Filing ESR in the UAE: The Need to Clear the Air on Ambiguities

Christmas is around the corner, but many companies in the UAE are busy preparing for ESR notifications and reports before the January 31 2021 deadline. The amendment to the previous ESR regulation was to bring the regulations in line with the other low or zero tax jurisdictions. However, certain fundamental ambiguity persists for the ESR notification requirements to be met by the Licensee and the exempted Licensee.

In this article, we discuss what the ambiguities are and why it should be cleared?

A Look at the Core of the Issue

As per Cabinet Resolution No 57 of 2020, which amended the previous regulations, a licensee is considered as undertaking a relevant activity by default. The relevant activities are banking, insurance, shipping, lease-finance, Investment Fund Management, Intellectual Property, Headquarters business, Holding company business and Distribution and Services. Read more about the relevant activities here

According to the amended Resolution,

  1. Entities that don’t conduct relevant activities need not submit ESR Notification / Report
  2. Exempted Licensees also need to file ESR notification to prove their exempted status

Once the exempted licensees successfully validate their exempted status, they won’t be required to submit the ESR Report for that year. However, they should reassess their status in subsequent years. Exempted licensees that fail to substantiate their exemption status will by default come under the scope of ESR and would be required to file ESR Report & meet the ESR test.

Also read: Economic Substance Regulations: Are you Prepared for the Updated Rules & Deadlines?

Where Does the Ambiguity Exist?

Previously, many regulatory authorities, including some free zones authorities mandated the companies licensed by them to file the ESR notification irrespective of whether they are conducting the Relevant Activities or not. The Cabinet Resolution, No 57 of 2020, which repealed the Cabinet Resolution No 31 of 2019, mandates only those entities that conduct the Relevant Activities in the UAE need to file the notification.

The previous regulation had allowed the Regulatory Authorities to determine whether the entities come under the scope of other Relevant Activities. To be more precise, the Regulatory Authorities got a chance to look beyond the activity mentioned in the trade license to decide upon the Relevant Activity. In other offshore regions, including the British Virgin Islands (BVI), all the companies are required to submit the annual ESR notifications to the respective regulatory authorities.

Why Looking Beyond the Trade License Activity is Critical?

The new resolution has made it clear that the Assessing Authority should look beyond the trade license and Memorandum of Association (MoA) to determine whether a company comes under the scope of ESR in the UAE. Consider the following scenario to get a good hold on this,

A furniture business named XYZ LLC is operating in Dubai mainland. Their activity as per the trade license is Furniture trading. A cursory look at the entity’s trade license and MoA would prompt the Authority to determine that the LLC doesn’t come under the scope of ESR as their activity doesn’t match with any of the nine ESR Relevant Activities.

However, XYZ LLC charges services charges to its foreign group companies under the same management. This means the company comes under the scope of ESR as it is conducting Service Centre Business. If the company is generating an income from the Service Centre Activity, it has to submit the ESR Report and meet the conditions of the ESR Test.

Under the amended resolution, XYZ LLC doesn’t need to submit the ESR notification as the management can easily assume that they are not conducting any relevant activities. It is doubtful that they would look beyond the trade license to determine the scope of the ESR.

Recommendation from ESR Consultants in Dubai

The new amendments to the ESR rules have brought in much clarity to the actions to be taken by the entities in the UAE to ensure compliance. However, one loophole has taken away the robustness from the regulation: the mandate that only those companies that conduct the relevant activities need to file the ESR submissions. In most cases, the entities won’t look beyond the activity in trade license to determine the scope of the ESR. Also exempted licensees file the notification only to prove their exempted status. Just like other international regions, it would be effective if all the companies are mandated to submit the annual ESR notifications.

The laws regarding the ESR submissions need to be devoid of any ambiguity, which would enable the companies to ensure compliance. The best ESR consultants in Dubai, such as Jitendra Chartered Accountants (JCA), help the companies avoid the complexities and ambiguities. JCA provides effective advisory in filing ESR notification and reports with sufficient documents. JCA also advises the companies on how to meet the ESR test in compliance with the existing laws.

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