KSA: Penalties waived if anti-concealment law violations are corrected by 23 August 2021

Summary

Saudis and non-Saudis who carry out economic activities in the Kingdom have until 15 Rajab 1443H corresponding to 16 February 2022, to rectify any non-compliance with the KSA Anti-Concealment Law and thereby be exempt from penalties stipulated under the law, other penalties resulting from the crime and its proceeds, as well as from paying income tax retroactively.

Background

The KSA Ministry of Commerce, in coordination with the National Anti-Commercial Concealment Program (Tasattur), issued regulations providing six option for companies and individuals to correct their legal status as it relates to commercial concealment, without penalty until 16 February 2022 (which used to be until 23 August 2021 but the initial period has been extended for an additional 6 months).

Typical violations of the Anti-Concealment Law (Royal Decree No. M/4 dated 1/1/1442H (corresponding to 20/8/2020), and its implementing regulations; Ministerial Resolution No. 00479 dated 20/7/1442H (corresponding to 4/3/2021AD)) include:

• A non-Saudi investing in a corporate entity with activities that are restricted to wholly Saudi owned companies, without disclosing such foreigner ownership/investment to the Saudi government;
• A foreign businesses establishing commercial operations in Saudi without first obtaining a foreign investment licence; and
• Similar “fronting arrangements” such as nominee arrangements whereby the ultimate beneficiary is a non-Saudi national who did not obtain a foreign investment licence to carry out the business in Saudi Arabia, but nevertheless does through their Saudi partner who legally holds all of the shares in the business.

Regulations for Rectifying the Status of Anti-Concealment Law Violators, (the “Regulations”), as approved by the Ministry of Commerce, provides six options for rectifying the status of businesses in violation of the law, summarised as follows:

1. Adding a non-Saudi partner into the business, after fulfilling the regulatory requirements that enable a non-Saudi to become a partner;
2. Registering the ownership of the business in the name of the non-Saudi through an agreement between the Saudi and non-Saudi upon the transfer of ownership to the non-Saudi, after fulfilling the regulatory requirements that enable a non-Saudi to acquire a company;
3. The Saudi national continues to practice the economic activity by introducing a new partner (Saudi or licensed foreign investor), after fulfilling the regulatory requirements and registering the same with the Ministry;
4. The Saudi disposes of the business by sale, assignment, or dissolution;
5. The non-Saudi obtains a Saudi premium residency (iqama); and
6. The non-Saudi leaves the Kingdom permanently through a final exit visa, after submitting an undertaking to abandon his/her previous private business rights resulting from any transactions entered into in the business.

How to correct status

Those wishing to correct the situation of their businesses can apply electronically to the Ministry of Commerce by submitting a disclosure form and providing the requested documents and information, depending on the corrective action chosen from the six options outlined, above.

The request to correct a business’ status will be reviewed to verify that it meets the necessary requirements and applicants will be given a period of 90 days from notification of any delinquency to correct the same. If the request is still incomplete after 90 days, the applicant may be granted an additional 180 days to complete the corrective measures.

Exemption from Penalty

The Regulations provide that those who submit a request to the Ministry to rectify their status through one of the six options will be exempt from the penalties stipulated in the Anti-Concealment Law, other penalties resulting from the crime and its proceeds, as well as from paying income tax retroactively.

The Regulations clarify that such exemptions from penalties will not include violators who were arrested before submitting a request to rectify their situation, or those who were referred to the Saudi Bureau of Investigation and Prosecution or the competent court before submitting their request.

Conclusion

After 23 August 2021, companies not in compliance with the Anti-Concealment Law may be subject to harsh penalties. In general, violators may be subject to imprisonment of up to five years and/or a fine of not more than five million Saudi riyals, in addition to payment of all Zakat, taxes, and charges, as well as deportation for non-Saudis and the prevention of practicing a commercial activity in the Kingdom for up to five years for Saudi nationals.

Al Tamimi & Company has three offices across Saudi Arabia (Jeddah, Riyadh, and Al Khobar) and are able to assist businesses seeking to rectify their status and put in place associated agreements and contracts to bring their businesses in line with Saudi law.