Khaleej Times, Monday, Feb 06, 2023 | Rajab 15, 1444
Are family foundations and trusts subject to corporate tax?
Emirates:
Family foundations and trusts are typically established for philanthropic
purposes and to protect and manage the assets of individuals or families for
future generations. Business and business activities are not the primary focus
of these entities, but they do the business and related activities if directly
related to or are aimed at fulfilling the purpose for which the foundation and
trust were established.
The word “philanthropic purpose” mentioned above means investing time, energy,
resources etc. for charitable and welfare purposes like as eradicating poverty,
promoting education, enhancing the standard of living of human beings and other
non-profit objectives like environmental, religious, scientific, artistic,
cultural, athletic, healthcare, humanitarian, animal protection etc. which align
with the interest of the family or trust creator. Managing and protecting assets
means using or distributing the assets based on the contract terms agreed
between the parties.
The family foundations and trusts perform various activities like receiving,
holding, investing, disbursing, or otherwise managing funds and assets
associated with savings or investments for the interest of the individual
beneficiaries or to achieve a charitable purpose.
There is a difference between the family foundation and trust, but both aim to
achieve the same non-profit objectives. In the family foundation, assets are
transferred to the foundation and managed by the board, while in the trust,
assets are transferred to the nominal owner (trustee), and the trustee ensures
that the assets have been passed on to the beneficiaries according to the trust
creator's wishes. Since both have the same purpose of establishment, so in
corporate tax law (the law) issued by the government of the UAE, the foundation,
trust and any other similar entity that meets the related criteria have been
defined as a “family foundation.”
As defined in the law, the family foundation means “Any foundation, trust or
similar entity that meets the conditions of Article 17 of this Decree-Law”.
Article 17 of the law requires that the foundation, trust and similar entity
were established for the benefit of natural persons, or the benefit of a public
benefit entity, or both. In addition, their principal activity is to receive,
hold, invest, disburse, or otherwise manage assets or funds associated with
savings or investment. Moreover, these entities are not conducting any business
or business activity, and none of them was established to avoid corporate tax.
Furthermore, they meet any other condition imposed by the Minister of Finance
(MoF).
In light of the definition and requirements of article 17 of the law, we can
establish that any foundation, trust or similar entity that meets the given
criteria should be named a “family foundation”, and such foundations, trusts,
and similar entities (hereinafter referred as “family foundation”) will have the
same corporate tax treatment under the name of the family foundation.
Generally, family foundations that are incorporated, established and registered
in the UAE have a separate legal personality from their family members/trust
creators and meet the definition of a juridical person as defined in the UAE CT
law except for a few trusts (like trusts established in DIFC or ADGM) that have
only contractual relationship between the persons and such trusts do not have
legal personalities. Where the trusts have been created only through the
contractual relationship, it will be treated as transparent for UAE corporate
tax purposes, and the income of such trusts will be taxable in the hands of the
relevant parties.
By default, the family foundations incorporated in the UAE would have been
subject to the CT being a juridical person established in the UAE, and their
worldwide income would have been subject to CT, but keeping in view their
non-profit nature of the activity, special provisions have been included in the
law.
Under article 17 of the law, as a special case, the family foundation has been
given the option to be treated as an unincorporated partnership if the family
foundation meets the criteria mentioned above and given in article 17 of the
law. To avail of the option to be treated as an unincorporated partnership, the
family foundation can apply to the Federal Tax Authority (FTA).
After the approval of the FTA, it will be treated as an unincorporated
partnership from the commencement of the tax period in which the application is
made, or from the commencement of a future tax period, or any other date
determined by the FTA. Once the family foundation gets the status of an
unincorporated partnership, all related provisions of the law that apply to the
unincorporated partnership will also apply to the family foundation.
In the law, one point needs attention and it pertains to the family foundation.
The criteria that have been applied to define the foundation, trust or similar
entity as a family foundation; the same yardstick has been utilised for the
family foundation to opt as an unincorporated partnership. It raises one
question; is the family foundation itself an unincorporated partnership? We need
more clarity on this. In the future, any clarification provided by FTA will be
helpful to avoid this confusion and give us a thorough understanding of the
concept.
In a nutshell, foundations, trusts and similar companies incorporated and
established in the UAE for charitable purposes and to protect and manage assets
of individuals and families, if not opted or opted for unincorporated
partnerships but not approved by the FTA, should comply with the law.