Out-Law Legal Update | 22 Jul 2019 | 5:05 pm | 6 min. read
As the UAE VAT regime begins to settle, taxpayers should understand their rights and the process associated with tax disputes and litigation in the UAE.
Where taxpayers disagree with the Federal Tax Authority the first step is to submit an application for reconsideration. Next an objection can then be submitted to the Tax Disputes Resolution Committee (TRDC). If the tax plus penalties exceeds AED 100,000, an appeal can be made to the Federal Court of Appeal. Taxpayers will need to be supported by experienced UAE litigation lawyers and specialist UAE tax advisers.
Taxpayers across the globe face many challenges in ensuring compliance with VAT law. It becomes even more challenging where taxpayers are not in agreement with the technical interpretation of law and/or the application of penalties by a tax authority. As the UAE VAT regime begins to settle, taxpayers should understand their rights and the process associated with tax disputes and litigation in the UAE.
VAT is a self-assessment tax where taxpayers are required to declare the amount of tax due or refundable for each tax period based on their own assessment of their taxable activities. In certain instances, such as a tax audit, the Federal Tax Authority (FTA) will issue a decision to the taxpayer on the amount of tax and penalties due in respect of a particular transaction or tax period.
It is recommended that taxpayers settle all amounts indicated by the FTA decision within the given time frame. This is the case regardless of whether or not the taxpayer is in agreement with the decision of the FTA, as paying the tax will 'stop the clock' on any time geared penalties.
The taxpayer may choose to submit an 'Application for Reconsideration' directly to the FTA, as long as they:
If the Application for Reconsideration has fulfilled the above requirements, the taxpayer should be notified of the FTAs decision within 25 business days from receipt of the application.
In the event that the taxpayer and the FTA are not able to resolve their dispute by means of the reconsideration process, an objection may be submitted in hardcopy by the taxpayer to the relevant Tax Disputes Resolution Committee (TDRC), all of which are established by means of Ministerial Decision.
The relevant TDRC for each taxpayer shall be determined based on the address which the taxpayer registered with the FTA, as follows:
The conditions for submitting an objection to the relevant TDRC against a decision by the FTA are as follows:
The relevant TDRC should notify the taxpayer of its decision within 25 business days (maximum extended period of 45 business days).
If the objected tax plus penalties is AED100,000 or less the TDRC decision is final and it cannot be challenged in court. A Deemed Writ of Execution gives the FTA the ability to collect the outstanding amount (tax debt) in cash, assets, property, etc.
If the objected tax plus penalties exceeds AED100,000, the TDRC decision may be challenged by the taxpayer or the FTA at the Federal Court of Appeal. An appeal must be submitted to Federal Court of Appeal within 20 business days of the date of the TDRC decision. If the appeal is not submitted within the timeframe or no appeal is submitted at all, the TDRC decision becomes final/enforceable by the FTA.
It will take some time to identify whether the above TDRC timelines and procedures are followed strictly in the region, or whether additional 'extensions' will be granted for the taxpayer or the TDRC to submit a request for 'objection' or provide a response.
The Competent Court to which appeals of TDRC decisions can be made by either the taxpayer or the FTA is now the Federal Court of First Instance which will decide TDRC tax appeals.
In most cases it is anticipated the court will appoint an expert or experts with specialist tax experience to assist in evaluating the merits of the appeal. If either party wishes to appeal the decision of the Court of First Instance then they will have an automatic right to refer the case to the Federal Court of Appeal in the usual manner with civil cases.
While, in theory, the appeal process through the courts could be relatively swift and inexpensive, in practice it could take 12 months or more if cases progress to appeal which would increase costs.
Having regard to the technical and procedural steps involved it is important taxpayers wishing to appeal TDRC decisions are supported by experienced litigation lawyers and specialist tax advice.
Tax disputes may occur when arising in a contractual context between two or more stakeholders and concerning the correct tax treatment and obligations in accordance with tax law, where the TDRC is not involved.
In this instance, a party will need to begin a civil claim in the Courts of First Instance in the relevant Emirate where the cases will progress along more traditional lines, but court-appointed experts with tax expertise will routinely be appointed and parties will also need to be prepared and have specialist tax support as well as the help of litigation lawyers.
In such contractual tax disputes there will also be the possibility of appealing decisions to the Court of Appeal, which could include the specialist department established by Ministerial Decision No 225238/2019, and ultimately the Court of Cassation.
For all settlements of tax and penalties made to the FTA, the following payment methods are available to the taxpayer:
A local bank account is required in order to receive refunds of tax or penalties overpaid.
Key stakeholders in the tax disputes process will be:
tax agent: acts on behalf of a taxpayer with the local tax authority and TDRC to prepare/file Applications for Reconsideration, Objections of decisions, etc.
tax disputes and litigation lawyer: represents the taxpayer in the relevant court in defending the taxpayer's position on the interpretation of law and application of penalties, with support from tax experts.
tax advisers: performs detailed technical analysis of the interpretation and application of the UAE tax law on behalf of taxpayers and as specialist tax experts for UAE litigation lawyers.
Since the beginning of the year many taxpayers in the region across a broad range of industry sectors have experienced technical decisions being issued by the FTA, together with the application of penalties. For some, this has resulted in higher than expected VAT costs in their supply chain which is affecting their profits.
Depending on the tax governance strategy of a taxpayer, they may or may not have the appetite to formally disagree with a decision of the FTA in regards to tax and penalties due.
Although the UAE tax disputes and litigation process is at an early stage in its development, it is likely to progress at a quick pace, with precedence being developed. In time, it should give taxpayers more comfort on the consistent interpretation of law and the reasonable application of the penalty regime in the region.