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03 August 2022

OECD’s Forum on Harmful Tax Practices concludes that Costa Rican free trade zone regime is not harmful

  • Costa Rica modified its free trade zone regime to comply with the Action 5 base erosion and profit shifting (BEPS) standard.

  • The modifications clarify that income from intellectual property does not qualify for the tax benefits under the free trade zone regime.

On 27 July 2022, the Organisation for Economic Co-operation and Development (OECD) released an update on the Forum on Harmful Tax Practices’ peer review of Costa Rica’s free trade zone regime in which it concluded the regime is not harmful. The Forum on Harmful Tax Practices (FHTP) conducted the peer review under Action 5 (harmful tax practices) of the OECD/G20 BEPS project.

This conclusion comes after Costa Rica made modifications to its free trade zone regime to address the potentially harmful features identified in the FHTP’s conclusions published on 24 January 2022.

Background

On 24 January 2022, the OECD released an update on the results of the peer reviews of jurisdictions’ domestic laws under Action 5 (harmful tax practices) of the OCED/G20 BEPS project, undertaken by the FHTP.

The updated results showed that the Costa Rican free trade zone regime was “in the process of being amended” because there were potentially harmful features to be addressed.

To address the potentially harmful features identified by the FHTP, Costa Rica’s Government published, in the Official Gazette on 11 May 2022, a Foreign Trade Ministry Agreement to clarify that the FTZ regime is not intended to provide benefits to any intellectual property (IP) income.

According to the agreement, income obtained from activities developing IP assets and from the acquisition of those assets for their economic use within the free trade regime is excluded from the free trade zone regime benefits. Additionally, income from royalties and capital gains, as well as any other income from the sale of IP assets, the sale of products and the use of processes related to the economic use of IP assets (i.e., embedded IP income) is excluded from the benefits of the free trade zone regime.

Updated peer review results

In April 2022, the FHTP updated its conclusions for several tax regimes, including the free trade zone regime.

According to the updated conclusions, the Costa Rican free trade zone regime status is “not harmful (amended).”

Thus, the Costa Rican free trade zone regime is currently in compliance with the Action 5 BEPS standard.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young, S.A., San José, Costa Rica

Ernst & Young LLP (United States), Latin American Business Center, New York

Ernst & Young Abogados, Latin America Business Center, Madrid

Ernst & Young LLP (United Kingdom), Latin American Business Center, London

Ernst & Young Tax Co., Latin American Business Center, Japan & Asia Pacific

Document ID: 2022-5733

 
 

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