EY - Doing business in Kazakhstan

Doing business in Kazakhstan

An introductory guide to tax and legal issues

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Kazakhstan offers many opportunities, and encouraging foreign investment in the main sectors of the economy is a key priority for the country.

In this guide we provide some useful practical advice on the legal and tax issues that face investors starting and building a business in Kazakhstan.

We hope that it will help investors to avoid common pitfalls and give an overview of matters where some forethought and planning will enable future problems to be avoided.

Top 10 tax and legal tips

We set out the top tax and legal tips that investors should be aware of.

Tax tips

1 Tax laws in Kazakhstan have changed regularly in recent years. It is therefore important that tax planning be robust, i.e., it can cope with changes in tax law and can be restructured without significant tax costs.
2 Corporate and individual income tax rates in Kazakhstan are low by international standards. However, penalties for non-payment and non-reporting, whether intentional or not, are high. The first focus of tax planning in Kazakhstan should be to ensure that all tax that ought to be paid in Kazakhstan is paid and reported.
3 The scope of withholding taxes on cross-border payments is wide and rates are high. However, Kazakhstan has concluded tax treaties with many counties and it is possible therefore that withholding taxes can be reduced or avoided if transactions are arranged with such treaty countries and the payer has all of the necessary documentation in place. Otherwise tax will be withheld, and getting a refund may be an uncertain process. Moreover, Kazakhstan has a unique position in regard to transfer pricing: transfer pricing control potentially applies to all cross-border transactions regardless of whether the parties are in any way related or not.
4 There are many downsides to dealing with tax havens when structuring cross-border investments or transactions in Kazakhstan. Thus, tax havens should not usually form part of tax planning in Kazakhstan.
5 The rules for determining whether a taxable presence for corporate income tax (CIT) in Kazakhstan (a “permanent establishment”) exists for a business dealing with Kazakhstan are very wide and can apply to whole groups of companies collectively if their total presence exceeds six months in country.
6 The rules for determining whether a taxable presence exists for VAT are independent of the rules for CIT, and the penalties for breaches can be draconian. Never forget to consider VAT separately when thinking about whether you have a taxable presence in Kazakhstan.
7 For financing investments, there is a basic 4 to 1 debt equity ratio (7 to 1 for banks). An investor will at best pay 10% WHT on cross-border interest (based on a double tax treaty) and get at best a CIT deduction at 20%, while accrued interest expense may be deducted only when paid. Furthermore, exchange gains and losses on loans are recognized for tax purposes.
8 There is a safe harbor that would avoid a deemed taxable presence for an entity that seconds staff to work in Kazakhstan. Provided the arrangements are properly structured, this is likely to be more tax-efficient than using the same staff to provide consultancy or other services.
9 Branch profit tax applies to all permanent establishments of foreign legal entities at a general rate of 15%. It is usually reduced by tax treaties. There is an equivalent tax on dividends at the same general rate and also reduced by treaties. In the case of dividends the rate is zero after the investment has been held for three years.
10 Exemption from capital gains tax on exiting from an investment in Kazakhstan may in many cases be achieved, provided that the correct structuring is used when the investment is first made. How onerous the structuring would be depends on the nature of the asset.

Legal tips

1 Most investors use a Kazakhstan limited liability partnership (LLP) as their investment vehicle.
2 Settlements between residents of Kazakhstan (Kazakh legal entities and citizens) must be performed in Kazakh tenge. Settlements between nonresidents (foreign legal entities and citizens) and Kazakh residents may generally be performed in any currency.
3 The range of business and professional activities that require a license is very broad and it is important for investors to determine whether they need a license beforehand. The penalties for not having licenses can be significant.
4 Obtaining work permits is a rather sophisticated process. Thus, it is important to plan this process well in advance.
5 Using “brass plate” legal addresses is not sufficient in practice. The authorities will expect an investor to have some presence at its registered legal address in Kazakhstan.
6 Kazakhstan is very formalistic in many aspects. In most cases, a company’s representatives should have power of attorney for their actions and will regularly be required to refer to it, for example when signing contracts.
7 Local content is very important for mining and oil and gas companies and their subcontractors, and is constantly being monitored by the state authorities.
8 Kazakh is the state language of Kazakhstan. Russian is an official language and also may be used equally with Kazakh. English is not recognized as a legal language for official purposes. Thus, English documents will need to be translated. Where necessary, translations must be notarized.
9 For commercial contracts Kazakhstan does, generally, permit the use of foreign law as the governing one, except for subsoil use contracts with the state and foundation agreements of a Kazakh legal entity and agreements on transfer of participation shares in such a legal entity.
10 International arbitration is not usually available for contracts between Kazakh legal entities.