Doing business in Kazakhstan - An introductory guide to tax and legal issues - EY
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Preface This publication is intended to provide a useful practical summary of some of the legal and tax issues that investors may face when starting and building a business in Kazakhstan. We hope that it will help investors to avoid common pitfalls and highlight areas where some forethought and planning can prevent problems from arising. Kazakhstan offers many opportunities and is strongly committed to encouraging foreign investment in key sectors of the economy. This guide is split into five sections: 1. Welcome to Kazakhstan 2. Our top 10 tax and legal tips for prospering in Kazakhstan 3. Getting started 4. An overview of tax rules in Kazakhstan 5. An overview of other laws affecting business administration. This guide is a high-level summary of the rules in force as of 1 January 2021. It is not a substitute for comprehensive professional advice, which should be sought before engaging in any significant transaction. It should also be noted that this guide does not cover all taxes in Kazakhstan (of which there are more than 30). Here, we cover only the most important taxes, so advice should be sought as to the actual taxes applicable to any particular business. We wish you every success in this exciting and dynamic environment. Doing business in Kazakhstan 1
Welcome to Kazakhstan . . . . . . . . . . . . . . . . . . . . . . . . . 4 Overview of other laws that affect Highlights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 business administration . . . . . . . . . . . . . . . . . . . . . . . . 50 System of government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Transfer pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Employment regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Business hours. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Import and export formalities and customs duties. . . . . . 53 Kazakhstan fact sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Our top 10 tax and legal tips. . . . . . . . . . . . . . . . . . . . 10 Banking regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Currency regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Tax tips. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Currency regimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Legal tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 EY in Kazakhstan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Getting started . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 About EY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Arriving in Kazakhstan. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Encouraging investment. . . . . . . . . . . . . . . . . . . . . . . . . . 65 Post-arrival procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Supporting our clients in the dynamic landscape. . . . . . . 65 Types of legal entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Office locations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Establishing a legal presence. . . . . . . . . . . . . . . . . . . . . . . 20 EY Kazakhstan at social media . . . . . . . . . . . . . . . . . . . . . 66 Incentives for investors . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Overview of tax rules in Kazakhstan. . . . . . . . . . . . . . . 30 Double tax treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Personal income tax (“PIT”) . . . . . . . . . . . . . . . . . . . . . . . 31 List of countries with preferential tax regimes . . . . . . . . . 70 Social tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Key macroeconomic indicators of Kazakhstan . . . . . . . . . 71 Corporate income tax (CIT). . . . . . . . . . . . . . . . . . . . . . . . 38 Withholding tax (WHT) (other than PIT). . . . . . . . . . . . . . 40 Value added tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Subsurface use taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Tax administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Doing business in Kazakhstan 3
Highlights US$24,263 • On 1 January 2015, the Treaty on the Eurasian Economic Union • Kazakhstan posted an annual average (EAEU) entered into force. The union GDP growth rate of 5.2% from 2005 to 2019, with GDP in 2019 reaching of Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia comprises a million US$180.2 billion (US$9,731.2 per market of 184 million consumers. gross FDI inflows recorded capita). In the first 9 months of 2019 • In December 2012, the former by Kazakhstan in 2018 the growth rate accelerated to 4.5% from 4.1% in 2019.1 The country’s President of Kazakhstan, Nursultan GDP shrank by 2.6% in 2020 as it Nazarbayev, in his annual address to took a heavy hit from the coronavirus the nation, unveiled the Kazakhstan pandemic. In October 2020, the 2050 Strategy, which aims to make 184 Ministry of National Economy of Kazakhstan one of the world’s 30 Kazakhstan announced an updated most developed countries. The strate- GDP forecast for 2021, predicting a gy is to be realized through a number real GDP growth rate of 2.8% in 2021.2 of key initiatives: a comprehensive million consumers and pragmatic economic policy (infra- • Foreign direct investment (FDI) inflows structure development, modernized make up the EAEU market into Kazakhstan have been strong in systems for managing state assets recent decades. Kazakhstan’s success and natural resources, accelerated in attracting FDI may be attributed industrialization, modernization of to its vast natural resources and the agriculture and new policies on water commitment of the country’s leader- resources), the development of a ship to welcoming FDI and promoting the country’s stable economic growth, culture of entrepreneurship, new social policies, targeted development November 2014 as well as to developing non-extractive of knowledge and professional skills, Infrastructure development sectors such as agriculture, renewable further strengthening of state gover- energy, infrastructure, logistics and nance and democracy, consistent and program launched in Kazakhstan transport. In 2019, Kazakhstan posted predictable foreign policy, and a new gross FDI inflow of US$24.1 billion national patriotism. compared to US$24.3 billion in 2018. • The Nurly Zhol (Shining Path) • Kazakhstan is ranked 25th for Ease infrastructure development program of Doing Business in the World Bank’s was launched in November 2014 Doing Business 2020 report. The with the aim of creating an efficient country has moved up three positions transport and logistics infrastructure compared with the previous year.3 in Kazakhstan.4,5 1 World Bank Data. 2 The Ministry of the National Economy of Kazakhstan. 3 Doing Business 2020, the World Bank, October 2019. 4 Official Information Source of the Prime Minister of the Republic of Kazakhstan, 22.10.2019, https://www.government.kz/en/news/realizaciya-novoy-gosprogrammy-nu-rly-zhol-na-2020-2025-gody-pozvolit-sozdat-bolee-550-tys-rabochih-mest 5 Astana Times, 24.10.2019, https://astanatimes.com/2019/10/kazakh-government-estimates-nurly-zhol-programme-will-cost-16-91-billion-over-next-five-years/ Doing business in Kazakhstan 5
KZT 5.8 trillion • KZT 5.8 trillion was invested in civil service, rule of law, industrializa- Kazakhstan’s transport industry tion and economic growth, a unified under the Nurly Zhol program nation, and the transparency and was invested in Kazakhstan’s in 2015–2019. Of this, 56% was accountability of the state. The new funded with the involvement of the President of Kazakhstan, Kassym- transport industry private sector, the rest by the state Jomart Tokayev, has continued the course and confirmed institutional • 3,000 km of republican roads reforms as a key priority in ac- were built or rebuilt, including celerating Kazakhstan’s economic completion of the Western development.6 3,000 km Europe — Western China international transport corridor • The ‘Digital Kazakhstan’ state program was launched in 2017. • 1,400 km of new railways were It aims to accelerate economic of republican roads commissioned: Zhezkazgan–Beineu development and improve the quality were built or rebuilt (1,040 km), Arkalyk–Shubarkol of life of the people of Kazakhstan (214 km), Borzhakty–Yersai with the aid of digital technologies. (14 km) and the second track of the Almaty–Shu section (111 km) • The first wave of privatization in Kazakhstan laid the foundations of • 6 runways were upgraded at the the market economy in the 1990s. 1,400 km airports of Uralsk, Petropavlovsk, At the end of 2015, Kazakhstan Almaty, Semey, Kostanay and announced a new privatization plan Balkhash. that seeks to shrink state ownership of new railways were The program will include the follow- of the national economy from more commissioned ing projects: completion of 3,800 km than 40% to around 15%. However, of roads; rebuilding of the runways real progress has been slow. at Kostanay and Balkhash airports; • On 30 November 2015, the World modernization of the Dostyk–Moyynty Trade Organization (WTO) welcomed railway line and electrification of the Kazakhstan as its 162nd member. Moyynty–Aktogay railway line; develop- 6 runways Kazakhstan has successfully ment of water transport through the negotiated arrangements on sensitive purchase of 48 ships, including six mer- economic issues, including support chant fleets, and major repairs to locks. were upgraded for agriculture, financial services • In June 2015, in line with the and telecommunications, and has at the airports Kazakhstan 2050 Strategy, former coordinated its WTO and EAEU President Nursultan Nazarbayev set commitments in line with national out 100 steps for the implementation interests. Kazakhstan became an of five institutional reforms aimed at associate member of the OECD promoting a modern and professional Investment Committee in 2017 6 Official website of the President of the Republic of Kazakhstan, https://www.akorda.kz/ru/official_documents/strategies_and_programs 6 Doing business in Kazakhstan
and a participant in the Public • The annual PowerExpo Almaty providing certain financial services Governance and Environmental Policy international exhibition presents the on the territory of AIFC, and personal Committees in 2019. The country latest equipment, technologies and income tax on income of foreign has also joined the OECD’s Base services for the energy industry. employees. As of 2021, more than Erosion and Profit-Shifting (BEPS) It has become an established 700 companies from 42 countries Project, an initiative involving over platform for business meetings, have been registered in the AIFC. 100 countries in an effort to tackle exchange of experience and They represent the United Kingdom, tax avoidance strategies that exploit negotiations. 118 enterprises from the USA, China, Russia, Estonia, gaps and mismatches in tax rules to 13 countries, including Austria, Latvia, Italy, Finland, South Korea, artificially shift profits to low- or no- Azerbaijan, Belarus, Germany, Italy, Singapore, Malaysia, India, the United tax locations7. Kazakhstan, China, Poland, South Arab Emirates, Turkey and other Korea, Russia, Singapore, Ukraine leading economies. • The New Silk Road is an ambitious and the Czech Republic, took part in transport infrastructure project that • The Khorgos-Eastern Gate special the exhibition in 2019, with national will enable goods to be delivered economic zone (SEZ) comprises a stands presented by companies from from the Pacific coast to Europe. dry port, a logistics and industrial China, Russia and Poland9. Redirecting cargo traffic to the zone, a railway station and the mainland is no easy task, as the • In July 2018 Kazakhstan officially Altynkol Kazakh-Chinese Khorgos current sea route is significantly launched the Astana International International Centre of Boundary cheaper. However, the new overland Financial Centre (AIFC) on the site of Cooperation. In July 2015, the route through Kazakhstan allows the EXPO-2017 exhibition. It is set to country’s first dry port, with an delivery times to be reduced from serve as a financial hub for Central area of 149 hectares and planned 40–60 days to 13–14 days. A railway Asia, the Caucasus, the Eurasian capacity of 500,000 twenty-foot corridor connecting the Pacific coast Economic Union and Mongolia. The equivalent units (TEU), was launched of China to the Caspian Sea is already centre has a special legal regime in the SEZ. Thanks to the dry port, in operation. It will provide access to which differs from the legislation shipments that used to take up to 40 many major markets when integrated of Kazakhstan and is based on the days by sea from Asia to Europe can with the Kazakhstan — Turkmenistan — principles of English law and best now be transported in just 10 days. Iran and Azerbaijan — Georgia — Turkey practices of world-leading financial In 2018, Khorgos processed 311 railway systems. A joint industry and centres. Participants enjoy special tax, container trains along the China- investment cooperation program is currency and visa regimes, as well as Europe transport route and more underway between Kazakhstan and a favourable framework for attracting than 1.2 million people visited the China. It comprises 51 projects worth foreign labour. Tax incentives include duty-free trade zone. So far, over more than US$27b and infrastructure a nearly 50-year exemption from US$1.4 billion has been invested in forms an important part of it.8 corporate income tax and VAT for the project10. 7 OECD, https://www.oecd.org/eurasia/countries/kazakhstan/ 8 Belt and Road News, 09.06.2019, https://www.beltandroad.news/2019/06/09/kazakh-chinese-one-belt-one-road-cooperation-discussed-in-astana/ 9 Official website of PowerExpo Almaty, https://www.powerexpo.kz/en/exhibition/about-the-exhibition 10 Forbes, 14.03.2019, https://www.forbes.ru/biznes/373183-baraholka-s-oborotom-eu18-mlrd-novaya-mekka-chelnokov Doing business in Kazakhstan 7
System of government Time Public holidays The Republic of Kazakhstan gained Kazakhstan’s time zones range from five and days off independence on 16 December 1991. hours ahead of Greenwich Mean Time The following table presents Under the constitution adopted on (GMT) in the western part of the country Kazakhstan’s official public holidays 30 August 1995, Kazakhstan is a to six hours ahead of GMT in the other and days off. democratic, secular, legal and social regions. Nur-Sultan and Almaty are six state. State power is divided into hours ahead of GMT. Holiday Date legislative, executive and judicial New Year holidays 1–2 January branches. Kazakhstan is a unitary state with presidential rule. Legislative Business hours Orthodox Christmas 7 January functions are performed by the International 8 March Kazakh offices are generally open from Women’s Day Parliament of Kazakhstan, which is 9:00 am to 6:00 pm Monday to Friday, the supreme representative body and Nauryz Meyrami 21–23 March and closed Saturdays and Sundays. consists of two chambers, the Senate Kazakhstan People’s 1 May and the Majilis. The Government Unity Day of Kazakhstan acts as the supreme Defender of the 7 May executive body, headed by the Prime Fatherland Day Minister. Judicial authority is vested in Victory Day 9 May the Supreme Court. Capital Day 6 July The first day of 20 July in 2021 Kurban Ait (observed in accordance with the Islamic Calendar) Constitution Day 30 August The First President of 1 December Kazakhstan Day Independence Day 16–17 December 8 Doing business in Kazakhstan
Kazakhstan fact sheet Capital Nur-Sultan Administration Kazakhstan is divided into 14 provinces and 3 cities of national significance: Nur-Sultan, Almaty and Shymkent Bordering countries Russia, China, Uzbekistan, Kyrgyzstan and Turkmenistan Land area 2,724,900 km2 Population (November 2020) 18.8 million Urban population, % (November 2020) 59% of the total population Age structure (2020) 0-15 years (29.9%); 16-62 years (59.1%); 63 and above (11.0%) Languages Kazakh (official language), Russian (interethnic communication) President Kassym-Jomart Tokayev (since 20 March 2019) Prime Minister Askar Mamin (since 25 February 2019) Nominal GDP (2019) US$181.666 billion GDP growth (2019) 4.5% GDP per capita (2019) 9,731.2 GDP composition by sector (2019) Agriculture (55.5 %); industry (33 %); services 4 %) External debt as a percentage of GDP (Q2 2020) 89.6% Labour force (2020) 9.06 million Unemployment rate (December 2020) 4.55% CPI inflation (November 2020) 7.5% Stock exchange Kazakhstan Stock Exchange (KASE) Central Bank National Bank of Kazakhstan Corporate income tax rate 20% Individual income tax rate 10% State value added tax 12% Major cities Nur-Sultan, Almaty, Shymkent, Karaganda, Atyrau, Aktau Currency unit Kazakhstan tenge (KZT) Annual average exchange rate (2020) US$1=KZT 416.7; EUR1=KZT 477.98; RUR1=KZT 5.69; CNY1=KZT 60.8 Exchange rate as of 1 December 2020 11 US$1=KZT 425.05; EUR1=KZT 509.29; RUR1=KZT 5.58; CNY1=KZT 64.66 Sources: Official website of the President of the Republic of Kazakhstan; the National Bank of Kazakhstan; the Statistics Agency of Kazakhstan. 11 Hereafter in this guide, all calculations in US$ are made based on the exchange rate as of 1 December 2020 Doing business in Kazakhstan 9
2 Our top 10 tax and legal tips 10 Doing business in Kazakhstan
In this section we set out our top tax and legal tips for prospective investors. Tax tips 1 3 Should you need more information on any of these issues, EY is happy to assist you in the following areas: • Tax planning and compliance, Recent years have shown that Kazakh The scope of withholding taxes (WHTs) both in Kazakhstan and law is subject to frequent changes. on cross-border payments is wide, and internationally This makes it important to have robust rates are high (sometimes even when tax planning to enable businesses the recipient has never entered Kazakh- • Business accounting and to cope with changes in the law and stan). However, Kazakhstan has tax payroll implement structural changes as treaties with many countries which allow • A full range of legal consulting required without significant tax costs. for withholding taxes to be reduced or services in Kazakhstan, as well avoided if all the necessary documenta- tion is in place place (though, the MLI 2 as tax litigation services provisions, which entered into force in • Transaction advisory services Kazakhstan from 1 October 2020, should and legal and tax due diligence be considered and properly supported). Otherwise, tax will be withheld, and • Immigration support and obtaining a refund may be a complex and performance and reward Corporate and personal income tax rates time-consuming process with an uncer- planning in Kazakhstan are low by international tain outcome. Moreover, Kazakhstan standards, but penalties for non- • Assurance services has a unique position on transfer pricing payment and non-reporting, whether whereby all cross-border transactions intentional or not, are high. The first may potentially be inspected for transfer focus of tax planning in Kazakhstan pricing compliance, regardless of wheth- should be to confirm that all tax that er the parties are in any way related. ought to be paid in Kazakhstan is paid and reported. In addition, Kazakhstan 4 is a documentation-driven country, and keeping documentation in order (including supporting documentation) is of paramount importance 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. Doing business in Kazakhstan 11
5 7 9 The rules for determining whether There is a safe harbour allowing an In many cases, exemption from capital a business dealing with Kazakhstan has entity that seconds staff to Kazakhstan gains tax may be obtained upon with- a taxable presence for corporate income to avoid a taxable presence. Provided drawal from an investment in Kazakhstan tax (CIT) purposes in Kazakhstan the arrangements are properly provided that the correct structuring (a permanent establishment) are very structured, this is likely to be more tax- was used when the investment was first broad and can apply collectively to efficient than using the same staff to made. The complexity of the structuring whole groups of companies if they have provide consulting or other services. depends on the nature of the asset. been in the country for over six months. Some, but not all, of Kazakhstan’s tax 8 10 treaties (with MLI limitations) protect against this. Therefore, if more than one group entity is used to do business in Kazakhstan, the position of all entities involved should be reviewed collectively. Branch profit tax applies to all According to currently enacted tax law, permanent establishments of foreign income received by foreign individuals 6 legal entities at a standard rate of 15%. (cash and in-kind) for work performed It is usually reduced by tax treaties. in Kazakhstan (regardless of where the There is an equivalent tax on dividends income is paid) is treated as Kazakh- at the same standard rate, which may source income and is subject to Kazakh also be reduced by treaties (with MLI personal income tax (PIT). Generally, limitations). In the case of dividends, Kazakh-source income is reported and Deductibility of interest on investor the rate is zero after an investment has taxed in Kazakhstan using one of the loans is subject to a debt-to-equity ratio been held for three years (except for following methods: (i) self-assessment of 4:1 (7:1 for financial organizations). investments in oil and gas or mining via an annual PIT return or (ii) at source At best, an investor will pay 10% operations (unless a certain portion via a local company acting as a so-called WHT on cross-border interest (under of minerals is refined), dividends paid “tax agent”. In most cases, the law a double tax treaty) and be able to to entities registered in tax havens places tax and reporting obligations claim a CIT deduction of 20%, while for and investments in certain CIT-exempt for Kazakh-source income of foreign certain borrowings accrued interest entities). individuals on the local tax agent (e. g., expense may be deducted only when a foreign legal entity with a registered paid. Furthermore, exchange gains and presence in Kazakhstan (a branch or rep- losses on loans are recognised for tax resentative office) or a local entity that purposes. uses services of a non-resident employer delivered through foreign employees). 12 Doing business in Kazakhstan
Legal tips 1 3 6 Most investors use a Kazakh limited There is an extensive range of business The process of hiring foreign employees liability partnership (LLP) as their and professional activities that are is complex and strictly regulated in investment vehicle. subject to licensing requirements, and Kazakhstan. Immigration and labour it is important for investors to determine law has undergone numerous changes in advance whether they need a licence. resulting in frequent inspections of 2 The penalties for failure to obtain a companies that employ foreign workers licence can be significant, including and increased penalties for violations potential criminal liability. of labour and migration rules (including discriminatory remuneration terms and payment of salaries in foreign currency). 4 Settlements between residents of Kazakhstan (Kazakh legal entities, 7 branches/representative offices of foreign non-financial entities, and Kazakh citizens) must be made in KZT (with a few exceptions — e. g., branches Kazakhstan often takes a formalistic of non-financial entities may transact approach to procedural matters. In most with each other in foreign currency). cases, a company’s representatives must Kazakhstan generally permits foreign Settlements between non-residents have a detailed power of attorney and law to be the governing law for (foreign legal entities and citizens) and will regularly be required to refer to it — commercial contracts, except for Kazakh residents may generally be for example, when signing contracts. subsurface use contracts with the made in any currency but may have to state, foundation agreements of a be reported to the National Bank if they Kazakh legal entity, agreements on the 5 hit certain thresholds. transfer of participating interests in a legal entity and transactions involving immovable property. Regulatory acts of the AIFC governing relations between AIFC participants may be based on the Compliance with local content “principles, norms and cases” of the law requirements is very important for of England and Wales and standards of mining and oil and gas companies and international financial centres. their subcontractors and is constantly monitored by government authorities. Doing business in Kazakhstan 13
8 10 In certain cases, Kazakh law requires At the same time, Kazakh legal entities approval to be sought from government have access to the AIFC’s court and authorities for the acquisition of international arbitration centre, whose shares/participating interests in legal decisions are recognised and enforced in entities operating in fields covered by Kazakhstan in a similar way to decisions competition and natural monopoly of arbitration and international courts. regulations and by legislation relating to subsurface use. It is therefore important to analyse the requirements of Kazakh laws on a case-by-case basis before entering into such transactions. 9 Disputes between Kazakh legal entities are resolved either through amicable procedures (mediation, amicable settlement and participatory procedure) or by courts and local arbitration, as well as by international courts if a provision allowing such dispute resolution is contained in the relevant agreement between the parties. Public disputes with Kazakh government authorities can be resolved either in court or through a pre-litigation procedure. 14 Doing business in Kazakhstan
Doing business in Kazakhstan 15
3 Getting started 16 Doing business in Kazakhstan
Arriving in Kazakhstan Business visas (Category B) are An individual may obtain certain issued to foreign individuals arriving types of official business and private The Kazakh authorities issue the in Kazakhstan for business purposes visas without a letter of invitation by following categories of visa: (e. g., negotiations, conclusion of submitting a written application to • Category A: diplomatic, official and contracts, provision of consulting or the Kazakh consular establishment in investor audit services, provision of installation, the respective country if he or she is a repair or maintenance services and citizen of one of the following countries: • Category B (short-term stay): attendance of conferences, symposiums, business visa, visa for international forums, exhibitions and concerts). • Australia • Lithuania road haulage, visa for crew members of aircraft, marine and river vessels Work visas (Category C) are issued to • Austria • Luxembourg and trains, visa for religious foreign individuals entering or staying • Belgium • Malaysia events, visa for practical training in Kazakhstan for employment and • Brazil • Malta or internships, visa for permanent members of their families. In general, • Bulgaria • Monaco residence in Kazakhstan, private visa, a work visa is issued based on a work • Canada • Netherlands visa for adoption of Kazakh citizens, permit. See the “Work permits” section for details. • Croatia • New Zealand tourist visa, transit visa and exit visa to leave Kazakhstan • Cyprus • Norway In Kazakhstan, visas are issued by the • Czech Republic • Oman • Category C (long-term stay): visa for Ministry of Internal Affairs (MIA) of Kazakhstan. Elsewhere, they are issued • Denmark • Poland permanent residence in Kazakhstan by Kazakh consulates (for example, the • Estonia • Portugal (for ethnic Kazakhs), family reunion visa, work visa, visa for missionary Consular Department of the Embassy of • Finland • Qatar activities, humanitarian visa, Kazakhstan). Business and work visas • France • Romania study visa, private visa (for ethnic are issued based on a letter of invitation • Germany • Saudi Arabia Kazakhs), visa for minors and medical issued by a local Kazakh company or • Greece • Singapore treatment visa. a branch or representative office of a • Hungary • Slovak Republic foreign company. The state duty for the Visas of the above categories may execution of invitations is 0.5 times the • Iceland • Slovenia be issued for single or multiple entry monthly calculation index (MCI).12 The • Ireland • Spain depending on the category and type fee for issuing a visa ranges from US$20 • Israel • Sweden of visa. Exit visas are issued only for to US$1,000 depending on the country • Italy • Switzerland single use. of residence of the invited party and the • Japan • United Arab type of visa requested. A visa should be Emirates • Jordan issued within five business days. • Korea (South) • United Kingdom • Latvia • United States • Liechtenstein 12 The MCI was established by the Law of the Republic of Kazakhstan «On the Budget of the Republic for 2021–2023» Effective on 1 January 2021, 1 MCI = KZT 2,917 (approximately US$7) Doing business in Kazakhstan 17
Kazakhstan has a visa-free regime with Under this visa-free regime, citizens The letter will then be forwarded to the certain countries based on international of the above countries may enter IC for further consideration. The IC will agreements (for example, Belarus and Kazakhstan without a visa for a period consider requests on a case-by-case the Russian Federation). not exceeding 30 calendar days from basis within 5 working days (although it the date of crossing the border and not may take longer in practice). In the event Kazakh migration law allows citizens of more than 90 calendar days in total in of a favourable decision, the IC will issue the following countries to enter and exit any 180-calendar day period. If a foreign a protocol containing the name of the Kazakhstan without visas: individual wishes to stay in Kazakhstan company and the foreign individual and for a longer period, he or she may apply he/she will be able to enter Kazakhstan • Australia • Luxembourg for a single-entry business or investor based on that protocol provided that • Austria • Malaysia visa while in Kazakhstan. Investor all other visas and work permits are in • Bahrein • Malta visas are issued to certain categories place. • Belgium • Mexico of business immigration applicants • Bulgaria • Monaco (managers of companies that carry out investment activities in Kazakhstan and Post-arrival procedures • Canada • Netherlands members of their families) and provide Until 10 January 2020, foreign • Chile • New Zealand certain privileges. individuals arriving in Kazakhstan for • Columbia • Norway It should be noted that, due to the more than five calendar days were • Croatia • Oman normally required to register with coronavirus pandemic, the visa-free • Cyprus • Philippines regime with the above-listed 57 the Ministry of Internal Affairs (MIA). • Czech Republic • Poland countries has been suspended until However, this has been replaced by an • Denmark • Portugal 1 May 2021. obligation on the part of the inviting • Estonia • Qatar party to obtain a temporary stay permit In view of the pandemic and related for the foreign citizen. • Finland • Romania quarantine measures, obtaining entry • France • Saudi Arabia to Kazakhstan is currently a more In addition, the inviting party must • Germany • Singapore challenging and complex process notify the MIA within three working days for foreigners. A separate written of the arrival of the foreign individual in • Greece • Slovak Republic approval from the Interdepartmental Kazakhstan. • Hungary • Slovenia Commission (“IC”) chaired by the Immigration records are kept by the • Iceland • Spain Deputy Prime Minister of the Republic MIA based on information from inviting • Indonesia • Sweden of Kazakhstan is required for foreign parties and by the National Security • Ireland • Switzerland individuals to enter the country. This Committee of Kazakhstan based on • Israel • Thailand means that, when a foreign individual information from Kazakh border control • Italy • Turkey seeks entry to Kazakhstan for work, authorities. • Japan • United Arab business or other purposes, the inviting company must first prepare an official A temporary stay permit allows a foreign • Korea (South) Emirates request addressed to the head of the individual to stay for a definite period • Kuwait • United Kingdom administration of the respective city (e. g., the length of an employment • Latvia • United States agreement) and must be obtained by the (the city governor). That request must • Liechtenstein • Vatican set out the reasons why the company inviting party. A temporary stay permit is • Lithuania • Vietnam needs the foreign employee in question. issued based on applications from: 18 Doing business in Kazakhstan
1. Individuals inviting foreign Various sanctions are prescribed for Limited liability partnerships (LLPs) individuals for family reunion non-compliance with immigration The main difference between a JSC requirements. Please refer to the and an LLP is that an LLP does not 2. Individuals or legal entities that relevant section for details. issue shares; instead, participants hold have concluded an employment agreement with a foreign individual interests in the partnership. An LLP may Should you require assistance in be formed by one or more participants. 3. Educational organizations planning and managing your human Generally, the participants in an LLP are capital needs, EY can assist with not liable for the LLP’s debts beyond the 4. Medical organizations business and work visas, work permit value of their contributions. There are a 5. Religious organizations applications for foreign employees, number of exceptions to this rule under Kazakh law. 6. Local authorities inviting individuals tax registration, tax and legal compli- to engage in entrepreneurial ance for expatriate individuals and the The minimum capital requirement for activities (business immigrants). drafting of secondment agreements. an LLP is 100 MCI (approximately US$694), with the exception of small However, foreign individuals in posses- businesses, for which the minimum is sion of a visa issued after 1 July 2018 set at zero. Participants’ interests are do not need to obtain a temporary stay Types of legal entities proportional to their contributions to the permit. Relevant data will be automati- Under the Civil Code, foreign and charter capital, unless the foundation cally recorded in the Berkut electronic local investors may use a number documents provide otherwise. database based on information provided of organizational forms to do Participants have pre-emptive rights to in the letter of invitation. For foreigners business in Kazakhstan, including each other’s interests. entering Kazakhstan under a visa-free simple partnerships, limited liability regime, the new rule described above Importantly, LLPs in Kazakhstan are partnerships, additional liability limited will apply. The period of stay in Kazakh- separate legal entities that are distinct partnerships, production cooperatives stan ends upon the expiry of the visa or, from their participants. As a legal entity, and joint stock companies. for visa-free visitors, after 30 calendar an LLP is subject to state registration days or the period indicated in the tem- In this section we give details of those and taxation in its own right, i. e., it is types of business vehicles that are most not tax-transparent. porary stay permit. widely used in practice. In addition, Kazakh law allows a foreign Starting from 2020, the temporary stay Joint stock companies (JSCs) company to establish branches and of foreign individuals arriving in Kazakh- representative offices. Under the Civil stan under a visa-free regime (including A JSC is a legal entity that issues shares Code, branches and representative the 57 countries listed above) must not in order to attract investments to offices are not considered separate legal exceed 30 calendar days from the day finance its activities. A JSC is separate entities. of crossing the Kazakh border and must and distinct from its shareholders, not exceed 90 calendar days in any i. e., shareholders are not liable for Representative office 180-calendar day period unless other- the JSC’s liabilities. It may have one A representative office is established wise provided in an agreement between or more shareholders. The minimum to represent a foreign entity’s interests Kazakhstan and the foreign country con- capital required for a JSC is 50,000 MCI in Kazakhstan. A representative office cerned or decided by the Government of (approximately US$350,000). protects and represents the interests Kazakhstan. This rule does not apply to of the foreign legal entity and carries individuals who have a temporary stay out preparatory and auxiliary activities, permit as described above. Doing business in Kazakhstan 19
such as marketing and advertising. Generally, a representative office may not engage in commercial activities. Branch A branch is a subdivision of a foreign legal entity that performs all or part of the foreign entity’s functions. In particular, it may engage in commercial activities. Should you require more information on the nature and uses of the various types of business entities in Kazakhstan, EY offers tax and legal advice on how to structure a business, as well as a full range of company formation and registration services. Establishing a legal presence As a rule, all legal entities, branches and representative offices in Kazakhstan must be registered with the state. It is important to determine whether any specific approvals and/or consents must be obtained from government authorities before proceeding with state registration. State registration State registration in Kazakhstan follows a “one-stop shop” principle: all registration documents must be submitted to a single government authority, the Government for Citizens. Under the law on state registration, the procedure should take from 1 to 5 business days. In practice, general registration can take up to one month. 20 Doing business in Kazakhstan
The law prescribes a standard set of If entities are not actually present National Bank of Kazakhstan of the documents that must be submitted for at their legal address, i.e., the state opening of a bank account abroad by the state registration of a company. revenue authorities cannot find anyone applying for a registration number to Having all the right documents is key to representing an entity at the time of be assigned to the bank account by a successful registration process. It is observation, they may be penalized. the National Bank of Kazakhstan essential to ensure that the documents Specifically, they may be deregistered • Kazakh legal entities, branches and have been duly signed, sealed, notarized for VAT purposes or their bank accounts representative offices of Kazakh legal and legalized, or apostilled if they may be frozen. It is therefore important entities are required to provide the were executed abroad; otherwise, for entities to be actually present at the National Bank of Kazakhstan with the registration process may be legal address stated in their foundation information on any transactions considerably delayed. documents and registration records, or on bank accounts held with foreign at least to ensure that, if the authorities The state registration fee is currently banks visit (or if they send correspondence 6.5 MCI (approximately US$43). or call the contact telephone number), • Kazakh legal entities, branches and Location (legal address) there is someone who can confirm the representative offices of Kazakh legal validity of the legal address. entities are required to notify the A legal entity’s location is the address National Bank of Kazakhstan of the indicated in its foundation documents Kazakh law stipulates that entities closure of or changes in details of (e.g., its charter). Under Kazakh law, that are not present at their registered bank accounts held abroad. a legal entity is located in the same address for one year or more may be place as its permanently operating liquidated/deregistered based on a court See the “Banking regulations” and governing body (i. e., its director or decision. “Currency regulations” sections for board of directors). Location plays more details. an important part in a legal entity’s Opening a bank account registration and other legal events, such (legal entities and individuals) Categories of work immigrants, as the determination of the court with Bank accounts may be opened with a work permits and secondment which an appeal against such entity local bank in Kazakhstan in the national should be filed (usually a court in the The Law of the Republic of Kazakhstan currency and/or in a foreign currency. on Population Migration, adopted on defendant’s location) and the state Branches and representative offices revenue authority to which tax and 22 July 2011, establishes the following of foreign legal entities may opt to use categories of immigrants entering the other payments must be made. offshore (foreign) bank accounts. country for employment purposes: Under Kazakh law, government Kazakh legal entities are permitted to authorities, including state revenue • Foreign immigrant workers, i. e., hold bank accounts outside Kazakhstan persons who come to Kazakhstan to authorities, require legal entities, without restrictions. branches and representative offices engage in independently arranged em- (“entities”) to be present at the legal Under currency law, the rules for ployment in high demand occupations addresses indicated in their foundation notifying the National Bank of in priority economic sectors (business documents and registration records. The Kazakhstan of the opening of a bank areas), and persons who are engaged state revenue authorities may visit them account with foreign banks are as follows: by employers to work in Kazakhstan, at their legal address under the so-called including by intra-corporate transfer • Kazakh legal entities, branches and “observation procedure”. representative offices of Kazakh legal • Business immigrants, i. e., entities are required to notify the persons who come to engage Doing business in Kazakhstan 21
in entrepreneurial activities in agreements, which are commonly used There is, however, a restriction on the accordance with Kazakh law around the world) and (iii) transfer number of foreign employees that • Seasonal foreign workers, i. e., of a foreigner to a local branch/ may be hired by a Kazakh employer/ immigrants hired to perform representative office/subsidiary from local host entity — the so-called “ratio seasonal work during specific periods a parent company based in a WTO requirement”. Currently, the total (seasons) determined by climatic or country (intra-corporate transfer). number of foreign employees of a other natural conditions, but not for A work permit is obtained by submitting Kazakh employer/local host entity must more than one year documents to the local authorities under not exceed: one of two procedures: the standard • Labour immigrants who come to • 30% of the total number of Category procedure or intra-corporate transfer. Kazakhstan as domestic workers 1 and 2 employees The latter option is available as a result to perform household-based work of Kazakhstan joining the World Trade • 10% of the total number of Category (services) for individuals (employers) Organization (WTO). 3 and 4 employees under a labour immigrant permit. Work permits Standard procedure An exemption from the ratio requirement Work permits are issued by local applies for small businesses, state There are two types of permits authorities within the quota allocated enterprises and agencies, self-employed allowing foreign individuals to work in by the Ministry of Labour and Social foreign individuals, permits issued within Kazakhstan: Protection on an annual basis. The quota the quotas for particular countries of • A permit to engage foreign labour is the maximum number of foreign origin and branches and representative individuals who can be hired to work in offices of foreign legal entities with no • A permit issued to a foreign Kazakhstan in particular regions. Quotas more than 30 employees. individual who independently came to Kazakhstan to work in a particular are determined mainly on the basis of To obtain a work permit, each foreign occupation. The Kazakh government annual applications from employers, individual must meet the set qualification approves the list of such occupations. which must be submitted by 1 October. requirements. As in many other countries, employers The government may decide to reduce A work permit under the standard in Kazakhstan must obtain a permit to the overall quota for a particular year procedure is issued for the following employ foreign citizens. (for instance, the quota for 2020 was durations: reduced by 40% compared with 2019). There is a reasonable amount of • Category 1 — 1, 2 and 3 years with flexibility in the process of hiring For the purposes of work permits issued annual extension by 1, 2, or 3 years foreigners in Kazakhstan. Unlike under the standard procedure, foreign individuals are divided into the following • Category 2 — 12 months with annual many countries where employers categories: extension by 12 months, but no more are required to sign employment than 3 times contracts with foreign nationals to hire • Category 1 — CEOs and deputy CEOs them as local employees, Kazakhstan of companies • Category 3 — 12 months with annual offers different options, including (i) extension by 12 months, but no more employing a foreigner directly as a • Category 2 — Leaders of business than 3 times local employee, (ii) engaging foreign divisions/department • Category 4 — 12 months with no specialists through a service contract • Category 3 — Professionals option to extend with a foreign contractor not present in Kazakhstan (including secondment • Category 4 — Skilled workers 22 Doing business in Kazakhstan
An employer is charged a state duty the transfer period, but not more than new jobs for Kazakh citizens, retraining for the issuance or extension of a work 3 years (36 months) with the option to of Kazakh citizens, etc.). No special permit. The amount of the duty is extend it once by 1 year (12 months). conditions are imposed on the host established by the Kazakh government company when hiring executives. ICT-based work permits are issued free and depends on the type of business of state duties and are not subject to the Work permit exemptions of the employer and the category of foreign labour quota. To encourage foreign investment, the foreign employee. The amount of state duty ranges from approximately However, before hiring a foreign Kazakhstan offers various exemptions US$950 to US$3500 depending on specialist to work in Kazakhstan under from the requirement to obtain work the sector and the category of the ICT, the local host entity must carry out permits for foreign workers. Exemptions employee. a search for suitable candidates on the apply, for instance, to Kazakh labour market and obtain a work • Business immigrants who come Intra-corporate transfer permit only if no suitable candidates are to Kazakhstan to engage in An intra-corporate transfer (ICT) is found. For each manager or specialist entrepreneurial activities a temporary transfer of a foreign work permit received under ICT, the individual from a legal entity established employer must fulfil one of a number in the territory of a WTO state other of special conditions (e. g., creation of than Kazakhstan to a branch, subsidiary or representative office in Kazakhstan. For the purpose of obtaining a work permit under ICT, foreign individuals are classified into: • Specialists • Managers • Executives Under the ratio requirement for ICT, the number of foreign employees must not exceed 50% of the total number of managers and specialists. No ratio requirement applies in relation to ex- ecutives. A foreign individual engaged under ICT remains employed by the home company but must comply with the requirements of the host employer in terms of work schedule and health and safety requirements. The foreign in- dividual must meet relevant qualification requirements and have at least one year of work experience with the entity based in a WTO member state. Local authori- ties issue a work permit under ICT for Doing business in Kazakhstan 23
• CEOs of local branches or • Employees of companies registered in Sanctions for non-compliance representative offices of foreign one of Kazakhstan’s 10 free economic with immigration legislation companies and CEOs and deputy zones (FEZs) to implement projects Kazakh law imposes severe sanctions CEOs of local wholly foreign-owned worth more than KZT 2.917 million on inviting parties and foreign citizens companies (in 2021) or companies contracted for non-compliance with immigration by an FEZ resident, for the period of legislation. Administrative sanctions • CEOs of companies that have construction and installation work imposed on a company may be as high entered into agreements with the in the FEZ and during the first year as US$6,900 (per foreign individual per Government of Kazakhstan to invest after the commissioning date of violation). In the worst-case scenario, more than US$50 million in the the project facility, in accordance the individual may be subjected to country, and CEOs of local companies with the list of employee categories administrative detention for up to 15 running investment projects in key and numbers adopted by a special days or administrative deportation from industries under agreements with committee of competent authorities the country and the company may be local competent authorities • Individuals working in a national man- banned from hiring foreigners for up to • Nationals of member countries of the 1 year, i.e., no work permit will be issued aging holding company in positions Eurasian Economic Union regardless and invitations from the company will not lower than heads of departments, of their position or the duration of not be accepted for visa applications. holding a higher education and their employment in Kazakhstan possessing the required supporting In addition, a foreign individual must • Foreign nationals engaged by documents, and individuals hired by a personally attend the administrative participants or bodies of the Astana national managing holding company court in connection with an immigration International Finance Centre (AIFC) as members of the board of directors offence. Such foreign individuals are not • Individuals working in the Astana • Employees sent on business trips for allowed to enter Kazakhstan for 5 years Hub international technology park a period or periods totalling no more after administrative deportation from or hired by park participants in the than 120 calendar days in the course Kazakhstan. positions of managers and specialists of a calendar year. Residence permits with a higher education Kazakhstan issues residence permits. • Managers and professionals with a There is no quota system for immigration higher education working either with into Kazakhstan under residence permits. local companies that have entered into contracts to implement investment projects in priority areas or with companies in the architectural, town- planning and construction industries contracted by such an investor, for the period until the end of the first year after the commissioning date of the project facility, or as skilled workers in accordance with the list of occupations and employee numbers approved as part of investment contracts 24 Doing business in Kazakhstan
Family members Incentives for investors 2. Priority investment projects The spouse of a holder of a Kazakh work involving the creation of new With the aim of creating a favourable production facilities with investments permit does not automatically receive investment climate, Kazakhstan provides of no less than US$13,858,177 the same type of work permit. If he or various benefits for investors depending or the expansion and upgrading she wishes to take up employment, a on their area of activity. of existing production facilities work permit application must be filed independently. with investments of no less than Investment contract US$34,645,443 Secondment In order to enjoy certain investment incentives, the investor must enter 3. Special investment projects The secondment of foreign personnel is implemented by legal entities into an investment contract with the currently a major issue on the Kazakh registered as participants of special Investment Committee of the Ministry job market. economic zones, or by owners of a of Foreign Affairs of the Republic of The Tax Code provides a safe harbour Kazakhstan (the “Committee”). The free warehouse, or by legal entities whereby a foreign entity providing form of investment contract is approved that have entered into an agreement secondees from outside Kazakhstan may by a Government Resolution. on the industrial assembly of motor avoid being taxed in Kazakhstan. Certain vehicles. It is important to note that the conditions must be met for this to apply. All such investment projects must fall investment contract must be concluded Under secondment, the local host with a Kazakh legal entity, which may within the list of priority areas of activity company acts as a tax agent in relation be a subsidiary of a foreign company. approved by the Kazakh government. to the income of the seconded personnel The term of the investment contract Below we outline types of incentives and is responsible for shadow payroll is determined by the effective period provided to investors depending on the tax calculation and reporting, including of the investment incentives to be type of investment project: personal income tax and social tax provided. 1. Regular investment projects liabilities. However, it is important The Entrepreneurial Code of Kazakhstan • exemption from customs duties to note that, besides tax legislation, specifies three types of projects that the secondment must also comply may be implemented under investment • exemption from import VAT with relevant Kazakhstan labour law contracts: • in-kind grants (free land lease, requirements. 1. Regular investment projects title to land plots and equipment) involving the creation of new or up to a value not exceeding 30% EEY can assist with of total investment expansion and upgrading of existing (i) the structuring of a secondment production facilities, including 2. Priority investment projects arrangement that meets the applicable facilities created, expanded and/ legislative requirements; • exemption from customs duties or upgraded through public-private (ii) drafting secondment agreements partnerships, including concession • in-kind grants (free land lease, and other mandatory documents; projects. title to land plots and equipment) (iii) application for required permits, registration, etc. in Kazakhstan up to a value not exceeding 30% of total investment Doing business in Kazakhstan 25
• tax incentives, and specifically: concluded for one and the same mineral Special economic zones processing project or production facility. Special economic zones (SEZ) are • 100% CIT relief for up to 10 years for new production Furthermore, the state grants specialized territories of Kazakhstan facilities and 3 years for the investment incentives based on with defined boundaries and a special upgrading of existing production the principle of reciprocity, i.e., the regulatory regime designed to support facilities subsurface user may be required to certain priority activities. The list of fulfil a number of social and investment priority activities is set by an Order • zero rate land tax for up to of the Minister for Investment and obligations, such as: 10 years Development. The Order specifies • the creation and preservation of priority activities for 13 (thirteen) • zero rate property tax for up to jobs for citizens of the Republic of different SEZs in Kazakhstan: 8 years Kazakhstan in the extractive and/or • investment subsidies if the processing industries 1. stana, New City (Nur-Sultan) — A investments are no less than construction of industrial facilities • the creation, expansion and/or and infrastructure US$34,645,442 (compensation upgrading of processing facilities of up to 30% of expenditure 2. National Industrial Petrochemical on construction works and • obligations relating to the volume and Technopark (Atyrau region) — procurement of equipment during level of processing of solid minerals manufacture of petrochemical the implementation stage). products and construction of • obligations relating to the volume of products sold as raw materials to industrial facilities 3. Special investment projects entities operating on the domestic 3. Morport Aktau (Mangystau • exemption from customs duties market region) — metallurgy, construction • exemption from import VAT • the financing of programs of Kazakh of industrial facilities educational institutions for the train- 4. Innovative Technologies Park Agreement on the processing of solid ing of specialists in environmental (Almaty) — IT services minerals protection and applied sciences The Subsurface Use Code currently 5. ntustik (South Kazakhstan O provides investment incentives for • the financing of the construction and/ region) — production of textile and subsurface users that implement a or reconstruction of social and/or other materials priority investment project involving cultural facilities the processing of solid minerals in 6. Saryarka (Karaganda region) — The termination of an agreement on the Kazakhstan and have concluded relevant metallurgy, construction of processing of solid minerals also entails agreements with the Committee. industrial facilities the termination of investment incentives To enjoy investment incentives, granted. 7. Khorgos Eastern Gates subsurface users must invest no less (Almaty region) — production of than US$48,503,620 and apply to the food, textiles, non-metallic minerals Committee to conclude an agreement and other materials on the processing of solid minerals 8. Pavlodar (Pavlodar) — manufacture through a negotiation and appraisal of chemical and petrochemical process. It should be noted that only materials and construction of one processing agreement may be industrial facilities 26 Doing business in Kazakhstan
You can also read