OVERVIEW OF CORPORATE TAX WORK OVER LAST YEAR
Types of corporate tax work
Albania was awarded candidate status by the EU in June 2014 and is now in the process of implementing reforms with a view to membership, under the assistance of EU as part of the Instrument for Pre-accession Assistance (IPA II) for the period 2014–2020.
In this context, Albania has undertaken and already partially implemented significant tax changes in the last one to two years, by replacing existing laws and introducing new ones aligned to EU legislation and best practice.
A new Law on VAT is effective as of 1 January 2015, which has been significantly harmonised with the corresponding EU Directive 2006/112/EC and has brought significant changes to the main VAT principles and rules in Albania.
A new Customs Code has been conceived and structured in line with the Union Customs Code (UCC), which was adopted as Regulation (EU) no. 952/2013 of the European Parliament and of the Council. This new Customs Code, published in 2014, is gradually replacing the existing one with the intention of a complete replacement by 1 June 2017.
With the assistance of the International Finance Corporation, an elaborated Transfer Pricing regulation has been drafted in accordance with the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administration (2010), and has been published in 2014 by introducing Transfer Pricing documentation and reporting requirements for 2014 and onwards. The Transfer Pricing regulation was subsequently extended in 2015 with a detailed instruction on Advance Pricing Agreements.
A new draft Law on Income Tax (covering corporate income tax, personal income tax and withholding tax) has been drafted by making reference to EU countries' legislation and best practice and has been circulated for comments amongst groups of interest during 2015 (please see below). It is expected to become final and enter into force by 1 January 2017.
During 2015, as a first phase under a general programme of actions against fiscal informality, the Albanian government introduced in the Law on Tax Procedures a number of significant measures (please see below). As a second phase of actions, the role of the fiscal administration is being restructured during 2016 through a new strategy, focusing on simplifying tax procedures and compliance and increasing efficiency in tax collection.
As regards the corporate income tax, Albania applies a progressive scheme, which has slightly changed under the 2016 Fiscal Package:
- Taxpayers with annual turnover from ALL 0–5m (approximately €35,000), are exempt from corporate income tax. Previously the threshold was up to ALL 2m (approximately €15,000).
- Taxpayers with annual turnover from ALL 5–8m (approximately €35,000–57,000), are subject to a simplified corporate income tax at the rate of 5%. Previously the rate was 7.5% and applied to the segment ALL 2–8m.
- Taxpayers with annual turnover higher than ALL 8m (approximately €57,000) are subject to a flat corporate income tax rate of 15% (it was 10% up to 31 December 2013).
The taxable profits and losses are calculated by adjusting for tax purposes the accounting result according to the financial statements (prepared based on the applicable accounting standards). The concept of consolidated tax base applies, i.e. operative losses/profits are combined and offset with capital gains/losses.
In the context of all the significant changes, the last year showed an increase of our:
- advisory work to businesses for the implementation of the new Law on VAT and measures against fiscal informality;
- assistance with the understanding and application of Transfer Pricing regulation and reporting requirements; and
- analysis and feedback to the Albanian government on draft laws circulated for consultation with groups of interest, with a special focus on the draft Law on Income Tax.
SIGNIFICANT DEALS AND THEMES
The last one to two years have seen the following major M&A transactions or announced transactions:
- Through Law no. 114/2014, the Albanian government took over all the shares of the operator of electricity distribution CEZ Shperndarje sh.a. formerly under the ownership of the Czech company CEZ, a.s.
- Crédit Agricole S.A. announced in May 20151 the signing of an agreement to sell Crédit Agricole Albania (a second level bank) to the Albanian company Tranzit Sh.p.k., a subsidiary of NCH Capital Inc. Completion of the transaction is subject to clearance from the relevant regulatory authorities and according to applicable legal and social regulations.
- Bankers Petroleum Ltd. announced in March 20162 that it has entered into a definitive agreement for the purchase of all the issued and outstanding common shares with affiliates of Geo-Jade Petroleum Corporation, one of the largest independent oil and gas exploration and production companies in China. Completion of the Arrangement is subject to customary closing conditions, including receipt of court, shareholder and regulatory approvals.
- Petromanas Energy Inc. announced in March 20163 the closing of the previously announced sale of substantially all of the assets of Petromanas Albania GmbH, Petromanas' wholly owned subsidiary, to Shell Upstream Albania B.V., a wholly owned subsidiary of Royal Dutch Shell plc.
Besides the above, several other similar transactions of a smaller scale have taken place in the last two years, involving Albanian companies, subsidiaries of foreign companies, their branches, etc. Without entering into the details of specific transactions on corporate income tax situations of the Albanian companies, subsidiaries or branches involved, we would like to present here two hot topics related to M&A: the carry forward of tax losses; and the taxation of capital gains.
Carry forward of tax losses
As a general rule, Albanian taxpayers are entitled to carry forward tax losses resulting in a certain year and utilise them against taxable profits of the three subsequent years based on the rule "earlier losses utilised first". If during a year, there is a change in direct and/or indirect ownership of subscribed capital or voting rights by more than 50% in number or value, the tax losses of that particular year and of previous years expire. This restriction is based on the view that tax losses are exclusively related to the taxpayer bearing them, therefore reference is made to the owner of the taxpayer.
The application of this restriction becomes particularly controversial for these two categories of M&A transactions:
- A change of ownership in shareholders structure of an ultimate parent publicly listed in a stock exchange market outside of Albania, resulting in an indirect change of ownership of more than 50% for the Albanian affiliate. The Albanian legislation on corporate income tax is silent on whether and how the free trade of shares of the ultimate parent dispersed among the general public (which are not necessarily reported) should affect the carry forward of tax losses of the Albanian affiliate.
- A merger or takeover between Albanian affiliates of the same owner(s), whereby the newly established or the absorbing entity has the same owner(s) as before the transaction. In principle, all rights and obligations are transferred to the new entity/absorbing entity. The Albanian legislation on corporate income tax is silent on whether and how the tax losses of the merged or absorbed affiliates can be transferred to the newly established or the absorbing entity (by respecting the three-year and utilisation limitations) in the circumstances where, in fact, there is no change in effective ownership.
Originally published by Global Legal Insights.
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