3. kpmg israel presentation

1.Luxembourg tax opportunities for ICT

Franois Petit, Tax Manager, Commerce & Industry, KPMG

KPMG Luxembourg voted2010Leading Tax planning & Tax transactional Firm in Luxembourg International Tax Review, 2010

KPMG in Luxembourg delivers a full tax service to their many local and international clients.Some of their specialists are held in the highest regard by their peers and other market observers.

Pragmatic approach of Luxembourg tax authorities in enacting domestic tax laws in favour of cross border investment streams (holding, financing, real estate, IP, trading, etc.)and high value added functions (IP management, distribution, entrepreneurial functions, etc).

Very tax efficient vehicles (e.g. fully taxable SOPARFI, securitization vehicles, SICAR, SIF, SPF, etc.): if properly structured, no or minimum taxation in Luxembourg

Good treaty network (57 treaties in force and currently 17treaties signed/ in negotiation)

Tax agreement system available to secure tax treatment (very prompt and flexible tax authorities)

As a general rule, no withholding tax on royalties, interest payments and liquidation proceeds

Luxembourg participation exemption

Easy partial / full exit or refinancing strategy - can be structured to be free of withholding tax

Effectivecorporate income taxrate (corporate income tax and municipal business tax): 28.80%.

Net wealth tax: 0.5% annually on the net assets of the company (creditable under certain conditions) exemptions available (see further)

VAT : 3% to 15% rate

No capital duty (abolished effective 1 January 2009).

Tax analysis letter system available to secure tax treatment

Withholding taxes

15% WHT on dividend payments (reduced by double tax treaty 0%, or EU Parent-Subsidiary Directive 0%)

No withholding tax on royalties (apart from certain artistic activity)

No withholding tax on interest payments (withholding tax or exchange of information in case Savings Directive applies)

As from 1 January 2011, specific tax provisions to highly skilled workers relocated in Luxembourg after 31 December 2010 -> exemption of part of highly skilled workers remuneration in relation with their assignment in Luxembourg.

As Luxembourg has concluded a double tax treaty with Israel and provided certain conditions are fulfilled, dividends paid by a Luxembourg company to an Israeli company should not be subject to Luxembourg withholding tax.

IP Tax regime

80% deduction of IP related income

Qualifying IP assets are now exempted from the Net Wealth Tax

No general tax analysis letter published.

Private tax analysis letters only, specific to each taxpayer.

Tax analysis letters are not published as it would be contrary to the private character of such letter and as it is always issued considering the specific situation of a taxpayer.

Not legally binding but followed in practice where no change of the facts presented and no subsequent change in the law.

The tax analysis letters accepted may be relied upon to the extent that:

Full disclosure of the facts in the written request

Purpose to confirm a tax treatment and not to confer an undue advantage

Issued by a competent civil servant

Contains no reservations or limitations

A tax analysis letter may contain limitations such as a time period, reference to particular facts such as the size of the turnover) and may be specific to the facts and circumstances of the taxpayer.

Period of validity: open ended if no stated time period (in such case, an extension can be requested)

Specific cases of application of the Luxembourg participation exemption such as comparable taxation status for the subsidiary, the character of earn-out payment, etc.

Functional currency for tax purposes.

Exit routes (using instruments to avoid withholding tax on profit participation).

Financing margin (transfer pricingstudy requested, except for small financing volume), finance companies, finance branches.

Margin on royalties (documentation requested)

Hybrid financing instruments and hybrid entities

There is actually no limitation as regards the variety of topics.

In a B2B transaction : services should be located where the recipient is established.

In a B2C transaction: services should be located where the supplier is established.

Most services provided for a fee through the internet.

The physical delivery of goods, where the order and processing is done eletronically, does not qualify as electronically supplied services.

VAT advantage for B2C : The lowest VAT rate in the EU (15%).

Conditions to benefit of 15% VAT rate:

Services delivered on the internet,

Involving minimal human intervention,

Internet cannot be used for communication between suppliers & customers,

Internet is only used for the supply itself,

Internet is used as a support for the commercial activity.

Examples:

Supply of digitized products generally,

Supply of music,

Supply of online or offline games,

Supply of games of chance and gambling games,

Supply of images, text and/or information,

Making available of databases,

On-line auction services,

Supply of distance teaching.

The broadcasting of television or radio programs ,

Many potential viewers or listeners

VAT advantage for B2C : Super-reduced VAT rate (3%)

Adults content still to 15%.

Conditions to benefit of 3% VAT rate:

Whatever the mode of transmission used,

Only to public broadcasting,

Regardless of whether the provider has the responsibilityof the content or not,

Applicable to ancillarry operations ,

Applicable to all content except if exclusively aimed at adults.

VAT on Telecommunications services

Services relating to

Transmission, Emission, Reception

Signals, Words, Images, Sounds,Information

Wire , Radio, Optical, Other electromagnetic systems

VAT advantage for B2C : The lowest VAT rate in the EU (15%).

Not subject to VAT if enjoyed outside of the EU.

Goods ordered online

Distance sales rules allow :

A business to charge VAT rate, to a private consumer,at the rate applicable in the country where the business is established, if its sales to other EU countries do not exceedEUR 100,000. Otherwise, it will be required to charge VAT rate, at the rate applicable in the country where the goods are delivered.

E.g. Amazon

Substance condition: the entity to be given the possibility to carry out an econimic activity inan autonomous and permanent way.

80% exemption on net positive royalty AND on net capital gain from certain IP

80% deemed income deduction for self-developed patents

Effective corporate tax rate of 5.76% on qualifying net IP income

Recapture system & anti-abuse provisions

Simple valuation methods for small and medium size businesses

The 6 paragraphs of article 50bis ITC

1. The income received as payment for the use or the granting of the right to use (usage ou la concession de lusage dun droit) any software copyright, patent, trademark or service mark, domain names, design or model, is exempt up to 80 % of its net positive amount.

The net income is the gross income less expenses having a direct economic relationship with the income and includes annual amortizations as well as write-downs if applicable.

2.Where the taxpayer created a patent himself and it is used as part of his business activity, he is entitled to a deduction amounting to 80% of the net positive income that he would have realized if he had authorizedthe use of such right to a third-party.

Net revenue = fictive gross revenue less directly related expenses including annual amortizations and any write-downs.

Deduction is allowed as of the date of the filing of the patent application.

If patent denied, recapture of previously deducted in the operating year of the notice of the denial.

3. The capital-gain derived from the transfer (cession) of the right of software copyrights, patent, trade or service mark, or design or model is exempt up to 80%.

But recapture rule:

The capital gain is taxable up to the algebraic sum of 80% of the net losses (revenus nets ngatifs) derived from the IP rights inboth current and prior accounting periods to the extent net losses have not been compensated by article 50bis 42 (i.e. capitalized on the balance sheet, etc.)

No 80% exemption on assets acquired under articles 53 or 54 ITL.

4. Conditions of the law

41. the right must have been created or acquired after 31 December 2007 and,

42. the expenses, amortizations, and write-downs related to the right must be recorded on the taxpayers balance sheet and shall be included in the profits / loss allocation as from the first fiscal year for which the benefit of this tax regime is applied provided that for a given year, these expenses exceeded the income in relation with the same intellectual property right .

5. Abuse of law provision

IP cannot be acquired from a direct related company.

If either seller / buyer companies are direct owners of each by at least 10%;

If both seller / buyer companies are directly owned 10% or more by same commonparent company

6. Valuation method in case of disposal of IP

Large companies: generally accepted methods (Market Approach, Income Approach, Cost Approach, etc);

Other companies: possibility to determine the market value at 110% of expenses deducted from the taxable basis of the year of disposal and the preceding years. Grand Ducal Decree of16 March 2005.

Background

IsraelCo incorporates LuxCo 1

LuxCo 1incorporates LuxCo 2

IsraelCo transfers IP to LuxCo 2

LuxCo 2 grants a license to EUCo

EUCo pays royalties to LuxCo 2

LuxCo 2 pays dividends to LuxCo 1

LuxCo 1 pays dividends to IsraelCo

Luxembourg tax treatment

80% of Net IP income received by LuxCo 2 is exempt from corporate income tax and municipal business tax

Qualifying IP exempt from net wealth tax

Only 20% of the Net IP income is subject to corporate income taxat the rate of 28,80%, so 5,76% ETR

Dividends paid by LuxCo 2 to LuxCo 1 should notbe subject to withholding taxand said dividends should be tax exemptat the level LuxCo 1

Dividends paid by LuxCo 1 to IsraelCo should not be subject to withholding tax (under certain conditions)

Foreign considerations

Applicable withholding taxon royalties paid by EUCo to LuxCo2

Israeli taxation further to disposal of IP to a Luxembourg entity

Israelitaxation of dividends by IsraelCo

The investors are well informed investors, institutional investors or professional investors.

Taxation is to be analyzed on a case-by-case basis.

The FCP-SIF is in the form of a contractual fund; themanagement company of the FCP-SIF is in the form of a public/private limited liability company.

The FCP-SIF is not liable to corporate income tax, municipal business tax, net wealth tax and contribution to employment fund; the management company of the FCP-SIF is not liable to corporate income tax, municipal business tax, net wealth tax and contribution to employment fund if it manages only the FCP-SIF.

The FCP-SIF is liable to subscription tax of 1 basis point on the net asset value.

The holding company is typically in the form of a public/private limited liability company.

The holding company is liable to corporate income tax, municipal business tax, net wealth tax and contribution to employment fund.

The property company is typically in the form of the equivalent of a public/private limited liability company.

R&D incentives

Since Luxembourg wishes to attract companies developing technologies, the Luxembourg government developed a few financial aid processes for various type of scheme. The aim is to help companies to develop their business in Luxembourg. Financial aid can be granted according to certain conditions. In general, Medium-sized Enterprises (SMEs) and Large-sized Enterprises established in Luxembourg can benefit from these advantages.

Equipment loan provided by SNCI (Socit Nationale de Crdit et dInvestissement).

Franois Petit

Tax Manager

KPMG Tax Luxembourg

T: +352 22 5151 5585

[email protected]

www.kpmg.lu

3. kpmg israel presentation

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