Norway has a small but robust economy, and with a corporate tax rate of 23 per cent from 2018 and a tax-exemption method that is among the most liberal within the European Economic Area (EEA), investors tend to find Norway to be an attractive country to invest in or through.
Norway does not impose withholding tax on royalties or interest in general, or on dividends paid to corporate shareholders in the EEA. Together with a wide range of double taxation treaties with low or no withholding tax, this makes Norway a suitable base for holding companies, especially when investing into the EEA.
To balance out the low rates for corporate taxation, Norway has an extensive anti-avoidance doctrine to control the use of innovative tax-planning techniques. Special tax regimes apply to income from the exploration of petroleum resources, shipping income and income from the production of hydropower.
II COMMON FORMS OF BUSINESS ORGANISATION AND THEIR TAX TREATMENT
There are two main forms of organising a business: entities with limited liability and entities with unlimited liability.
Limited liability companies, where none of the shareholders have personal liability for the obligations of the company, may be incorporated either as a private limited liability company (AS) or a public limited liability company (ASA). Other entities with limited liability include foundations, cooperative societies, stock funds and mutual insurance companies.
The common types of entities with unlimited liability are the general partnership with joint liability (ANS), the partnership with apportioned liability (DA) and limited partnerships (KS and IS).
Entities with limited liability are subject to corporate taxation, while entities with unlimited liability are transparent for tax purposes and taxed at partner level.
The AS and the ASA are regulated by two separate laws but with similar structure and content. Key differences between public and private companies are that only public companies may turn to the public to raise capital and be listed on a stock exchange. Public companies are also subject to stricter rules regarding organisation, the minimum board member requirement and restrictions on share classes. The required minimum share capital for a private limited company is 30,000 Norwegian kroner and 1 million Norwegian kroner for a public company.
As a member of the EEA, Norway has adopted the EC Regulation on European Companies (SE companies).2 SE companies are mainly governed by the same rules that apply to public limited companies.
Business activities may also be organised as partnerships. In a general partnership, the partners are jointly and severally liable for all the obligations of the partnership. A general partnership can also be organised with proportional liability, where each partner is only liable to the proportional share set out in the partnership agreement.
The limited partnership is distinguished by having one or more general partners with unlimited personal liability, and one or more limited partners whose liability is limited to a set amount.
III DIRECT TAXATION OF BUSINESSES
Corporate entities incorporated in Norway, and foreign companies with their effective management in Norway, are regarded as tax-resident and liable to corporate tax on their worldwide income, including capital gains (for partnerships, the tax depends on the partner’s tax status).
Non-resident companies and Norwegian branches are taxed on Norwegian source income (see Section IV.ii).
i Tax on profits
Determination of taxable profit
As a general rule, taxable profit is a net amount based on accounting profit adjusted for differences between the accounting rules and the tax accounting rules.
Income is taxed on an accruals basis. Income derived under contracts will, with the exception of fixed price production contracts,3 be considered accrued when the taxpayer is entitled to the consideration from the other party under the contract (when the taxpayer has delivered his or her goods or services under the contract).
The taxable corporate income comprises all kinds of income, interest, dividends, capital gains on the disposal of assets or ownership interests and foreign-sourced income taxable in Norway (i.e., ordinary business income). For resident limited liability companies or entities, the tax-exemption method is applicable for dividends and gains on shares and partnership interests (see Section V.i).
For partnerships (transparent for tax purposes), the net result of the partnership is calculated as if the partnership were a company and then allocated to the partners and taxed at the partner level. Income from dividends and gains on shares will, however, flow directly through to the partners and be taxed under their individual liability.
A limited partner will not be able to deduct partnership losses against ordinary income from other sources. Such losses may be carried forward for deduction against future partnership income or gains upon the realisation of partnership interests. Dividends and gains on shares received by corporate partners will to a large extent be tax exempt under the tax-exemption method (see Section V.i).
When calculating net taxable income, the general principle is that all expenses incurred to acquire, maintain or safeguard the company´s taxable income are deductible.
As a starting point, interest on debts is deductible, whether paid periodically or discounted. The deductibility may, however, be limited under the interest limitation rule (see section VII) or the arm’s-length principle.
Expenses unrelated to normal business activities are not deductible; this includes excessive entertainment expenses, donations and bribes or similar payments.
Dividends distributed and appropriations of profits are not deductible in taxable income.
Depreciation and amortisation
The amount of tax-allowable depreciation is determined by the tax legislation and may differ from the accounting rules. There are two alternative methods to determine the deductible amount:
- a the declining balance method (which in general applies to tangible assets and goodwill – the rates vary from 2 to 30 per cent); and
- b the linear method (which applies to intangibles that are not covered by the declining balance method).
Land and plots are not depreciable.
Capital gains and income
Capital gains are considered as ordinary income for tax purposes.
Gains on shares and partnership shares will, however, to a large extent be tax-exempt under the tax-exemption method (see Section V.i).
Tax-deductible losses may be carried forward indefinitely and set off against future profits. When a company is liquidated, any loss may be carried back for the two preceding years.
The tax position of a loss carried forward will survive a change in ownership unless the predominant motive is to exploit the tax position, for example through a group contribution; in these cases, the tax position of the loss may be lapsed (see Section IX.ii).
Losses on intragroup loans (between companies where the lender has more than 90 per cent ownership) are not deductible.
In general partnerships, a limited partner will not be able to deduct partnership losses against ordinary income from other sources. Such losses may be carried forward for deduction against future partnership income or gains upon the realisation of partnership interests.
The corporate income tax rate is 23 per cent from 2018 (formerly 24 per cent).
As a general rule, the income tax year follows the calendar year. Companies must file tax returns electronically by 31 May in the year following the income tax year. Companies may apply for a deviating 12 month tax year, but a tax year may never include more than 18 months. Companies must pay advanced tax by 15 February and by 15 April in the year following the income tax year.
The Norwegian Tax Authority is responsible for the administration of all direct taxes and VAT for domestic sales. Complaints against decisions made by the tax authorities may be filed with the Norwegian Tax Administration. Decisions by The Tax administration may be brought before the courts.
As of 2017, the statute of limitation period for reassessment of the tax return is five years (10 if the taxpayer intentionally or through gross negligence has given misleading or incomplete information about his or her income).
Penalty tax will be imposed where the company gives misleading or incomplete information about its income and this result in – or could have resulted in – an underassessment. The penalty tax will normally be 20 per cent, but is raised to 40 per cent if misleading or incomplete information was filed intentionally or by gross negligence.
If a resident company (the parent company) holds more than 90 per cent of the capital and votes of other resident companies, the companies will constitute a tax group. Each company within a tax group is, as a general rule, treated as a separate entity, and assets, dividends, interest, income and deductions cannot be moved between companies. However, in a tax group, the participating companies may make tax-deductible group contributions and intragroup transfers of assets without immediate realisation of latent gains (i.e., the taxation is deferred).
A company resident in the EEA may be the parent company in a Norwegian tax group, and a permanent establishment (PE) of a company resident in either the EEA or in a state with which Norway has a tax treaty may also qualify for the tax grouping benefits.
ii Other relevant taxes
Value added tax
VAT of 25 per cent is imposed on the sale of goods and services (certain goods and services enjoy reduced rates). Norway applies VAT as a net consumption tax calculated according to the indirect subtraction method, which means that suppliers of goods and services are entitled to deduct from the amount of VAT due on their goods and services (output tax) the amount of VAT incurred on their purchases (input tax).
Taxpayers must remit the net amount of VAT (balance of output and input tax for the tax period) to the tax authorities on a bimonthly basis (or shorter periods if applied for). If input tax exceeds output tax for the tax period, taxpayers are entitled to reclaim the balance. All companies with annual turnovers that exceed a certain threshold (at present, 50,000 Norwegian kroner) must register with the Norwegian VAT Register.4
Since taxation (including indirect taxation) is not explicitly covered by the EEA Agreement,5 Norway is not required to harmonise its VAT law with EU VAT law. Movements of goods are treated as traditional exports and imports with the required customs formalities and paperwork.
The registration of transactions involving immoveable property in the Land Registry is subject to a stamp duty of 2.5 per cent of the accepted value of the property at the time of the registration.
There are no other stamp duties in Norway.
Imported goods may be subject to customs duties depending on the country of origin and the type of goods concerned.
Real estate tax
Individuals and companies that own immoveable property may be subject to municipal real estate tax regulated by an immoveable property tax law.6
The financial activity tax
A financial activity tax was introduced from 2017 for the financial sector.
For enterprises defined as financial institutions the corporate tax rate will remain at 25 per cent even if the ordinary corporate tax rate is reduced to 23 per cent. Financial institutions also have a 5 per cent tax imposed on their total salary costs.
The petroleum tax system
All petroleum-related income on the Norwegian continental shelf is governed by the Petroleum Tax Act; however, the general tax legislation will also apply.
The petroleum tax regime is characterised by a very high marginal income tax rate (78 per cent), which to some extent is offset by relatively generous tax deductions, such as the immediate expense of all exploration costs, fast tax depreciation, an uplift allowance for special tax purposes and a tax deduction for financial costs related to upstream business activity.
Income tax from 2018 comprises the ordinary 23 per cent corporate tax rate and the 55 per cent special tax rate.
There are no field operation ring-fencing arrangements on the Norwegian continental shelf, and all exploration costs may be deducted. Companies may, however, no longer deduct exploration costs abroad from the Norwegian income. Companies in a loss position may choose between a cash refund of the tax value (i.e., 78 per cent) of the exploration costs or to carry the cost forward with interest. When winding up the business on the Norwegian continental shelf, a company will receive the tax value (78 per cent of exploration cost and 23 per cent of all other cost) of any unused losses the company may have.
A norm price, set by a separate norm price board, replaces the actual sales price when calculating the taxable gross income from the sale of crude oil (regardless of the actual sales price being higher or lower).
There is no dividend withholding tax on distribution from profits subject to the 55 per cent special tax.
Tonnage tax system
For shipping companies, the tax on corporate profits may be replaced by a tax based on the tonnage operated by a company.
Elaborate ring-fencing arrangements limit the benefit of tonnage tax on the operation of ships, and companies within the regime may not carry on any other business.
Employers’ social security contribution
The rates range from zero to 14.1 per cent depending on the tax municipality of the employer.
An employer resident abroad is required to pay social security contributions in respect of employees working in Norway, but is subject to a possible exemption under the EEA or other social security treaties.
IV TAX RESIDENCE AND FISCAL DOMICILE
i Corporate residence
Limited companies whose effective management and control at board level are carried out in Norway are considered tax-resident in Norway.
For foreign-incorporated companies to avoid tax residency in Norway, the board meetings and other decisions beyond the day-to-day management of the company must take place outside Norway.
ii Branch or permanent establishment
Norwegian tax legislation does not define a PE and, as a general rule, a foreign incorporated company conducting or participating in business in Norway will be considered as having a taxable presence in Norway. However, most Norwegian bilateral tax treaties are based on the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention, and with Norway’s extensive network of tax treaties the PE definition will normally be decisive for a company’s taxable presence in Norway.
The allocation of income between a foreign head office and the taxable presence in Norway, a Norwegian PE or branch should be calculated according to the arm’s-length principle.
Gains on shares realised by non-resident corporate shareholders are not liable for tax in Norway unless the foreign shareholder has a PE in Norway, and the shares effectively connected to the PE or the taxable income or presence and are not covered under the tax-exemption method.
Activities on the Norwegian continental shelf related to petroleum resources will constitute a taxable presence as a PE after a certain number of days of activity, often as little as 30 days within a 12-month period.
V TAX INCENTIVES, SPECIAL REGIMES AND RELIEF THAT MAY ENCOURAGE INWARD INVESTMENT
i Holding company regimes
The tax-exemption rule, an extensive network of tax treaties and a tax credit system that allows unused tax credits to be carried forward ensure the avoidance of double taxation and make the Norwegian holding regime one of the most favourable in Europe.
Under the tax-exemption method, corporate shareholders are exempt from taxation of dividends and gains on shares (except for a clawback of 3 per cent on dividends).
The exemption method comprises dividends and capital gain on shares in companies resident in Norway, and the EEA. Dividends and capital gain on shares in companies resident outside the EEA, but not in a low-tax jurisdiction, are also tax-exempt provided that the shareholder has held at least 10 per cent of the shares and capital for a period of two years. Dividends and gains on shares in companies in low-tax jurisdictions outside the EEA are not tax-exempt, and losses on such shares will be deductible.
For dividends, 3 per cent of the dividends received are subject to the 23 per cent corporate tax (effective taxation on exempt dividend is 0.69 per cent). The clawback of 3 per cent does not apply to intragroup dividends within a tax group from companies resident in Norway, or within the EEA provided that the shareholder has held at least 10 per cent of the shares and capital for a period of two years.
There are no requirements for participation or holding periods for dividends and capital gains on shares of Norwegian or EEA-resident companies for the exemption method to apply. However, companies resident in a low-tax jurisdiction within the EEA must be genuinely established and conduct genuine business within their state of residency (substantial business test). As a general rule, this implies that the business is organised in a similar way as other local businesses of the same kind, and a tax-avoidance motive is not proven.
Capital gains on a partnership’s shares will, for a corporate partner, be tax-exempt if at least 90 per cent of the partnership’s investments at all times during the past two years have been in tax-exempt shares. Losses on the partnership’s shares will, for a corporate partner, be deductible only if the partnership’s non-qualifying shares have exceeded 10 per cent of the total value of shares during the previous two years (note that the tax rules regarding gains and losses on a partnership’s shares are asymmetrical, and the requirements could lead to double taxation if both the shares owned by the partnership that are not tax-exempt and the partnership shares are sold). For corporate partners resident in Norway, this applies irrespective of where the partnership is registered.
Corporate partners receiving distributions from a partnership’s shares are, as for dividends from shares, liable to 23 per cent income tax on 3 per cent of the distributions received (after a deduction for the partner’s tax on the partnership’s share).
With effect from 2016, distributions from companies for which the distributing company has been able to deduct the distribution will not be covered under the participation exemption method.
ii IP regimes
There is no special IP tax regime in Norway.
A tax relief may, however, be granted according to the rules of SkatteFUNN related to R&D (see below).
iii State aid
Norwegian authorities offer a wide range of state aid for investments, R&D (see below), and development and exports through a regional development fund (Innovasjon Norge) supporting businesses establishing in Norway and abroad.
SkatteFUNN is a scheme that entitles all enterprises subject to Norwegian taxation to a tax deduction of expenses related to R&D, provided that the research programme has been approved by the Research Council of Norway.
VI WITHHOLDING AND TAXATION OF NON-LOCAL SOURCE INCOME STREAMS
i Withholding on outward-bound payments (domestic law)
Outbound dividends paid to a non-resident shareholder or owner are subject to a 25 per cent withholding tax unless an exemption or lower tax rate applies under a tax treaty.
There is no withholding tax on royalties, interest or other payments such as service and management fees, rents or lease payments.
ii Domestic law exclusions or exemptions from withholding on outward-bound payments
The participation exemption method applies to corporate shareholders within the EEA provided that the shareholder meets the substantial business test (see Section V.i).
iii Double tax treaties
Norway currently has tax treaties covering 94 jurisdictions.
The withholding tax rate on dividends is normally reduced to 15 per cent, and to 5 per cent in parent–subsidiary situations, under a tax treaty. For dividends under the tax-exemption method (within the EEA) there is no withholding tax. Norway does not impose withholding tax on royalties or interest in general, and some tax treaties, in particular relating to royalties, interest or other payments, provide for a withholding tax rate of zero.
iv Taxation on receipt
Dividends paid to, and capital gains from the sale of shares by private and public limited companies and other companies treated equally for tax purposes, are tax-exempt (tax-exemption method).
If the tax-exemption method is not applicable, dividends will be fully taxable. In such cases, the Norwegian parent company is entitled to a tax credit for foreign withholding tax, and (on certain conditions) may claim tax credit for underlying corporate tax paid by the foreign subsidiary.
Royalties, interest and other payments, such as service and management fees, rents and lease payments, are taxable as corporate income.
VII TAXATION OF FUNDING STRUCTURES
i Thin capitalisation
Norwegian tax legislation contains no specific statutory or regulatory prescriptions of thin capitalisation, and as a rule, all interest paid to an unrelated party is deductible. Between related parties, interest deductibility may be limited under the arm’s-length principle or the interest limitation rule, both set out under the Norwegian Tax Act.
Limitation of interest deduction between related parties
The interest limitation rule states that net interest expenses to a related party exceeding 5 million Norwegian kroner are only fully deductible if the internal and external interest expense combined does not exceed 25 per cent of taxable earnings before interest, taxes, depreciation and amortisation (EBITDA). Parties are considered related when there is ownership or control of 50 per cent or more of one party by another.
External loans guaranteed by a related party of the borrower (tainted debt) will be treated the same way as loans to related parties.
The interest limitation rule applies to limited liability companies, and similar other companies and entities. The rules also apply to partnerships, shareholders in controlled foreign corporations (CFCs) and foreign companies with PEs in Norway. Financial institutions are exempt from the interest limitation rule.
ii Deduction of finance costs
Interest costs on business debt (see above), issue expenses and commissions on loans are tax-deductible. The same applies for interest charged for late payment of debt. Even under the tax-exemption method, companies may continue to deduct interest on debt incurred to finance acquisition of shares giving rise to tax-exempt income.
Excessive interest or business profits paid to the parent company or a related company may, depending on the circumstances, be regarded as dividend distributions and thus not deductible.
Financial acquisition costs may not be deducted from the company’s taxable income, but have to be capitalised together with the cost of the acquired shares.
iii Restrictions on payments
Dividends may be distributed several times during the year, but only if the company has sufficient net assets to cover the share capital after the distribution of dividends.
iv Return of capital
Equity may be repaid on a tax-neutral basis through a reduction and return of capital.
VIII ACQUISITION STRUCTURES, RESTRUCTURING AND EXIT CHARGES
Gains on the transfer of shares to corporate shareholders are tax-exempt, and losses are not deductible. The acquisition costs are not deductible even if the transaction is aborted, and any allocation of acquisition costs to the target company is regarded as illegal financial aid.
Asset deals are, for tax purposes, regarded as selling all the company’s possessions separately, and gains are taxable and losses deductible.
Mergers and demergers are, subject to certain conditions, allowed tax-free if all the companies involved are resident in Norway. If carried out in accordance with the Norwegian Tax Act Chapter 11, mergers and demergers will have continuity for tax purposes and thus maintain the tax positions of the parties.
Cross-border mergers between companies within the EEA may be carried out tax-free if the transaction is carried out pursuant to principles for fiscal continuity applicable in the state where the assigning company is resident. However, if the transferring company is resident in Norway, the company’s assets will be liable to tax upon exit (see below) if moved out of the Norwegian tax jurisdiction. Corresponding rules apply for a demerger of a limited liability company resident in an EEA state if the acquiring company is resident in Norway.
Cross-border mergers and demergers will not be tax-exempt if one or more of the companies taking part in a merger or demerger are resident in a low-tax country within the EEA, and if the company or companies do not fulfil the substantial business test.
A company can relocate only by moving the actual or effective management and control at board level from Norway (whether on purpose or not).
When the company ceases to be resident in Norway for tax purposes and relocates to a state outside the EEA, or a low-tax jurisdiction in the EEA in which the substantial business test is not met, all business assets and liabilities are regarded as realised at marked value, and are subject to tax or tax deduction. If the company relocates to other states, tax on tangible assets except for merchandise may be deferred upon certain conditions.
When assets are moved within the EEA, the tax payable on tangible assets (except for merchandise) may, subject to certain conditions, also be deferred. The exit tax for tangible assets is then annulled if the asset is not realised within five years.
For intangible assets and merchandise, the exit tax is definitive and payable on the day of exit.
IX ANTI-AVOIDANCE AND OTHER RELEVANT LEGISLATION
i General anti-avoidance
Norway has an expansive anti avoidance doctrine, with both general and specific anti avoidance rules.
The courts have developed a general anti avoidance doctrine that ensures that the tax authorities can cut through structures and dispositions whose primary motive is to achieve tax benefits and are deemed ‘disloyal’ to the tax legislation.
The tax legislation also contains s specific anti avoidance rule that states that if a company has tax positions that are unrelated to any asset or liability, and the ownership of such company changes by merger, demerger or other transaction with the predominant motive of exploiting that position, the tax position will be void.
ii Controlled foreign corporations (CFCs)
The CFC taxation rules imply that the shareholder of a company is taxed on a yearly basis for its proportionate share of the company’s income, whether distributed or not. The rules apply to shares in companies incorporated in a low-tax jurisdiction controlled by Norwegian shareholders (Norwegian control, directly or indirectly, over at least 50 per cent of the shares or votes).
A low-tax jurisdiction is defined as a country with an effective income tax rate lower than two-thirds of the effective tax rate in Norway for the same type of business (the Ministry of Finance has published a non-exhaustive ‘white list’ and ‘black list’).
The CFC legislation does not apply to companies that are established in an EEA country and that meet the substantial business test (see Section V.i).
If the company is resident in a Norwegian tax treaty country, the CFC legislation only applies if the company’s income is predominantly of a ‘passive’ character (financial or rental income, royalty, etc.).
iii Transfer pricing
Intragroup transactions are to be priced in accordance with the arm’s-length principle.
If the income of a Norwegian-resident company is reduced due to transactions with a related party, the tax authorities may adjust the income of the company in accordance with the arm’s-length principle.
Reporting documentation requirements apply, and group companies must, in their tax return, give information on intragroup transactions. The taxpayer must be prepared to file transfer pricing documentation (type and volume of the transactions, functional analysis, comparable analysis and a report of the transfer pricing method used) within 45 days of a written notice from the tax authorities.
iv Tax clearances and rulings
Advance rulings may be obtained from the Directorate of Taxes and from local tax inspectors in respect of direct taxes, social security contributions and VAT. These rulings will be binding for the tax authorities, but optional for the taxpayer.
X YEAR IN REVIEW
In the Fiscal Budget of 2018, the corporate tax rate was reduced to 23 per cent from 2018. The reduction of the corporate tax rate is part of the tax reform ‘Better Taxation – A Tax Reform for Transformation and Growth’, which was adopted by parliament in May 2016, and is meant to diminish distortions related to the corporate income tax system, including the favourable treatment of debt financing.
On 2 December 2016, the parliament introduced country-by-country reporting regulations in line with the recommendations of OECD’s BEPS Action 13 with effect from the fiscal year 2016. The first reporting should be submitted by 31 December 2017.
The Minister of Finance signed the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (MLI) on 7 June 2017. Norway wishes to apply the MLI provisions to 28 tax treaties and has made partial or full reservations against a number of the articles of the MLI.
XI OUTLOOK AND CONCLUSIONS
During the course of 2017, the Norwegian Ministry of Finance issued a public consultation paper regarding amendments to the interest limitation rule and the domestic tax residency rule. The Fiscal Budget for 2018 did not contain any proposals regarding these matters, but the Ministry of Finance has stated that the proposals shall be released as soon as possible.
The proposed new interest limitation rule mainly entails that for Norwegian companies that form part of a group, interest expenses on external debt will also be subject to limited deductions (25 per cent of EBITDA). The Norwegian part of such a group is proposed to have a combined threshold of 10 million Norwegian kroner for the limitations to apply. The proposal also includes two alternative escape clauses providing that the company or group can escape the limitations completely if the relevant company on a stand-alone basis has a debt-to-equity ratio similar to or stronger than the consolidated debt-to-equity ratio in the group that the company is a part of, or the Norwegian part of the group has a consolidated debt-to-equity ratio that is similar to or stronger than the consolidated debt-to-equity ratio in the wider group.
The amendment to the domestic tax residency rule, aims for all companies incorporated in Norway to be considered as resident here for tax purposes, regardless of the where the management of the company takes place. Today, entities incorporated in Norway are presumed resident here under domestic tax law, but if the management of the company to a far extent is performed outside of Norway, the tax residency will depend upon a functional assessment of the entity.
Currently, a consultation paper to introduce a withholding tax on interest and royalties or a proposal to introduce VAT into the financial sector has not been set forth; however, the Department of Treasury has announced that such a consultation paper will be set forth.
1 Thomas E Alnæs is a partner and Kristina Haugland is an associate at the law firm Grette AS.
2 Council Regulation 2001/2157/EC of 8 October 2001 on the Statute for a European Company.
3 The profit element of these contracts is recognised as taxable income according to the completed contract principle.
4 See Section XI for proposed changes.
5 EEA Agreement, Article 1(2).
6 Law of 6 June 1975, No. 29.