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Preferential Tax Treatment of Danish Equity Compensation Awards

The Danish Parliament recently adopted new Section 7P of the Danish Tax Assessment Act to provide, effective July 1, 2016, preferential tax treatment for certain share-based compensation granted to Danish recipients. Similar in concept to “incentive stock options” in the United States, under the new legislation, share-based compensation meeting certain requirements is not subject to taxation until the shares acquired in connection with the award are subsequently sold by the recipient. At the time the shares are sold, any gain is taxable as capital gains rather than as employment income. In order for Section 7P to apply, the following conditions must be met: Both the employer and employee must agree for Section 7P to apply in the award agreement. The award agreement must specify the nature of the award (e.g., shares, conditional shares, options, terms for receiving the shares, etc.). The value (using Black Scholes for options) must not exceed 10… Continue Reading

Israeli District Court: Costs of Equity-Based Compensation Should Be Included in Cost-Plus Transfer Pricing Arrangements

In this case, an Israeli subsidiary provided certain research and development services to its U.S.-based parent under a transfer pricing agreement that established the subsidiary’s income as an amount equal to its costs plus a 7 percent margin. Employees of the subsidiary received various stock awards under the “capital gains course” of Section 102 of the Israeli Tax Ordinance (“Section 102”). Section 102 generally applies to Israeli resident companies and non-Israeli companies that have a permanent research and development center in Israel. The subsidiary did not include accounting expenses for employee stock awards in its cost base and retroactively amended the transfer pricing agreement with its parent to reflect this treatment. The Israeli Tax Authority (“ITA”) disagreed with the exclusion of these expenses. The Tel Aviv District Court agreed with the ITA, ruling that (i) the accounting expenses for employee equity-based compensation should be included in the subsidiary’s cost base… Continue Reading

New Regime Enacted for French-Qualified Restricted Stock Units

On August 7, 2015, France’s “Law on Growth and Economic Activity” (also known as the “Macron Law”) was enacted, effective as of the same date. Among other changes, the Macron Law revised certain aspects of the tax and legal regime applicable to French-qualified restricted stock units (“RSUs”) by decreasing the applicable employer social tax percentage (payable under the new regime at vesting), reducing the minimum vesting period from two years to one year, reducing the acquisition and sale restriction periods, and providing for more favorable employee tax treatment. Importantly, the Macron Law provides that qualified RSUs can be granted under the new regime only if pursuant to an equity plan that is approved by shareholders after the August 7, 2015, effective date. It remains uncertain whether the new regime could apply to RSUs granted under a sub-plan to a shareholder-approved plan if the sub-plan is adopted by a company’s board… Continue Reading

New Australian Employee Share Scheme Tax Rules Effective July 1, 2015

Several changes to the Australian employee share scheme tax rules became effective July 1, 2015. As enacted, the new rules reverse certain rule changes made in 2009 and provide for (i) deferring taxation of options until the time of exercise, rather than upon vesting; (ii) extending the maximum tax deferral period from seven years to 15 years from the acquisition date of a share right; and (iii) increasing the maximum share ownership limit used to determine eligibility for tax deferrals on share rights from five percent to 10 percent. In addition, the new rules provide certain tax concessions for employees of small start-up companies. Additional information on the new tax rules is available on the Australian Taxation Office’s website here.

Reminder: Upcoming July 6 Deadline to Register Share Plans in the United Kingdom

July 6, 2015 is the deadline to register and self-certify share-based incentive plans or schemes, whether tax-advantaged or non-tax-advantaged, that are sponsored or maintained by companies for the benefit of their employees in the United Kingdom (“U.K.“). The registration and self-certification can be completed online with U.K. tax authorities (HM Revenue and Customs). Failure to meet the July 6, 2015 deadline may result in losing tax advantages and incurring penalties. For more information on the U.K. share registration requirement, please see our prior post here.

IRS Simplifies Procedures for Electing Tax Deferral on Canadian Retirement Plan Accrued Income

The IRS recently issued Revenue Procedure 2014-55, which simplifies the reporting obligation and method to obtain the deferral of U.S. taxation on interests held by U.S. taxpayers in Canadian Registered Retirement Savings Plans (“RRSPs”) and Registered Retirement Income Funds (“RRIFs”). Previously, to defer U.S. taxation on income accruing in their RRSPs and RRIFs to the date of distribution, U.S. taxpayers were required to file Form 8891 with the IRS, which many taxpayers failed to do. The IRS has eliminated Form 8891, as well as the requirement that taxpayers file this form for future and most prior tax years. U.S. taxpayers may generally qualify for favorable tax treatment under the Revenue Procedure so long as they continue to file U.S. tax returns for any year in which they hold an interest in a RRSP or RRIF and include any distributions as income on their U.S. tax returns. A copy of the… Continue Reading

EU Court of Justice Finds that Ireland Must Protect Pension Benefits in Bankruptcy

The EU Court of Justice held that Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 (“Directive 2008/94”) applies to pension benefits under a supplementary pension scheme, regardless of the cause of the employer’s insolvency, and without taking into account state pension benefits. Directive 2008/94 provides that member states must protect the pension interests of retirees when an employer becomes insolvent. In prior cases, the EU Court of Justice held that, while a member state need not guarantee 100 percent of the pension benefit, a guarantee of less than 50 percent is insufficient. In the case before the court, a crystal manufacturer (the “Employer”) in Waterford, Ireland, entered into bankruptcy. The Employer’s defined benefit pension scheme was severely underfunded and could cover only between 18 percent and 28 percent of the liabilities. A group of employees sued the Irish Minister for Social and Family Affairs… Continue Reading

Philippines Bureau of Internal Revenue Clarifies Tax Treatment of Stock Options

According to Revenue Memorandum Circular (RMD) No. 88-2012, the Philippines Bureau of Internal Revenue recently clarified that income or gains derived from an employee’s exercise of stock options is subject to income tax as “additional compensation,” and employers are required to withhold taxes on such compensation. For managerial or supervisory employees, to the extent any such income or gain qualifies as fringe benefits, it is subject to the fringe benefit tax pursuant to Section 33 of the National Internal Revenue Code of 1997, as amended (“NIRC”). Further, if the shares to be issued upon the employee’s exercise of the stock option come from unissued stock of the corporation, then the issuance of these shares is also subject to the documentary stamp tax (the “DST”) pursuant to NIRC Section 174. Finally, the RMC details the tax implications to an employee upon his or her subsequent sale, exchange, or disposal of shares of… Continue Reading

IRS Announces Procedures to Assist Low Risk Overseas U.S. Taxpayers

New procedures go into effect on September 1, 2012, that, among other things, allow qualifying taxpayers to resolve certain concerns relating to participation in foreign retirement plans. The IRS provides the example that in some instances tax treaties allow for income deferral under U.S. tax law, but only if an election is made on a timely basis. The new procedures apply to low-risk taxpayers, defined as those with simple tax returns who owe $1,500 or less in tax for any of the covered years. To use the procedures, a taxpayers must file delinquent tax returns along with related information returns for the past three years. The taxpayer also must file delinquent FBARs for the past six years. Additional information can be found on the IRS website here.

New Zealand’s Financial Markets Authority Issues Guidance Note of KiwiSaver Scheme Performance Fees

New Zealand’s Financial Markets Authority (“FMA”) recently issued guidance setting forth the criteria against which FMA will assess the reasonableness of performance fees for purposes of KiwiSaver schemes and outlining the requirements for disclosure of these fees. Under the guidance, performance fees should only be charged in limited circumstances such as actively managed growth funds and must take account of the effective allowance already in the base fee for an element of active management. The FMA indicated it looks for the following elements related to performance fees: hurdle rate of return with an appropriate benchmark; high water mark (with no resets); crystallisation periods of not less than a year; and a performance fee cap. Managers and trustees for KiwiSaver schemes should review the performance fees charged to their schemes in light of this new guidance. The guidance can be found here.

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