All-monies guarantees: monetary limits on banking guarantees

Guarantees are arguably the most essential part of a financial transaction, especially when lenders are institutions such as multinational financial services companies who rely on such collateral to carry out their business, e.g., credit facilities, bilateral agreements or, more commonly among us, mortgage deals.

Being the essential tool that they are, guarantees come in many shapes and forms, but one of the key distinctions from a lender’s perspective is often whether it is “specific” (in that it guarantees only obligations arising under a specific agreement) or “all monies” (in that it guarantees any and all obligations from the principal debtor to the lender, whether existing at the time of the guarantee or arising in future). Of course, a lender’s preferred solution is clearly to obtain an all monies guarantee.

These are, however, legal instruments which have originated and are used within the common law jurisdictions, and bear no real conceptual equivalent in civil law systems such as that of the Macau SAR.

In truth, the so-called “all moneys” guarantees are not a legally viable and enforceable option withing the Macanese system, because there are specific rules within the Civil Code which clearly state that in any agreement, the object of negotiation and the level of liability must be determined in advance.

This is perfectly understandable when the goal is to avoid unethical practices such as predatory lending from large creditors over smaller debtors.

In terms of banking guarantees, it is therefore important to keep in mind that the enforceability in the Macau SAR of an all-monies clause is likely to be barred by the local courts, since such type of provision does not cap the liability amount secured by the guarantor.

We conclude that whilst an all monies guarantee is considered null and void within the Macau SAR and should be avoided when dealing with financial backstops offered by a lending institution such as banking guarantees, the best course of action would be to define a limited and capped amount that may otherwise be enforceable in court – if need be.

 

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Manuela António – Lawyers and Notaries contributes to Chambers and Partners‘ ‘Aviation Finance & Leasing 2020’ Global Practice Guide

We are delighted to announce that our own Hugo Maia Bandeira and Daniel Silva Melo contributed to the Chambers and Partners‘ ‘Aviation Finance & Leasing 2020’ Global Practice Guide.

It is an honour to be included in this year’s expanded edition along with other distinguished practitioners from leading law firms in over 20 jurisdictions.

Macau’s Trends and Developments Chapter, which our team contributed to, is now available online: https://practiceguides.chambers.com/practice-guides/aviation-finance-leasing-2020/macau/trends-and-developments

 

You can download the chapter in pdf format below.

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Leasehold renewals for definitive concessions under the old land law: past practices and present time concerns

Under the former land law – Law no. 6/80/M, of 5 July (the “Old Land Law”) as amended in 1991 –, and also today under the new land law – Law no. 13/2013, of 2 September (the “New Land Law”) –, the lease concession of a land plot has a term of a maximum twenty-five years, upon which such concession will then either expire under certain circumstances, or be renewed.

The Old Land Law stipulated that the leaseholder of a definitive concession had to declare his interest in renewing the concession. This declaration – which could not be presented more than six months before the terminus of the leasehold – was understood as a simple formality, one which was summited at the Land, Public Works and Transport Bureau (the “Land Bureau”), and in which the declarer would merely state the interest in renovating the respective land lease agreement. Under the law, the length of the renewal was ten years – a period that remains the same even today, under the New Land Law.

In these circumstances, under the Old Land Law and with regards to the renovation of land plots in case of an indivisible building or a building set up in horizontal property (i.e., under strata title), the declaration to renew a leasehold concession would automatically benefit any and all owners of the building units (or co-owners of the buildings) in question.

In practice, the said declaration was (and still is) often submitted after the leasehold period expires, but this never really attracts legal consequences of any sort for the leaseholders, maxime, the expiration of the concession leasehold.

In fact, it has been the Government’s practice and position for many decades to allow for these renovations to take place by sole virtue of the leaseholder’s declaration of interest, which was merely filed at the Land Bureau, being such declaration accepted by the Land Registry as title to record the renewals without further ado – whether the expiration date would have already effectively occurred place or not.

Nowadays, under the New Land Law, the declarations for renewal are no longer necessary, as the legislator saw fit to eliminate the said procedure, confirming the trivial nature of the said formality and implementing an innovative mechanism of automatic renewal for definitive leasehold concessions – save for a few exceptions, where authorization from the Chief Executive is required for the said renewal.

In any case, and although the old procedure brought certainty in the past, this was part of an understanding that the Government held under the Old Land Law. Moreover, it should be noted that the legal framework is different now.

In other words, regarding those concessions whose declarations of interest for the renewal of their leasehold concessions were not timely submitted before the New Land Law, the lack of request for the renewal may now bring some inconveniences.

In the light of the above, and to avoid any undesired repercussions in the future, the owners of buildings or building units whose concessions became definitive prior to the entry into force of the New Land Law should verify whether the respective lease concession term has been reached or not. If they have, owners of those buildings or units should immediately send the abovementioned declaration to the Land Bureau in order to have the situation cleared. This way, it is understood that the Land Bureau will henceforth communicate with the Land Registry and the Financial Services Bureau to complete the renewal recording procedures.

 

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The new bill for consumer protection

The recent turmoil caused by the price hike in one of the local supermarkets chain, has reminded us about the importance of having in place effective laws and regulations to successfully secure the rights of local consumers.

However, when we look to the existent legal framework we may immediately realize that the same is scarce and outdated. Indeed, the main piece of legislation currently in force to protect consumers rights, the Law n.º 12/88/M (the “Consumer Protection Law”), dates back to 1988 and during the 32 years of its existence, it was only amended once, in 1995, by virtue of the Law n.º 4/95/M which has restructured the Consumers Council.

It is thus quite obvious that the Macau SAR consumers legal framework needs to be updated, modernized and adjusted to the changes in society carried forward by the technological breakthroughs that occurred since the late 80’s until today. The existence of the world wide web, smart phones, social media, internet of things, cryptocurrencies, blockchain, are clear examples of technology achievements that are still revolutionizing the way of doing business and also bringing new forms of goods and services. As a result, consumer rights are constantly threatened and new and complex legal questions arise at a pace that legislators are not able to anticipate.

In this context, it is with optimism that we welcome the draft bill for the protection of consumers rights (the “New Consumers Bill”) which was discussed in March last year at the Legislative Assembly and is still to be enacted.

Among the innovations that the New Consumers Bill aims to implement we would highlight the following:

  1. Prohibition of misleading and aggressive commercial practices: pursuant to the New Consumers Bill misleading and aggressive commercial practices, meaning unfair practices which have the ability to materially distort the average consumer’s economic behaviour, will be strictly forbidden and its contravention will be subject to the application of fines that will range between MOP20,000.00 and MOP60,000.00 also including the application of ancillary sanctions, notably the suspension of business activities.
  2. Defective products: according to the New Consumers Bill if the product acquired by a consumer becomes defective within the first 6 (six) months of the delivery, it is presumed to be defective at the date of delivery, unless the retailer can prove otherwise. During this period, it is up to the retailer to prove that the defect was not there when the consumer has bought the product.
  3. Distance contracts (e-commerce): the New Consumers Bill introduce for the first time in the Macau SAR the concept of distance contracts. The definition of distance contract in the New Consumers Bill is like in other jurisdictions neutral technology wise. In this sense, the law defines the distance contract as an agreement between a consumer and a commercial operator, without the physical presence of the parties to the contract, by means of an organised system to sell goods or provide services at distance through the exclusive use of means of communication at distance. For this form of negotiation, commercial operators will be required to provide the consumer with a set of mandatory pre-contractual information, and the consumer is entitled with a 7 (seven) days cooling of period.
  4. Role of Consumers Council – according to the New Consumers Bill the role and authority of the Consumers Council will be quite reinforced, as the same will be empowered with sanctionary powers in case of infringements to the New Consumers Bill.

Notwithstanding the above, a closer look at the provisions of the New Consumers Bill allow us to spot some points that would be convenient to be reviewed before being gazzetted.

In the first place, when comparing the list of consumers rights laid down in the article 2 of the Consumer Protection Law with the article 9 of the New Consumers Bill, we realize that the consumer rights seem to have shrunk. In this regard, we may highlight the disappearance of the right to education on consumer matters (currently set forth in the paragraph b) of article 3 of Consumer Protection Law) and more importantly the right of consumers to have access to justice without burden (currently set forth in the paragraph b) of article 3 of Consumer Protection Law).

Secondly, taking into account that the 2 (two) official languages in the Macau SAR are the Chinese and the Portuguese, it sounds a bit awkward that the the duty to inform the consumers about the goods and/or services could be complied by the commercial operators in English as an alternative to the use of one of the official languages (the Portuguese). It would be more consistent with Macau SAR legal system and its cultural identity, that such duty shall be complied in both official languages and the use of any foreign language should be of course encouraged, however on a complementary basis rather than an alternative to any of the official languages as it is currently stated in the paragraph number 2 of the article 12 of the New Consumers Bill.

Finally, and although the New Consumers Bill sets forth some regulation to the distance contracts, it seems however that the proposed regulation fails to address the core of the problems that distance contracts primarily rise, notably in case of cross border transactions. Questions like what are the applicable laws and regulations to govern the distance contract, which will be the country of competent jurisdiction, or if a website belonging to a foreign entity promoting marketing activities targeting Macau SAR consumers shall be subject to the Macau SAR laws and jurisdiction, remain without answer in the New Consumers Bill. In this regard, the works and publications that have been made by the International Chamber of Commerce (the e- terms) and UNCITRAL (the model law for e-commerce), could be a good source of inspiration for the Macau SAR legislator to design suitable solutions to address such specific questions and other questions with the same level of importance.

 

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MACAU SAR GOVERNMENT – ECONOMIC RELIEF MEASURES – COVID-19

As the global economy struggles with the unprecedented consequences of the Covid-19 pandemic, the Macau SAR Government announced several measures to help and boost its economy through this crisis.

With cross-border restrictions and lockdown measures being implemented around the world, the economy of Macau, which is mostly reliant on tourism revenues, is facing the biggest challenge since the creation of the SAR in 1999.

The Government of the Macau SAR, aware of the economic difficulties that local residents and small and medium-sized businesses may suffer, has implemented several measures covering the most diverse sectors of activity. These measures were divided in two waves of economic relief measures.

The purpose of this newsletter is to explain the main economic relief measures in a schematic and organized manner, what they consist of and who the beneficiaries are.

 

  1. Measures for Macau citizensElectronic Consumption Card
    In order to stimulate the economy and benefit both local residents and commercial establishments, each Macau resident (either permanent or non-permanent) is given an electronic consumption card with MOP3,000.00, to be exclusively used between May 1, 2020 and July 31, 2020 in local businesses, with a maximum daily use limit of MOP300.00. Exceptions include casinos, banks, insurance companies, other financial institutions as well as pawnshops.
    The card cannot be used as well to pay current expenses, such as water, electricity, fuel, natural gas or medical services.
    For the period between August 1, 2020 and December 31, 2020, another electronic consumption card  in the amount of MOP5,000.00 will be granted by the Macau Government.

    Waiver of payment (water and electricity bills)
    The government will cover all energy and water tariffs for residential units for all citizens (regardless of being Macau residents or not) of Macau, for a period of 3 months (between March and May 2020).

    Anticipation of the Wealth Partaking Scheme
    The Government will anticipate to the month of April the starting of the distribution of the annual cheque as part of the Wealth Partaking Scheme to the Macau Residents.

    Another Healthcare Subsidy
    The Macau Permanent Residents will receive an additional healthcare subsidy to be used in 2020 in the amount of MOP600.00 to help overcome health constraints caused by the pandemic.

    Property Tax Exemption for 2020
    The Macau Government announced as well that the Macau Residents will benefit from a property tax exemption over residential properties. Such exemption will only be valid for the tax year of 2020.

  2. Measures for workersTax Reliefs
    Return of 70% of the Professional Tax (instead of 60%) up to the amount of MOP20,000.00 (instead of MOP14,000.00), of the amount paid for the year of 2018, provided that such workers were holders of a valid Macau ID card on December 31, 2018.
    Change in the percentage of deduction of the professional tax base for the year 2020 – from 25% to 30%.

    Economic Support for Local Workers
    The Government will support local workers by providing a lump sum of MOP15,000.00 as part of a three-month subsidy (MOP5,000.00 per month), provided that such local workers have submitted their professional tax declaration, are not public servants and did not receive the professional tax refund.

    Self-employed Workers
    Financial support plan for self-employed workers – amount allocated only once to the taxpayers of the 2nd group of the professional tax.
    The amount to be granted shall range from MOP15,000.00 to MOP200,000.00 depending on the number of employees hired by the beneficiary.
    Bonus plan for interest on bank loans for self-employed workers (taxpayers of the 2nd group of professional tax) – a 2-year interest subsidy will be granted on bank loans up to a limit amount of MOP100,000.00. The maximum interest rate is fixed at 4% and the bonus limit amount is MOP8,000.00.

  3. Measures for CompaniesTax ReliefsComplementary Income Tax
    A fixed deduction of MOP300,000.00 from the payable tax concerning the taxable income for the tax year of 2019.

    Property Tax
    For properties duly registered at the Financial Services Bureau, for hospitality business, offices, commercial as well as industrial purposes will benefit, as regards to the tax year of 2020 from a fixed deduction in the amount of MOP3,500.00 from the payable tax and a deduction of 25% of the remaining amount, after that fixed deduction.

    Tourism Tax
    Exemption of payment for businesses such as hotels, bars, health clubs, karaoke bars, amongst others, for a period of 6 months starting on May 1, 2020.

    Stamp Duty
    Exemption of stamp duty payment for the tax year of 2020 on the issuance and renewal of permits and licenses comprised in article 2 and 28 of the Stamp Duty General Table (i.e. permits and licenses issued to carry out any activities subject to such legal requirement and any permits or licenses issued by any public authority or municipality service).

    Small and Medium Sized Enterprises.Credit interest subsidy plan for SMEs, which is aimed at SMEs that have been granted loans by banking institutions due to the negative impact of the pandemic on their business. The interest subsidy, up to a limit of 4%, for loans up to a maximum amount of MOP2,000,000.00, for a maximum period of 3 years.

    Special support plan for SMEs (similar to the measure that was launched in 2003 to combat the adverse economic effects caused by SARS) up to the maximum fixed amount of MOP600,000.00, which can be repaid within a maximum period of eight years.

    Both plans are aimed at businesses with less than 100 employees and require that either the entrepreneur is a Macau resident or in case of a company, that at least 50% of its share capital is held by Macau residents.

    Support Fund for Companies
    For companies that fulfill the requirements referred to below, a support amount that varies between MOP15,000.00 and MOP200,000.00 shall be provided. Said amount shall be calculated based on the number of workers hired by the Company.

    Beneficiaries Amount
     

    businesses without employees, owned by Macau residents or incorporated as companies and which have submitted the income tax return form

     

     

     

    MOP15,000.00

    businesses hiring between 1 to 3 workers MOP50,000.00
    businesses hiring between 4 to 6 workers MOP75,000.00
    businesses hiring between 7 to 10 workers MOP100,000.00
    businesses hiring between 11 to 13 workers MOP125,000.00
    bbusinesses hiring between 14 to 16 workers MOP150,000.00
    businesses hiring between 17 to 20 workers MOP175,000.00
    businesses hiring 21 workers or more MOP200,000.00

     

    If the same taxpayer is the owner of several companies, said taxpayer may benefit from a financial support to a maximum amount of MOP1,000,000.00.

    Companies that will benefit from this support cannot terminate without cause any employment agreements with their employees, for a period of 6 months, under penalty of having to proportionally refund the amount received.

    This plan does not apply to institutions in the following areas: electricity, water, natural gas and fuels; public buses and light rail; public telecommunications services; financial sector; institutions of regular education and higher education; social assistance institutions; gaming sector, etc.

 

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Registration and De-Registration of foreign investment funds in Macau SAR

The Decree-law no.83/99/M of 22 November 1999 sets out the main rules applicable to investment funds in Macau Special Administrative Region of the People’s Republic of China (the “Macau SAR”).

The referred legal framework provides rules applicable namely to investment funds based in Macau SAR and to funds domiciled outside Macau SAR that intend to advertise and marketing fund investment units in Macau SAR.

  1. Procedure of registration of the Foreign Fund

Under the terms set out in Articles 61 and 62 of Decree-Law no.83/99/M of 22 November 1999, advertising and marketing in Macau SAR of investment fund units of funds domiciled abroad or managed by a management entity based outside Macau SAR (hereinafter referred as “Foreign Fund” or “Foreign Funds”) is subject to prior authorization by the Monetary Authority of Macau (the ”AMCM”). In other words, it is strictly forbidden under the terms of Macau Law to advertise and marketing in Macau SAR any fund units of Foreign Funds without obtaining the prior authorization of AMCM.

The nature of the Foreign Fund will determine if the petition to request the authorization with AMCM should be filed by the Manager entity of the Foreign Fund or by the Macanese distributor. In general terms, if the Foreign Fund qualifies as an open-ended type fund the petition should be filed by the Manager entity of the Foreign Fund. On contrary, if the fund qualifies as a close-ended fund said petition should be filed by the Macanese distributor.

It should be referred that petition requesting the authorization should contain the necessary information and documents to allow AMCM to assess if the Foreign Fund, Manager entity, Trustee and/or Custodian, fund units of the Foreign Fund are in accordance with Macau Law.

Notwithstanding the above, it should be noted that the referred authorization will only be granted by AMCM if the Foreign Funds have been duly authorized by the competent authorities of the country or territory of origin of the fund and if the Manager entity, Trustee and/or Custodian are subject to the supervision of the competent authority.

If the information and documents provided to AMCM are in accordance with its standards, the authorization should be granted. In accordance with our experience, AMCM usually takes one month – counting from the date of submission of all necessary information and documents – to issue an authorization letter to the Foreign Fund.

  1. After the issuance of the authorization

After the issuance of the authorization letter, the Foreign Funds may be advertised and marketed in Macau SAR.

In terms of marketing, it should be pointed out that any promotion in Macau SAR of the Foreign Funds must identify the Manager entity and the supervisory authority of the referred Manager entity as well as the Trustee and/or Custodian.

One important remark that should be taken into consideration, is that all changes to the main aspects of the Foreign Fund such as its designation, structure, change of the Manager entity, and/or of the Trustee and/or of the Custodian must be reported to AMCM within 30 days after the formal approval from the supervisory authority of the country or territory of origin of the fund.

In addition, AMCM must also be informed within 30 days as of the signing of any agency agreements with any new Macanese distributor. The AMCM must also be informed by the Manager entity on the termination of any agency agreement with any Macanese distributor.

If the Manager entity fails to comply with any of the referred obligations – as well with any other obligation referred to in the Decree-law no.83/99/M – it may be subject to the sanctions provided in the Financial System Act (Decree-law no. 32/93/M of 5 July).

 

  1. De-Registration of a Foreign Fund

The de-registration of the Foreign Fund before AMCM may be imposed to the Manager entity or may be voluntarily requested by the Manager entity.

If the supervisory authority of the country or territory of origin of the Foreign Fund withdraws its authorization, the Manager entity should stop immediately advertising and marketing the fund units in Macau SAR. In this scenario, the Foreign Fund investors in Macau SAR must be immediately notified by the Manager entity. The Manager entity must also file a petition with AMCM requesting the revocation of the authorization for the marketing and advertising of Foreign Fund in Macau SAR.

The de-registration of the Foreign Fund with AMCM may also occur if the Manager entity wishes so. In this case, the Manager entity must give a prior written notice of at least three months to the investors in Macau SAR of such fact. Moreover, the Manager entity must also file a petition with AMCM requesting the revocation of the authorization.

In both cases, the interests of the investors must be taken into account. Therefore, AMCM will only issue a de-registration authorization if the Manager entity ensures that the rights of the investors will be respected during and after the de-registration stage. This assessment must be carried out through a case-by-case analysis hence one might state that it is complicated to determine a priori a de-registration plan that protects the investors in Macau SAR.

If there are no investors in Macau SAR, the de-registration procedure may be simpler as there is no need to determine a plan to protect their interests.

 

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Covid-19 Outbreak and its Impact in Contracts

The outbreak of the novel coronavirus (COVID-19) now declared a global health emergency by the World Health Organization and on the eve of being eventually being considered a pandemic, has raised concerns globally. When it comes to business, COVID-19 has caused disruptions in virtually all economies and across all industrial sectors, from manufacturing, travel, shipping to technology businesses, amongst many others.

Given the uncertainties currently hanging in the air, different businesses, individuals and even states are grappling with situations of extreme difficulty in contract performance, whatever their nature.

In an attempt to deal with the Covid-19 outbreak, many private entities and even governments, (including the Macau SAR Government, through the application of Law no.2/2004 – Communicable Disease Prevention, Control and Treatment Law), have taken steps that inevitably clash with the good performance of contracts, such as: the closure of certain businesses by imposition of the Government; the prohibition of certain activities; restrictions on travel and transportation etc.

Under Macau law, it is possible to frame solutions for different situations in which non-compliance with contractual obligations precedes events beyond the control of the parties, namely, as is the case, the outbreak of an epidemic. These cases are commonly outlined as force majeure events, but the question arises as to the extent to which force majeure may or may not be invoked to justify non-compliance with contracts.

The contractual law in force in Macau allows that in the event that the provision becomes impossible due to a cause not attributable to either party, the party becomes excused to perform the contract.

However, the impossibility must be absolute, in the sense that if the provision is still possible, even if extremely onerous or difficult, it is not a cause for the party to be exempted from the performance of the obligation. It will be the case, for example, that due to the measures imposed regarding the quarantine of certain persons, someone is prevented from entering Macau or is forced to be quarantined at the only time when the contract was possible to be executed.

Another solution that we believe it is possible to defend, despite the fact that the Macau Courts are very reluctant about the application of this institute, is the modification or termination of contracts due to changing circumstances.

Now, this institute is underpinned by the idea that the security of legal relations leads to the stability of contracts, but it may happen, however, that a profound change in the circumstances in which the parties are bound makes it excessively onerous or difficult for one of them to comply with that to which it is obliged, or causes a marked imbalance between the respective obligations, in the case of long-term or deferred contracts. In these situations, despite the benefits of contractual stability, it is necessary, in the name of justice, that the contract be terminated or modified.

Although it is possible for the contracting parties to beware of adverse situations that may affect contracts, namely by including hardship clauses (“Wirtschaftsklauseln“) or force majeure clauses, there is also judicial mechanisms to either terminate or modify the contracts, based on the verification of unexpected circumstances.

In order for the change in circumstances assumed by the contracting parties to lead to the termination of the contract or to the modification of its content, the following requirements must be cumulatively fulfilled:

  1. that the change considered relevant relates to circumstances on which the decision to celebrate the contract was based, that is, to circumstances that, although not determinant for both parties, are presented as evident, according to the typical end of the contract, that is, which are at the base of the deal, with awareness of both contracting parties or reasonable notoriety;
  2. that these fundamental circumstances have undergone an abnormal change, that is, unpredictable or, although predictable, affecting the balance of the contract;
  3. that the stability of the contract involves injury to one of the parties, either because it has become too costly, in an economic perspective, to provide one of the parties, either because the change in circumstances involves, for the injured party, great personal risks or excessive non-patrimonial sacrifices;
  4. that the maintenance of the contract or its terms seriously affects the principles of good faith;
  5. that the situation is not covered by the risks inherent in the contract, that is, that the anomalous change in circumstances is not included in the specific section of the contract, that is, in its normal fluctuations or purpose or in the risks specifically contemplated by the parties in the contractual agreement entered into.

An epidemic seems to fit perfectly with the classic academic hypothesis of force majeure or changing of the circumstances on which contracts were founded.

In fact, it seems clear that the appearance of an epidemic will not be predicted in the risk sphere of most contracts, so it is difficult to argue that the contract, whatever its nature, cannot be revised in the light of the ongoing exceptional circumstances.

In view of the above, it is certain that, in face of the Covid-19 outbreak, all over the world, but especially in Mainland China, Macau and Hong Kong, the consequences will be severe, given the draconian impositions of the respective governments and also due to internationally imposed limitations on the traffic of people, goods, etc. Therefore, it is expected that many contractual situations must have to be reviewed on a case-by-case basis, in order to mitigate the harmful effects that this epidemic may have on the economy and on the stability of the legal trade.

 

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Amendments to Law no. 21/78/M – Complementary Tax Regulation

The Government of the Macao Special Administrative Region (the “MSAR”) has recently approved an amendment to the Complementary Tax Regulation (Law no. 21/2019), which entered into force on the 25th of January this year.

Law no. 21/2019, also contemplates certain amendments to the legal regime of the Tax Information Exchange (Law no. 5/2017) (the “Tax Information Exchange Law”).

The amendment to the Complementary Tax Regulation comes as a follow-up measure after the MSAR has joined “The Inclusive Framework on BEPS” of the Organisation for Economic Co-Operation and Development (OECD), notably as an answer to BEPS Action 13 which in general terms provides that “all large multinational enterprises (MNEs) are required to prepare a country-by-country (CbC) report with aggregate data on the global allocation of income, profit, taxes paid and economic activity among tax jurisdictions in which it operates”.

With this amendment, the Government of the MSAR signals its will to adjust its tax administration to international standards, and to improve the exchange of tax information between jurisdictions.

It is also a clear sign that the MSAR intends to attract multinational companies to Macau without neglecting its commitments to fighting tax evasion and prevention of money laundering as well as terrorism financing.

Although relatively simple and straightforward, there are a few details worth pointing out, specifically:

  • the introduction of new legal definitions to the local legal system, being the definition “locally based ultimate parent entity of an MNE”, the most relevant;
  • the imposition of specific duties to report aimed at the said local ultimate parent entity of an MNE (and the correspondent amendments to the tax information exchange law); and
  • the inclusion of locally based ultimate parent entity of an MNE in the list of persons and entities subject to the Tax Information Exchange Law, which generally follows the international standards.

 

There are also changes regarding compliance with the provisions of the Complementary Tax Regulation, namely through the definition of new infractions and setting of new penalties.

Under the terms of Law no. 21/2019, locally based ultimate parent entities of MNEs will be considered Group A taxpayers, an exception to the general rules applicable in Macau[1].

Also, it is important to note that, with Law no. 21/2019, the criteria used to determine the companies qualified as Group A taxpayers have been amended, increasing the current threshold of the average annual taxable profits in the past 3 years from MOP 500,000.00 to MOP1,000,000.00.

Moreover, following the amendments introduced by Law no 21/2019, Administrative Regulation no. 1/2020 was enacted to regulate the reporting obligations imposed on locally based ultimate parent entity of an MNE.

In this context, it is worth noting that there are specific duties to provide reports (e.g. on the activities carried out globally by the group) and to maintain proper accounting books and records, in situations where the total earnings of the said entities is equal or higher to MOP 7,000,000,000.00 (equivalent to USD875 million) as shown in the respective consolidated financial records for the previous fiscal year.

Finally, we call the attention for two new exemptions implemented by Law no. 21/2019:

  1. the global income generated in Macau by the airlines whose registered office or place of effective management is located abroad, resulting from the operation of aircraft and activities complementary thereto, provided that an equivalent exemption is granted to companies of the same nature with registered office or effective management in the MSAR, and reciprocity is recognized in an Air Transport Agreement or in an order from the Chief Executive of Macau published in the Official Gazette of the MSAR; and
  2. the interest obtained from government bonds, local governments or state-owned enterprises of People´s Republic of China (“PRC”) issued in the MSAR, as well as the income related to the sale and purchase, redemption or other form of availability.

These exemptions are in line with the Government’s recent attempts to diversify the MSARs economy by stimulating the growth of new industries, among which particular relevance has been given to the aviation sector and to the development of securities markets.

In the overall, it is our opinion that solid steps are being taken by the Macau Government towards the alignment of the MSAR with the international taxation standards.

However, it seems at first sight that it will be at least challenging to the local authorities to determine in practical terms which are the companies that fit the new concept of local ultimate parent entity of an MNE.

On the other hand, taking into account that the government of the PRC has already issued bonds in the MSAR of 1Billion yuan, the exemption related with bonds issued by the government of the PRC and by state-owned enterprises is particularly encouraging.

In fact, it signals the MSAR’s Government strong commitment to develop a well supported bond market, which will certainly stimulate the economy of the MSAR in the context of the Greater Bay Area.

Finally, it is as well as an important step for the MSAR to attempt to become a service platform for commercial and trade cooperation between China and Portuguese-speaking countries, as aimed by the Chinese Central Government.

 

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[1] For better reference, under the Complementary Tax Regulation taxpayers in Macau are divided into Group A and Group B.

Group A taxpayers are (i) companies that have maintained proper accounting books and records, with a share capital of MOP1,000,000 and above, or which, prior to the enactment of Law no. 21/2019, had average assessed annual taxable profits in the past 3 years of MOP 500,000 or above, or (ii) those which opt to be in Group A, filing a declaration on or before 31 December of the financial year chosen for the option. While Group B taxpayers are those who do not meet the criteria mentioned above.

As general rule, all the first-time taxpayers will automatically be assigned to Group B, unless they fall within the criteria mentioned above or they apply to be classified as Group A taxpayers.  

 

Impacts of coronavirus outbreak prevention measures on labour agrements

Dear all,

In face of the recent measures being taken by the Macau Government for prevention of coronavirus and in anticipation of the possibility of employees based in Zhuhai being prevented to come to Macau to work, it is important to be aware of the legal framework applicable to the case.

First of all, please note that currently there are no guidelines issued by the Macau Government in respect of this matter. As such, the below advice may have to be adjusted in the coming days, subject to the measures adopted by the Macau Government.

Bearing the above in mind, in case workers based in Zhuhai are barred, by order of the Macau Government, from crossing the border to come to Macau to work, the following legal framework shall apply:

 

Macau residents

In case of border closure, the absence from work shall be considered justified, for force majeure reasons, non-attributable to the worker (article 50. Par. 2 subpar. 2) of the Labour Relations Law).

As such, Macau residents will be entitled to not show up for work until the border closure ceases. Although their absence is justified, employees will not be entitled to remuneration while the absence lasts.

In case the closure of borders lasts for an extended period of time (or for an indefinite period), the possibility of the employment agreement lapsing may be considered, due to the fact that it is impossible for the worker to perform his/her duties (article 73 par. 1 subpar. 2) of the Labour Relations Law). In this event, no compensation shall be due to the employee for termination of the employment agreement.

However, at this stage, it is still too early to determine whether it would be reasonable to consider that the employment relationship has lapsed, specially taking into account that there are no known measures adopted by the Macau Government in this respect.

Finally, please note that the above does not prevent the employer and the employee from reaching alternative arrangements (e.g. negotiating a period of unpaid leave; arranging for the annual leave of the employee to be taken during the border closure period; or providing the employees with accommodation in Macau) or negotiating some kind of settlement/compensation for early termination of the employment agreement.

 

Non-resident workers

As with Macau resident workers, in case of border closure, the absence from work by Non-resident workers shall be considered justified, for force majeure reasons, non-attributable to the worker (article 50. Par. 2 subpar. 2) of the Labour Relations Law).

As such, Non-resident workers that live in Zhuhai will be entitled to not show up for work until the border closure ceases. Although their absence is justified, employees will not be entitled to remuneration while the absence lasts.

In addition, the employer may elect not to renew the work permit of Non-resident workers whose work permit reaches its term during the period of border closure.

With respect to the lapsing of the employment agreement in case the closure of borders lasts for an extended period of time (or for an indefinite period), due to the fact that it is impossible for the worker to perform his/her duties (article 73 par. 1 subpar. 2) of the Labour Relations Law), it is our view that it is still to early to determine whether such action would be justified.

Nevertheless, it should be noted that that the hiring of Non-resident workers is subject to stricter requirements than those imposed on the hiring of resident workers and is subject to effective limitations (such as the imposition of quotas).

As such, depending on the evolution of the coronavirus outbreak, this may become a pressing matter and may lead to the determination that the employment agreement has lapsed, so that the employer is allowed to replace the positions left vacant by the Zhuhai based employees. In this circumstance, no compensation shall be due to the employee for termination of the employment agreement.

Nevertheless, for now, it is important to wait for the announcements made by the Macau Government, as it is possible that specific measures are adopted to allow employers to temporarily fulfill the job vacancies created by the absence of Non-resident workers based in Zhuhai.

In any case, the above does not prevent the employer and the employee from reaching alternative arrangements during the border closure (e.g. negotiating a period of unpaid leave; arranging for the annual leave of the employee to be taken during the border closure period; or providing the employees with accommodation in Macau) or negotiating some kind of settlement/compensation for early termination of the employment agreement.

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We will monitor the developments of the measures taken by the Government and we will let you know in case there are any updates.

 

Best regards,

Manuela António – Team

 

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Manuela António – Lawyers and Notaries signs strategic partnership with Jingsh Law Firm

We are pleased to announce that on January 3rd, 2020 our Law Office signed a long-term strategic partnership with Jingsh Law Firm, one of the biggest law firms in China.

The event took place in Beijing and was attended by our Partner Hugo Maia Bandeira and our Associate António Zhang, both of which also joined the 2020 Jingsh Global Partners & Directors Summit, the very next day.

More than 300 people attended the 2020 Jingsh Global Partners & Directors Summit. Our partner Hugo Maia Bandeira was one of the panel speakers at the event. It was an important opportunity to speak about the future of Macau and the development of the Greater Bay Area project, among other relevant topics.

 

Check out some of the highlights of the events below:

https://mp.weixin.qq.com/s?__biz=MjM5NzI0ODMxNg==&mid=2650172406&idx=4&sn=ccb494a24bb860525f57650417d3f1ad&exportkey=Anv3cSrQPZw%2FIZctNtuCPE8%3D&pass_ticket=cOOxnPcbzNE6L%2F2aapVsXrCTLXuRbCV0fNrABe1%2BR1guIDy3G7zqp5Kla2GDHPd1

https://mp.weixin.qq.com/s?__biz=MjM5NzI0ODMxNg==&mid=2650172510&idx=1&sn=feaa4af98a4452d2e5fcfb3ffe4aece8&exportkey=AtbSRvW0%2FSFlTimRfYW6BMU%3D&pass_ticket=cOOxnPcbzNE6L%2F2aapVsXrCTLXuRbCV0fNrABe1%2BR1guIDy3G7zqp5Kla2GDHPd1