ZEC: A GREAT TRADING REGIME

 

Introduction

It is broadly known that those territories called DOMs
(in French referring to Département
d’Outre-Mer, meaning something like “overseas land”) are islands that count
with tax incentives as a way to attract foreign investment to compensate their
distance from the continent. It is the case of the British Virgin Islands, of
the Channel Islands (Jersey and Guernsey), of the Isle of Man, etc. The
downside of these islands is that most of them are labelled by many countries
as tax havens and thus give raise to adverse tax consequences.

It is also important in this changing and challenging
world we live in to count with as much certainty as possible. It is public
knowledge that the European Commission considers that many companies in Ireland
should pay billions of Euros because of an abuse of the attractive Irish
trading regime. So, counting with the blessing of the Brussels authorities
avoids unexpected huge tax bills and it is a must for EU based solutions which
are more convenient than trading regimes in non-EU countries such as the
Fribourg or Zug canton based Swiss companies.

Moreover, a sharp tax planning does not only represent
a spreadsheet with a low outcoming tax burden, but also to think of substance
BEPS wise, to care for quality of services and infrastructures and to have the
employees motivated.

So, if a company seeks an attractive trading regime
but not in a tax haven island, a stable and reliable EU jurisdiction approved
by the European Commission and a wonderful place to work in, well connected
infrastructure wise and even geographically convenient as an alternative to
companies engaged in big business in Africa (e.g. oil, gas, mining companies,
etc.) there is one suitable solution: Canary ZEC regime.

ZEC stands for “Zona Especial Canaria” and the
Canaries are a group of seven extremely beautiful islands[1]
with mild weather the full year-round that belong to Spain (and thus can claim
all Spanish tax treaties[2]
(96 at the moment) and all the European Directives) that are geographically
located west of the north of Africa.

Advantages of Canaries ZEC in a
Nutshell

The remarkable thing about the Canaries -besides the
aforementioned climate and let alone its beautiful cities and wonderful
beaches- is that said islands are well connected to Spain and the rest of
continental Europe by plane (e.g. 4 daily flights to London) but also to
Africa.

And tax wise, subject to fulfil certain requirements
later addressed in this article, a company operating under the ZEC regime can
benefit until 2026[3]
from a 4% tax rate and a 90% reduction of the tax base.

But moreover, unless the shareholder is resident in a
country or territory statutorily classified by Spain as tax haven, as long as a
simple threshold is met consisting on a 5% and one year shareholding over the
company in the Canaries, no dividend withholding tax applies upon profits
distributed to the shareholder.

Brief Summary of the Applicable
Requirements

In order to qualify for the ZEC regime, two groups of
requirements must be met: (i) Formal requirements, and, (ii) Substance
requirements.

Formal Requirements

In order to qualify as a ZEC company, there is a
mandatory registration process to go thru which starts by qualifying the
business activity intended to be carried out in the Canaries. To that purpose
there is a long list of approved business activities which basically only
excludes those that do not really require a geographical link to the Canaries.

Once cleared the business purpose, it is necessary to
register the ZEC company in a special registry[4],
which requires the prior formal approval of the so-called Consejo Rector (Governing Council).

To proceed with said registration an application must
be filed together with a brief memory of the aimed business activities, in
proof of solvency, feasibility, international competitiveness and contribution
to the economic and social development of the Canaries.

Finally, in order for a company to qualify for the ZEC
regime, it must have both its business domicile and its seat of effective
management in the geographical area of the ZEC. Moreover, it must have at least
one local (i.e. Canaries resident) director and its business purpose must be
the carry out of one of the numerous qualifying for the ZEC regime.

Substance Requirements 

A certain degree of substance is required to qualify
for the ZEC regime, although substance is mandatory BEPS wise anyway when
setting up companies abroad, should one intend to invoke local tax incentives.

Regarding the substance requirements, within the first
two years from the registration date, the ZEC entity must invest in tangible or
intangible fixed assets[5]
an amount of at least EUR 100,000 for the two big islands (Gran Canaria and
Tenerife) or of EUR 50,000 for the remaining islands. In the computation of
said amount of investment, any contributions made under the roll-over relief
regime shall be disregarded.

Finally, the substance requirement varies depending on
the type of island as there are two groups. For the two largest islands (being
Gran Canaria and Tenerife) it is mandatory to count with at least 5 employees
within the first six months after the foregoing registration or 3 employees in
the remaining islands.

Tax Regime

ZEC Company’s Taxation

A ZEC company is a regular Spanish company subject
thus to the regular corporate income tax rate applicable in Spain, currently being
25%.

Having said that, should a company meet the aforementioned
requirements it can benefit from a 4% tax rate on a tax base of at least EUR
1,800,000 plus EUR 500,000 of additional tax base at said low rate per each
employment work created with a cap of EUR 25,000,000 of tax base.

There is also another limitation to the application of
the 4% tax rate, which is indexed to the turnover and that has been recently
amended to improve the former legislation. Said second limitation is that the
reduction of the gross tax due of a ZEC company cannot exceed a certain
percentage of the said company’s turnover. This limitation used to be 10% in
case of service companies and 17,5% in case of industrial companies, but as a
result of recently passed legislation it has been improved and unified to 30%.

Moreover, the ZEC regime is compatible with another
attractive local tax incentive known as RIC (Reserva para Inversiones en Canarias or Canaries Investments
Reserve) which subject to certain requirements allows a 90% reduction of the
tax base. Nevertheless, this tax incentive could only apply on the remaining
part of tax base, if any, that does not benefit from the ZEC regime and thus
from the 4% rate. However, a joint combination of the two tax incentives can
lead to a negligible rate of effective tax burden, much lower than other jurisdictions
frequently used for trading purposes.

Shareholders’ Taxation

An additional advantage derived from the ZEC regime is
the possibility to pay dividends to resident and non-resident shareholders
under a full exemption of withholding tax with the sole requirement of a 5%
shareholding uninterruptedly held for at least 1 year. Regarding non-resident
shareholders, it is additionally required that it is not resident in a country
or territory statutorily considered by Spain as a tax haven[6].

As far as interest from loans granted to the ZEC
entity by its shareholder, should the latter be resident in another EU member
state, an exemption of interest withholding tax would apply and in case a tax
treaty exists, non-EU resident shareholders could claim the treaty rate.

 

 

 

Finally, regarding capital gains realised upon disinvestment
in the ZEC entity, should a non-resident but a treaty resident shareholder
realize a gain upon transfer of its prorated share of the ZEC entity, the
treaty could apply and if the substantial shareholding or real estate company
clause apply a 19% taxation would accrue but otherwise an exemption could be
claimed.

A Great Alternative for African Business

Without prejudice of other issues as the risk of a
permanent establishment and the tax consequences derived therefrom, the ZEC
regime is being used by many large multinational groups with business interests
in Africa for many reasons.

On the one hand, because Spain has income tax treaties
with 9 African countries[7].
Moreover, because Spain is in the European Union and that allows the ZEC entity
to claim all the benefits of the applicable EU Directives. Additionally,
because the Canaries are well connected with 3 continents (Europe, Africa and
America) and do count with the necessary infrastructure including an American
School. And needless to say, because the Canaries do provide a degree of
safety, let alone a standard of living, which cannot be achieved in general in
the African continent.

Therefore, the ZEC is a great and suitable option for and
it is being used by companies in the business of oil, gas, shipping, mining,
etc. as the Canaries provide the aforementioned advantages thanks, in most
cases, to its convenient geographical location, especially with respect to
north western Africa.

Numerical
Examples

A US group decides to set up a Spanish limited
liability company (S.L., which is a foreign eligible entity for US tax the box
purposes as opposed to the S.A. which ranks as per se corporation) in the
Canaries and meets all the applicable requirements to claim both the ZEC and
the RIC regime.

The ZEC SL has a turnover of EUR 50,000,000 and a
profit of EUR 7,500,000.

Case A. ZEC SL has 10 employees and is not keen on
reinvesting in local assets.

ZEC SL’s Turnover	50,000,000
ZEC SL’s Profit of the Year	7,500,000
Tax Base Subject to 4% CIT rate	6,800,000
Limitation Applicable to Tax Base at 4%	12,000,000
Final Applicable Tax Base at 4%	6,800,000
Resulting Gross Tax Due on EUR 6,800,000 tax base	272,000
Remaining Tax Base Subject to Spanish General CIT Rate	700,000
Gross Tax Due on Remaining Tax Base (25% of EUR 700,000)	175,000
Overall Tax Due by ZEC SL (272,000 + 175,000)	447,000
Effective Tax Burden of ZEC SL	5.96%

 

 

Case B. ZEC SL has 10 employees and is keen to
reinvest EUR 500,000 in local assets.

ZEC SL’s Turnover	50,000,000
ZEC SL’s Profit of the Year	7,500,000
Tax Base Subject to 4% CIT rate	6,800,000
Limitation Applicable to Tax Base at 4%	12,000,000
Final Applicable Tax Base at 4%	6,800,000
Resulting Gross Tax Due on EUR 6,800,000 tax base	272,000
Remaining Tax Base (7,500,000 – 6,800,000) eligible to RIC	700,000
Tax Base Adjustment upon RIC (90% of 500,000)	450,000
Remaining Tax Base Subject to Spanish General CIT Rate	250,000
Gross Tax Due on Remaining Tax Base (25% of EUR 250,000)	62,500
Overall Tax Due by ZEC SL (272,000 + 62,500)	334,500
Effective Tax Burden of ZEC SL	4.46%