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Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

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Page 1: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining Industry

Diego Casas- Tax PartnerRicardo Ruiz (LL.M)- Tax Manager

17 June 2010

Page 2: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 2

Objectives

Colombian regulations applicable to mining industry with regard to the following aspects:

1. Taxation at a glance

2. Structuring and financing Colombian operations

3. Legal Stability Agreements

Page 3: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 3

1. Taxation at a glance: Income tax

At a glance Detail

Income tax &

Capital gains tax rate

FY 2010: 33%

Free trade zones: 15%

Amortization Technical units of production / straight line

Other investment: Any method

Unsuccessful investment – Accelerated

Depreciation Straight line / declining balance

Additional 25% quota for every extra 8 hours

Obsolete or impaired tangible assets: AcceleratedSpecial deductions (in addition to normal depreciation or amortization)

Capital allowance (productive fixed assets): 30%

Research & Development: 125%

Non mandatory environmental investments: 100%

Tax attributes:

1. NOLs carry-back2. NOLs carry-forward

3. Excess of presumptive income

1. N/A2. No time or amount limitation from 2007*

3. 5 years (No value limitation)*

*Adjustable each year under a tax index

Page 4: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 4

1. Taxation at a glance: Other matters

At a glance Detail

Remittance tax Eliminated from 2007

Treaties to avoid double taxation Andean Pact: Ecuador, Peru & BoliviaSpain and Chile: in force

Canada*, Switzerland and Mexico: Signed but not in force

*Expected to be in force in fiscal year 2012.

Transfer pricing (OECD model) Applicable with foreign related parties (including branches with home offices)

Royalties Variable depending of metal/ mineral: 1% to 12%. Deductible.

Lease fee (model concession agreement)

Progressive depending on time holding of the exploration areas: 1 to 1.5 monthly legal wage per hectare (USD $255 to USD $375). Deductible

Page 5: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 5

1. Taxation at a glance: Sales tax (VAT)

At a glance Detail

Rate General rate 16%

Taxable events•Sale of movable tangible goods in Colombia

•Import of movable goods.

•Services rendered in Colombia*

(*) Included certain services rendered abroad with benefit in Colombia (i.e. License, consulting, advisory –

including technical assistance- and audit)

VAT Credit If a VAT taxable events is related

VAT refund If an exempted VAT event is related

Not creditable VAT It results on higher value of the cost or expense for income tax purposes

Page 6: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 6

2. Structuring and financing Colombian Operations: Subsidiary vs. branch

Foreign Investor

Subsidiary

Foreign Investor

Branch

No tax

1) Premise: Dividends are not taxed to the extent all profits are taxed at corporate level

2) Consequence on subsidiaries: Tax planning, exemptions or special deductions often generates NO real tax savings, just deferral. Exceptions: 30% capital allowance and exemptions under a tax Treaty

3) Consequence on branches: Tax planning always generate tax savings

Deferral

33% 33%

Page 7: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 7

Operating Company

ColombianHolding

ColombianHolding

Description:

Sale of shares will not generate capital gain in Colombia at 33%

CanadianInvestor

OperatingCompany

ForeignHolding

CanadianInvestor

2. Structuring and financing Colombian Operations: Direct vs indirect acquisitions

1)

2)

21ForeignHolding 1

CanadianInvestor

ForeignHolding 2

OperatingCompany

Sale of shares will generate capital gain in Colombia at 33%

3)Sale of shares will not generate taxable capital gain in Colombia or Canada

3

Page 8: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 8

MiningOperatingCompany

ForeignBank

Description:

Funding allowed by Exchange Law. Applicable to subsidiaries and branches under general Exchange Law Regime

If loan is devoted to mining activities no WHT on interest payments

Deductibility of interest payments

Funding not allowed by Exchange Law, except international Leasing

In this structure local funding should be requested by the MOC to achieve deduction. If made by the Holding would be non deductible

ForeignInvestor

MiningOperatingCompany

ColHolding

Foreign Investor

2. Structuring and financing Colombian Operations: Debt Funding

12

22)

1)

Page 9: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 9

Non taxable for share holders provided profits are subject to taxation at corporate level. otherwise 33% WHT.

Taxable

Beneficiario efectivo

Exemption Tax Credit

Non taxable for share holders provided profits are subject to taxation at corporate level. otherwise 33% WHT.

Non taxable for share holders provided profits are subject to taxation at corporate level. otherwise 33% WHT

Exemption

Non taxable for share holders provided profits are subject to taxation at corporate level. otherwise 15% WHT. Note: Once Canada-Colombia treaty in force, dividens paid out of active business income should not be subject to tax in Canada

2. Structuring and financing Colombian Operations: Dividend repatriation under treaties

Page 10: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 10

Assured Standard PremiumApplicants

• Local or foreign investors, individuals or legal entities

• Consortiums

• Transcription of standards or their linking interpretations

• Demonstrate its relationship with decision to invest

• 1% of investment value

• 0.5% during unproductive period

Termination

Investment Project

• New investments or increase of existing projects (approx. US$ 1.8MM)

• May cover the investor’s total activity or only the marginal cost

Obligation to sign

• Not mandatory to sign, if agreement terms are not satisfactory

• No fines or other adverse consequences, if not signed

Activities not included

• Nullity or unenforceability of standards or interpretations

Standards not covered

Stability Other

Precedent

• 48 contracts signed• 14 contracts approved• 20 years period has been

granted• Many covers the entire

activities of the companies

Scope

• Law 963 of 2005• Market regulations• Rules issued by the Central

Bank• Environmental standards

• Social security Reg. • Taxes and mandatory

investments in states of emergency

• Indirect taxes• Financial sector regulations• Public service tariffs

3. Legal Stability Agreements

Page 11: Understanding Regulations in the Colombian Mining Industry Diego Casas- Tax Partner Ricardo Ruiz (LL.M)- Tax Manager 17 June 2010

Understanding Regulations in the Colombian Mining IndustryPage 11

E&Y Contacts

In Colombia

Luz Jaramillo; Country Managing Partner, 57 1 4847230

[email protected]

Gustavo Pardo, Tax Managing Partner, 57 1 4847130

[email protected]

Diego Casas; Tax Partner, 57 1 4847050

[email protected]

Ricardo Ruiz; Tax Manager, 57 1 4847537

[email protected]