Private Wealth 2021

Last Updated August 12, 2021

Ukraine

Law and Practice

Authors



Vasil Kisil & Partners is one of the leading Ukrainian law firms and has been advising and representing clients in the most complex and challenging transactions and disputes for nearly two decades. The firm is a team of 65 highly qualified and experienced lawyers specialising in various spheres of legal practice. Vasil Kisil & Partners is the first multidisciplinary law firm in the Ukrainian market to create a dedicated private clients practice. It also specialises in contentious matters related to conflicts in the area of family relations. Clients are advised on all aspects of family law, including family disputes, and the practice also handles inheritance disputes and drafts wills. A significant part of the firm's work is dedicated to legal support of prenuptial and postnuptial contracts and cohabitation contracts. In addition, it represents HNWI in matters of international capital structuring, as well as domestic and international tax planning and asset protection.

Personal Income Tax

Ukraine levies all personal income of an individual at a single tax rate of 18%, irrespective of the volume of income. Personal income tax (PIT) also covers passive income, such as interest, royalties and dividends, in the latter case the rate is lower.

Tax Base and Exemptions

The tax base is the overall income of an individual, save for some state, social, charity and similar payments. Notably, the interest and sale proceeds from state bonds, which are a popular investment in Ukraine, are not taxed. Insurance payments are also largely free from taxation.

Expenses are generally not deductible, save for those associated with the disabled and other protected categories. Some relevant exemptions include loan interest secured by a residential mortgage, payments for education in Ukraine, contributions for insurance and non-governmental pensions.

Dividends

Dividends from Ukrainian entities are taxed at 5% PIT. Dividends from foreign entities are taxed at 9% PIT. Dividends on preferential shares are taxed as a salary, that is at the general 18% PIT rate. We note that distributions from trusts and other similar formations, which are not legal entities, have not been recognised as dividends in Ukraine, and are thus taxed at the full 18% PIT rate.

Investment Profit

Proceeds from sale of shares and other securities as well as corporate rights not represented by shares are allowed for deduction based on the amount of expense involved in their acquisition. Only the resulting profit is taxed. The general 18% PIT rate applies.

Real Estate

First sale of a residential property as well as a land plot within certain areas during a calendar year is not taxed, provided that property has remained in the ownership of a natural person for over three years or was inherited. A reduced 5% PIT rate applies to all other sales by Ukrainian residents. Non-residents shall pay 18% PIT starting from the second sale.

Movable Assets

Proceeds from sale of moveable assets, other than cars and motorbikes, are generally taxed at 5% PIT for Ukrainian residents and 18% PIT for non-residents.

First sale of a car or motorbike during a calendar year is not taxed. Reduced 5% PIT applies to the second sale by Ukrainian residents and 18% PIT to the third and all further sales. Non-residents shall pay 18% PIT starting from the second sale.

Gifts and Inheritance

Gifts and inheritance between close family members are not taxed. Close family members are spouses, parents and grandparents, brothers and sisters, children and grandchildren. Gifts and inheritance between any other persons are taxed at 5% PIT. Gifts and inheritance between residents and non-residents are taxed at 18% PIT, irrespective whether they are close family members or not.

Military Contribution

A 1.5% military contribution (MC) is due each time that PIT is due, irrespective of the PIT rate.

Unified Tax

Instead of paying PIT, MC and certain other taxes, private entrepreneurs may choose a simplified approach to taxation and pay unified tax (UT) only.

Private entrepreneurs, who have no employees, are engaged in retail or consumer services, and earn less than UAH1 million annually may pay UAH220 monthly UT.

Private entrepreneurs rendering services to individuals or other UT payers, producing or selling goods, or being engaged in restaurant activities, who have ten employees or less and earn less than UAH3.8 million annually may pay UAH1200 monthly UT.

Private entrepreneurs irrespective of the number of their employees, who earn less than UAH7 million annually may pay 5% UT on their income. They may choose 3% UT if they decide to also pay value-added tax. This is one of the most popular options for IT specialists, freelancers and other self-employed persons with material annual income.

Farmers, who have no employees other than their family members and operate between two and 20 hectares of land may enjoy the UT calculated as some percentage of the value of their land.

Prosperity Taxes

Taxes apply to land, real property and luxury cars. Given the current thresholds for these taxes, not only high net worth individuals (HNWI) pay them, but almost everybody, who has:

  • an apartment over 60 square metres or a house over 120 square metres or a combination of them over 180 square metres in total;
  • an up to five-year-old car valued at over UAH2.25 million; or
  • any land plot.

The tax rates vary between municipalities and, in general, are not very high.

Venture Funds

Although Ukraine, being a continental law jurisdiction, does not provide for trusts or foundations, it is possible to structure large private investments through mutual investment funds. They are heavily regulated financial institutions, which entail USD 3,000–4,000 thousand in monthly maintenance expenses. However, such funds are entirely released from the 18% corporate profit tax, which savings may cover the above expenses starting from some level of profitability. The funds may (i) invest in real estate and securities (including shares and other corporate rights, bonds and other debt securities); (ii) extend loans and collect interest; and (iii) perform some other investment activities. Any business activity may be structured through a legal entity, and the fund may own its shares, extend financing and do the tax planning. On distribution of dividends from such fund an individual would pay 9% PIT and regular MC, which should also be considered when calculating the financial effectiveness of the fund.

Ongoing Reforms

One effect of Ukraine being a comparatively young country is that its laws do change from time to time. The progressive PIT rate (10%, 20%, 35% then 50%) set in the early 90s was first substituted by a single 13% rate in 2004, later increased to 15% from 2007. Then, in 2011, the new Tax Code again reintroduced progressive rates (15% to 17%, further changed to 15% to 20% from 2015) and finally, from 2016, a single rate of 18% was introduced again. This is the currently effective rate, thus making it equal with corporate profit tax.

Other sensitive changes in private taxes over the past years have involved:

  • introducing the property tax from 2011, which, however, remained ineffective until the Property Rights Register was updated in 2013;
  • introducing the MC in 2014;
  • introducing the transport tax in 2015; and
  • cancelling, in 2015, the reduced PIT rate on passive income, primarily, interest on deposits.

The government is currently considering further tightening the prosperity tax burden on the one hand, but fully releasing interest on deposits from taxation on the other. The MC is also a temporary tax by nature, which shall end once Ukrainian Army reform is accomplished. This goal, however, does not seem likely to be achieved soon.

Other Pitfalls

The Ukrainian tax system remains largely attractive given that in absolute figures the taxes, other than the PIT, remain low. The current PIT rate is comparable and even less than in neighbouring countries, not speaking of the potential places that Ukrainian HNWI might move. What indeed makes Ukrainians seek better places for their wealth is:

  • the generally low level of private property protection, including possible leakages of sensitive estate information allowing its further misuse or misinterpretation;
  • the impunity of state officers for business disruption and interference in private lives;
  • the poor enforceability of court rulings;
  • undeveloped financial, securities and other markets, as well as complicated access to international markets from Ukraine; and
  • local currency and general economic stability risks.

COVID-19

In response to the economic impact of COVID-19, the Ukrainian government has offered only minor compensations to small businesses, which, however, would not affect bigger estates or tax planning in general.

Global Reporting

Ukraine has ratified the Foreign Account Tax Compliance Act (FATCA) and already introduced its relevant provisions into local banking and other relevant regulations. Ukraine is not an EU member and thus not a party to DAC6. Ukraine has not implemented the OECD's Common Reporting Standard (CRS) yet.

СFС

Ukraine is currently introducing its controlled foreign companies' (CFC) regulations. It is a brand-new approach for the national tax system, for which reason it has been postponed till 2022 and might be postponed once again. The general idea is to tax in Ukraine the profits of foreign companies, whose beneficiaries are Ukrainian tax residents.

Ukraine would first require all beneficiaries to declare their interests in the CFCs, including trusts, foundations and similar. The company is controlled when a beneficiary directly or through other entities possesses over 50% interest in it, or possesses over 10% interest, but Ukrainian residents altogether possess over 50% interest, or actually controls it through nominees or otherwise.

Declaring the foreign assets by itself might raise issues with the origin of wealth and previous taxation. For this purpose, the Ukrainian parliament is now elaborating a tax amnesty law to mitigate the effect of such disclosure. Another option, already available, is zero-PIT liquidation of CFCs with transfer of assets to private accounts.

CFC reports should enclose certified financial statements.

A beneficiary should include a CFC's profit into their PIT return and apply a regular 18% rate to it, unless one of the following applies.

  • The overall income of all CFCs remains within EUR2 million.
  • The CFC is a publicly listed entity.
  • Simultaneously:
    1. there is a double-tax treaty between Ukraine and the CFC's jurisdiction; and
    2. the CFC effectively pays at least 13% corporate tax or its passive income remains within 50% of its gross income.

Naturally, the beneficiary may withdraw the profits from CFC – for example, as dividends – and pay only 9% PIT on them.

In Ukraine, last wills (testaments) are still not popular among older generations. This may be explained by mistrust of the government and notaries, unwillingness to think about upcoming death, lack of money for notary fees, and the fact the younger generation (in particular, children of the testator) belong to the first line of heirs and will anyway inherit the property.

However, Ukrainian legislation evolves and provides for many types of last wills as succession planning tools. There are wills with conditions, joint wills of spouses, secret wills, succession agreements, etc.

It is noticeable that testators who possess significant estates, foreign moveable or immoveable property, or business assets tend to make a last will to guarantee full and smooth transfer of the legacy.

Nowadays, testators possessing property and businesses in multiple jurisdictions tend to make a last will (testament). In such a will the testator may choose the applicable law and thus the most "comfortable" jurisdiction with respect to taxes and rules of inheritance.

However, such freedom of choosing applicable law is limited: the testator may opt for either the law of their nationality (lex patriae) or the law where the property is situated (lex rei sitae). Otherwise, such testament will be invalid, and the inheritance relations are to be governed by the law of the testator’s last residence (lex domicilii).

Ukrainian legislation protects several categories of heirs including minor children, adult disabled children, disabled widowers/widows, and disabled parents. They fall under the forced heirship rules. Such heirs are entitled to receive the assets of a deceased person regardless of the provisions of the testament.

Herewith, in Ukraine, there is no legal way for avoiding the application of forced heirship laws. Neither a last will nor a succession agreement will be an effective tool. Moreover, Ukraine does not recognise the concept of trusts, foundations or similar entities.

Presumption of Common Joint Property and Alternatives

In Ukraine property gained in wedlock is considered as the common property of the spouses. The matrimonial community property regime may cover any type of asset, such as real estate, vehicles, company shares, securities, salary, pension and other income and savings in cash or in bank accounts, antiques, private collections, goods for a professional occupation, and household goods. It also concerns income resulting from a contract concluded by only one of the spouses but made in the family interest.

However, the following types of property do not fall into the joint status and constitute personal (private) property of each spouse:

  • assets acquired before the marriage;
  • assets acquired during marriage but as a gift;
  • inherited assets;
  • assets acquired during the marriage at own expense (private income or savings);
  • personal belongings, including jewellery;
  • property acquired through privatisation;
  • prizes, awards received for personal merit (with some exceptions);
  • compensation for the loss (damage) of private assets;
  • compensation for moral damage;
  • insurance amounts received under compulsory or voluntary insurance;
  • income and dividends received from private assets;
  • assets acquired during the separation of spouses due to the actual termination of their marital relations; and
  • assets acquired by spouses at joint and own costs in proportion to the amount of spent own costs.

Disposal of Marital Property

In Ukraine, the spouses are equal in their rights to administer their joint matrimonial property. There is a presumption that the spouses dispose of their common assets under mutual consent. If one spouse disposes of joint immovable property, vehicles and other valuable assets by sole authority, there must be written consent of the other spouse thereto. If a disposal contract is subject to notarisation, a non-contracting spouse has to sign their consent before a notary (Article 65 of the Family Code of Ukraine). Otherwise, the court may recognise the contract invalid or oblige the contracting spouse to reimburse their spouse for 50% of the market value of the disposed common property.

Prenuptial and Postnuptial Agreements

The spouses are free to vary the above statutory matrimonial property regime in their marital deed (prenuptial or postnuptial contract). The key point is that the deed must not cause an extremely unfavourable financial state to one of the spouses. To be valid a marital agreement should be duly notarised.

Apart from ordinary taxes, any transfer of property entails 1% state duty, 1% pension fund contribution and UAH5,000 in notarial expenses.

Given there is no inheritance tax for close family members, no specific vehicles or planning mechanisms are practically utilised in Ukraine to help transfer assets to younger generations free of tax. Cost-saving strategies might include transfer of assets to legal entities with subsequent inheritance of one block of shares instead of various separate assets. Alternatively, the elder generation may voluntarily transfer their assets to a younger generation during their lifetime.

Ukraine has not introduced any specific regulation of digital assets yet. For that reason, the legal doctrine treats them in the same way as any other moveable asset, including for the purposes of succession.

Ukraine has no trusts, foundations or similar entities. Foreign vehicles may be used when properly structured. In such cases they are governed by the laws of their jurisdiction.

Ukraine is a continental law jurisdiction and provides only for companies and some other types of legal entities, although not trusts. Some Ukrainian regulations mention trusts, but mostly in relation to the establishment of beneficiaries for the purposes of AML and CFC taxation purposes.

Despite trusts, foundations and similar structures not being provided for by Ukrainian laws, Ukrainian residents may act as beneficiaries, settlors or even fiduciary managers.

Acting as settlor does not entail any tax consequences in Ukraine since passing assets to the trust, foundation or similar would be treated as their alienation without payment, thus, there is no tax base for the settlor. However, the trust, foundation or similar might be considered as a CFC of the settlor, which would entail taxation of their profits at the settlor's level. This should not apply to fully discretional irrevocable structures, which approach, however, requires further practical elaboration.

The beneficiaries are not considered as recipients of the assets put in such structures, since they do not acquire any ownership of the assets directly. They neither receive any shares nor other interests therein, which might be capable of being considered as assets for the purposes of Ukrainian taxation. The beneficiaries would only be exposed to taxes on any receivables from the structure or on its profits in those rare cases when the structure might be considered as the beneficiaries' CFC.

Ukrainian residents acting as fiduciary managers might be exposed in two ways.

  • If the structure is not a legal entity and all its assets are registered in the name of the fiduciary, that fiduciary might be treated as having gained such assets and be required to pay taxes on their market value.
  • The structure might be considered as the fiduciary's CFC since the fiduciary usually exercises many powers qualifying as control under Ukrainian tax laws, such as:
    1. asset management, including their alienation;
    2. giving mandatory instructions to the structure's other management;
    3. negotiating the transactions;
    4. acting under formal power of attorney;
    5. managing bank accounts; and
    6. mentioning the fiduciary as beneficiary of the bank accounts at their opening.

There are no trusts, foundations or similar entities in Ukraine.

Historically, the most popular method of asset protection was a foreign legal entity. Both businesspersons and private individuals used offshore structures to hold their corporate and real assets, trade securities, keep funds, receive and make payments, etc. With the development of CFC regulations, some people are thinking of moving their holdings to Ukraine or changing their tax residency to avoid having to do so. Venture funds have become increasingly popular.

One of the possible family business succession planning strategies is to bequeath all or part of the shares in the business to one or more heirs under a last will and to appoint a testament executor.

In Ukraine, to inherit, business successors of the testator need only apply for the inheritance certificate and then re-register the company(ies) in the Ukrainian State Register. This means that the consent of other company members is not required.

Though this procedure seems to be simple, there is another issue: subject to the law, heirs may enjoy inherited rights and obligations only upon the termination of six months from the death of the testator. That means that a company once owned and governed by a single person-testator may end up in deadlock (left without management for such a long period and, therefore, almost certainly doomed to bankruptcy).

Thus, the said appointment of the testament executer reduces the risk of losing the business and preserves it for the heirs.

When a partial interest in an entity is transferred, during the owner's lifetime or at their death, the fair market value of the interest is not usually adjusted to reflect a discount for lack of marketability and control for transfer tax purposes. Moreover, in practice in many cases the value of the transfer is considered at par value of the interest and not at its market value. This usually entails no taxable investment profit.

The greater part of wealth disputes in Ukraine are focused on the division of common joint property between the spouses during their divorce.

Resolution of such disputes may take two forms.

  • Contractual – the spouses are entitled to conclude a nuptial agreement and specify the legal regime of the marital assets or to sign an amicable contract on the division of the property acquired within the marriage. This form is preferable since it satisfies both parties and saves costs and time.
  • Judicial – if the spouses are unable to divide their property voluntarily and upon mutual consent, they are entitled to file a lawsuit. Unfortunately, even though they are time and cost-consuming, such judicial proceedings are still a leading trend among estate disputes.

In the case of judicial division of common property, spouses’ shares are deemed to be equal, unless otherwise agreed by them in a prenuptial or nuptial contract (Article 70 (1) of the Family Code of Ukraine). But, in some cases, a Ukrainian court may disregard this principle of equality in considering the actual circumstances of marital life.

For instance, if during the marriage the value of personal property items of one spouse has substantially increased as a result of joint labour and/or financial efforts or efforts made by the other spouse, the court may deem such property as joint matrimonial property. Also, if during the marriage one spouse has contributed by finance or labour to keeping or managing personal property objects of the other spouse, the Ukrainian court can consider the income generated by such objects as common. But in practice, deviation from the 50:50 rule is minimal.

The deviation is also possible if a spouse has maliciously avoided providing material support to the family or maintenance to a child; or has destroyed or damaged common property or disposed of it to the detriment of family interests.

Moreover, the court may increase the property share of one spouse if they take care of a minor or an adult disabled child. But this is possible only if the alimony payments are insufficient for child development and treatment.

Following the judicial liquidation of the matrimonial regime, the court may assign the ideal 50:50 spouses’ shares in each item of matrimonial assets or divide the assets in kind. Usually, it depends on the stated claims. Herewith, if marital assets cannot be divided equally according to their value, the court adjudges money compensation.

As for the debts incurred by one of the spouses during their marital life, both spouses are not automatically deemed as joint debtors in this case. They are considered liable towards a third-party creditor only if the debt was taken in family interests and the received benefits were used for the family's needs. This must be proven before the judge and the burden of proof lies on a person claiming their spouse to be a joint debtor. In this case, the consent of the other spouse to the debt is taken into account, but it is not mandatory.

Trusts, foundations or other similar entities are not recognised in Ukraine.

Spouses may provide for compensation of an aggrieved party in wealth disputes in their nuptial contract. If there is no such contract or it contains no respective provisions, rights and obligations arising from causing damages are governed by civil law.

As a rule, an aggrieved individual has the right to compensation for damages. The concept of damages includes:

  • actual losses that an individual has already experienced due to destruction or impairment of their property, plus expenditures on the restoration of violated rights; and
  • loss of profit, which a person would have received in normal circumstances if the property had not been damaged.

However, aggrieved parties must present strong evidence to substantiate their claims and the damages to be compensated. The decision as to whether the party has in fact born damages and the final compensation level depends upon the court.

Trusts, foundations or other similar entities are not recognised in Ukraine.

Trusts, foundations or other similar entities are not available in Ukraine.

Corporate fiduciaries in structures used by Ukrainians are usually prevalent due to the higher level of their responsibility and the succession of such responsibility despite a change in individual officers. Ukrainians sometimes even choose to control corporate fiduciaries through shares to be safe with regard to the assets they manage.

Corporate fiduciaries are mandatory for Ukrainian venture funds.

Trusts, foundations or other similar entities are not available in Ukraine.

Ukrainian venture fund managers are not usually liable for the obligations of the funds they manage. However, they are always liable for any breach of laws, by-laws, issuance prospectus, investment declarations, or asset management agreements as well as for exceeding their authority thereunder. The fund manager should create and maintain a reserve fund backing such liability.

Trusts, foundations or other similar entities are not available in Ukraine.

The investment activity of Ukrainian venture fund managers is heavily regulated by the laws, fund by-laws, issuance prospectus, investment declarations and asset management agreement. In brief, there are several types of fund, differing largely in terms of the freedom of their operations:

  • diversified funds, which should invest only in deposits, public or listed securities and observe the thresholds for each investment;
  • non-diversified funds, which do not qualify as any other fund, although the types of investments for all funds are still predefined by laws;
  • specialised funds, which invest only in one type of asset (eg, cash markets, state securities, bonds, stock, or bank metals); and
  • qualified funds, which invest only in one class of assets (eg, securities, real estate, rented assets, loans, or listed commodities).

Trusts, foundations or other similar entities are not available in Ukraine.

Ukrainian venture fund managers usually closely co-operate with their beneficiaries to co-ordinate their investment policies. Most of the funds are held privately by the beneficiaries. Funds open to the public are rather rare. They are run by reputable financial institutions who set their own investment policies.

Citizenship in Ukraine

A Ukrainian citizen is a person holding a Ukrainian national passport. Usually, a person acquires Ukrainian citizenship at birth or under a direct application therefor.

Residency in Ukraine

A Ukrainian tax resident is an individual who has a permanent place of living in Ukraine, that is:

  • a person who stays in Ukraine for at least 183 days within a year; or
  • a person who has a close personal or economic connection to Ukraine and for whom it is the centre of their life interests (ie, the place of residence of family members or business location).

Domicile in Ukraine

The domicile of a person is a building, apartment, or other accommodation in the respective locality where that person lives permanently, predominantly, or temporarily. A person above 14 may freely choose their domicile. However, citizens of Ukraine as well as foreigners or stateless persons who live in Ukraine permanently or temporarily are obliged to register their domicile within 30 days upon the arrival in the new place of residence.

Usually, a person acquires Ukrainian citizenship at birth. In general, to apply for Ukrainian citizenship an individual must meet six general requirements:

  • compliance with the Constitution of Ukraine and Ukrainian laws;
  • knowledge of the Ukrainian language;
  • possession of legal sources for living;
  • submission of a declaration on the absence or renunciation of another citizenship;
  • obtaining permission for immigration; and
  • permanent residence on the territory of Ukraine for five years.

Expeditious ways to obtain Ukrainian citizenship are accessible solely to three categories of people: (i) those married to a citizen of Ukraine, (ii) those who have obtained the status of a refugee or asylum in Ukraine, and (iii) those who have served in the Military Forces of Ukraine. The sole difference in the requirements is the time of permanent residence on the territory of Ukraine required from such categories: two, three, and three years, respectively.

There are no special planning mechanisms for minors or adults with disabilities (special needs trusts) in Ukraine.

Parents willing to financially secure their children may open a bank deposit in the name of the latter with or without a particular designation (such as education or medical treatment). The sum on that account becomes accessible to a child upon reaching the age of legal majority. However, this option is a rare tool beyond the framework of succession laws.

Tutorship and Guardianship of Minors

Custody or guardianship is established over minors under 14 and under 18, respectively, either through a tutorship and guardianship agency (administrative procedure) or sometimes by the court (judicial procedure). In major cases, an individual who wishes to become a custodian or guardian is required to submit an application and related documents to the local tutorship and guardianship agency (child service). This state authority is responsible for establishing such custody and then carrying out control over the child’s living conditions, care, education, disposal of the child’s property, as well as over a custodian or guardian’s actions and their ability to meet child’s interests.

Additional legal mechanisms aimed at protecting the rights of orphans or children left without parental care are the following: patronage (temporary care over the child), foster family (a family or a person taking care of one to four foster minor children), and family-type children’s homes (a family or a person taking care of more than five minor children). Each of them requires solely the administrative procedure of appointment and further control.

Tutorship and Guardianship of Adults with Disabilities

Appointing of a tutor or a guardian for an adult strictly requires a court authorisation. Only the court may limit or deprive an individual of their legal capacity. Likewise, the court has powers to renew legal capacity and thus waive tutorship or guardianship.

At the same time the tutorship and guardianship agency may exercise further control over individuals appointed as tutors or guardians.

No actions have been taken in order to help families and individuals prepare financially for longer lives in Ukraine.

Children Born out of Wedlock

Under the Constitution of Ukraine, children are equal in their rights regardless of their origins and whether born in or out of wedlock. Therefore, the marriage or simple cohabitation of parents does not affect child-parental relationships, rights and obligations including the child's capacity to inherit.

In particular, children, including those conceived during the testator's life but born after his death, belong to the first line of heirs.

Thus, children born out of wedlock have the same rights as other children and are still the issue of their birth parents. If a father is not listed on the child’s birth certificate, he is entitled to take legal action and be legally recognised as the child’s parent to fully enjoy his parental rights and obligations.

Adopted Children

Adoption is considered as taking a child into the adopter’s family as a daughter or a son. The adopter becomes a fully-fledged parent with all rights and obligations with respect to children and vice versa – an adopted child has moral and material rights and obligations to the adopter.

Therefore, upon adoption, adopted children become the issue of their legal adoptive parents.

The adoption also implies the right of adoptive parents and adopted children to inherit after each other on a general basis.

Surrogate Children

Surrogate children are the sole issue of their legal parents who have applied for assisted reproductive technologies and are then recorded in the child’s birth certificate. For that purpose, legal parents should present the consent of the surrogate mother for such recording as well as the certificate of genetic kinship with the child.

Neither a surrogate mother nor an anonymous gamete donor has parental rights and obligations over a child born via surrogacy.

Ukrainian legislation permits surrogate pregnancy arrangements. Although no legal provisions specify the content of and requirements to such agreements, it is generally accepted that surrogate agreements should be concluded before a notary, and may contain provisions regarding rights and obligations of the surrogate mother (including rights to medical examination, medical and financial support during pregnancy, and a right to remuneration; as well as obligations to follow medical prescriptions, have a certain place of residence, and transmit a child to the genetic parents) and of the legal parents (obligations to provide the surrogate mother with financial support and/or remuneration and to take a child).

Posthumously Conceived Children

Ukrainian legislation does not regulate posthumous conceiving as well as inheritance issues connected with a posthumously conceived child.

Ukrainian legislation defines marriage as a family union of a woman and a man, registered in the state registry office. It is also possible for a man and woman to live as a family without registering their actual wedlock, though their marital and inheritance rights and obligations are quite limited.

Thus, Ukraine recognises neither same-sex marriage nor domestic partnership of a single-sex couple since it contradicts the moral grounds of society.

If same-sex couples wish to possess their property jointly or inherit after one another, the best possible option is to conclude a general contract regarding common partial ownership and to make a will (testament) bequeathing the assets to a desirable heir.

A taxpayer may decrease its tax base by the amount of donations and charity given to non-profit organisations; however, within 4% of their taxable income only.

The recipient of charity should not pay taxes on it.

Charity is not a very common instrument in Ukraine. At least for taxation purposes. The motives are usually different, and the donors hardly ever account their charity for tax planning. There are a number of charity funds and non-profit organisations involved in certain activities: humanitarian aid to eastern regions, medicine, childcare, etc. Most charity goes through such funds and organisations.

Vasil Kisil & Partners

17/52A Bohdan Khmelnytsky St
Kyiv 01054
Ukraine

+38 0 4458 17 777

+38 0 4458 17 770

vkp@vkp.ua www.vkp.ua/en
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Trends and Developments


Authors



Vasil Kisil & Partners is one of the leading Ukrainian law firms and has been advising and representing clients in the most complex and challenging transactions and disputes for nearly two decades. The firm is a team of 65 highly qualified and experienced lawyers specialising in various spheres of legal practice. Vasil Kisil & Partners is the first multidisciplinary law firm in the Ukrainian market to create a dedicated private clients practice. It also specialises in contentious matters related to conflicts in the area of family relations. Clients are advised on all aspects of family law, including family disputes, and the practice also handles inheritance disputes and drafts wills. A significant part of the firm's work is dedicated to legal support of prenuptial and postnuptial contracts and cohabitation contracts. In addition, it represents HNWI in matters of international capital structuring, as well as domestic and international tax planning and asset protection.

The key current developments in private wealth planning in Ukraine are associated with ongoing tax reform. Ukraine wishes to become a part of global anti-money laundering and common reporting initiatives, to introduce the OECD's base erosion and profit shifting (BEPS) regulations and information exchange. For these purposes, the domestic tax legislation is currently being updated. Totally new concepts are being introduced, which have never been practised in Ukraine before. Most of them refer to taxation of offshore assets of Ukrainian businesspersons and other wealthy individuals. Several laws are already in effect, others are being passed with deferred implementation, while several are still pending finalisation.

Transactions with Ukrainian Assets

One of the first major amendments already passed is associated with taxation of profits from the sale of Ukrainian assets. It is aimed at combatting aggressive transaction structuring through tax-free jurisdictions. The new rules apply even in cases where the buyer or both parties to the transaction are foreign entities, or even in cases where the immediate target of the transaction is stock in a foreign entity holding Ukrainian assets.

The assets concerned are shares in Ukrainian companies and shares in so-called real estate rich foreign companies, these are companies that hold real estate located in Ukraine. The test is whether, in the accounting books of the target entity, the value of Ukrainian real estate amounts to 50% or more of its overall assets.

The law has further clarified that not only are Ukrainian buyers responsible for the taxation of such profits, but also foreign sellers with permanent establishments in Ukraine and even foreign buyers in transactions where a foreign seller has no permanent establishment in Ukraine. In the latter case the buyer should register as a taxpayer in Ukraine and actually pay the tax no later than settling the transaction price.

The goal of all these regulations was to make the structuring of transactions through foreign entities – so-called jurisdiction shopping – unfavourable from a tax perspective.

Updating the Double Tax Treaties

All of the above is certainly subject to the double tax treaties (DTTs) of Ukraine with relevant jurisdictions. The processes of updating these DTTs has already been launched in parallel. For example, the Ukraine-Cyprus DTT no longer gives release from local taxation to those transactions which are not taxed in Cyprus. Cyprus does not tax capital gains and for that reason was often chosen as the jurisdiction for holding companies and share transactions. Consequently, many more transactions with Cypriot entities should now be taxed in Ukraine.

Other updates deal with raising the tax rates for interest, dividends and royalties from 0% to at least 5% or 10%; and to introducing some qualifying criteria for applying the lower rates. The Netherlands-Ukraine DTT is one of the recent examples.

Registration of Foreign Taxpayers

As part of the initiative to tax transactions with Ukrainian assets, foreign entities were not only recognised as payers of domestic taxes, but more efficient procedures to register them as such were implemented. Before, the absence of practical possibility to get registered as a taxpayer often undermined the effect of tax regulations requiring payment of taxes by foreigners. Effectively, the taxes could have been paid only in transactions involving Ukrainian residents who acted as tax agents in such cases. Now, along with permanent establishments, the law provides for registration of foreign entities which possess real estate, participate in share transactions, or merely open a bank account in Ukraine.

Permanent Establishment

To tax foreign entities that have no assets in Ukraine or otherwise do not qualify for domestic taxation according to the above, but actively trade with Ukrainian counterparties, the law has largely specified the concept of a permanent establishment and a deemed permanent establishment. The latter may arise even without specific registration when, among other cases, a local representative (i) has sufficient authority by contract or power of attorney to negotiate agreements with local counterparties or even sign them, (ii) keeps the commodities on behalf of a foreigner at own or rented premises, (iii) uses corporate email, or (iv) gives mandatory orders. This set of regulations was intended to undermine the use of foreign trading companies by Ukrainians, although it equally applies to foreign businesses operating in Ukraine without registering their permanent establishments, which is sometimes the case for IT and other outsourcing businesses.

Ukrainian Tax Residency of Foreign Entities

Another regulation to attack profit shifting will soon introduce a concept of Ukrainian tax residency for foreign entities. This concept is fairly new to Ukraine. The idea is to recognise a foreign entity, which is effectively managed from Ukraine, as a Ukrainian tax resident. In such cases, the foreign entity should pay domestic taxes on all its profits gained from Ukraine.

The criteria for treating a foreign entity as being managed from Ukraine are holding managerial decisions in Ukraine, conducting operational activities by the officers of the company from Ukraine and actually managing the company from Ukraine (regardless of the formal authorities involved). Even if an entity is treated as managed from a foreign country, Ukraine may still be recognised as a place of management when the bank accounts, bookkeeping, management accounting or HR-management are conducted from Ukraine.

Controlled Foreign Companies

Most sensitive of all the above is introduction of regulations relating to controlled foreign companies (CFCs) in Ukraine from 1 January 2022. All Ukrainian individuals and companies should pay regular domestic taxes on the profits of their CFCs.

A foreign company will qualify as CFC if a person holds at least a 50% share in it, including indirectly. If a person holds a 10% or bigger share, but Ukrainian tax residents – taken together – hold at least a 50% share, the company will qualify as CFC as well. So-called CFC tax will not apply to persons whose CFC's overall annual income does not exceed EUR2 million. It would not apply to CFCs which gain mostly active income, such as trading and operational gains, or even passive income, which has already been effectively taxed at least 13% tax in a foreign jurisdiction, provided there is a DTT between Ukraine and that jurisdiction. In all other cases Ukrainian residents would have to choose whether to keep the profit in a foreign company and tax it in Ukraine at general rate or distribute it as dividends and enjoy an almost 50% smaller tax burden on dividends.

Notably, the above regulations should apply fairly to trusts, foundations and other formations with no status as legal entities in Ukraine. A great issue would be who is a controller of such an entity? Ukrainian tax law attempts to resolve this by identifying the person who has effective authority to give instructions, represent (including under power of attorney), operate accounts, change the manager, decide on profit distribution, be mentioned as a beneficiary for the purposes of opening a bank account, etc.

Declaration of Foreign Assets

A part of CFC reform, and one of the most sensitive of its elements, is a requirement to declare all CFCs, their acquisition or alienation, for tax purposes. The declaration should also include the financial reports of the CFC. The declaration requirement will apply to everybody whether or not the CFC qualifies for taxation in Ukraine. It is expected that the release from taxation should be substantiated by that declaration.

Zero-Tax Liquidation

Considering that further use of foreign companies would be less efficient for Ukrainians, on the contrary it would entail additional expenses for auditing and declaring them, as well as in order to increase transparency of private wealth, the government now offers an option to liquidate such vehicles without levying the assets being transferred to their shareholders through material taxes. This is also an unprecedented option available only until the end of 2021. By that time, the company should be fully liquidated, and the assets transferred to an individual. There is a discussion over whether or not such capital gains should be taxed with the 1.5% military contribution, but anyway the law is clear on not applying the regular 18% personal income tax to it.

Tax Amnesty

The final element of the above reform is the recently passed tax amnesty. It allows individuals to declare their assets acquired without taxation before 1 January 2021. The tax amnesty starts from 1 September 2021 and remains available till 1 September 2022. Taxpayers may enjoy lower tax rates on so-declared assets and would be relieved from liability for breach of tax regulations. The rates are:

  • 5% on the value of assets located in Ukraine, or 6% if paid in three annual instalments;
  • 9% on foreign assets, or 11.5% if paid in three annual instalments; and
  • 2.5% on Ukrainian state bonds, or 3% if paid in three annual instalments.

The tax amnesty would not apply to state officials or criminals, other than for crimes associated with tax avoidance.

Conclusion

The rules of the game for private wealth are undergoing their most significant reform since Ukraine's independence. Tax-free use of offshore structures would be largely inefficient in light of the new regulations. This refers to both holding and trading companies as well as trusts, foundation and similar family planning instruments. Admittedly, most of the new tax regulations would only work effectively once Ukraine has signed treaties on exchange of information with other countries where Ukrainians keep their assets. The Ukrainian government has also introduced certain initiatives and given sufficient time to restructure businesses and private assets, including by returning them to Ukraine or to private accounts abroad, tax clearing of the assets through amnesty and zero-tax liquidation. Many of our clients are already seriously considering and even undergoing such restructuring, while we, as their advisors, are now developing new approaches to tax planning and asset protection in Ukraine.

Vasil Kisil & Partners

17/52A Bohdan Khmelnytsky St
Kyiv 01054
Ukraine

+38 0445 81 7777

+38 0445 81 7770

vkp@vkp.ua www.vkp.ua/en
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Law and Practice

Authors



Vasil Kisil & Partners is one of the leading Ukrainian law firms and has been advising and representing clients in the most complex and challenging transactions and disputes for nearly two decades. The firm is a team of 65 highly qualified and experienced lawyers specialising in various spheres of legal practice. Vasil Kisil & Partners is the first multidisciplinary law firm in the Ukrainian market to create a dedicated private clients practice. It also specialises in contentious matters related to conflicts in the area of family relations. Clients are advised on all aspects of family law, including family disputes, and the practice also handles inheritance disputes and drafts wills. A significant part of the firm's work is dedicated to legal support of prenuptial and postnuptial contracts and cohabitation contracts. In addition, it represents HNWI in matters of international capital structuring, as well as domestic and international tax planning and asset protection.

Trends and Development

Authors



Vasil Kisil & Partners is one of the leading Ukrainian law firms and has been advising and representing clients in the most complex and challenging transactions and disputes for nearly two decades. The firm is a team of 65 highly qualified and experienced lawyers specialising in various spheres of legal practice. Vasil Kisil & Partners is the first multidisciplinary law firm in the Ukrainian market to create a dedicated private clients practice. It also specialises in contentious matters related to conflicts in the area of family relations. Clients are advised on all aspects of family law, including family disputes, and the practice also handles inheritance disputes and drafts wills. A significant part of the firm's work is dedicated to legal support of prenuptial and postnuptial contracts and cohabitation contracts. In addition, it represents HNWI in matters of international capital structuring, as well as domestic and international tax planning and asset protection.

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