The Slovak Republic has adopted a law on the minimum level of taxation rule – so-called top-up tax. As the transposition of the new law contained a number of controversial areas, the Government has decided to adopt an amendment to Act No. 507/2023 Coll. on Top-up Tax (Zákon o dorovnávacej dani in Slovak language).
The amendment clarifies the established definitions, completes the rules for calculating the amount of excluded income based on economic substance and introduces simplified calculations for insignificant entities (state and non-profit entities).
◻ Modification of basic definitions
The amendment to the law modifies a number of basic definitions contained in the original text with regard to business shares, profit shares and the definition of the subject of ownership of entities.
Below is a brief overview of the modified or new definitions and concepts necessary for the calculation of the Top-up tax:
- included tax of underlying entity – means the tax recognised in the financial statements of the underlying entity in respect of its income, profit or share of profit of the underlying entity in which it holds an ownership interest, including the tax equivalent of corporation tax, and the tax levied on retained earnings or other part of equity.
- qualified imputation tax – tax of the basic entity or its permanent establishment which has been paid on a share of profits (dividend) and is refundable or creditable to the beneficial owner of the dividend. This imputation tax is not included in the calculation in the included taxes of the basic entity.
- non-qualified refundable imputation tax – represents a tax that does not qualify as a basic entity imputation tax and that is:
- refundable to the beneficial owner of the dividend and paid by the basic entity on such dividend or creditable against the tax liability on such dividend
- refundable to the paying company after payment of the dividend to the shareholder
- charged as an expense to the underlying entity
- negotiable minimum price – 80% of the net current trade value of tax credit
Further is clarifies the original definition that a parent entity can only be:
- a non-excluded ultimate parent
- intermediate parent – a parent entity that has a direct or indirect interest in another parent entity of the same group
- partially owned parent entity – a parent entity that has a direct or indirect interest in another parent entity of the same group and at the same time more than 20% is not owned by the parent entities.
The original regulation defined only by ultimate parent entity, which is an entity with a direct or indirect interest in another entity or an entity in a group.
Also, the number of rules for calculating the tax, summarised in the table below, are implemented in the Act:
| Rule | Description of application |
| Income inclusion rule | The procedure by which the parent group entity calculates and pays its share of the balancing tax in relation to low-taxed underlying group entities |
| Qualified income inclusion rule | Income inclusion rule applicable in the countries of the basic entities |
| Rule for undertaxed gains | Procedure for calculating and paying the basic entity’s share of the top-up tax in relation to the low-taxed basic entities of the group |
| National top-up tax rule | Procedure whereby the low-taxed basic entities calculate and pay the balancing tax in the country where they are located |
◻ Qualifying income or loss modification
The amendment also significantly changes the calculation of qualifying income or qualifying loss. The change in wording allows for the inclusion of qualifying income or loss to include gain or loss that is determined under an acceptable financial standard and applies that:
- financial statements of the underlying entity are prepared in accordance with that acceptable standard
- information in the financial statements is reliable
- permanent differences in excess of EUR 1.000.000 arise from the revenue and expense policies applied
- foreign exchange gains shall be included at the option of the underlying entity
◻ New included Top-up tax
The following adjustments to the included taxes for the purposes of calculating the effective tax rate and the minimum tax must be taken into account in the new calculation:
| The investment of the holder of a qualifying ownership interest shall be reduced to a maximum of zero by |
| – tax credit that accrues to the holder of the qualifying ownership interest |
| – multiply of the tax-deductible losses attributable to the owner of the qualifying ownership interest and the nominal tax rate applicable to the owner’s income |
| – gain distributed to the holder of the qualifying ownership interest |
| – amount from the sale of the qualifying ownership interest or part thereof |
| = reduction in the amount of adjusted included taxes |
Other criteria also enter into this calculation, such as the proportionate method of amortising the investment, the amount of the qualifying tax benefit.
◻ Top-up tax credit
The following is a basic overview of the tax credit and how it is calculated or assessed for specific cases of calculating the taxes involved in relation to income:
Top-up tax credit | Method of adjusting qualifying income or loss |
| Tax credit granted for the acquisition of property or creation of property | The original recipient of the tax credit may follow the accounting principles used by the recipient of the credit in calculating the allowable income or allowable loss |
| Original recipient of a tax credit who transfers a tradable transferable tax credit within 15 months of the end of the accounting period in which the conditions for the tax credit were met | Use the sales price in the accounting period in which the conditions for the tax credit were met in calculating the qualifying income or qualifying loss |
| A tax credit other than a qualified refundable tax credit or a tradable transferable tax credit | Is not treated as income in computing the qualifying income or qualifying loss of the basic entity |
◻ Exclusion of income on the basis of economic substance
The following groups of income shall be added to the excluded income of basic entities that are assessed for the purposes of the top-up tax:
| Lease of tangible assets | |
| The rental of movable property in Slovakia on the basis of an operating lease shall be calculated, for the purposes of calculating exempt income, as the difference between the book value of the recognised leased tangible property and the average value of the lessee’s right to use the property at the beginning and at the end of the tax year, subject to the following | |
| If the lessee is not the underlying entity | The average is the undiscounted rent payable (including lease extensions) under the financial standard |
| Tangible assets are used for short-term operating leases of up to 30 days per lessee | The average value is zero |
| The underlying entity leases a substantial part of the recognised tangible assets | The carrying amount of tangible assets shall be determined on the basis of the extent of use of those assets |
| Performing a dependent activity | |
| If an employee works for a multinational group of companies or a large national group of companies for less than half of his working time, then | |
| The basic entity shall take into account for the exempted income only that part of the wages attributable to the working time spent in Slovakia | Working time spent outside Slovakia is not considered |
| Income from tangible assets | |
| If the tangible property is situated in Slovakia for less than half of the tax year, then | |
| The basic entity shall take into account for the excluded income only that part of the book value of the property for the period when the property was in Slovakia | The book value of the property is not assessed if it was outside Slovakia during the year |
◻ Hybrid mismatches are introduced
Similarly to the Income Tax Act, the amended version of the top-up tax law will include tax avoidance measures – hybrid mismatches. Accordingly, for the purpose of determining eligibility for an exemption from the calculation of the basic entity balancing tax on a qualified state-by-state basis, a distinction is made between:
Hybrid mismatch | Description | ||
| – Deduction of costs without inclusion in income | – The underlying entity directly or indirectly makes a loan (other form of investment) to another underlying entity resulting in an expense or loss in the financial statements with additional capital | ||
| To the extent that | there has been no corresponding increase in revenue or profit in the financial statements of another underlying entity | ||
| there is not expected to be a corresponding increase in the taxable income of the other underlying entity during the period of the arrangement | |||
| Double loss application | A basic entity shall recognise an expense or loss in the financial statements to the extent that | ||
| that expense or loss is also recognised as an expense in another underlying entity | |||
| the mismatch leads to a double application of the tax cost in determining the taxable income of another basic entity in the other State | |||
| Double tax application | More than one basic entity includes the same total income tax cost in the adjusted included taxes (or in the calculation of the simplified effective tax rate) | ||
| Except the mismatch which | will arise solely because the simplified effective tax rate of the underlying entity does not require adjustments to the income tax expense allocated to another underlying entity | ||
| results in taxable income being included in the respective accounts of each such basic entity | |||
◻ Exemption from the calculation of the top-up tax on the basis of simplified calculations
The Act allows a filing entity to be excluded from the assessment and calculation of the balancing tax if it is determined that the balancing tax of the underlying entities is equal to zero and, at the same time:
a) average eligible revenue of the basic entities is less than EUR 10.000.000
b) average eligible income or average eligible loss of the basic entities is less than EUR 1.000.000
c) effective tax rate of the basic entities is higher than 15 %
d) net eligible income of the basic entities is equal or less than the amount of income excluded on the basis of economic substance
◻ Timing of transposition into Law
The timeframe for the application of the changes to the top-up tax law is summarised in the following overview:
First accounting period | Original efficiency | New efficiency |
| Determination of qualifying income or loss in 2024 | Starting from 1 January 2024 | Starting from 1 January 2025 |
| Decision on the application of a deferred claim on a qualifying loss | Starting from 1 January 2024 | Starting from 1 January 2025 |
| Time limit for filing the notice and tax return | If it has expired before 30 June 2026 | Extended until 30 June 2026 |
| Decision on the application of a deferred tax asset after the application of the exemption from the calculation of the top-up tax | To be announced from 1 January 2025 | |
The above changes will have an impact on the determination of the included income, losses and the calculation of the effective tax rate and the resulting Top-up tax for all participating – included business entities. Moreover, the adopted amendment will result in a more difficult understanding of Act No 507/2023 Coll. on the Top-up tax which may lead to ambiguous conclusions.
