OECD fiscal recommendations to COVID-19 and its impact in Uruguay

The world is going through what is perhaps the biggest health emergency of the last 100 years, the one that is generating an unprecedented global impact, not only from a health point of view, but also from a social, political point of view , economic and fiscal.

That is why, most of the countries have already taken internal measures to alleviate the situation, but also, with the intention of generating global criteria that tend to improve the world situation uniformly, international organizations have been involved.

In this regard, the Organization for Economic Cooperation and Development (“OECD”) has not lagged behind, and in recent months it has published some fiscal recommendations that could be applied by the administrations of the different affected countries, with the aim of mitigating the impact that the crisis is generating on their companies and citizens. Until now, the OECD has always worked to increase revenue by rounding up taxpayers. For the first time, thanks to the COVID 19 crisis, the OECD recommends lowering taxes, among other reliefs for taxpayers.

Regarding the recommendations prepared by the OECD, we can differentiate these into two types according to their scope:

  1. a) those tending to soften the tax obligations of companies and citizens, and
  2. b) those tending to provide solutions to issues related to tax residence and its impact on the application of agreements to avoid double taxation.

Measures to soften the tax obligations of companies and citizens.

The OECD prepared a list [1] of recommendations as a reaction to the abrupt drop in economic activity and the uncertainty that it has caused, aiming at the injection of liquidity to the different companies, so that they can continue operating.

The OECD makes it clear that these recommendations tend to assist the policies carried out by different governments and are not mandatory.

  • Give economic support in cash, through the tax system, to workers and individuals, through unemployment, illness or leave benefits, including in these benefits those who are not normally reached by them;
  • Extend the maturities for the payment of taxes, also recommending waiving or postponing the payment of social charges for companies and independent workers, in this sense specifically mentions the deferral in the payment of Value Added Tax (VAT) for some producers;
  • Do not tax the income obtained by the worker in overtime and that no social contributions are made for them;
  • Activate the VAT refund for the excess paid as quickly as possible;
  • Adjust the payment of tax advances, considering the economic impact that the taxpayer will have at the end of the fiscal year as a result of the economic crisis that we are experiencing;
  • Waive or defer payment of taxes that do not “move the needle” or that are not as relevant to tax collection (for example, wealth tax);
  • Be more generous with the transfer of losses from previous years to benefit from them when paying taxes;
  • Achieve a fiscal balance between stimuli and fiscal consolidation once the pandemic is overcome;
  • Grant deductions of penalties or interests in the payment of taxes after the deadline, including providing payment facilities with long-term financing plans;
  • Do not audit companies during the crisis, except in cases where fraud is involved;
  • Use digital channels to carry out procedures, and carry out adequate and clear communication between the tax administration and taxpayers.

Uruguay has not lagged behind and has applied its fiscal measures against the Pandemic. When visualizing the recommendations suggested by the OECD, we can say that the Uruguayan government has had consistency between the measures taken internally from a fiscal point of view and that suggested by the OECD.

Measures aimed at solving issues related to fiscal residence and its impact on the application of agreements to avoid double taxation (CDI).

As a result of the health crisis, the mobility of people has been restricted in recent months, either by the closure of borders or by the implementation of mandatory quarantines. This has resulted in an inability for cross-border workers to physically perform their tasks in the country where they are employed, having to stay home and telework, or on the contrary have been unable to return to their countries of tax residence.

This fact is causing a significant impact on taxation for both individuals and companies. For this reason, the OECD has carried out an analysis [2] of these issues and how they can impact the CDI, leaving some suggestions of how the changes caused by the pandemic should be taken regarding the concept of fiscal residence to when applying a CDI.

In this sense, two subjective scopes of the recommendations can be differentiated, those that involve the tax residence of natural persons and those that do so with companies.

Recommendations involving the tax residence of natural persons.

Concerning the change of tax residence of individuals.

The text published by the OECD understands that due to COVID-19 we can find two scenarios:

  1. A person is temporarily away from home and is stranded in the host country due to the crisis unleashed by COVID-19;
  2. A person is working in a country in which he acquired his status as a tax resident, but temporarily returns to his previous country of tax residence, due to the crisis caused by COVID-19.

In this regard, the OECD states that in the first scenario it would not be correct for the person to be considered as a fiscal resident in the country where he is temporarily due to the extraordinary circumstances caused by COVID-19, regardless of what this presence has caused, that it acquires the status of fiscal resident (by physical presence) according to the internal legislation of said jurisdiction. And in this case, if a CDI is applicable, the person would not be considered a tax resident in the country where he or she is temporarily detained because of COVID-19.

In the second scenario, the OECD understands that it would be incorrect for the person to lose the status of tax resident in the new country that acquired it, due to the fact that they had moved to their previous country of tax residence because of COVID-19. Understanding then that if a CDI is applicable, the person would not consider himself a resident in his previous country of residence, due to the fact of having stayed there because of COVID-19.

It is important to clarify that, when determining the subjective scope of a CDI, (based on the OECD model), the concept of residence is of vital importance.

The OECD model mentions in its article 4 that a resident of a Contracting State shall be understood as any person who, under the legislation of that State, is subject to taxes therein by reason of domicile, residence, etc., not defining the concept of residence, but referring it to the internal legislation of each State.

States generally understand that natural persons obtain their tax residence in a State by staying there a certain number of days in a calendar year (for example, Uruguayan regulations [3] establish that a person will be a tax resident in the country if he remains in he, more than 183 days during the calendar year, computing to determine said period of stay sporadic absences to the extent that they do not exceed 30 calendar days [4]).

Therefore, it is vitally important what the OECD has expressed when considering the permanence of a person in a country and how this can affect their status as a tax resident, also proposing to the tax administrations that they take into account the circumstances. exceptional of the pandemic and carry out their physical presence tests attending to periods of time greater than those provided for in the regulations.

It is important to mention that there are already several countries (Australia, United Kingdom, Ireland, among others) that have taken this initiative, and their tax authorities have indicated their intention to ignore the days of presence in their territory of natural persons as a result of associated mobility. to the health crisis.

  • Recommendations involving the tax residence of companies

With regard to companies to which a CDI applies, it is worth mentioning that the general rule from the point of view of taxation, is that business income is taxed in the country of residence of the same, and is only taxed in Another State, if the company has a “permanent establishment” in this other State. According to the definition given by the model of the OECD agreement in its article 5 paragraph 1, for there to be a permanent establishment, there must be a fixed place, used to carry out the business of the company and that it be “at the disposal” of the same.

The current health emergency situation has led company workers to stay in countries other than those that work regularly and to work from home, which can lead to the creation of a permanent establishment for companies in those countries where workers are working his homeworks.

In this regard, the OECD has stated that, in the cases described above, the new workplace should not be considered as a permanent establishment because of COVID-19, since an employee’s home should not acquire the character of permanent and neither it must be understood that it is available to the employing company.

Along the same lines, in the area of ​​companies, where the criteria of fiscal residence are generally the place of incorporation and / or the territory where the effective management seat is located, (the place where the management and control of activities of the company), the OECD has understood that the fact that the decisions following the pandemic are made by videoconferences in places other than those where the direction of control of the company’s activities was located, should not affect the place of residence that it had prior to the pandemic.

For this, all the facts and circumstances must be determined and not only those that occurred during the exceptional period of the pandemic.

Contrary to what is stated above, for permanent construction, installation or assembly establishments, the OECD understands that the periods in which the works are paralyzed due to COVID-19, must be considered for the computation of the period established for this type of permanent establishment.

In conclusion, it is important that the countries accept these recommendations provided by the OECD since they would result in a solution to the extraordinary circumstances caused by COVID-19 and its impact on the concepts of fiscal residence of individuals and companies.

In this regard, Uruguay has not officially expressed itself, but it is reasonable that, when determining people’s residence, these issues are analyzed in line with the OECD recommendations. Even for those cases where there is no CDI with the other State.

It is usual in a crisis to see the Tax Authorities create or increase taxes temporarily “forever”. It would be desirable for this situation to occur for both sides and some of the reliefs that we see today from the tax authorities remain after the pandemic.

                                                   

[1] Emergency tax policy responses to the COVID-19 pandemic, limiting damage to productive potential and protecting the vulnerable – https://oecd.dam-broadcast.com/pm_7379_119_119695-dj2g5d5oun.pdf
Tax administration responses to Covid-19: support for taxpayers – https://oecd.dam-broadcast.com/pm_7379_119_119698-4f8bfnegoj.pdf

[2] OECD Secretariat Analysis of Tax Treaties and the Impact of the COVID-19 Crisis – https://www.oecd.org/coronavirus/policy-responses/oecd-secretariat-analysis-of-tax-treaties-and-the-impact-of-the-covid-19-crisis/

[3] TO de 1996, Titulo 7, Art 6 inciso A – https://www.impo.com.uy/bases/todgi/7-1996/1

[4] Decreto reglamentario 148/007, Art 5 bis – https://www.impo.com.uy/bases/decretos-reglamentarios-todgi/148-2007

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