The Moroccan Finance Act for FY2019 introduced the obligation to complete the registration formality for deeds and agreements recording monetary obligations or acknowledgements of debt of one person towards another.

In this respect, the Tax Administration has confirmed in a tax ruling dated March 2020, that agreements for advances on shareholders’ current accounts whether written or verbal and whatever the form of the deed recording them, authentic or private, are subject to the proportional registration duty of 1.5%. This position has caused an outrage of the business community, which considers this measure as an obstacle on corporate financing by its partners.

The Finance Act for 2021 provided the appropriate response to this issue of taxation of financing by cancelling the Registration Duties applicable to deeds recording advances in shareholders’ current accounts as well as deeds relating to the obligations and acknowledgements of debt referred to the Article 18 of Act No. 103-12 related to credit institutions.

The article 18 of Act No. 103-12 covers in particular: Commercial credit, lease- purchase agreements, cash transactions with companies which belong to the same group, the issue of securities and debt securities traded on a regulated market, the granting of payroll advances or loans to employees for social reasons, the issue of vouchers and cards delivered for the purchase of goods or services from a person…

Therefore, as from January 2021, are exempt from Registration Duties: the deeds recording advances in shareholders’ current accounts as well as the deeds relating to the obligations and acknowledgments of debt referred to in Article 18 of Law n°103-12 related to credit institutions and similar entities.

In addition, it should be noted that private or authentic deeds relating to obligations and acknowledgements of debt remain subject to the registration formality even through exempted from payment of registration duties.

Legal references:

Articles 127-I; 129-V-9; 136-III of Moroccan Tax Code.

 

Written by Ali SALIM  TAX Manager

The commercial sign is obligatorily a sign or an appellation which is used to identify and locate geographically a commercial establishment, and which makes it possible to distinguish it from the other commercial establishments.

1.Condition of attribution of a commercial sign :

To be attributed, the requested name must meet the following criteria :

  • The name requested must not be contrary to public order and good morals (It is forbidden to use words contrary to public order and good morals or terms suggesting that the business is engaged in illicit activities).
  • The name requested must not be confusing.

The name must not already be in use.

  • It must not be confusing with an existing trademark.
  • It must not imply that it is a public body or a partner of an international organization.

2.Obtaining a commercial sign :

The Central Register of Commerce held by the OMPIC issues a negative certificate attesting to the availability of the requested commercial name (name, sign and acronym if applicable). (Article 33 paragraph 2 of the Commercial Code).

The negative certificate is dematerialized. It is identified by a unique number, and does not require a stamp or signature.

3.Obligation of registration in the trade register :

Any sign and elements stipulated in article 74 of the Commercial Code whose beneficiary will not have made the registration in the Trade Register within ninety (90) days from the date of issue of the negative certificate, by the Central Trade Register service, cannot be registered in the Trade Register.

Merchants wishing to have a commercial sign must mention it in their declaration of registration in the Commercial Register. (Article 42 paragraph 9 of the Commercial Code).

4.Formalities for registration in the commercial register :

In order for the commercial sign to be valid, it is indispensable to register it in the commercial register. To do so, the person concerned must present to the clerk of the commercial register office the negative certificate dated less than ninety (90) days, as well as the declaration (model 4) in three signed and legalized copies.

The commercial sign is protected only on a local radiation. This protection is also limited to the field of activity of the commercial establishment.

 

Written by Nezha BELKHADIR Legal Manager

The carrying of shares is the agreement by which, the bearer acquires the shares at the request of the principal, it being expressly agreed, that after a certain period of time, theses shares will be retroceded to a designated beneficiary who can be either a third party or the principal himself and for a price agreed in advance.

The carrying agreement allows, on one hand, to discharge the principal of the ownership of the shares for a determined period by transferring them to the bearer, and on the other hand, to assure the principal a certain control on the shares during the duration of the carrying, as well as their appropriation at the end of this period.

1.The parts of the carrying agreement :

  • The principal : This is the shareholder who will transfer all or part of his shares to the bearer ;
  • The bearer : This is the assignee of shares transferred by the principal;
  • The beneficiary of the agreement : This is the person who the bearer will retrocede the acquired shares at the request of the principal, who can be either a third party or the principal.

2.The objectives of the carrying of shares :

  • The principal can use the carrying of shares because he doesn’t have sufficient liquidity to own the shares ;
  • The carrying of shares can also be a solution for the conflicts between the shareholders in the management of the company ;

In this situation, the carrying agreement consists in transferring the property of a part of the shares to a trusted third party who will play the role of arbitrator until the resolution of the dispute ;

  • The principal can also use the services of a bearer if he doesn’t want to reveal immediately his identity of the shareholder of the company.

3.The steps to implement the carrying agreement

  1. The conclusion of the agreement : The carrying agreement is concluded between the principal and the bearer. The purpose of this agreement is to determine and fix the relations of the parties during the duration of carrying ;
  2. The acquisition of shares by the bearer : The bearer buys the shares from a third party or from the principal himself, and then becomes a shareholder of the company, in accordance with the conditions initially agreed between the parties ;
  3. The carrying of shares : During the carrying of shares provided by the agreement, the bearer exercises all the prerogatives attached to the status of shareholder ;
  4. Transfer of shares to the final buyer : The bearer will retrocede the shares to the final buyer at the price fixed in advance in the contract. The final purchaser can be the principal or a third party defined in the carrying agreement.

 

Written by Nezha BELKHADIR Legal Manager

The business must be made up of customers and ridership. It also includes, all other goods necessary for the exploitation of the business such as the commercial name (sign), the right to lease, the commercial furniture, the merchandise and the tools.

1.The contract of sale

Any sale or transfer of a business goodwill as well as any contribution to a company or any allocation of a business by sharing or auction is recorded by a contract in the authentic form or under private signature. The contract must meet the conditions of substance, in this case, consent, capacity, object and cause and must mention obligatorily the elements stipulated in article 81 of the commercial code:

1) the name of the seller, the date and the nature of his act of acquisition, the price of this acquisition by specifying distinctly the prices of the intangible elements, the goods and the material;

2) the state of the inscriptions of the privileges and pledges taken on the fund;

3) if applicable, the lease, its date, its duration, the amount of the current rent, the name and address of the lessor;

4) the origin of ownership of the business goodwill.

In the event that one of the above mentions does not appear in the contract or is incorrect, the purchaser may request the cancellation of the contract if the absence of this mention or its inaccuracy has been prejudicial to him.

In both cases, the action must be brought within a maximum period of one year from the date of the contract.

The amount of the sale is deposited with an organization duly authorized to hold deposits.

2.The formalities of registration and deposit at the trade registry

In order for the transfer of the business goodwill to be validated, it must be registered.

Indeed, the law requires the registration of any contract related to a transfer of ownership, whether it concerns real estate, a business or a lease. The sale of a business goodwill is subject to the rules of common law, its registration must be made with the tax authorities within one month of its signature and it must be filed with the clerk’s office of the commercial court within fifteen days of its date.

3.Publicity formalities

The sale of the business goodwill must be subject to the formalities of publicity in accordance with the legal requirements of the Commercial Code. This publicity allows non-registered creditors to make themselves known and to act to make their rights known.

An extract of the sale contract is published in full and without delay by the secretary registrar, at the expense of the parties, in the Official Bulletin and in a newspaper of legal announcements. This publication is renewed by the purchaser between the eighth and the fifteenth day after the first insertion.

 

Written by Nezha BELKHADIR Legal Manager

This note summarizes tax regimes that may be applicable to persons who intends to stars their own project as independent entrepreneurs, so that transactions happen in a tax safe environment. There are basically 3 options:

  • Simplified self-entrepreneur regime;
  • Individual registration with taxes (Patente);
  • Creation of company;

1-     Simplified self-entrepreneur regime (régime de l’auto entrepreneur)

The person registered under the simplified self-employment regime is recognized by the tax authorities, according to Law No. 114.13. This person can establish invoices for the benefit of his clients. The invoiced amounts are excluding VAT.

Condition: annual turnover less than 200,000 MAD mad and activity to be within the permitted listed

Taxation : 1% of turnover

Reporting formality : submitting a sales report file

Other : simplified registration and cancellation procedure, exemption from accounting formality, no need for domicilium or rental.

2-    Professionnal registered activity as an individual

The independent entrepreneur may obtain a tax registration called “patent” (numéro de taxe professionnelle) and perform his professional activity. Under this regime, he can establish invoices to his clients.

Taxation at independent entrepreneur’s end:

  • Taxable income subject to personal income tax under progressive rate (up to 38%) with a minimum contribution of 0.5% of the turnover (this contribution can not be less than 3000 Mad)
  • Minimum patent of 3000 Mad (after 5 years of exemption)
  • VAT of 20% on the gross amount invoiced . this VAT is recoverable by the client under common law conditions.

Reporting formality at independent entrepreneur’s end:

  • Annual personal income tax return accompanied with the balance sheet of the professional activity;
  • Quarterly VAT returns;
  • Patent annual report;

3-    Creation of a sole shareholder company

The independent entrepreneur may establish a private sole shareholder limited liability company and proceed to the invoicing of services performed to his clients.

Taxation:

Taxable benefit subject to corporate income tax under proportional rate here after with a minimum contribution of 0.5% of the turnover (this contribution cannot be less than  3000 Mad)

Pre Tax fiscal result CIT Rate
Less than 300 000 10%
From 300 001 to 1 000 000 20%
Higher than  1 000 000 31%
  • Taxation of 15% of the gross amount of dividends paid
  • Minimum patent of 3000 Mad (after 5 years of exemption)
  • VAT of 20% on the gross amount invoiced. This VAT is recoverable by the client under common law conditions.

 

Reporting formality at independent entrepreneur’s end:

  • Financial statements to be accompanied by annual tax returns (tax benefit return, dividends return, ..)
  • Financial statement and minutes of annual assembly to be submitted to the commercial court
  • Quarterly VAT returns
  • Patent annual report

Other: difficult process to shut down the company if needed to

 

Written by Imane BENABOUD  TAX Manager

The 2021 Finance Bill was discussed and approved at the last Council of Government meeting held on Friday, October 16. It was immediately presented to both houses of Parliament on Monday, October 19, by the Minister of Finance.

Pending the distribution of a summary presentation on the tax measures provided for in the PLF 2021, you can download it in Arabic and French versions:

 

The compensation of directors of public limited companies (corporate officers) is governed by the legislation governing public limited companies (the provisions of Law 17-95 on public limited companies).

The directors legally appoint any member of the administrative, management and executive board. In the case of public limited companies, this includes members of the board of directors, including the Président, General manager and deputy General Manager, whether or not they are directors.

1. Corporate office only

Although the law does not impose the remuneration of a corporate officer, it allows :

  • The allocation of directors’ fees as compensation for their presence on the Board, which the Board distributes among to its members in the proportions it deems appropriate.

It should be noted that directors may not receive any other compensation from the company in this capacity. Any clause to the contrary is deemed unwritten and any deliberation contrary to these provisions is null and void.

However, the Board may allocate exceptional compensation to certain directors for the missions and mandates entrusted to them on a special and temporary basis. (This option is subject to the provisions relating to regulated agreements: agreement between a corporation and one of its directors).

  • To receive compensation set by the Board of Directors for the duties of General Manager ;

However, the mandate given by the Board of Directors may provide for and set, in favor of the General manager, in the event of revocation of his mandate, an indemnity that is not in the nature of a salary, but which is taxable as a salary.

2. Combination of a corporate office and an employment contract

The combination of a corporate office and an employment contract is authorized by law for members of the Board of Directors and the General manager.

An employee of the company may only be appointed as a director if his or her employment contract corresponds to an actual job. He does not lose the benefit of this employment contract. Any appointment made in violation of these provisions is null and void.

However, the number of directors bound to the company by employment contracts may not exceed one-third of the members of the Board of Directors.

A director who is at the same time an employee of the company must thus perform two distinct and independent missions, one in his capacity as an employee and the other as a representative of the company.

To carry out under a subordination link real salaried functions that are truly distinct from those of a corporate officer, and that each of the two functions be subject to its own remuneration.

In addition to his capacity as a corporate officer, the General manager  may also be bound to the company by an employment contract. As for the director, the functions of “Employee” must be real, truly distinct from those of corporate officer, be exercised under a subordinate relationship and be subject to special compensation.

 

Written by Nezha BELKHADIR Legal Manager

The Moroccan tax authorities allow businesses that are subject to VAT to claim a refund of their VAT credit (resulting from the fact that the amount of tax collected and due is less than the amount of tax to be recovered), in certain cases limited by law.

Indeed, some businesses are more likely to be in a VAT credit situation because of a particular legislative provision: those that export, those that purchase at the standard rate and then invoice their customers VAT-exempt, or those that have made significant investments.

It is not necessary to remind that these entities eligible for VAT refund remain subject to a well-defined formalism in order for their request for refund to be admissible.

Many companies have been refused the refund of certain invoices, the reasons for rejection are many and varied: foreclosure, non-recoverable VAT for reasons of funds or form…

In this article, we present some tips to increase the chances of obtaining a VAT credit refund with a minimum rejection rate.

Respect of the deadline for VAT credit refund:

The application must be made before the end of the year following the quarter in which the VAT credit was born (Article 103 of the CGI). For the request for reimbursement of fixed assets, the deadline is the month following the quarter during which the VAT credit was born (Article 103 bis of the CGI).

It should be noted that invoices for which payment was made prior to the quarter for which the refund is claimed may be rejected on the grounds of foreclosure if the refund application is filed within a period exceeding one year following the date of payment of the said invoice.

Compliance with VAT deductibility rules:

Particular attention must be paid to the tax treatment applicable to VAT when entering an invoice in the accounts: deductible VAT or accounting including VAT, particularly in the event of non-deductibility of VAT (Article 106 of the French General Tax Code). All invoices must also include all the information required by Article 145 of the French Tax Code, at the risk of being rejected for formal reasons.

In order to control the risk of invoice rejection, it is important to set up effective upstream controls and to check invoices and other documents supporting the justification of the information appearing in the statements and statements drawn up by the company before submitting any claim for reimbursement.

It is also recommended to make sure that the information in the statements of deductions and other statements or statements accompanying the application is consistent with the information in the periodic VAT returns filed by the company and that they are consistent with the supporting documents (bank statements, invoices, import file, etc.).

Consistency of the refund application:

It is necessary to ensure that the supporting documents are presented in such a way as to facilitate the control of the payment of the said purchases by means of bank statements or proof of other means of payment (cash, compensation, etc.).

It is recommended to set up a numbering system allowing the identification of invoices at the level of payment receipts and to ensure that these invoices bear the references and date of payment.

The classification of the invoices must be carried out by taking care to present them according to their nature, by respecting the following organization which makes it possible to ensure the coherence with the VAT declarations:

  • Current expense purchases :

– Internal purchases by grouping the purchases by VAT rate: 20%, 14%, 10%, or 7%.

– Import purchases by grouping purchases by VAT rates of 20%, 14%, 10%, or 7%.

  • Fixed asset purchases: annual amount of domestic and import purchases, grouping purchases by VAT rate: 20% or 14%.

 

Written by Imane BENABOUD  TAX Manager

Baker Tilly Majer is pleased to announce the nomination of Mehdi IBN ABDELOUAHAB as the 4th Partner effective as of October 1st, 2020. Formerly a supervisor in audit and consulting activities in  Deloitte Morocco, he joined Baker Tilly Majer in 2016, first as Manager of the Audit and Consulting Department, then as Director of our Subsidiary in Tangier.

Having aquired more than 10 years of experience in Audit & Consulting, Memorial Accountant and holder of a Master’s degree in Financial Management and Accountancy. Mehdi started his career in 2011, and has acquired a solid experience in a variety of business sectors. Mehdi has proven on several occasions that he deserves the trust and respect of his colleagues and clients. He has also been able to breathe rapid development into our subsidiary in Tangier, which is becoming increasingly important.

Since its foundation in 2011, our group has been determined to provide our customers with personalised and local services offered by high quality professionals. Baker Tilly Majer now has 4 partners and 40 employees, located in Casablanca and Tangier.

 

In Limited Liability Companies (S.A.R.L.), the transfer of shares is free when it is carried out between partners, spouses, parents and relatives up to the second degree; however, the articles of association may require an approval procedure.

The transfer of shares for the benefit of a third party is always subject to an approval procedure by the majority of the partners representing ¾ of the shares (i.e. 75%) or according to the terms of the articles of association.

Thus, before any transfer of shares within a limited liability company, it is very important to know for whose benefit the transfer will be made and to check the applicable statutory clauses.

The approval clause

The approval clause is a clause that subordinates the sale of the shares by a partner to the approval of the general meeting of partners, which defines the terms of approval of the transfer of the shares and provides for a prior agreement by unanimity or majority of the partners to grant entry to a new partner in the company.

The associate wishing to sell his shares will also have to respect the approval clause by notifying his associates first.

Procedure

The procedure for the transfer of shares starts with the notification of the transfer project to the company and to each of the company’s partners by registered letter with acknowledgement of receipt or by bailiff’s act.

  • If the company does not respond within 30 days, consent is deemed to have been given.
  • If the company refuses to consent to the transfer, the partners are bound within 30 days, as from this refusal, either to acquire or to have the shares acquired.

The partnership may also, with the consent of the transferring partner, decide, within the same period, to reduce its capital by the amount of the face value of the partner’s shares and to repurchase those shares.

If, at the end of this period, none of the solutions referred to above is put in place, the partner may continue the transfer initially envisaged.

Formalities relating to the approval of the sale project

An Extraordinary General Meeting whose decision must be taken by the majority of the associates representing at least the ¾ shares (the articles of association may provide for a stronger majority) must be convened to rule on the proposed sale.

After having voted on and approved the proposed sale and approved the new shareholder, the formalities of advertising at the clerk’s office of the Commercial Court, in a Journal of Legal Announcements and in the Official Bulletin enabling the sale of shares to be made opposable must be completed.

 

Written by Nezha BELKHADIR Legal Manager