mergers of the acquisition vehicle and operating company.
Fiscal unity allowing to match interest and income of two entities for corporate profit tax purposes within the same group is not legally possible in Ukraine.
However, both downstream and upstream mergers are possible to achieve the deduction of the interest against the operating income. Mergers can legally be effected only between Ukrainian entities. Cross-border mergers are not allowed. In cases, where non-resident acquisition vehicle was debt-financed to acquire Ukrainian target, refinancing and restructuring may be needed to achieve the effect of debt-push-down. There are several precedents of such scenarios effectively implemented in practice.
Mergers are tax-neutral in Ukraine and the main risk arises from the interest deduction. Primarily, it must be ensured that a surviving entity post-merger is allowed to deduct the interest incurred by legal predecessor. Tax ruling is highly recommended to confirm this position.
Also the decision on whether to undertake the merger for pushing the debt down would be dependent on legal/regulatory considerations and achieving business non-interruption during the merger.
Proper tax structuring is vital to get the maximum financial synergy out of the M&A deal and to minimize the tax leakage. Tax issues are mostly not deal breakers but must be carefully attended throughout the M&A process. This is especially true for investing in Ukraine considering all the historic risks that Ukrainian targets typically possess.
Although Ukraine's tax climate is tough and often unpredictable the practice shows that the tax issues can be successfully managed. At that not all of tax solutions widely used in Western jurisdictions would work for Ukraine: there is clearly country-specific dos and don'ts. The authors hope that this overview will prove to be helpful to those who are planning to make a deal in Ukraine, by naming typical issues to watch out and to consider.