Israel has witnessed significant progress in its economy and capital markets in recent years. As evidence of its economic progress, Israel became a member of the OECD in 2010, placing Israel alongside the advanced economies of the world. While some economies have contracted in recent years, Israel’s GDP grew by 2.8 per cent and 2.3 per cent in 2014 and 2015 respectively, and is expected to have further grown in 2016.
As discussed further below, the Israeli tax system is relatively advanced, and includes both direct and indirect taxes. The income tax law is governed by the Israeli Income Tax Ordinance (New Version), 5721-1961 (Ordinance), which was significantly amended in 2003. Specifically, new provisions were added to the Israeli international tax regime to address the increased sophistication of the Israeli economy with respect to both inbound and outbound investments.
II COMMON FORMS OF BUSINESS ORGANISATION AND THEIR TAX TREATMENT
The most common entity for operating a trade or business in Israel is the company limited by shares, which may be private or public. The shares of a public company are listed on a stock exchange or offered to the public pursuant to a prospectus. A private company is any company other than a public company.
In general, the Israeli corporate tax regime involves two-tier taxation: first, at the company level; and second, upon dividend distribution, at the shareholder level. Dividend income is subject to income tax at lower rates than ordinary income.
A partnership is a pass-through entity that is not subject to tax. While only the partners of the partnership are subject to tax in respect of its income, the taxable income is determined at partnership level. Partnerships are widely used in the case of private equity firms and hedge funds.
In a general partnership, each partner is liable for all the liabilities of the partnership. In a limited partnership, the limited partners are liable only to the extent of their contribution to the partnership. A limited partnership must have a general partner, who has unlimited liability; only the general partner is allowed to participate in the management of the limited partnership.
III DIRECT TAXATION OF BUSINESSES
i Tax on profits
Determination of taxable profit
Israeli companies are taxed in Israel on their worldwide income. Foreign (i.e., non-Israeli) companies are subject to tax in Israel only with respect to their Israeli-sourced income.
The tax base for Israeli corporate tax is the company’s net income as determined under Israeli accounting principles and adjusted in accordance with the provisions of the Ordinance and regulations. As a general rule, Israeli companies must report their income for accounting and tax purposes according to the accrual method of accounting. Corporate tax is generally assessed for the calendar year.
Expenses are deductible only if they are incurred in the production of taxable income. Expenses that were not incurred in the production of income, such as private expenses, are not allowed as a deduction.
In most cases, the assets of a business are depreciated for tax purposes pursuant to the straight-line method of depreciation. The annual depreciation amount is calculated based on a percentage of the cost of the asset, depending on the type of asset. Subject to the aforementioned general rule, depreciation deductions are allowed only with respect to assets used in the production of income.
There are differences between the accounting rules and the tax rules, which are set out in the Ordinance and the regulations. The principal differences are as follows:
- a rate of depreciation and amortisation;
- b certain kinds of expenses being limited in respect of the ability to be deducted from income, such as expenses attributable to overseas travel, car expenses and similar expenses that are determined under relevant regulations; and
- c accounting income that derives under the grouping rules being eliminated for the purpose of the tax return.
Capital and income
Special rules apply in the case of the recognition of capital gains and losses by Israeli companies. These rules are set out in Part E of the Ordinance. The corporate tax rate is equal to the tax rate imposed on real capital gains, which is 25 per cent. The Budget Bill proposes to reduce the corporate tax rate, commencing in 2017, to 24 per cent, and from 2018 to 23 per cent. Capital gains and losses arising from real estate transactions located in Israel (including real estate associations) are taxed in accordance with the Land Taxation Law 5723-1963.
The losses a company recognises from a trade or business may be used to offset any other income recognised by the company in the same tax year. Ordinary losses can be used against capital gains; however, capital losses are not allowed to be used against ordinary income. The losses of a company from foreign sources can only be used against foreign-sourced income, pursuant to a ‘basket’ system (e.g., passive loss can only be used to deduct passive income). Net operating losses of a company may be carried forward; however, they are not allowed to be carried back. There is no limitation on the carry-forward period.
While net operating loss carry-forwards generally survive a company’s change of ownership, the courts in Israel have held that when the sole objective of the acquisition of the company’s stock was the use of its loss carry-forwards, such losses will not be allowed to be used against income recognised by the company following the change of ownership. The courts based their decisions on the anti-avoidance provisions of Section 86 of the Ordinance, which is discussed below.
The tax rate on corporate profits in Israel decreased to 25 per cent in 2016. The rate of corporate tax on profits derived from a ‘preferred enterprise’ may be either 9 or 16 per cent (depending on the location of the enterprise), and for a ‘special preferred enterprise’, either 5 or 8 per cent, as further discussed below.
Israel has a single tax authority that is responsible for collecting both direct and indirect taxes. A municipal tax is imposed on real property by local authorities.
Corporate tax is generally assessed for the calendar year; however, the greater part of the tax is paid during the tax year through estimated advance payments. The final tax payment is made, together with the filing of the annual tax return, by 31 May following the end of the tax year. It is possible, in certain circumstances, to obtain an extension for the filing and payment deadline.
Within four years, and in certain circumstances five years, from the year in which a return was filed, the assessing officer may audit a company’s tax return. The assessment of the officer may be appealed to another officer within the same local office. The decision of the second officer is subject to appeal to the district court. The decision of the district court may then be appealed to the Supreme Court.
Consolidated tax returns are not allowed under Israeli law; an exception applies, however, in the case of an Israeli-resident ‘industrial’ company or a company that is a holding company of industrial companies. An industrial company is a company that receives at least 90 per cent of its revenues from an industrial facility engaged in manufacturing activities. An industrial company, or an industrial holding company, may file a single consolidated tax return in respect of itself and its subsidiaries, which are by themselves industrial companies, provided that all the industrial companies included in the consolidated group are part of a single assembly line or manufacturing process. An industrial holding company that has subsidiaries engaged in different assembly lines is entitled to consolidate its return only with the company or companies having a single assembly line in which it has the largest capital investment.
ii Other relevant taxes
Israel has a value added tax (VAT) charged on transactions in Israel and on the importation of goods into Israel, the standard rate of which is currently 17 per cent (as from 1 October 2015). A transaction that is a sale of goods is deemed to take place in Israel if, in the case of a tangible asset, it was delivered in Israel or exported, and if, in the case of intangible assets, the seller is an Israeli resident. Certain transactions are subject to a zero-rate tax (principally exports of goods and services) or exempt (such as certain financial services and certain real estate transactions). Financial institutions are subject to a profit tax and a tax on paid salaries (salary tax), both at a rate of 17 per cent, subject to certain adjustments. Businesses are entitled to recover input VAT costs in connection with goods or services used by them to create their taxable (including a zero-rated) supply.
Israel imposes customs duties on certain imported goods and sales tax on certain imported and domestic goods. Israel also imposes various duties, such as trade levies and dumping levies, pursuant to the Trade Levy Law.
Israel also imposes an additional 2 per cent ‘wealth tax’ on taxable income and gains in excess of 800,000 New Israeli shekels (adjusted yearly for inflation, 803,520 New Israeli shekels for 2016).
IV TAX RESIDENCE AND FISCAL DOMICILE
i Corporate residence
A company is considered a resident of Israel if it was incorporated in Israel, or, if it was incorporated abroad, if it is managed and controlled in Israel. The management and control test is based on a similar test under the tax laws of the UK. Pursuant to guidance published by the Israeli Tax Authority (ITA), a company is managed and controlled in the place where the business strategy of the company is determined. For that purpose, it should be considered where, as a factual matter, the principal substantive business decisions of the company are made. While the place where the board of directors holds its meetings is an important factor, it is not determinative, especially in a case where the board authorises another organ of the company to manage the company. In a 2012 Supreme Court case, which is the main case that deals with the issue of management and control, the managers of a foreign company acted as an artificial platform for conducting the business of the Israeli company and were not involved, in a substantive sense, in the foreign company’s business management, the foreign company was regarded as having been managed and controlled from Israel (see the further discussion below).2
ii Branch or permanent establishment
The taxable profits of a local branch of a foreign company are generally calculated by reference to the income and deductions attributable to the branch under the assumption it operates as an independent business unit and in accordance with transfer pricing rules. The Ordinance, however, does not include specific rules regarding the taxation of a branch or the allocation of income and expenses to a branch in Israel. In addition, there is no branch profits tax in Israel. In some relatively rare cases, however, the profits of a non-resident company that qualifies as a foreign investment company derived from its Israeli enterprise may be subject to a 15 per cent tax rate in addition to the corporate tax that applies to such profits. The 15 per cent tax may be deferred if it is demonstrated that such profits remain in Israel and are used for the purpose of the company’s business in Israel. In any event, this 15 per cent tax is relevant only to certain enterprises that were already in existence prior to 2011.
V TAX INCENTIVES, SPECIAL REGIMES AND RELIEF THAT MAY ENCOURAGE INWARD INVESTMENT
i Holding company regimes
Since 1 January 2006, corporations that are classified as Israeli holding companies (IHCs) have been entitled to a participation exemption. The tax benefits available to an IHC include the following:
- a dividends that the IHC receives from its subsidiaries are tax exempt;
- b capital gains from the sale of subsidiaries are tax exempt;
- c dividend distributions from the IHC to its foreign shareholders are subject to a reduced withholding rate of 5 per cent; this benefit does not apply to Israeli shareholders of the IHC;
- d interest income, dividends and capital gains that the IHC receives from securities that are traded on the Tel Aviv Stock Exchange are tax exempt;
- e interest received from certain financial institutions is tax exempt; and
- f the IHC is not subject to the Israeli-controlled foreign corporation regime.
To qualify as an IHC, inter alia, the company must be registered, managed and controlled in Israel. The company must be a private company and invest at least 50 million New Israeli shekels in its subsidiaries, which should constitute 75 per cent or more of the total investments of the holding company. At the subsidiary level, it is required that the subsidiary resides in a treaty country or in a country with at least a 15 per cent corporate tax rate. In addition, it is required that 75 per cent or more of the subsidiary’s income will be derived from a trade or business. Moreover, the subsidiary may not hold more than 20 per cent of its assets in Israel or derive more than 20 per cent of its income from within Israel.
ii IP regimes
The Office of the Chief Scientist of the Ministry of Economy (OCS), which operates under the Law for the Encouragement of Industrial Research and Development, 5744-1984, supports R&D projects of Israeli companies by way of financial support. The extent of the OCS funding depends on the R&D project, the location of the business, the rate of the local production and its contribution to research in Israel. In general, an OCS-funded company has to repay the OCS funding it received and the accrued interest by way of royalty payments from its sales. In addition, the know-how that is developed in connection with the OCS funding and any right therein cannot be shared with or transferred to others without the approval of the OCS and subject to the conditions set in the law, which include in some cases payments to the OCS.
iii State aid
Various investment incentives are outlined in the Law for the Encouragement of Capital Investment 5719-1959, which was materially amended and simplified in 2011 (Encouragement Law). As of January 2011, the incentives under the Encouragement Law are directed towards corporations deemed ‘preferred companies’. A ‘preferred company’ is entitled to reduced corporate tax with respect to its ‘preferred income’ generated by its ‘preferred enterprise’. The tax rates for preferred enterprises, depending upon where they are located, have been 9 or 16 per cent since 2014. More significant reductions in the corporate tax rate apply to companies that have a ‘special preferred enterprise’ the profits of which are subject to corporate tax at a rate of 5 or 8 per cent. It should be noted that under certain conditions, a ‘preferred enterprise’ may also be entitled to a grant in an amount of up to 20 per cent of the investment in tangible fixed assets.
For this purpose, a ‘preferred enterprise’ is defined as an industrial enterprise that meets at least one of the following conditions:
- a it operates in the field of biotechnology or nanotechnology, having received the approval of the head of the Research and Industrial Development Administration;
- b its income from sales in a particular market does not exceed 75 per cent of its total income in a given tax year; or
- c 25 per cent or more of its total income in a given tax year derives from sales in a particular market to at least 14 million residents (this increases on 1 January of each tax year by 1.4 per cent in relation to the number of residents as compared to the previous year).
‘Special preferred enterprises’ are enterprises that have preferred yearly incomes of at least 1.5 billion New Israeli shekels and belong to companies with preferred yearly incomes of at least 20 billion shekels. To obtain such status, an enterprise’s business plan must include either certain minimum investment levels in production assets, R&D investment or the employment of a minimum number of workers – all based on the location of the enterprise.
Capital gains recognised by a foreign resident on the sale of securities that are publicly traded in Israel are exempt from tax in Israel, provided that the capital gains are not attributable to a permanent Israeli establishment. However, this exemption does not apply to capital gains derived from the sale of short-term governmental bonds with a maturity of up to 13 months and to future transactions, the underlying assets of which are directly or indirectly short-term governmental bonds.
In addition, a foreign resident who acquired the stock of an Israeli company after 1 January 2009 will often be exempt from tax in Israel on the sale of the stock.
VI WITHHOLDING AND TAXATION OF NON-LOCAL SOURCE INCOME STREAMS
i Withholding outward-bound payments (domestic law)
As of 1 January 2012, dividend distributions paid by an Israeli resident company to a non-resident individual are generally subject to withholding tax at a rate of 25 per cent (30 per cent in the case of a payment to a person who owns 10 per cent or more of the company’s stock – a ‘substantive shareholder’). Dividend distributions to foreign corporations are subject to withholding tax of 30 per cent if the foreign corporation is a substantial shareholder of the Israeli-resident company (which holds more than 10 per cent) and 25 per cent if it is not such a substantial shareholder.
As a general rule, interest paid by a local company to a non-resident is generally subject to withholding tax at a rate of 25 or 50 per cent in the case of a payment to a person who owns 10 per cent or more of the company’s stock.
Royalties paid by an Israeli company to a non-resident are subject to withholding tax at a rate of 25 per cent.
ii Domestic law exclusions or exemptions from withholding on outward-bound payments
In the case of a dividend distribution by a preferred enterprise, a reduced rate of withholding tax of 20 per cent applies. As noted above, the ‘participation exemption’ applies in the case of dividend distributions to an IHC. However, dividend distributions from the IHC to its foreign shareholders are subject to a reduced withholding rate of 5 per cent. Interest may also be exempt from withholding tax in certain circumstances. For example, interest income paid to a foreign resident with respect to publicly traded bonds of a company that is listed in Israel is tax exempt in Israel as long as the foreign resident owns less than 10 per cent of the stock of the Israeli company, is not related to the Israeli company, and no special relationship exists between the foreign resident and the Israeli company. In addition, interest received by a foreign resident with respect to publicly traded bonds that were issued by the government will usually be exempt from tax in Israel to the extent that they are not repayable within 13 months of the date that they are issued.
iii Double taxation treaties (DTTs)
As of 2016, there are approximately 50 DTTs to which Israel is a party and that are in force in Israel. Israel’s DTTs generally follow the OECD model with the exception of a number of treaties (with the United Kingdom, Norway and Sweden) that were signed in the 1960s and the 1970s, before the OECD model was widely accepted. In August 2014, a new treaty was signed between Israel and Germany based on the OECD model, which will come into force in 2017. A new treaty was signed between Israel and Canada in 2016, and is expected to come into force in 2017.
iv Taxation on receipt
Dividend distributions received by an Israeli company are not subject to tax in Israel as long as the distribution is attributable to Israeli-sourced income and was subject to corporate tax in Israel. The distribution should be subject to tax at a rate of 25 per cent if it is attributable
to foreign-sourced income. The Israeli company may claim as credit foreign taxes paid with respect to the distribution pursuant to one of the following methods:
- a Direct credit, where the Israeli company may claim credits with respect to foreign withholding tax paid on the dividend distribution. In this case, the dividend distribution will be subject to a 25 per cent tax rate in Israel.
- b Indirect credit, where the Israeli company may claim credits with respect to both its allocable share of the foreign taxes paid by the distributing company on its foreign-source income and the foreign withholding tax paid on the dividend distribution. In this case, the dividend distribution will be subject to the regular corporate tax rate in Israel (which is also 25 per cent).
VII TAXATION OF FUNDING STRUCTURES
i Amendments to the taxation of trusts
While there were no further significant amendments regarding the taxation of trusts during 2016, it should be noted that on 1 January 2014, the law significantly changed the regime for the taxation of trusts in Israel. The main change was the cancellation of the ‘foreign settlor trust’ regime. Under previous legislation, trusts that were settled by foreign residents were generally tax exempt in Israel, even after the settlor’s demise. Furthermore, distributions to Israeli-resident beneficiaries were exempt from tax.
Since 1 January 2014, these trusts are tax exempt in Israel only to the extent that all their beneficiaries are foreign residents. If a trust that was settled by a foreign resident who is still alive has Israeli beneficiaries, then the trust will be subject to tax in Israel on distributions either at a rate of 30 per cent, or at a rate of 25 per cent on its current income allocated to Israeli beneficiaries, if an irrevocable election is made, provided that the settlor is still alive and is a relative of all the beneficiaries. If either of these criteria is not met, then the trust will be subject to tax on its entire worldwide income at the applicable rates.
VIII TAXATION OF FUNDING STRUCTURES
i Thin capitalisation
There are no thin capitalisation rules under Israeli domestic tax rules.
ii Deduction of finance costs
Subject to the general rule regarding the deduction of expenses, interest expenses will be allowed as a deduction only if they are paid with respect to capital that is being used in the production of income.
iii Restrictions on payments
A company may make dividend distributions only if it meets the following two requirements. First, the company is allowed to distribute only out of its retained earnings and profits. Second, there must be no reasonable risk that the dividend distribution will cause the company to be in a position where it is unable to pay its debts (outstanding and foreseeable) as they become due. The distribution in this case is not allowed unless a court approved the distribution.
iv Return of capital
As noted above, a company is not allowed to make a distribution to its shareholders unless it has retained earnings and profits, or if a court has approved the distribution.
IX ACQUISITION STRUCTURES, RESTRUCTURING AND EXIT CHARGES
In most cases, it is advisable that a foreign person hold the stock of an Israeli company, particularly when the stock of the Israeli company is intended to be sold. As noted above, capital gain on the sale of the stock of an Israeli company by a foreign resident is exempt from tax in Israel if the stock was acquired after 1 January 2009. It is advisable to use an Israeli company as the acquisition vehicle if it is intended that the target company will make substantial dividend distributions following the acquisition, because dividend distributions between two Israeli companies are not generally subject to tax in Israel.
It is important to note, however, that the exemption does not apply in the following cases:
- a the capital gain can be attributed to a permanent establishment of the seller in Israel;
- b the securities were acquired from the seller’s relative;
- c the securities are traded on an Israeli Stock Exchange when the shares are sold; or
- d on the date of acquisition of the securities and during the two-year period preceding the sale, the ‘primary value’ of the securities was derived, directly or indirectly, from one of the following:
- • property rights or rights in a ‘real property association’ (i.e., a company whose asset’s primary value is real property assets), including long-term leases;
- • rights to use real property or any asset attached to real property in Israel;
- • a right to exploit natural resources in Israel; and
- • a right to benefit from real property situated in Israel.
The last of the above exceptions follows an amendment to the Ordinance that took effect on 1 August 2013. Prior to the amendment, the exception applied only if the assets were real property (or rights in a real property association) as narrowly defined under Israeli law. The term ‘primary value’ is not explicitly defined in the Ordinance, but should be interpreted as 50 per cent or more of the assets of the company whose shares are being sold.
On 20 July 2014, the ITA issued a circular, which provides its interpretation of an amendment that came into force in August 2013. The circular includes, inter alia, the following interpretations:
- a the ‘right to use real property or any asset attached to real property’ includes the following:
- • the right to use real property or any asset attached to real property; and
- • direct or indirect rights in concessions for the provision of services (public–private partnerships), for example, the rights to use buildings such as industrial factories or residential homes; and
- b the ‘right to benefit from real property situated in Israel’ includes the following:
- • benefits derived from solar energy, wind turbines, etc.;
- • power stations from water desalination;
- • rights to extract geothermic energy; and
- • any recurring or renewable right stemming from the use of land.
As a result of the limitations on the deduction of interest expense, the acquiring group would only recognise limited Israeli tax benefits by funding the acquisition with debt. In this regard, debt drop-down should generally be treated as a dividend distribution for Israeli tax purposes.
Because only a limited number of transactions would qualify as a tax-free reorganisation, as discussed below, very often cash presents the principal consideration in the transaction. Generally, the selling shareholders should be subject to tax with respect to deferred consideration only upon receipt of such consideration.
Part E2 of the Ordinance includes the principal rules regarding reorganisations, including spin-offs. To qualify as a tax-free merger, a transaction has to meet various requirements, which include the following.
First, subject to limited exceptions, the shareholders of the target company are allowed to receive only stock consideration. In addition, following the reorganisation, the target’s shareholders are required to hold the shares of the acquiring company they received during a prescribed period. Second, the reorganisation must have a valid business purpose. Third, the reorganisation has to meet certain continuity of business requirements, which means that the acquiring company has to hold at least 50 per cent of the assets of the target company. Fourth, the value of the acquiring company cannot exceed four times the value of the target company. Fifth, the reorganisation plan has to receive the prior consent of the tax authorities. In this regard, the prior approval of the tax authorities is required if the parties to the reorganisation include foreign companies.
The Ordinance imposes an exit tax on individuals and companies that have ceased to be Israeli residents. The assets of a company that ceased to be an Israeli resident are deemed sold one day prior to its cessation of residency. The company may defer the gain recognition until the actual sale of the assets.
X ANTI-AVOIDANCE AND OTHER RELEVANT LEGISLATION
i General anti-avoidance
Section 86 of the Ordinance is a general anti-avoidance provision that permits a tax-assessing officer to disregard a transaction that is artificial or fictitious, or one whose principal objectives is an improper avoidance or reduction of tax. In addition, even in the absence of express statutory provisions, the ‘substance over form’ doctrine is a generally accepted principle of Israeli case law. Regulations have also been made under the Ordinance that impose a disclosure requirement with respect to certain defined categories of transactions.
ii Controlled foreign corporations (CFCs)
In general, a controlling shareholder of a CFC that has undistributed profits must include in its income its allocable share of such profits. For this purpose, a controlling shareholder is a shareholder of the CFC that owns a 10 per cent or greater interest in the CFC. Certain ownership attribution rules will apply in determining a shareholder’s interest in the foreign company.
A CFC is a foreign company that meets the following requirements:
- a the company is not a resident of Israel;
- b the company is not listed on an exchange, and if it is listed, less than 30 per cent of the interests in the company have been offered to the public, excluding the shares held by controlling shareholders;
- c most of the income of the company is from passive sources;
- d the passive income of the foreign company is subject to a 15 per cent or less tax rate in the foreign jurisdiction; and
- e the foreign company is controlled by Israeli residents.
For purposes of requirement (e), a company is considered as controlled by Israeli residents if any of the following occurs:
- a Israeli residents hold more than 50 per cent of the interests in the foreign company;
- b Israeli residents hold more than 40 per cent of the interests in the foreign company and more than 50 per cent together with the holdings of related parties; or
- c an Israeli resident has veto power over substantive decisions of the company.
The controlling shareholder’s allocable share of the CFC’s passive income is treated as a dividend distribution by the CFC to the controlling shareholder. Only foreign taxes that have been imposed in the case of an actual dividend distribution by the CFC can be claimed as a credit by the controlling shareholder against its Israeli tax liability. A number of other changes to the CFC regime in Israel came into effect in 2014.
iii Transfer pricing
Section 85A of the Ordinance states that where there is a special relationship between the parties to an international transaction, as a result of which the price of the transaction results in a smaller profit than would have been realised if the transaction price had been set on arm’s-length terms, the transaction must be reported and taxed on the basis of its fair market value. Regulations published in 2006 stipulate certain methods that should be used to determine fair market value. The preferred method is to compare the price of the transaction in question with the price of a similar international transaction between unrelated parties. If this method cannot be used, then the taxpayer must use one of the following methods:
- a a comparison between the profitability rate of the transaction in question and a similar transaction; or
- b a comparison between profit-and-loss allocation between the parties under the transaction in question and a similar transaction. If neither of the above methods can be used, the taxpayer is permitted to use any other suitable method of comparison.
The regulations do not specifically require the taxpayer to prepare an annual transfer pricing study; however, the tax-assessing officer has the authority to demand a transfer pricing study at any time within 60 days. In addition, the taxpayer is required to describe the terms of any international transaction with a party with whom it has a special relationship (price,
conditions, and the price and conditions of an arm’s-length transaction) in its annual tax return to be set out in a special annex to the tax return.
iv Tax clearances and rulings
Generally, a taxpayer may obtain a pre-ruling from the tax authorities before it files its tax return. In the context of the transfer pricing rules, a taxpayer may apply for an advanced pricing agreement, which is similar to the tax procedure applicable in the US.
XI YEAR IN REVIEW
2016 was very significant for practitioners who deal with private clients in Israel. There were significant changes during the year in the legislation and case law that affect many private clients. The substantive issues that occurred during the past year are summarised below.
i Expansion of reporting obligations
In Israel, most individuals are not required to file annual tax returns. One reason for this is that the Israeli tax system is based on a strong withholding system. The new amendment, which became effective from 2016, provides that the following individuals will be required to submit annual tax returns:
- a beneficiaries of a trust: an Israeli resident who is over 25 and is a beneficiary of a trust, the value of which is higher than 500,000 New Israeli shekels, is required to file an annual tax return. This obligation does not apply if the individual is not aware of the fact that he or she is a beneficiary of a trust; and
- b an individual who is presumed to be an Israeli resident: under Israeli law, an individual is considered as an Israeli resident if the ‘centre of his or her life’ is in Israel. In this regard, Israeli law creates a presumption according to which an individual is considered as an Israeli resident if:
- • he or she stays in Israel for 183 days or more during the relevant tax year; or
- • he or she stays in Israel for 30 days or more during the relevant tax year, and he or she has stayed in Israel for 425 days or more during the relevant tax year and the preceding two years (residency presumption).
The new amendment provides that an individual who is presumed to be an Israeli resident under the residency presumption is required to file a notice, and to specify the facts and documents on which his or her argument – that the centre of his or her life is outside Israel – is based.
The required reporting will not apply to the individual’s spouse and children, individuals that the Ministry of Finance has determined are not Israeli residents (currently no such determination has been made) or foreign employees.
In addition, individuals who have transferred 500,000 or more New Israeli shekels from Israel during any 12-month period are required to file a tax return.
ii International exchange of information
Like other countries, Israel is preparing for the implementation of the automatic exchange of information under the OECD Common Reporting Standard (CRS) and the US Foreign
Account Tax Compliance Act (FATCA). A few important developments have recently occurred in this respect:
- a Israel has committed to apply the CRS from 2018. Under the CRS, it is expected that Israel will obtain financial information with respect to non-Israeli residents from its financial institutions, and will automatically exchange it with other jurisdictions on an annual basis; and
- b the legislation regarding international agreements for exchange of information was passed by the Knesset (Parliament) by way of two separate amendments. According to these amendments:
- • the ITA is authorised to enter into an agreement regarding an exchange of information without the need to sign a DTT with the relevant jurisdiction; and
- • the Finance Minister is authorised to set regulations regarding the duty of a financial institution to obtain details and information regarding account holders, and to transfer such details and information to the ITA in order for such information to be used in agreements for the exchange of information.
These regulations were published recently, and it is expected that Israel will commence to transfer information to the US under the FATCA legislation as of November 2016.
iii Voluntary disclosure procedure
On 7 September 2014, the ITA published a temporary voluntary disclosure procedure. This procedure has had significant success, and to date, over 5,000 applications for voluntary disclosure have been submitted that have exposed more than 17.5 billion New Israeli shekels of unreported capital. In summary, the temporary procedure enables taxpayers to apply for a voluntary disclosure procedure in two ways that make the application more appealing to the taxpayer:
- a the anonymous route, which enables the submission of anonymous applications without disclosing the details of the taxpayer to the tax authorities. After the conclusion of the negotiations regarding the tax liability, the name and details of the taxpayer are provided to the tax authorities; and
- b the shortened route: in cases where the capital included in the voluntary disclosure application does not exceed 2 million New Israeli shekels, and the taxable income derived from such capital does not exceed 500,000 New Israeli shekels in the relevant tax years, a voluntary disclosure application can be submitted by way of a shortened route. This route enables a submission of amended tax returns for the relevant years.
The voluntary disclosure procedure was extended until 31 December 2016 as a consequence of a new law that determines that certain tax offences will be classified as money laundering offences. The purpose of the extension is to provide taxpayers with an additional period of time to settle their tax affairs with the ITA before this new law becomes effective.
XIi OUTLOOK AND CONCLUSIONS
Although there were few significant changes during the past year, several proposals have been issued that could lead to dramatic changes to Israeli tax law, including a reduction of the corporate tax rate, commencing in 2017, to 24 per cent, and from 2018 to 23 per cent; and changes to individual tax brackets, which will increase the lower tax rates and reduce the rate to 47 per cent for the higher tax rates. Wealth tax will increase to 3 per cent and will be imposed on any income that exceeds 640,000 New Israeli shekels.
It is additionally proposed in certain cases that the taxable income of a closely held corporation that results from the activity of its individual shareholders will be considered as such individual’s personal earned income, and that in certain cases, withdrawal of cash from the company, including by way of a loan or by way of providing security for a loan, and the constant use of company’s assets by a substantial individual shareholder, shall be regarded as income of such individual shareholder.
Other suggested changes include imposing an additional annual tax on owners of three or more residential properties, and offering a series of preferential tax rates to foreign IP-based high-tech and large multinational companies to encourage investment in the Israeli economy.
1 Meir Linzen is the managing partner of Herzog Fox & Neeman.
2 CA 3102/12 Niago v. Kefar Sava Assessing Officer, Missim 26/1 (February 2012) E-12. Additional Israeli case law deals with this issue. See, for example, CA 805/14 Yanko Weiss Holdings v. Holon Assessing Officer, Missim Online (October 2015), which overturns the District Court, but does not seem to argue with the control and management question. See also ITA 32172-05-13 Shai Tsmarot Company v. Petah Tikva VAT Commissioner, Nevo (November 2015).