7-3 jennifer chang oecd conference - beijing (islamc finance)(26.10.2009)- final

Tax Issues in Islamic Finance*26 October 2009

*connectedthinking

Jennifer Chang, Senior Executive Director

ITD Global Conference – Financial Institutions and InstrumentsTax Challenges and Solutions

Agenda

• Introduction

• Concepts of Islamic Finance

• Common Tax Issues in Islamic Finance

• Tax treatments in Various Jurisdictions

• Tax Treaty Issues

• Summary

• Appendix

Introduction

PricewaterhouseCoopers

Principles of Islamic finance

• Application of Al Bay (trading & commerce) - Buying & selling is permissible

• Prohibition of haram transactions [e.g. Alcoholic beverages, Maisir (gambling), Dealing in interest (usufruct)]

• Prohibition of riba - means “an excess”. An increase or excess which accrues to the owner in an exchange or sale of a commodity, or, by virtue of a loan arrangement, without providing equivalent value to the other party. Perception of it being unjust and not being productive

• Prohibition of gharar (uncertainty) - Ambiguity and uncertainty in contract which leads to an unfair advantage to one party over another (i.e. insufficient information regarding the subject of a contract)

• Prohibition of maisir (speculation/gambling) - All dealings where placement of bet is required. Involves an arrangement between 2 or more parties, where a loss for one means a gain for the other

Introduction


• Tax is a hidden cost in any funding structure

• Potential tax liability and tax inefficiencies will affect any financing structure

• In Islamic Finance, due to the underlying asset within each transaction, tax neutrality as well as the tax treatment of profits need to be resolved

• Unlike Malaysia and most middle east countries, Islamic Finance instruments are relatively new in most other Asian jurisdictions

• Tax neutrality has been achieved in some countries such as Malaysia, UK and Singapore

• However, tax neutrality has not been sorted out in most Asian jurisdictions

Introduction

Importance of Tax Implications

Common Tax Issues in Islamic Finance


SPVCompany A

(2) Ijarah (Lease)

(1) Sale of asset

(1) Funds

(1) Sukuk issuance

Investors(2) Funds

(2) Ijarah payments

Example - Islamic bond issuance based on Ijarah (Leasing)


• Sukuk is issued based on asset being sold to the SPV who will leaseback the asset to the owner

• Due to the underlying disposal of asset and lease transaction, the tax issues are more complex compared to a conventional transaction


• Would the sale and lease be seen as separate sale and leaseback transactions for the purpose of tax ?

• Would there be issues as far as tax depreciation is concerned on the disposal of assets (i.e. claw back on tax depreciation claimed previously) ?

• Would tax incentives be affected by an Islamic financing structure due to the disposal of assets ?

• Would there be additional or double stamp duty payable as a result of the underlying asset transfer ?

• Would “profits” on such Islamic Finance transactions be tax deductible ?

• Would there be other taxes such as VAT or GST ?

Example - Islamic bond issuance based on Ijarah (cont’d)Some common tax issues to consider



• Due to the additional underlying asset transactions required for Syariah financing, tax neutrality rules would mean that the underlying transactions would be ignored for tax purposes

• This will mean that the Sukuk will be treated to be similar as any conventional bonds so that it is not treated worse off

(2) Asset repurchase / Ijarah (Lease)

(2) Deferred consideration / Ijarah payments


SPVCompany A

(1) Sale of asset

(1) Funds

(1) Sukuk issuance

Investors(2) Funds

Tax neutrality provisions


Example - Bai’ Bithaman Ajil (BBA) Financing-i

• Under BBA Home Financing-i, customer will enter into an agreement with the Bank to purchase commodity from the Bank on deferred instalment basis.

• Commodity purchased from the Bank will be sold to buyer and proceeds from the sale of commodity will be used to purchase a house.

Below is a an illustration of mechanism involved for a Middle East style BBA:

Supplier

Bank

Customer

Flow of commodityFlow of funds

Customer purchases commodity from Bank on deferred instalment basis ($150)

Bank purchases commodity from Supplier ($100)


2

1


• Would the Bank be seen to be buying and selling properties for tax purposes?

• What is the timing of the recognition of the profits to the Bank ?

• Would the customer be able to claim a tax deduction on the periodic profits paid to the bank (i.e. $150 - $100 = $50) ?

• Would there be additional or double stamp duty payable as a result of the underlying asset purchase and sale ?

• Would there be other taxes such as VAT or GST ?

Example - Bai’ Bithaman Ajil (BBA) Financing-I (cont’d)Some common tax issues to consider



Treatment of Profits

• Tax neutrality would mean that the profits embedded in the installments paid by customer to the Bank is treated as “interest” for tax purposes

• Therefore, all tax rules relating to “interest”, such as interest tax deduction, withholding tax or exemptions will equally apply on the “profits”

• Stamp duty or VAT treatment would also need to be in line with conventional financing

• This ensures that Islamic financing is provided with the same treatment as conventional financing


Supplier

Bank

Customer

1

2

Flow of commodityFlow of funds

Customer purchases commodity from Bank on deferred instalment basis ($150)

Bank purchases commodity from Supplier ($100)

Tax Neutrality

Purchased property which is charged to the Bank

Islamic Financing


Tax Treatments in Various Jurisdictions


Global Trends

• Increasing linkages between OIC financial centres such as Kuala Lumpur, Dubai and Bahrain

• UK - Tax neutrality announced in 2006. Early 2007, the UK government announced legislation in Finance Bill 2007 to facilitate the UK issuance and trading of Sukuk.

• Singapore - removal of double stamp duty hit on Murabaha and Ijara contracts; tax incentives granted to qualifying debt securities extended to approved Islamic bonds; no stamp duty on the transfer of asset to SPV set up for Islamic Financing purposes

• Hong Kong - 2 MOUs signed by Hong Kong Monetary Authority (HKMA) with Bank Negara Malaysia and Dubai International Financial Centre Authority (DIFC Authority) - Sept 09, and May 08 respectively aimed at fostering co-operation in the development of Sharia-compliant financial products and the financial infrastructures

• More interest being shown by other Asian countries such as Japan, Korea, China, Thailand and Australia in Capital Markets products

Tax Treatments in Various Jurisdictions


Ijarah Structure

1. Purchase of assets

1a

Investors

SPV

Sukuk

2. Lease of assets3. Sale / Purchase undertaking

Company in country

Differing Tax Treatments in Various Asian Jurisdictions


• Tax neutrality rules exist in Malaysia and has been drafted into the tax legislation

• “Profit” portion will be treated as “interest” for tax purposes

• So long as transaction has been approved by Bank Negara or Securities Commission, the underlying disposal or lease are ignored for tax purposes (i.e. tax neutrality rules)

• No stamp duty as this is a bond issuance structure

• Issuance cost of sukuk will be tax deductible

Malaysian Tax Impact

Ijarah Structure (cont’d)



• Generally there is a policy to achieve tax equality between approved Islamic products and equivalent conventional financing arrangements

• Removal of double stamp duty hit on Ijara contracts

• Tax incentives granted to qualifying debt securities extended to approved Islamic bonds

• No stamp duty on the transfer of asset to SPV set up for Islamic Financing purposes

Singapore Tax considerations





Hong Kong Tax considerations

• No specific legislation on Islamic Finance, hence need to rely on general tax provisions

• Tax treatment follows legal form of the contract and follows transaction economics ?

• Uncertainty on whether “profit” payment by SPV to investors will be regarded as interest expense or profit distribution ?

• “Profit” received by investors regarded as interest income or investment return?

• Is SPV entitled to depreciation allowance on the asset? • Taxability of lease rental received from Company ?• Conclusion:- There is a need enact specific legislation for Islamic Finance

to achieve tax certainty and neutrality



• Is this a financial transaction or transfer of goods and services ?• There is still lack of regulations related to Islamic Finance although

several private rulings have been issued• Rental payments on Ijarah financing fall under the category of “interest”

for withholding tax purposes• VAT treatment based on Sovereign Sukuk Law:-

– Transfer assets from the government to SPV and vice versa subject to VAT of 10%

– Income received by investor from the issuance of sukuk is not categorised as interest but as rental income subject to 10% VAT

• If Central Bank can confirm Islamic Finance transaction as “financing”, the DG of Taxes shall view no VAT of 10%.

Indonesian Tax considerations




• No specific tax rules for Islamic financing

• Certain sale and leaseback transactions treated as financing from buyer and seller of leased asset

• Therefore, if the Islamic financing falls within these rules then it can be deemed as financing transaction for Japanese tax purposes

• If cross border transaction, Japanese withholding tax may arise

• For certainly, would require specific legislation changes or confirmation

Japan Tax considerations




• No specific tax legislation on Islamic Finance. Tax treatment follows legal form of the transactions, resulting in:

- High tax costs due to double transfers- Withholding tax and VAT on lease payments- Recoverability of VAT by SPV

• Policy of Ministry of Finance is to achieve tax neutrality between sukuk and conventional debt securities. The working committee for this purpose has been appointed

• Principle is agreed that tax packages for neutrality will be applied to SEC-approved sukuk

• Tax packages will be discussed in detail once SEC finishes conditions for approval of sukuk

Thailand Tax considerations




Tax Treaties


Example – Thai company issuing Sukuks in Malaysia

• If the asset is a property in Thailand, apart from the tax issues in Thailand for the sale and leasback of asset, would we refer to Article 11 on “Interest” or Article 16 on “Income from Immovable Property” for tax treaty purposes ?

Tax Treaties

Malaysia SPV

Thai Company

(2) Ijarah (Lease)

(1) Sale of asset

(1) Funds

(1) Sukuk issuance

Investors(2) Funds

(2) Ijarah payments


Example – Malaysia / Thailand tax treatyARTICLE 11INTEREST

1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other Contracting State.

2. However,

(a) interest arising in Thailand may be taxed according to the laws of Thailand, but if the recipient is a resident of Malaysia, the tax so charged shall not exceed:

(i) 10 per cent of the gross amount of the interest if it is received by any financial institution (including an insurance company);

(ii) in all other cases, 25 per cent of the gross amount of the interest;

(b) interest arising in Malaysia may be taxed according to the laws of Malaysia, but if the recipient is a resident of Thailand, the tax so charged shall not exceed 15 per cent of the gross amount of the interest.

8. The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income assimilated to income from money lent by the taxation laws of the Contracting State in which the income arises.

Tax Treaties


Example – Malaysia / Thailand tax treatyARTICLE 6INCOME FROM IMMOVABLE PROPERTY

1. Income from immovable property may be taxed in the Contractihg State in which such property is situated.

2. For the purposes of this Agreement, the term "immovable ptoperty" shall be defined in accordance with the laws of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of or the right to work, mineral deposits, oil or gas wells, quarries and other places of extraction of natural resources including timber or other forest produce. Ships, boats and aircraft shall not be regarded as immovable property.

3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property.

4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of professional services or other independent activities.

Tax Treaties


• Korea has recently announced that legislative changes will be made to ensure tax neutrality is provided to facilitate Islamic Bonds to be issued

(2) Ijarah (Lease)

(1) Sale of asset

(1) Funds

(1) Sukuk issuance

(2) Funds

(2) Ijarah payments

Example – Korean company issuing Sukuks in Malaysia

Tax Treaties

100%

Malaysia SPV

Korean Company Investors


• Korean domestic entity is not allowed to issued Sukuk in Korea due to lack of legal infrastructure

• Only Sukuk issued by an offshore SPV set up by a Korean domestic entity is covered by the proposed Korean IF tax regime Sukuk Ijarah – Underlying cash flow (rental payment) from the Korean domestic entity to the

offshore SPV is characterized as interest eligible for tax exemption – No VAT on rental payment and no VAT/capital gains tax in respect of the

transfer of the underlying asset by the Korean entity to the offshore SPV – The original owner of the underlying asset (the Korean domestic company)

claims capital allowance for the underlying assets (tax deduction for depreciation expense is available to the original owner)

• No Korean stamp duties (no acquisition/registration taxes) upon transfer of the underlying asset

Korea Tax considerations

Example – Korean company issuing Sukuks in Malaysia

Tax Treaties


Example – Malaysia / Korea tax treaty

ARTICLE 11INTEREST

1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.

2. However, such interest may be taxed in the Contracting State in which it arises, and according to the laws of that State, but if the recipient is the beneficial owner of the interest the tax so charged shall not exceed 15 per cent of the gross amount of the interest.

3. Notwithstanding the provisions of paragraph 2, interest paid or credited to a resident of Korea carrying on business of banking by a person licensed to carry on banking business in Malaysia, or on an approved loan or a long-term loan shall be exempt from Malaysian tax.

4. The term "interest" as used in this Article means income from Government securities, bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and debt-claims of every kind as well as all other income assimilated, to income from money lent according to the taxation laws of the Contracting State in which the income arises.

Appendix - Concepts of Islamic products


Summary


Summary

• Sale of asset may trigger capital gains tax or VAT in certain countries• In some countries, stamp duty for the acquirer could also be an issue• How would leaseback be treated - Lease payments ? Or would whole

transaction be seen as financing ?• In some countries (i.e. HK, Malaysia, Singapore), there will be zero

withholding tax on approved bonds but for most other Asian countries, there will still be withholding tax on interest on bonds

• Even if the SPV is in Malaysia where all the tax incentives are available, there is still a need to resolve the potential issue of taxes in each country should there be a “sale of asset” or returns relating to assets located in each country

• Korea has proposed changes to legislation which will facilitate issuance of Islamic Bonds based on Ijarah and Murabahah

• There is therefore a need for tax certainty for Islamic Finance in each country as well as tax treaties

Summary


© 2009 PricewaterhouseCoopers. All rights reserved. “PricewaterhouseCoopers” refers to the network of member firms of PricewaterhouseCoopers International Limited, each of which is a separate and independent legal entity. *connectedthinking is a trademark of PricewaterhouseCoopers.

Jennifer ChangSenior Executive Director

Level 10, 1 SentralJalan TraversKuala Lumpur Sentral50706 Kuala LumpurMalaysia

Phone:- +(603) 2173 – 1828Email:- [email protected]

Ornjira Tangwongyodying / Orawan FongasiraPartner / Director

PricewaterhouseCoopers Thailand15th Floor Bangkok City Tower179/74-80 South Sathorn RoadBangkok 10120Thailand

Phone:- +(662) 344 – 1118Email:- [email protected]:- [email protected]

Margie Margaret Partner

PricewaterhouseCoopers Indonesia Jl. H.R. Rasuna Said Kav. X-7 No.6 Jakarta 12940 - INDONESIA

Telephone +62 21 5212901, 52890862 (direct) Facsimile +62 21 52905555 / 52905050, 52905555 (direct) Mobile +62 816 893645 Email:- [email protected]

David Sandison Partner PricewaterhouseCoopers Singapore

Tel: (65) 6236 3675Fax: (65) 6236 3715

Email: [email protected]

Florence Yip / David KanPartner / DirectorPricewaterhouseCoopers Hong Kong

21/F Edinburgh Tower, 15 Queen's RoadCentral, Hong Kong

tel +852 2289 1833mobile +852 9881 5678Email:- [email protected]:- [email protected]

Kyu-Dong KimSenior Manager

15th Floor LS Yongsan Tower191, Hangangro 2-ga, Yongsan-guSeoul, South Korea

Phone: +(822) 3781-9761Email: [email protected]

Stuart Porter / Nobuyuki SaikiPartner / Senior Manager

PricewaterhouseCoopers JapanKasumigaseki Bldg. 15F2-5, Kasumigaseki 3-chomeChiyoda-ku, Tokyo 100-6015 Phone:- +813 5251 2570

Matthew WongPartnerPricewaterhouseCoopers China1/F PricewaterhouseCoopers Center202 Hu Bin RoadShanghai 200021, PRC Phone:- +86 21 2323 3052Email:- [email protected]

Contacts

PricewaterhouseCoopersJune 2009

Appendix – Concepts of Islamic Products



Principle 1 Application of Al Bay (trading & commerce)

Definition To receive something & to give something

Concept Buying & selling is permissible – textual evidences from the Quran & the Sunnah

Principle 2 Prohibition of haram transactions

DefinitionHaram transactions in Islamic law (Shariah) refer to trading goods and services that are sinful and prohibited in Islam

Concept

• Alcoholic beverages• Maisir (gambling)• Dealing in interest (usufruct)• Immoral services




Principle 3 Prohibition of riba

Definition

Riba means “an excess”. It is defined as an increase or excess which accrues to the owner in an exchange or sale of a commodity, or, by virtue of a loan arrangement, without providing equivalent value to the other party. Perception of it being unjust and not being productive.

Concept

Can be divided in two namely:-i. Riba’ Al-Duyun’ which arises from debts or financing

(i.e. late payment)ii. Riba’ Al-Buyu’ - due to differences in quantity, quality

or time (i.e. fixing in advance of return on financing as a reward for waiting is prohibited)




Principle 4 Prohibition of gharar (uncertainty)

Definition

Ambiguity and uncertainty in contract which leads to an unfair advantage to one party over another (i.e. insufficient information regarding the subject of a contract)

Concept

• Shariah considers uncertainty on the following:-- Quantity - Recoverability- Quality- Existence of the subject matter

• To promote the principle of fairness and justice• Eliminate activities which are based on pure

speculation and gambling• Encourage due diligence before committing




Principle 5 Prohibition of maisir (speculation/gambling)

Definition Refers to luck or chance

Concept

• All dealings where placement of bet is required• Involves an arrangement between 2 or more parties,

where a loss for one means a gain for the other• Diverts attention from productive occupation• Immoral incentive to make profit at the expense of

another party• Prohibited to have any relationship including

participating, investing or financing with business related with gambling



Islamic Product ConceptsSome of the more common product concepts:-

Murabahah Trade with mark-up or cost-plus sale

Salam Advance purchase

Istisna’ Purchase order

Ijarah Leasing

Mudharabah Profit-sharing, loss borne by capital provider

Musharakah Joint-venture

Bai Bithaman Ajil “BBA” Deferred payment sale



Murabahah (Trade with mark-up or cost-plus sale)

• An agreement made whereby the Islamic Financial Institutions (IFIs) sell to customers a specified kind of asset that is already in its possession

• The selling price being acquisition cost (purchase price plus other direct costs) plus an agreed profit margin

• In Murabahah for Purchase Orderer (MPO) arrangement, the IFIs will purchase and acquire assets as specified by the customer

• This is based on a PP (promise to purchase) by the customer which can be a binding or non-binding PP (depending on the documentations)

• This asset will later be sold to the customer at cost-plus



Salam (advance purchase)

• It refers to an agreement to purchase, at a predetermined price, a specified kind of commodity* which is to be delivered on a specified future date in a specified quantity and quality.

• IFIs as the buyer make full payment of the purchase price upon execution of a Salam contract.

• More often, IFIs enter into a back-to-back contract, namely Parallel Salam.

• This refers to selling a commodity with the same specification as the purchased commodity under a Salam contract to a party other than the original seller.

• It allows the IFIs to sell the commodity for future delivery at a predetermined price (thus hedging the price risk on the original Salam contract) and protects the IFIs from having to take delivery of the commodity and warehousing it.


* A commodity is defined as a physical product which is and can be traded on a secondary market, e.g. agricultural products, minerals (including oil) and precious metals (excluding gold and silver).


Istisna’ (Purchase order)

• An agreement to sell to or buy from a customer a non-existent asset which is to be manufactured or built according to the ultimate buyer’s specifications and is to be delivered on a specified future date at a predetermined selling price.

• IFIs as the seller have the option to manufacture or build the asset on its own or to engage the services of a party other than the Istisna’ ultimate buyer as supplier or subcontractor, by entering into a Parallel Istisna’ contract.



Ijarah & Ijarah Muntahia Bittamleek – (Leasing)

• The lessor (IFIs) maintain ownership in the leased asset whilst transferring the right to use the asset, or usufruct, to a lessee, for an agreed period at an agreed consideration

• In an Ijarah Muntahia Bittamleek contract, the lessor (IFIs) promise to transfer the asset’s ownership to the lessee at the end of the contract

• The IFIs can also enter into the contract based on specific description of an asset to be leased and acquired in the future before it is delivered to the lessee. This agreement to lease may be considered as binding (binding promise to lease) or as non-binding



Mudharabah (Profit-sharing, loss borne by capital provider)

• IFI would contribute capital to an enterprise or activity which is to be managed by the customer as the (labour provider or) Mudarib.

• Profits generated by that enterprise or activity are shared in accordance with the terms of the Mudharabah agreement.

• Losses are to be borne solely by the IFI unless the losses are due to the Mudarib’s misconduct, negligence or breach of contracted terms.

• Types:

- a restricted basis - capital provider allows the Mudarib to make investments subject to specified investment criteria or certain restrictions such as types of instrument, sector or country exposures; or

- an unrestricted basis, where the capital provider allows the Mudarib to invest funds freely based on the latter’s skills and expertise.



Musharakah & Diminishing Musharakah (Joint-venture)

• A JV agreement between the IFI and the customer to contribute capital in various proportions to an enterprise, whether existing or new, or to ownership of a real estate or moveable asset.

• Profits generated by that enterprise or real estate/asset are shared in accordance with the terms of Musharakah agreement

• Losses are shared in proportion to the respective contributor’s share of capital.

• Types:-

- Musharakah - all the partners' share remain constant throughout the contract period; and

- Diminishing Musharakah - the share of the IFI shall be gradually reduced during the tenure of the contract until it is fully sold to the other partner(s).



Bai Bithaman Ajil “BBA” (Deferred payment sale)

• Similar to Murabahah whereby the sale of goods is on a deferred payment basis at a price.

• It includes a profit margin agreed by both parties.

• However, the difference is that Bai Bithaman Ajil is generally used for long term financing.


7-3 jennifer chang oecd conference - beijing (islamc finance)(26.10.2009)- final

Documents

bai bithaman

deferred instalment

korean domestic

differing

common tax

supplier1bank

tax neutrality

approved islamic