In order to facilitate restructuring operations, The Finance Act for FY2017 introduced a tax incentive scheme in favor of intragroup operations related to reallocation of production means and transfer fixed assets.

According to this regime completed by the Finance Act 2020, the transfer of fixed assets can be carried out between companies subject to corporate income tax, except for real estate investment trusts, without affecting their taxable income, if the said transactions are carried out between the members of a corporate group, constituted at the initiative of a “parent company” which holds continuously, directly or indirectly, at least 80% of the share capital of the said companies.

Fixed assets concerned:

  • Tangible fixed assets (Land, construction, office equipment…);
  • Intangible assets (Patents, trademarks, commercial funds…);
  • Financial fixed assets (Equity securities, fixed loans…).

Conditions of the transfer:

  • The fixed assets subject to the transfer must be registered in the fixed asset of the companies concerned by the transfer operations.
  • The transfer of fixed assets is any operation resulting in a transfer of ownership of tangible, intangible and financial fixed assets between companies members of the same group;
  • The fixed assets must not be sold to another company that is not part of the group and must not be removed from the fixed assets of the companies to which they have been transferred;
  • The companies concerned by the transfer operations must not leave the group.

Consequences:

  • The transferred fixed assets, according to the aforementioned conditions, must be evaluated at their actual value on the day of the transfer and the resulting capital gain is not taken into consideration for the determination of the tax result of the companies having carried out the said transfer.
  • The companies which benefit from the transfer of fixed assets can deduct from their tax result the depreciation charges of these fixed assets only up to the limit of the depreciation calculated on the basis of their original value booked at the level of the group company which carried out the first transfer operation.

In order to carry out the operations of transfer of fixed assets (tangible, intangible and financial), and to benefit from the tax incentive regime for intra-group restructuring operations, the following declarative obligations must be respected:

For the parent company:

  • File a specific application before its local tax administration within three months of the opening date of the fiscal year in which the option for the tax incentive is made;
  • Accompany this application with a list of the companies that are members of the group, specifying the name, the fiscal ID and the address of these companies as well as the percentage of their capital held by the parent company in order to join the group;
  • Produce a copy of the agreement of the companies to join the group.

In the event of a change in the composition of the group, the parent company must attach to its tax return for each financial year a statement listing the new companies integrated the group, with a copy of the deed recording their agreement, as well as the companies that left the group during the previous financial year.

In case of transfer operations, the parent company must also produce a statement clarifying all the operations of transfer of fixed assets carried out between the companies members of the group during a specific fiscal year, as well as the destination of the said fixed assets after the transfer operation, and this within a period of 3 months following the closing date of the fiscal year during which the transfer was carried out or the one during which a change in the destination of the said fixed assets was operated.

For members of the corporate group:

When a company becomes a member of the group, it must file a statement showing the group to which it belongs, the parent company that formed it and the percentage of share capital held by the parent company and the other companies in the group, within three months of the opening date of the first fiscal year in which it joined the group.

The companies having transferred the fixed assets within the group must file a statement specifying their original value appearing in the assets of the company of the group having carried out the first operation of transfer as well as their net book value and their real value at the day of the transfer and this, within the three months following the closing date of the fiscal year of the transfer.

The companies having profited from the transfer of the aforementioned fixed assets must file within three months following the closing date of each fiscal year, a statement specifying the original value appearing in the fixed assets of the company of the group having carried out the first operation of transfer, the net book value and the actual value at the date of the transfer as well as the deductible depreciation and those added back into the taxable result.

If a company leaves the group or if a fixed asset is withdrawn or sold to a company that is not part of the group, the local tax administration must be notified by the concerned company within three months following  the closing date of the financial year concerned.

Legal references:

Article 161 bis-I of Moroccan Tax Code (MTC)

Article 20 bis of Moroccan Tax Code (MTC)

The role of the labor inspectorate is defined by the Labor Code, in particular Book V (articles 530 to 548).

1.Labor inspector

In Morocco, labor inspectors are State officials, and their powers derive from the control mission assigned to them in accordance with Article 539 of the Labor Code, “the agents in charge of the labor inspection establish, by means of official reports which are valid until proven otherwise, the infractions of the provisions of the Labor Code and the regulations adopted for its application”.

The agents in charge of the labor inspection are :

    • labor inspectors and controllers
    •  inspectors and controllers of social laws in agriculture,
    • medical inspectors of work,
    • engineers in charge of safety

2.Missions of the Labor Inspector

Labor inspectors are in charge of several missions, including

  1. Ensuring the application of legislative and regulatory provisions relating to work;
  2. Provide information and technical advice to employers and employees on the most effective ways to comply with the legal provisions;
  3. To report to the governmental authority in charge of labor the deficiencies or violations of certain legislative and regulatory provisions in force;
  4. to attempt conciliation in matters of individual labor disputes […]”.

Therefore, labor inspection officers may, among other things:

  • Enter freely the establishments subject to their control
  • Interview all personnel as well as the employer
  • Request communication of all books, registers and documents whose keeping is prescribed by the legislation relating to work, in order to verify their conformity with the legislative provisions and to make copies or take extracts and address observations or formal notices to the employers with deadlines in case of violation of the legislative or regulatory provisions relating to hygiene and safety

And to enable them to ensure the application of social legislation, the legislator has provided the agents in charge of the labor inspection with certain legal tools. To this end, the said inspectors can carry out inspection visits, make observations and, if necessary, issue formal notices with or without delay and official reports against recalcitrant employers.

3.Scope of intervention of the labor inspector

The labor inspector has the power to intervene with employees and industrial, commercial, agricultural, artisanal and liberal professions establishments subject to the Labor Code.

The doctors and engineers in charge of the labor inspectorate each intervene within the limits of their specialty.

In conclusion, the inspector must always make sure that the establishment he or she intends to inspect is subject to the Labour Code or that it does not fall under the jurisdiction of other specific control systems.

A permanent employment contract may be terminated at any time, either at the employee’s initiative, by resignation, or at the employer’s initiative, by the implementation of a dismissal procedure.

The dismissal must necessarily be motivated, under penalty of being requalified as an unfair dismissal.

However, the reason for the dismissal must be both real, the facts must be accurate and verifiable, and serious: the facts must be sufficiently serious for the dismissal to be inevitable.

In the absence of a legal definition, serious misconduct can be defined as a violation of the rules established by the internal regulations, the seriousness of which makes it impossible to maintain, without damage of the employment relationship.

Indeed, the article 39 of the new Moroccan labor code only provides an indicative list of what may constitute a serious misconduct.

Dismissal must, under penalty of being qualified as abusive by the judge, comply with a strict formalism framed by provisions that are of public order, even if the reason is valid.

The procedure for dismissal for serious misconduct:

1.Prior Interview

The labor code provides that the employee must be convene to an interview in order to be an heard by the employer, in the presence of the employees’ delegate or the union representative or another employee of the company, whom he chooses himself. This interview must be held within a period that doesn’t exceed starting eight days from the date of the observation of the fault.

During this interview, the employer draws up a report which must be signed by both parties and a copy of which is given to the employee.

In case of refusal of the employee to sign the report or to take it, the employer must obligatorily resort to the labor inspector.

2.Notification of the dismissal

The decision to dismiss must be notified to the employee in person against receipt, by registered letter with acknowledgement of receipt or through a bailiff, within forty-eight hours following the date on which the decision to dismiss was taken.

However, the letter of dismissal must indicate the reasons justifying the dismissal of the employee, the date on which the employee was heard, the period during which the decision can be contested before the competent court.

3.Submission of documents to the labor inspector

A copy of the dismissal decision must be sent to the labor inspector, and must include the reasons for the employee’s dismissal, the date on which he was heard, and be accompanied by a copy of the minutes of the interview with the employee.

Despite the seriousness of the acts of which employee is accused, any failure to comply with the dismissal procedure as described above shall result in the dismissal being considered as abusive, thus entitling the employee to all dismissal indemnities, detailed as follows:

1.Severance pays

Based on the average salary received during the 52 weeks preceding the end of the contract multiplied by the indemnity for each year or fraction of a year worked.

Range of years worked  Allowances for each year worked
First five years of seniority 96 hours of salary
Period of seniority from 6 to 10 years 144 hours of salary
Period of seniority from 11 to 15 years 192 hours of salary
Period of seniority exceeding 15 years 240 hours of salary

2.Damages and interest

1.5 months of salary for each year of seniority, capped at 36 months of salary.

3.Notice period

4.Compensation for unconsumed leave

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