The Israel Tax Authority recently published further details about the proposals to release profits trapped in Israel by the tax system.

Briefly, Israeli and foreign multinational corporations want to take out of Israel many billions of shekels that are trapped by the tax system.

But if they do, they forfeit Israeli tax breaks under the “alternative track” of the Law for the Encouragement of Capital Investment.

What is the ‘alternative-benefits track’?

Under this track, industrial and technology companies could opt for a no-grants and no-tax package. The company must retain those profits.

If the company distributes those profits, two lots of tax become due: (1) company tax at rates ranging from 10 percent to 25%, depending on the degree of foreign ownership; plus (2) dividend-withholding tax at a rate of 15%.

So dividends are penalized. Total Israeli taxes range from 23.5% to 36.25% for a company on the alternative track that distributes a dividend.

Newer tax breaks

The alternative-track exemption was replaced in 2011 by a new clearer regime of tax breaks for industrial and technological “preferred enterprises.”

Preferred enterprises currently pay company tax on all their profits at rates ranging from 5% to 15% (not 25%), and dividends are taxed at 15%.

The resulting total Israeli tax hit therefore ranges from 19.25% to 27.75% for a company with a preferred enterprise under the new 2011 legislation that distributes a dividend.

The latest compromise proposals

The Finance Ministry published a legislative memo explaining the expected bill. However it is not yet clear if and when the bill will be presented to the cabinet for approval for onward submission to the Knesset for enactment.

The stated aim is to raise NIS 1 billion to NIS 3b. in tax revenues and help plug the government’s growing deficit. An unstated aim is presumably to allow an outflow of currency and thereby devalue the shekel, which would be beneficial for exports .

Companies with trapped profits (misleadingly referred to as “exempt income”) would be allowed to elect pay a reduced rate of company tax on those profits. The more the company distributes, the lower the tax rate. If enacted, the election would be available until the end of 2013.

The company must distribute between 40% and 70% of trapped profits. According to the proposal, if the company distributes 40% of its trapped profits, it may enjoy a 40% reduction in the company tax rate that would otherwise apply. If the company distributes 70% of its trapped profits, it may enjoy a 70% reduction in the company tax rate that would otherwise apply.

The dividend withholding tax rate would remain 15%.

The company would not be obliged to actually pay a dividend; it could merely pay the tax and “thaw” (untrap) the profits.

The small print

It seems a number of conditions would apply to the proposed election. In particular, the tax would have to be paid within 30 days after making the election, but no later than the end of 2013. Furthermore, the company would have five years to invest in “prescribed investment” in productive assets and/or research and development and/or salaries for additional employees compared with 2011. The designated investment would apparently need to amount to at least 30% of the tax on the thawed (untrapped) profits. These proposals appear to differ from those published on the ITA website on June 19.

Comment

These proposals are far from final. It remains to be seen what will be legislated and when. On the one hand, the Finance Ministry is looking to increase its tax revenues. On the other hand, political considerations will also come into play.

Some may question whether multinational companies should be granted further tax breaks in hard times.

Foreign investors should check the situation in their home country to find out whether they can avoid double taxation by claiming an exemption or foreign tax credit there.

Some Israeli multinational groups face claims from the ITA that investments in subsidiaries amount to taxable dividends (“downward dividends”). Such groups may consider settling the uncertainty by paying the proposed reduced company tax (and no dividend withholding tax) if these proposals are enacted.

As always, consult experienced tax advisers in each country at an early stage in specific cases.

leon@hcat.co

Leon Harris is a certified public accountant and tax specialist at Harris Consulting & Tax Ltd.

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