November 16, 2022
UAE issues resolution on tax residency
On 2 September 2022, His Excellency Mohammed bin Rashid Al-Maktoum, Prime Minister of the UAE, issued Cabinet Resolution No. (85) of 2022 (Resolution) on determining tax residence in the UAE. The Resolution outlines the rules to determine when a person (i.e., a natural or legal person) may be considered a tax resident of the UAE, and the associated administrative matters, such as formalities for the issuance of Tax Residency Certificates (TRCs) as well as the issuance of further clarifications and directives for the implementation of the Resolution.
This Resolution will enter into force on 1 March 2023.
The UAE has had no domestic legal definition of tax residency for legal or natural persons to date. The concept of tax residency was linked to the existence of international agreements (i.e., income tax treaties) that the UAE has concluded with treaty partner jurisdictions.
In the absence of legislative domestic tax residency rules, TRCs were issued based on the specific tax residency criteria as provided in the relevant tax treaties, alongside other eligibility criteria as established by the Federal Tax Authority (FTA). The criteria include the availability of an annual lease agreement (including Ejari, where applicable), and a minimum of 180 days of residence in the UAE (for natural persons), as well as availability of audited accounts and a minimum of one year of establishment (for legal persons).
Tax residence of persons
Corporate entities (legal persons)
Under the Resolution, a corporate entity (i.e., legal person) should be considered as a UAE tax resident where one of the following conditions is met:
The UAE corporate tax (CT) legislation has not yet been enacted to determine the requirements under the second point above. However, based on the public consultation document released by the Ministry of Finance (MoF) on 28 April 2022, a company established outside the UAE may still be treated as a UAE tax resident if it is effectively managed and controlled in the UAE.
Individuals (natural persons)
Article 4 of the Resolution defines natural persons as tax residents in the UAE if one of the following conditions is met:
The definitions provided appear to align with internationally recognized best practices, albeit certain specific nuances (in particular, with respect to the concept of treaty residency in a double tax treaty context) have been introduced.
As the Resolution specifically refers to, inter alia, the concept of tax residence "under the applicable Tax Law in the State" (Article 3 (1) of the Resolution), the definition of "UAE tax residency" will need to be further reviewed upon the issuance and in light of the upcoming UAE CT Law.
Application of international agreements
Where an international agreement, such as a tax treaty, specifies certain conditions for determining tax residency, the Resolution provides that the international agreement shall continue to apply.
Consequently, when assessing their tax residence for the purposes of applying an international agreement (including a double tax treaty), UAE persons would need to refer to the specific criteria set forth in the international agreement itself.
Where a person is considered a tax resident under either of the definitions outlined above, they may apply to the FTA to obtain a TRC, which is often a formal requirement for UAE residents wishing to claim benefits under the relevant tax treaty or other forms of tax relief (outside the UAE).
The FTA will approve the application and issue a TRC where it is satisfied the applicant meets the relevant conditions. The FTA will also be responsible for issuing clarifications and directives for the implementation of this Resolution.
Furthermore, the Resolution provides for specific rules facilitating the collaboration between the FTA and all government agencies in the UAE to allow the collection of all relevant information, data and documents by the FTA, to implement the provisions of the Resolution.
UAE businesses and individuals should refer to the provisions of the Resolution to adequately assess their UAE residency status for UAE tax purposes. UAE businesses that may be subject to UAE CT (after implementation of the announced UAE CT legislation) should consider these rules along with any other specific tax residency rules that may be included in the upcoming CT legislation.
For additional information with respect to this Alert, please contact the following:
EY Consulting LLC, Dubai
Ernst & Young LLP (United States), Middle East Tax Desk, New York