Issue 1.2016 International Tax, Audit, Accounting and Legal News Focus MALAYSIA Equity crowdfunding an alternative fund raising mechanism Page 4 www.ecovis.com
2 International legal barometer VISAS AS MANY EXCEPTIONS AS RULES The citizens of almost every country in the world are now basically free to travel wherever they wish. However, this raises the question of just how permeable borders are for citizens of foreign states. European states which are members of the Schengen Area Schengen states (full members of the Schengen Agreement; under normal circumstances no border controls between Schengen states; issue Schengen visas) EU states: Austria, Belgium, Czech Republic, Denmark, Estonia, France, Finland, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden Others: Iceland, Norway, Switzerland, Liechtenstein EU: Schengen candidates (border controls, do not issue Schengen visas) Bulgaria, Croatia, Cyprus, Romania EU: not members of the Schengen Area UK, Ireland F or example, what are the various visa requirements on entry and for residence, especially for business or work purposes? For an answer to these questions, Ecovis turned to its network of international partners. The survey was completed by Ecovis offices in 21 countries. All of them replied that in principle a visa is required in their country but that exceptions apply to citizens of certain states as a general rule or in specific cases (e. g. for a limited period, in most cases where tourists are concerned). Often special conditions have to be complied with (e. g. minimum validity of the travel document for a remaining period, or possession of a return or onward ticket). In 90% of the countries surveyed, the visa requirement is linked to the duration of stay, generally such that different visas are issued with particular requirements depending on the time limit. The purpose of the visit and the reason for wanting to stay there for a certain period play a role in every one of the 21 countries surveyed. Partners in 19 countries submitted a reply to the question whether a special business visa existed in their respective countries 14 of them (74%) responded positively. The Schengen visa: entrance ticket to several countries Read more: www.ecovis.com/en/visa-requirements What is known as the Schengen visa allows the holder limitless travel to many European countries. Tourists, visitors and business people coming from third countries where a visa is required have freedom of movement within the Schengen Area. This comprises 22 EU member states as well as Iceland, Norway, Switzerland and Liechtenstein (ref. list). The Schengen visa permits the holder to stay in the whole Schengen Area for up to 90 days within a period of 180 days. Citizens of third countries intending to stay longer than 90 days in one of the Schengen states, be it in order to work or to join their families, require a corresponding national visa for the state to be visited. Business and investors visa: a good deal Most of the 14 countries which issue business visas do so to grant the holder permission to stay in the country temporarily (usually up to 90 days) for the purpose of gathering information or to attend professional training courses, establish business contacts, conduct negotiations, or even to perform highly professional service activities (for example as engineers, lawyers or business consultants). Generally this excludes the assumption of a regular position of employment in that country. Most countries which issue business visas grant the holder permission to stay in the country temporarily. Generally this excludes regular employment in that country. Richard Hoffmann, Lawyer, Member of the Management Board, ECOVIS R&G Consulting Ltd (BJ), Beijing, China, richard.hoffmann@ecovis-beijing.com
3 China THE PRC CENTRALIZES RMB OPERATIONS Last year, the People s Republic of China revised the policies already in place to further oil the wheels of cross-border operations for multinational enterprises active in the PRC. I n November 2014, the People s Republic of China (PRC) issued the document Yin Fa [2014] No. 324 (hereinafter called Document No. 324 ), deciding to start the centralized operation of cross-border renminbi funds and cross-border bilateral renminbi (RMB) capital pooling throughout the country. Roughly one year later, in September 2015, the People s Bank of China issued a more detailed document, Yin Fa [2015] No. 279 (hereinafter Document No. 279 ), to help further facilitate the subsidiaries and groups of multinational enterprises engaging in cross-border bilateral renminbi capital pooling business. In the PRC we have three different kinds of cash pooling opportunities. The choice should be made wisely as to what best fits your situation and organization. Yi Wang, C.P.A. (China) tax advisor (China) C.C.A. (Chartered Certified Accountant, ACCA), ECOVIS Ruide Certified Public Accountants Co., Ltd. Shanghai, yi.wang@ecovis.com Comparing the two documents issued in China on this topic, we can find that the access threshold as well as the maximum limit for such businesses have both been further relaxed. Document No. 279 lowers the income access threshold of Chinese domestic member enterprises from RMB 5 billion to 1 billion. With it, it subsequently allows more and more multinational enterprises to benefit from the policy of cross-border bilateral renminbi capital pooling, reducing the list of forbidden enterprises to those in the Key Regulatory List, raising the upper limit of net inflow amount and relaxing the limit of capital resource. With the development of RMB internationalization to finance RMB through affiliates of overseas companies, this may be a convenient course for foreign-invested enterprises in China which does not occupy any foreign debt quota. However, at the same time it should not be forgotten that in the PRC we actually have three different kinds of cash pooling opportunities. Besides the China-wide policy of cross-border bilateral renminbi capital pooling, enterprises may also consider the free trade zone policy of renminbi capital pooling, which has an even lower access threshold, no quota limit, and does not require registration with the People s Bank of China. In addition, in August 2015, the State Administration of Foreign Exchange issued the document Hui Fa [2015] No. 36, which relaxes the policy of centralized operation of foreign exchange funds by multinational corporations. Depending on the kind of business you plan to expand in the PRC as well as the products and services you and your subsidiaries and groups are trading in and selling, the choice should be made wisely as to which of these opportunities best fits your situation and organization. The difference between No. 279 and No. 324 at one glance: www.ecovis.com/en/renminbi
4 Malaysia EQUITY CROWDFUNDING AN ALTERNATIVE FUND RAISING MECHANISM Whilst welcoming new forms of fundraising for start-ups and small enterprises on the one hand and for investment opportunities on the other, Malaysia recognises the necessity for the introduction of a legal framework in order to avoid abuse and fraud. Locally incorporated private companies with a paid-up capital not exceeding RM 5 million and a strong business structure can fund their ventures through ECF. Joeuena Chow, Head of Assurance Team of JB office, Kuala Lumpur, Malaysia, joeuena.chow@ecovis.com C apital is needed when setting up a business. All businesses need funds from time to time for working capital, business growth, asset purchase and so on and so forth. The conventional ways of raising funds include borrowing from family members, friends, banks, money lender companies, financial institutions, etc. Generally, the average period to obtain funds via these channels is between six and nine months. Equity crowdfunding ( ECF ) is a new form of fundraising that allows start-ups and/or small enterprises to obtain capital through small equity investments from a large number of inves- tors, using online portals to facilitate such investments. Malaysia to be the first to legislate ECF in the region Malaysia is the first ASEAN country to have a legal framework on ECF. In February 2015, the Securities Commission of Malaysia ( SC ) issued the guidelines on Regulation of Markets under Section 34 of the Capital Markets and Services Act ( CMSA ) to regulate ECF in Malaysia. On 11 June 2015, the Securities Commission of Malaysia announced the approval of operations of 6 ECF operators in the country. They
5 Total capital raised world-wide by crowdfunding 2011 to 2014 (in billions of USD) 2011 2012 2013 1.5 Many more pluses 2.7 6.1 2014 16.2 Asian platforms raised $ 3.4 billion in 2014 to finance projects, start-ups and enterprises were selected from a list of 27 applicants. The move has opened up a new alternative fundraising channel for businesses in Malaysia. ECF as a new form of fundraising is expected to be fully rolled out by the end of 2015. Who can raise funds on the ECF platform? Locally incorporated private companies (other than exempt private companies) with a paid-up capital not exceeding RM 5 million and a strong business structure can fund their ventures through ECF, except for: commercially or financially complex structures (i.e. investment fund companies or financial institutions) public listed companies and their subsidiaries companies with no specific business plan or where the business plan is to merge or acquire an unidentified entity (i.e. blind pool), and companies that propose to use the funds raised to provide loans or make investments in other entities. The SC proposes the amount of capital raised through ECF be limited to 5 million Malaysian ringgit (RM) and the issuer only be allowed to raise a sum of up to RM3 million within a year through a single ECF platform. Nevertheless, the additional sum of RM2 million can be raised the following year. The RM5 million capital threshold shall apply to any issuer who is already hosted on an ECF platform. Upon meeting the RM5 million threshold, the issuer will no longer be eligible to raise more funds through the ECF platform. Moreover, the issuer shall not be allowed to be hosted concurrently on multiple ECF platforms. Investors The following are the persons who are permitted to invest on the ECF platform: retail investors: the maximum investment amount is limited to RM5,000 for each project with a total amount not exceeding RM50,000 per investor per year. angel investors: the maximum investment amount is limited to RM5,000 for each project with a total amount not exceeding RM500,000 per investor per year. sophisticated investors: there is no restriction on the investment amount. Funds raised via the ECF platform will be kept in a trust fund by the operator and will only be released to the enterprise when the targeted amount sought to be raised has been met. There will be a cooling off period of 6 days given to ECF investors in which they may withdraw the full amount of their investment if they change their minds. Punishment for fraud committed in crowdfunding activities As stipulated under Section 179 of the Capital Markets and Services Act, a company that is found to have committed any fraud in crowdfunding activities would face a jail term of not more than 10 years or face a minimum fine of RM1 million. Advantages of crowdfunding Crowdfunding can help to hedge against risks especially when starting up a company in which there are always expenses that can hardly been foreseen. Crowdfunding is a method to fund a venture which can be done without the need to give up equity or accumulating debt. Crowdfunding is a viable avenue through which investors can access investment opportunities. No participation fee is needed to participate in crowdfunding. If an enterprise fails to achieve its goals, there will be no penalty imposed. Crowdfunding gives an enterprise the ability to pre-sell products that are not introduced to the market yet. This is a good means of approach to survey and analyse the market before making further investment. Crowdfunding makes fund-raising easier and convenient to initiate because it is cheaper and has lower opportunity costs. Capital can be raised more quickly as compared to the conventional method as it is not necessary to compile a lengthy disclosure document. Disadvantages of crowdfunding Crowdfunding is not for every company. For instance, low-growth businesses and businesses in the early stages of development are generally not suitable. Venture capitalists will be discouraged from future funding as they may not be interested in investing in enterprises which are attached to a crowd of investors. It can lead to fraud through misuse of funds. Conclusion Last but not least, it should be recognised that the introduction of an ECF platform may encourage the growth of small enterprises in innovative business areas.
6 Australia AN INNOVATIVE AGENDA? Australia s government tightens foreign investment laws for housing and land and introduces a National Innovation and Science Agenda to encourage innovation in business and schools. These changes are in part a response to significant community concern about elements of foreign investment into residential housing and agricultural land. Scott Hogan-Smith, C.P.A. Associate, ECOVIS Clark Jacobs, Sydney, Australia, scott.hogan-smith@ecovis.com Read more: www.ecovis.com/en/innovation-agenda T he second half of 2015 saw significant changes to Australia s foreign investment framework come into effect, along with the government making an innovation statement which committed $1 billion over the next four years to foster and develop new ideas and new businesses in Australia. To near universal approbation, the new prime minister s Innovation Agenda has been embraced by all sides of the political spectrum which hopes to attract ideas, entrepreneurs and ultimately create more jobs. Changes in foreign investment rules In late November the government successfully negotiated passage through the senate for the legislation amending the foreign investment rules. These changes, which were passed with the help of the Australian Greens, are in part a response to significant community concern about elements of foreign investment and, specifically, foreign investment into residential housing and agricultural land. The proposed changes include: The transfer of all administration of foreign investment rules as they relate to residential real estate from the Foreign Investment Review Board ( FIRB ) to the Australian Taxation Office ( ATO ). This is in response to community, and government, concern that the FIRB is not adequately resourced and/or unable to enforce the current laws governing investment into residential property. Stricter penalties will be imposed, with criminal penalties increased and third parties who knowingly assist a foreign investor to breach rules now also being subject to penalties. Application fees will now be imposed on all foreign investment applications which start from $5,000 for a residential property valued at $1 million or less, with higher fees imposed for business, agriculture and commercial real estate applications. A comprehensive, public land register will be established along with lowering the screening threshold for investments in agribusiness to $55 million and lowering the screening threshold for agricultural land to $15 million or where an investor s overall portfolio of land is worth $15 million or more. Again, this is in response to community concern over the lack of transparency of land ownership, although it is important to note that clauses of Australia s free trade agreements with New Zealand, Chile, Singapore, Thailand and the United States provide for higher thresholds than this. The government will establish a public register of foreign owned land and of foreign owned water entitlements. For further details on this legislation and on the National Innovation and Science Agenda, read more online.
7 Turkey ENERGY AND INVESTMENTS Turkey offers a range of investment incentives to both local and foreign investors in less developed regions and supports the renewable energy sector in the form of guaranteed prices. T urkey is a country with many opportunities for investors. Its geographically perfect position functions as a gateway between Asia, Europe and the Middle East. Also the Turkish government offers significant opportunities for investors. Therefore, investing in Turkey is very attractive. Investment Incentives The Turkish government offers investment incentives for local and foreign investors who consider investing and doing business in Turkey. These incentives aim at increasing investment in the less developed regions of the country and at encouraging technology and investment transfer into the country. Turkey has various investment incentives: general, regional, largescale and strategic investment incentives. This support varies according to the region and the manner the incentives mentioned above are offered. Incentives are given in the following ways: VAT exemption, customs duty exemption, tax reduction, social security premium support (employer s and employee s share), Turkey s TTGV offers long term interest-free loans for technology developments, renewable energy production and environmental impact-reduction projects. Zehra Isıksoy (L.L.M.), Tax Law Consultant, ECOVIS Kapital SMMM & Denetim A.S., Istanbul, Turkey, zehra.isiksoy@kapitalnetwork.com income tax withholding, low interest rate financing, land allocation and VAT refund. Turkey also supports the energy sector to increase renewable energy production. The Turkish government provides this support through guaranteed purchase at prefixed prices of electricity produced from renewable energy sources. In law No. 5346 on The Use of Renewable Energy Sources for Electricity Production, the Turkish government gives support and guaranteed purchase for electricity produced from renewable energy (see table). As can be seen, the Turkish government guarantees a fixed price of 13.3 USD cent/kwh for solar energy. To benefit from this support, the investor must be in possession of a renewable energy sources licence and be included in the support mechanism. Also, the Technology Development Foundation of Turkey (TTGV) offers long term interest-free loans for technology developments, renewable energy production, energy efficiency improvements and environmental impact-reduction projects. Exemplary types of support for environmental projects include: a maximum contribution rate of 50% per project a maximum budget of USD 1 million per project The pay-back term is in total 4 years after the start of the project, including one year without pay-back period. As mentioned above, the Turkish government offers very attractive incentives for foreign and local investors who are interested in investing in the renewable energy sector in Turkey. Turkey's perfect geographic location is among the reasons to do business in this country. GUARANTEED PRICES FOR RENEWABLE FORMS OF ENERGY Type of energy production station (USD cent/kwh) Hydroelectric production station 7.3 Wind energy production station 7.3 Geothermal energy production station 10.5 Biomass production station (incl. landfill gas) 13.3 Solar energy production station 13.3 Source: Law No. 5346 The Use of Renewable Energy Sources for Electricity Production, Table 1
Expansion of Ecovis international network Ecovis, a global consulting firm with its origins in continental Europe and a focus in the areas of accounting and auditing, tax, legal and financial advice, has expanded its international network to Norway, Peru, Bosnia and Herzegovina and the Kingdom of Saudi Arabia. In the United Kingdom the consulting firm has found a new partner in the legal field, in Spain Ecovis has found two new partner firms in the core field of tax consulting in Barcelona and Madrid. Furthermore Ecovis is back in Vietnam with the new partner firm ECOVIS VSBC, which was established in 2006 and is headquartered in Hanoi. In addition to the existing partners from ECOVIS Hellas Ecovis welcomes the new partners from ECOVIS VNT AUDITING SA. ABOUT ECOVIS Ecovis is a leading global consulting firm with its origins in continental Europe. It has over 4,500 people operating in over 60 countries. Its consulting focus and core competencies lie in the areas of tax consultation, accounting, auditing and legal advice. The particular strength of Ecovis is the combination of personal advice at a local level with the general expertise of an international and interdisciplinary network of professionals. Every Ecovis office can rely on qualified specialists in its back offices as well as on the specific industrial or national know-how of all the Ecovis experts worldwide. This diversified expertise provides clients with effective support, especially in the fields of international transactions and investments from preparation in the client s home country to support in the target country. In its consulting work Ecovis concentrates mainly on mid-sized firms. Both nationally and internationally, its one-stop-shop concept ensures all-round support in legal, fiscal, managerial and administrative issues. The name Ecovis, a combination of the terms economy and vision, expresses both its international character and its focus on the future and growth. LEGAL NOTICE Publisher: ECOVIS International, Mühlebachstr. 2, 8024 Zürich, Switzerland, tel. +41 (0)44-268 25 55, fax +41 (0)44-268 25 59 Realization: Teresa Fach Kommunikationsberatung/Public Relations, 80798 Munich, Germany, grasundsterne GmbH, 80337 Munich, Germany Editorial Department: Kurt Bülow, Denmark; Pingwen Hu, PR China; Andreas Karaolis, Cyprus; Robert McCann, United Kingdom; Dr. Ferdinand Rüchardt, Germany; Ricardo Quibrera Saldaña, Mexico Picture Credits: istock: Andrew Rich, ilyast, Jennifer Borton, Kenishirotie, miriam-doerr, urbancow; ECOVIS Europe AG; privat ECOVIS info is based on information which we consider to be reliable. However, due to constantly changing laws, liability may not be assumed. www.ecovis.com