Businesses generally adopt a corporate form, usually as a limited company (Aksjeselskap – AS). A limited company may have only one shareholder, and this shareholder may also be the only employee in the company. The minimum share capital is currently NOK30,000 (approx. EUR3,000). Listed businesses must be organised in the form of a public limited company (Allmennaksjeselskap – ASA), which requires multiple shareholders. Both the AS and the ASA are taxed as separate legal entities.
General partnerships are also used, and require two or more partners. General partnerships are often combined with a limited company, usually with limited companies being the partners. They are also seen in businesses otherwise organised through a personal business, when two or more persons combine resources and interact in conducting a business. A business co-operation involving shared upside and downside may be deemed a partnership for tax purposes, regardless of any formal partnership agreement. Limited partnerships may be used in some cases, but are less common after changes were made in the tax rules. The partnerships are transparent for tax purposes.
Personal business may also be conducted without a corporate form. Personal businesses outweigh the other forms of business in sheer numbers, but the personal business is usually used when there are very few or no employees besides the owner. Some business activities may only take the form of a personal business, including that of farming. A person may transfer their personal business to a fully owned limited company without immediate taxation.
There are also other varieties, but the limited company is most common. Norwegian law does not recognise trusts with the settlor or the settlor’s relatives as beneficiaries. If a trust is used for business purposes – for example, as the top unit owning a group of companies – the settlors will have to abandon their economic interest. A trust is taxed as a separate entity. There are a few such trusts in Norway, controlling fairly sizeable businesses.
The most common transparent entities are general partnerships. They may be used in all types of businesses, but are often used in shipping, and also in service businesses where the personal partners play a significant role, such as law firms. Being transparent entities, partnerships allow for an immediate use of taxable deductions by the partners. Therefore, they are more flexible than limited companies when it comes to the distribution of proceeds.
Limited liability partnerships were popular until a few years ago, when the tax rules were tightened. A limited partner may now only carry forward any tax loss against future income from the partnership, and not use it as a deduction against other taxable income. This made limited liability partnerships less attractive for investment groups. Any proceeds from such investments will normally be exempt from taxation, thus not resulting in any future taxable income.
The determination of the residency of a company or a partnership will depend on its place of effective management. A company registered in Norway will also be resident there, unless its effective management is abroad. Effective management is meant to be understood as in the Double Tax Agreements, which is also stated in the General Tax Act.
The corporate tax rate is 22%. There are reduced rates for shipping, which is taxed under a tonnage tax regime, and increased rates for some financial services (25%, in addition to increased pay roll tax), for upstream activities on the Norwegian Continental shelf (78%) and for the production of hydroelectric power (59% – this does not include wind-generated power).
Dividends from limited companies and distributions from partnerships to an individual are multiplied by a factor of 1.44, and then taxed, resulting in an effective tax rate of 31.68%. This gives a total taxation of 46.7% for the company and owner in total.
Salaries are taxed at a progressive rate, reaching 46.4% from approx. NOK1 million. Income from a personal business is also taxed at a progressive rate, reaching 49.6% from approx. NOK1 million.
Income from a personal business is subject to a slightly higher contribution to the national social security scheme than employees' salaries, thus topping out at a higher rate than salaries and distributions/dividends. However, salaries are subject to a payroll tax of 14.1% (19.1% for some financial services), which is reduced in the rural and northern parts of Norway. In the most northern parts, the payroll tax is 0%.
Taxable profits are calculated according to the General Tax Act on an accruals basis, not according to accounting profits. The most notable differences are the taxation of capital gains from equity investments, which are tax exempt for corporate shareholders, and depreciations of assets, which are calculated according to special tax rules. The values of assets for tax purposes are usually based on initial cost (less accumulated tax depreciation, if applicable), not market value. Unrealised exchange gains on long-term debt and receivables may be deferred, while unrealised exchange losses may be deducted as incurred. Regarding timing issues, the taxation of financial instruments may also differ between accounting and tax purposes.
There are limited incentives for technology investments, but there is a possibility to claim a tax refund – the so-called “Skatte-Funn” (Tax Discovery) – for costs related to development projects approved by the Norwegian Research Council. This is intended to be a direct economic incentive, but is capped at NOK25 million. There is also a wider opportunity to deduct costs related to R&D directly, rather than capitalising such costs.
There are not many special incentives applicable to particular industries: shipping has a tonnage tax regime (see 1.4 Tax Rates); there are some incentives given to wind power through accelerated depreciations; and payroll costs are reduced in the rural and northern parts of Norway. A separate deduction for investments into new entrepreneur businesses was introduced in 2017, but is capped at NOK1 million.
Losses may be carried forward indefinitely, and may be offset against business income, capital gains or other income. There are some limitations when it comes to losses and income from inside/outside the special tax regimes, like the tonnage tax regime and the resource rent regimes on petroleum income and income from hydroelectric power generation. If a business ceases activity, it is possible to carry back losses against the two previous years’ income. A relief of debt (debt forgiveness) will normally reduce a carry forward loss equally, but a conversion of debt into equity (share capital) is not regarded as a relief of debt.
There are limitations on the deductibility of interest, which are applicable to all companies. The present rules include limitations on interest deduction on external debt, but with an escape clause if the Norwegian entities (or the Norwegian part of the group) have a debt/equity ratio similar to the group as a whole. The rules enable fully Norwegian groups to deduct the full interest on external debt, whilst groups with companies outside Norway may not always deduct full interest costs.
There is also a restriction on interest from debt to related parties. Under these rules, interest costs exceeding 25% of EBITDA are not deductible. The EBITDA is calculated on the taxable result.
Neither of the restrictions apply to companies that are subject to Special Tax for petroleum activity (exploration, exploitation and pipeline transportation on the Norwegian Continental Shelf).
Disallowed interest costs may be carried forward and deducted within the 25% of EBITDA in the following ten years.
There is a wide opportunity to consolidate taxable results within the Norwegian part of a group, conditioned upon more than 90% common ownership/control. Consolidation is performed through group contributions, which may be given in any direction and to any Norwegian company within the group. The group contribution is deductible for the contributing company, and taxable for the receiving company. It may also be applied for (to or from) permanent establishments that are taxable to Norway. In some cases, group contributions may also be contributed without a tax consequence, making it possible to refinance companies without using debt or equity from the top company. Based on strict conditions, cross-border group contributions may be allowed if the receiving company is resident within the EU/EEA area and risks losing a carry forward loss. Group contributions may not be applied for income that is subject to Special Petroleum or Hydropower Tax.
There is a wide exemption when it comes to company and partnership taxes on capital gains from equity investments. The participation exemption applies to all investments, in both listed and unlisted companies, also for minority ownership shares. If the ownership share is less than 90%, 3% of received dividends are taxed at a rate of 22%. The participation exemption does not apply to investments in companies that are resident in low-tax jurisdictions outside the EU/EEA area, and it only applies to holdings above 10%, held for more than two years, if resident in normal tax jurisdictions outside the EU/EEA area. There are a few conditions, and investments in company structures that are not familiar to or recognised by Norwegian company law have proved especially challenging. However, investments in other limited companies, also abroad, are almost without exception taxed according to the above stated general rules.
There are no stamp duty or other taxes payable on an equity transaction, but there is stamp duty (2.5%) on real estate transactions. However, most business to business real estate transactions are executed as a sale of shares in a company owning the real estate.
Most local communities in Norway impose real estate taxes, of up to 0.7% of the market value of the real estate. The VAT rate is 25%. There are no other notable taxes, but there are various customs taxes. Norway also tends to tax commodities that are not deemed healthy, including extra taxes on alcohol, tobacco, sugar, petrol, etc.
Most closely held local businesses (fewer than four employees) operate as personal businesses, in non-corporate form, at least when it comes to sheer numbers. Included in this category is a number of farmers and businesses that do not constitute a full-time occupation. However, the government has eased the requirements contained within the company law, in order to make the limited company more attractive for closely held businesses.
The tax rates are set out so that there should not be much tax incentive to transform earnings into corporate income (see also 1.4 Tax Rates). To a large extent, the capital gains taxation of individuals has been increased, giving a combined total tax payable by the company and the individual owner that is quite close to the tax rates on salary. There is some case law concerning whether the company (corporate income) or the owner (salary) is the correct recipient of the payment, but this issue will usually be avoided by entering into agreements that make it clear that the services provided are rendered from the company to the third-party buyer, and do not constitute an employer-employee relationship between the owner and the third-party buyer.
The participation exemption rules were made with the intention of accumulating earnings for reinvestment purposes. The tax authorities have stated that they will not challenge whether a distribution of dividends should (partly) be reclassified as salary, nor any non-distribution, even though the owner performs activities for the company that would otherwise call for remuneration.
The ordinary capital gains taxation applies, bringing the effective tax rate up to 31.68% (see 1.4 Tax Rates).
There are no differences in the taxation of capital gains from closely held corporations or publicly traded corporations. See 3.4 Sales of Shares by Individuals in Closely Held Corporations and 1.4 Tax Rates.
Norway is not part of the EU, but is a part of the EEA Agreement with the EU. Within the EU/EEA area, discrimination on grounds of nationality and restrictions on the freedom of establishment are generally not permitted. A company resident in another EU/EEA country will therefore be treated as a Norwegian company, including no taxation of capital gains from companies resident in Norway.
For individuals and companies outside the EU/EEA, Norway imposes a 25% withholding tax on dividends. A lower rate may follow from a relevant Tax Treaty. There is currently no withholding tax on interest and royalties, but the Ministry of Finance has communicated that it will shortly publish a discussion draft on the introduction of Norwegian withholding tax on interest and royalty and propose new legislation for the Parliament in 2020.
In order to obtain double protection from both the EEA Agreement and the applicable double tax agreement, many investors use companies resident in the EEA area for investments in local corporate stock. Norway, however, does not recognise wholly artificial holding companies.
There is quite a lot of attention in Norway regarding the use and misuse of tax treaties, although there have not been many cases. Norwegian authorities are anxious to see results from the BEPS initiative, including the LOB (Limitation of benefits) and PPT (principle purpose test) introduced to many treaties as a result of BEPS. Norway has ratified the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS (the MLI), which entered into force for Norway on 1 November 2019. The MLI will be effective for withholding taxes from 2020 and for other treaty regulations (eg, permanent establishments) from 2021.
The biggest transfer pricing issues for inbound investors have concerned the use of debt, and whether the interest rate and the debt to equity ratios are at arm’s length. This has not been as important in the last few years, after the introduction of a limitation on the deductibility of interest paid to related parties (see 2.5 Imposed Limits on Deduction of Interest). Transfer pricing issues seem to have taken a turn, and more cases now involve payment for the use and ownership of intangibles, and also the re-evaluation of transactions, including business restructurings.
The Norwegian tax authorities accept the use of related party limited risk distribution arrangements for the sale of goods or the provision of services, but look closely into the actual risks being taken, and the actual remuneration.
The Norwegian arm’s length principle has a direct reference to the OECD standards and, as such, should follow the OECD standards. However, taxpayers and the tax authorities do not always agree on how the OECD standards should be understood, and some may think that the Norwegian authorities are somewhat aggressive in their approach.
Compensating adjustments are normally allowed when a transfer pricing claim is settled. There are special provisions in the tax administration act to make sure that the tax authorities make compensating adjustments. If a unified conclusion can be reached in a mutual agreement procedure (MAP), the conclusion is usually followed. However, reaching a unified conclusion may be difficult, and very few tax treaties to which Norway is a party contain arbitration provisions.
Local branches of non-local corporations are not taxed any differently to local subsidiaries of Norwegian groups. A local branch is taxed according to the same rules as local limited companies, including the participation exemption regarding equity investments. If the branch belongs to a company that is resident within the EU/EEA, the EEA Agreement provides a legal framework protecting against any discrimination towards a branch compared to a local subsidiary. Most tax treaties to which Norway is a party include non-discrimination clauses that will provide a similar type of protection.
Capital gains of non-residents are not taxed. A non-resident might, however, own the stock through a Norwegian branch. The sale of stock in other Norwegian corporations will then potentially be taxable, but the participation exemption will make any capital gains from the sale of stocks in Norwegian companies exempt from Norwegian tax in most cases.
There are no change of control provisions that could trigger tax directly. However, a change of control higher up in the group could indirectly affect the Norwegian entity through a change in which other companies are regarded as related parties.
Formulas are not used as a method of determining income as such, but income made by a foreign-owned local affiliate will typically be compared against other companies in similar businesses/markets in order to seek indications of the improper use of transfer pricing.
The local affiliate needs to justify the payment, with respect to a service or goods having been provided for the benefit of the local affiliate, and that the price for such service or goods is at arm’s length.
There are rules limiting the deductibility of interest paid to a related party. The limitation applies to both internal payments and cross-border payments (see 2.5 Imposed Limits on Deduction of Interest). For companies subject to Special Petroleum Tax, the maximum interest deduction in the Special Tax base is capped as a calculated portion of the written down tax value of the company’s facilities at the end of the year compared to the company’s average interest-bearing debt during the income year. However, this limitation is general and does not only apply to loans from related parties. Hydroelectric power producers are not allowed interest deductions at all in the resource rent tax (37%), but are granted an uplift which is based on a calculated risk-free cost on investments.
Norway imposes a full, global tax liability on resident companies, taxing all income earned inside and outside of Norway. Foreign income is only exempt when a treaty calls for an exemption, with a few exceptions. Income from foreign petroleum exploration and production is tax exempt.
If foreign income is exempt due to either a treaty or the few internal exceptions, neither local nor global-related expenses are deductible.
Dividends from foreign subsidiaries are taxed under the participation exemption scheme. The participation exemption will normally apply to any subsidiary, except subsidiaries in low-tax countries. If capital gains are not exempted, they are taxed at 22%. There are also rules allowing for the underlying tax paid by the subsidiary to be offset against Norwegian taxation of the dividends. With the broad participation exemption, such offset is less practical than before the participation exemption was introduced (in 2004).
A subsidiary in a low tax jurisdiction might be subject to Norwegian CFC taxation. Dividends from a CFC-taxed subsidiary qualify under the participation exemption.
The transfer or use of intangibles developed by a Norwegian entity is subject to an arm’s length remuneration.
Norway has quite strict CFC rules. Income earned by a subsidiary is subject to taxation as if the subsidiary was Norwegian, conditioned upon the subsidiary being controlled or owned more than 50% by Norwegian entities. The entities do not need to be part of the same group.
All income from a non-local branch is taxed according to Norwegian rules. Norway taxes resident companies on their worldwide income, including all income from foreign branches, subject to limitations in any relevant Tax Treaties.
Norway applies a “substance over form doctrine”, from 1 January 2020 based on a statutory GAAR. However, the tax treatment of foreign companies using a corporate form that differs from the forms recognised in Norwegian company law tends to create practical problems.
The sale of shares in non-local affiliates is usually covered by the participation exemption (see 6.3 Taxation on Dividends from Foreign Subsidiaries).
Anti-avoidance provisions include a general anti-avoidance rule developed through case law, a general provision in the General Tax Act aimed at reduced income due to community of interest between parties/companies involved in a transaction, and more specific anti-avoidance rules, including CFC regulations, a provision for limiting use of loss carried forward and other tax positions after reorganisations and business transactions and regulations limiting the deductibility of interest. There is also a special provision applicable to transactions aiming to transfer tax losses carried forward, or similar tax positions, between unrelated parties. In the autumn of 2019, a bill proposal to include a general anti-avoidance rule in the General Tax Act passed the Norwegian Parliament, making some alterations to the previous rule developed by case law effective from 1 January 2020.
The Norwegian tax period is usually January 1st to December 31st. A tax return is due before May 31st in the year following the taxable period. A statement of taxable income is presented to the company mid-October in the year after the year of income. Taxes are due in three instalments during the year following the year of income, with the last instalment, later than October, settling the balance.
Controls and audits may be conducted during the income year and before the tax return is submitted, but audits are usually performed after October in the year following the income year. The company may change its taxable income within three years after the end of the year of income, and the Norwegian Tax Authorities may reassess the taxable income if the taxpayer has been notified of such reassessment within the five years following the year of income. In the event of deliberate tax fraud, the Tax Authorities may reassess within ten years.
Norway is a high tax jurisdiction by tradition, in which inbound investments have made up a large part of the private economy. Furthermore, the general legal system is largely based on a doctrine of “substance over form” compared to many (most) other comparable legal systems. This is also the case with respect to Norwegian tax law. The concept of taxation based on economic substance and reality more than formalities has for a long time been recognised. There is even a separate expression for this in Norwegian: “Taxation based on looking through the formalities” (Norwegian: “Gjennomskjæring”). Hence, despite the fact that most of the transfer pricing legislation is contained in one general section in the General Tax Law 1999, which also includes a reference to the OECD Transfer Pricing Guidelines, many of the BEPS recommendations have been deemed part of Norwegian tax legislation for a long time. To some extent, the recommendations have been used to tighten up the Norwegian tax legislation, but there are also elements that have been inspired by the BEPS recommendations, including the following:
The general governmental attitude towards BEPS in Norway is clearly favourable. This is partly because the Norwegian fiscal authorities welcome international support for principles that have for a long time been either formal legislation or a general position of the authorities. The BEPS recommendations also represent a source of support for even tighter specific regulations related to interest limitations, for example.
International tax has a high public profile in terms of individual histories being presented by the press (eg, “Panama papers” and specific cases), but it is probably fair to say that the general public does not really seem to be very concerned about the concept of international tax, nor challenges related to it. Politically, there is clear attention on issues related to multinationals and the digital economy as a potential threat to the Norwegian tax base.
Norwegian governments (being coalitions either from the conservative/centre side or the labour/left side) do not appear to be that interested in making the Norwegian tax system competitive, beyond trying to avoid it becoming uncompetitive. Accordingly, Norway will remain a high tax jurisdiction with very few tax incentives. The general postulate is “a broad tax base and a low, but not (among) the lowest tax rate”. Consequently, the Norwegian corporate tax rate has been reduced from 28% in 2013 to 22% from 2019.
The tonnage tax system was introduced to avoid the Norwegian shipping industry leaving Norway. This is formally a system with limited duration, but it is difficult to see the system being abolished.
Furthermore, there are time limited depreciation rules for certain investments into wind power generation. Apparently, the Norwegian authorities do not intend these rules to become become permanent.
Presumably, a fair statement is that investments into or from Norway are normally made despite the tax system and not because of it.
Because Norwegian tax legislation and practice is largely based on realities more than formalities, the use of hybrid instruments to achieve tax objectives has probably been limited. The reasoning presented by the BEPS initiative appears to be in line with the general view of the Norwegian tax authorities. Accordingly, legislation stating that dividends are not tax exempted for the shareholder in Norway if the distributing company is entitled to tax deduction for such distribution has already been implemented. In addition, changes in the definition of when a company is resident in Norway have been implemented with effect from 2019, preventing companies from having dual residencies or no residency. It is also expected that the Norwegian authorities will pursue this issue actively when negotiating new or amended double taxation conventions.
Primarily, Norway has a tax system that is based on global income, although there are certain elements that are territorial in scope. Typically, interest costs related to property or activity abroad that is exempted from Norwegian taxation under either domestic legislation or double taxation conventions are not deductible against income subject to Norwegian tax. Allocation rules – or more often principles – are important in this respect, but these rules are not part of the general interest limitation rules referred to under 5.7 Constraints on Related-Party Borrowing and 9.1 Recommended Changes; they are more a result of symmetry and neutrality considerations, which have for a long time been important principles on which the Norwegian tax legislation has been developed. With respect to effects on investments in and from Norway, the interest limitation rules have not had any significant effect on the level of investments, but rather on how they are structured.
Norway has had comprehensive CFC rules for decades. In general, the rules apply if 50% or more of a foreign company is directly or indirectly owned or controlled by Norwegian residents and the company in question is subject to taxes which are less than two thirds of the taxes the company would have been subject to if it was resident in Norway. Hence, the BEPS proposals in this respect represent very little news.
These rules apply regardless of substance in the CFC. Hence, the idea of having a sweeper CFC rule that could make offshore subsidiaries whose profits are taxed at a “low rate” vulnerable to CFC apportionment, regardless of the substance located in a particular jurisdiction, was implemented a long time ago. Finally, based on the concept of “taxation based on looking through the formalities”, CFCs with little or no substance would be vulnerable to Norwegian taxation, as if the company had been resident in Norway. There are examples of case law for this dating back to the early twentieth century.
Due to the general concepts with respect to substance over form (see 9.1 Recommended Changes) and the rather aggressive transfer pricing approach regularly seen from the Norwegian tax authorities, it is difficult to see the BEPS initiatives on double taxation convention limitation of benefit or anti-avoidance rules having any significant impact on taxation in Norway.
As noted previously, it is difficult to see the proposed transfer pricing changes initiating any radical changes in Norway. Norwegian tax authorities already refer to the proposals as being in line with their understanding of the present situation in Norway.
Norway has a long tradition of transparency. In addition, the companies in question have since long been required under the Norwegian tax legislation to report their direct activity abroad. In addition, comprehensive CFC regulations have been in place for a long time, so country-by-country reporting has already been introduced and does not represent anything fundamentally new.
There has been a lot of discussion on this topic in Norway, but very little (if anything) has been presented as firm proposals by the authorities. Partly due to the fact that Norway is a small country with a small but very open economy, Norwegian authorities seem to await EU initiatives and will not implement unilateral rules on this. Many of the issues and problems discussed with respect to digital economy businesses operating largely from outside the Norwegian jurisdiction are not necessarily fundamentally new to a country that has a long history of inbound investments.
See 9.12 Taxation of Digital Economy Businesses.
There are no special provisions dealing with the taxation of offshore intellectual property in particular. Ordinary rules are applied, relying on Norwegian CFC rules and general transfer pricing measures such as the arm's length principle.
There are no further general comments on the BEPS process.