Tax Connect Flash | Tunisia: additional Finance Act 2012

The additional Finance Act 2012 (“LFC” Act no. 2012-1) was published in Tunisia’s Official Journal no.39 on 16 May 2012.

To date, the Tunisian tax administration has not yet published any comments on the LFC.

The purpose of this note is to outline the main tax measures contained in the LFC 2012.

I. Direct taxes

1) Cap on withholding tax rate due on capital gains

The Finance Act 2012 introduced a withholding tax on capital gains payable by individuals and companies not resident and not established in Tunisia. Article 12 of the LFC caps this withholding tax rate at:

• 5% of the sale or resale price of the shares, for capital gains realised by companies that are subject to 30% withholding tax.
• 2.5% of the sale or resale price of the shares, for capital gains realised by individuals that are subject to 10% withholding tax.

2) Tax loss carry forward

Article 37 of the LFC has extended by one year - from four to five years - the period during which tax losses can be carried forward (1). Note that Tunisian tax laws do not allow for the carry back of tax losses.

3) Clarification of the tax incentives applicable to Islamic finance

Following the example of Morocco which introduced tax incentives for Islamic finance in 2007, Tunisia’s 2012 LFC extends the application of the tax incentives provided for in the Finance Act 2012 to four Islamic finance contracts (2) .

The incentives include exemption from the 1.5% withholding tax (3) and the deduction of VAT on transactions carried out pursuant to these contracts (4).

They are applicable from 1 January 2012 and the amounts paid before the Finance Act 2012 was published are not recoverable.

II. Tax procedure

1) Penalties for transfers of untaxed revenues or income

Under Article 39 of the LFC (5), financial institutions that transfer revenues or income without producing a document attesting to the payment of tax on the amounts involved are exposed to a penalty equal to:

• 20% of the transferred revenue or income, if the revenue or income is taxable in Tunisia.
• 1% of the transferred revenue or income, if the revenue or income is not taxable in Tunisia.

2) Introduction of the principle allowing taxpayers to challenge the tax administration decisions on the basis of the tax doctrine established in joint notes issued by the administration

According to Article 54 of the LFC, published tax doctrine related to current legislation in force is now binding on services of the tax administration and the collection.

There is no advance ruling procedure under Tunisian law to obtain binding guidance from the tax administration on how specific situations should be treated for tax purposes.

The principle of allowing taxpayers to challenge the tax administration's position by making reference to tax doctrine - provided that it is published - offers an alternative line of defence and provides taxpayers a relative tax security which is nevertheless subject to conditions including publications.

III. Registration duty

Registration duty is now payable on written documents evidencing the transfer, for valuable consideration or otherwise, of title, beneficial ownership or non-beneficial ownership of real estate or servitudes that are registered with the tax office.

The duty is levied at the rate of 1% of the value mentioned in the transfer document, with a minimum of 20 dinars.

1. Amendment to Articles 8 and 48 of the IRPP Income Tax Code.
2. Ijara is equivalent to a lease contract. 
   Murabaha is a sales contract where the bank buys a product on behalf of a client and resells the product to the same client by clearly mentioning the cost incurred in buying the product and the margin or the mark-up when reselling the product to the client. 
   Sâlam is a contract providing for deferred delivery of fungible goods paid for when the contract is signed. 
   Istisna’a is a contract providing for deferred delivery of specific made-to-order items paid for when the contract is signed.
3. Article 52 of Tunisia’s IRPP Income Tax Code.
4. Article 9 of the VAT Code.
5. Article 39 of the additional Finance Act 2012 inserted as Article 84 bis of the Tax Procedure Code.

Contacts

Samir Sayah, Local partner and Mourad Nabil Abdessemed, Senior Associate