The Cyprus intellectual property rights "box" – a limited-time opportunity

Philippos Aristotelous of Andreas Neocleous & Co looks at intellectual property rights tax incentives

Philippos Aristotelous of Andreas Neocleous & Co looks at intellectual property rights tax incentives in Cyprus

Background

In May 2012 Cyprus introduced a package of incentives and tax exemptions relating to investment in intellectual property rights, commonly known as an intellectual property rights box (“IP box”).

Intellectual property projects lend themselves to cross-border planning by reason of the mobility of intellectual property rights, which do not consist of physical assets and so can be easily moved between different jurisdictions and tax systems according to prevailing circumstances.

Comparison with other European IP box regimes

The table below summarises the key aspects:

	Cyprus	Belgium	France	Hungary	Luxembourg	Netherlands	Spain	UK
Effective tax rate	2.50%	6.80%	15%	9.50%	5.76%	5%	15%	10%
Qualifying IP assets	All IP assets, including patents, trademarks, copyright, formulas, designs, knowhow and processes.	Patents and supplementary patent certificates.	Patents, extensions, patentable inventions and industrial fabrication processes	Patents, know-how, trademarks, business names, know-how and copyrights	Patents, trademarks, designs, domain names, models and software copyrights	Self-developed IP relating to patents or approved R&D.	Patents, formulas, processes, plans, models, designs and know-how	UK and European patents, supplementary protection certificates and plant variety rights
Ineligible IP assets	None	Know-how, trademarks, designs, models, formulas or processes	Acquired IP rights held for less than two years	None	Know-how, formulas, copyrights (other than software)	Trademarks and brands Acquired IP	Trademarks, copyrights of literary, artistic, or scientific work, including software	Trademarks, copyrights and designs
Internally developed or acquired?	Applies to both internally developed and acquired IP	Internally developed IP and improvements to acquired IP	Applies to both internally developed and acquired IP	Applies to both internally developed and acquired IP	Applies to both internally developed and acquired IP, but not IP acquired from a related party	Self-developed only	Self-developed only	Self developed and “actively managed” (used in business) only
Limitations on where R&D takes place	None	Some	None	None	None	Some	Some	None
Qualifying revenue	All income, including compensation for breach of rights	Patent income	Royalties net of cost of managing qualifying IP	Royalties	Royalties net of costs (amortization, R&D costs, interest etc)	Net income from qualifying assets	Gross income from qualifying assets	Net income from qualifying IP
Deduction rate	80%	80%	None – reduced tax rate	50%	80%	None – reduced tax rate	50%	None – reduced tax rate
Overall limit of deduction	None	100% of pre-tax income	None	50% of pre-tax income	None	None	Six times the cost of developing the IP	None
Gains on disposal included	Yes	No	Yes	Yes	Yes	Yes	No	Yes

While the French, Hungarian, Luxembourg, Netherlands and United Kingdom schemes offer partial exemption of gains on disposal, the exemptions are less attractive than those provided by the Cyprus scheme, due to limitations on qualifying assets and less generous deduction rates. Furthermore, full exemption can be relatively easily obtained in Cyprus by holding the IP assets in a separate company and disposing of the shares in the company rather than the IP itself, taking advantage of Cyprus’s extensive capital gains tax exemptions.

In most comparisons of the benefits offered by different jurisdictions there is a trade-off to be made. One jurisdiction will be better on certain aspects, but another will be better on others, and the differences will have to be assessed and weighed against one another to arrive at the best overall solution. In the case of the IP box regime there is no need for this, as Cyprus is the clear leader on every single aspect.

In most cases immediate economic and tax savings can be accomplished by transferring intellectual rights currently held by entities located in low or no tax jurisdictions to Cyprus resident companies in order to take advantage of the new exemptions. The transfer of IP rights into a Cyprus company will not attract any form of taxation in Cyprus and the new benefits and substantial exemptions will become available as soon as the asset is transferred.

The Cyprus IP box provides attractive opportunities for structuring the exploitation of IP assets through Cyprus and in particular through the use of Cyprus-resident IP owners, especially in conjunction with Cyprus's extensive network of double tax treaties, under which withholding tax on royalty income is either eliminated altogether or substantially reduced.

There has been considerable opposition from some countries to the introduction of “intellectual property box” regimes and as part of the G20/OECD base erosion and profit shifting project a number of countries, including Germany, put forward what has become known as a “modified nexus” approach. This approach seeks to ensure that preferential regimes for intellectual property require substantial economic activities to be undertaken in the jurisdiction concerned, by requiring tax benefits to be connected directly to R&D expenditures within the jurisdiction.

Now that broad agreement has been reached on the modified nexus approach there is only limited time to enter into the Cyprus scheme, since it and all similar schemes will be closed to new entrants from June 2016. However, companies that join the scheme before then can look forward to benefiting from substantial savings until mid-2021. All that is required is to establish a suitable Cyprus structure for holding IP and transferring the business’s intangible assets into it.

We therefore recommend any business with significant IP assets or income to examine the option of benefitting from the favourable Cyprus IP taxation regime.

Philippos Aristotelous

Andreas Neocleous & Co

Limassol