A breakthrough double tax treaty signed between the UAE and the KSA is now published

The detailed information about the double tax treaty between the UAE and the KSA (the “DTT”) signed on 23 May 2018, has been finally made available.

The verdict for approving the DTT in KSA was published in the official Saudi Gazette and Umm Al-Qura, recently along with the text of the DTT. This publication of the decision done in the official Gazette brings an end to the ratification process for KSA. Both the countries involved have to inform the other about the completion of the process as per their law so as to bring the DTT into force.

The key features of this treaty are as follows:

• Abuse of the treaty: In accordance with the Multilateral Convention to Implement Tax Treaty related procedures to Prevent Base Erosion and Profit Shifting (“MLI”), which both the UAE and the KSA have signed, the DTT says that the treaty access would be denied in case even one of the chief purposes of the arrangement is to get treaty benefits.
• Effective date: The DTT would be entering into force on day one of the second month after the above notifications. The DTT would be effective for all the payments that are made on or post 1 January after the date on which the DTT came into force particularly for withholding tax reasons and for tax years which begin on or post 1 January of the same annual year for the purposes of income tax.
• Persons covered: The DTT is applicable to the residents of the UAE and the KSA. Please note that the DTT is not restricted only to GCC nationals; thus, non-GCC nationals could also take advantage from the DTT.
• Permanent establishment (PE): The DTT applies the general OECD definition of a Permanent Establishment. A PE is a basically a fixed place of a company from where the business is fully or partially carried on. A PE would include a branch, a place of management, an office or a factory; however, it excludes all the activities that are of a preparatory or auxiliary nature.
• Income derived from immovable property: This kind of income could be subject to tax in the nation where the property is actually located.
• Business profits: Business profits are usually taxable in the nation of residence. However, an exception to this is where the company carries on the business in another country via a PE and in that case, the profits of that PE could be taxed in the other nation.
• Dividends: Dividends would be taxed in the source nation but the tax will be limited to a maximum of 5 percent in case the beneficial owner of those dividends is residing in another country.
• Interest: Interest income is allowed to be taxed only in the residence country in case the recipient is the beneficial owner and is also a resident of that country.
• Royalties: Royalties are to be taxed in the source nation but the tax would be limited to 10 percent in case the recipient is the beneficial owner and is also a resident of the other nation.

Capital gains: Any capital gains would be taxed only in the residence country except if one of the exceptions is applicable to provide the taxing rights to the source country.

The DTT is actually a rare agreement between two GCC countries and is set to improve the economic relations and also the bilateral cooperation between the UAE and the KSA. After it comes to effect, the DTT is surely going to have major tax implications. The conclusion of the DTT might have an impact on the existence of a PE and could reduce the withholding tax rate applicable in the KSA. Companies and persons who do cross-border transactions should ideally evaluate their transactions and also corporate structures immediately so as to ensure their eligibility for treaty advantages. As both the KSA and the UAE have signed the MLI, the provisions of the DTT could be amended by the MLI as per the final MLI positions taken up by the UAE and the KSA. As of now, the KSA is in its provisional MLI positions, and has included the DTT as a covered agreement, though the UAE has still not included it as such.