What really is the “foreigner source (tax-exempted) income” for Georgian tax purposes?
The common misunderstanding of the term Foreign source income of individuals is exempted from personal income tax in Georgia
Georgia applies the so-called “territorial taxation principle” for natural persons (individuals). In other words, individuals in Georgia are exempted from personal income tax on income received from non-Georgian (foreign) sources.
The legal base of the tax exemption on foreign source income
Article 82. 1 (u) of the Georgian tax codes
“1. The following types of income of natural persons shall be exempt from income tax:
- u) income (including gain) received by a resident natural person, which does not belong to Georgian source income”.
Notably, the above-cited paragraph mentions “resident natural person” because the subject of personal income tax of resident individuals is worldwide income and they receive the exemption on foreign source income based on the separate, article 81, while the subject of personal income tax of non-residents is only Georgian source income. Thus, the final tax implication on foreign source income of resident and non-resident individuals are similar-0 to tax.
The term tax resident of Georgia is explained in another article which you can read here.
A major misunderstanding of the meaning of “foreign source income” in Georgia
There is a myth believed by many foreigners living in Georgia that “Any income received from abroad is foreign source income, therefore, is fully exempted from personal income tax in Georgia”.
This is a huge misinterpretation of the law which might lead to many individuals facing problems with Georgian tax authorities (additional tax assessments and the sanctions which can also lead to criminal cases if the additional (not paid) tax liability is 100k GEL and more).
Bellow, I will provide a brief explanation of why any income received from abroad is NOT foreign source income, thus is NOT exempted from personal income tax in Georgia.
Definition of “foreign source income” based on the Georgian tax code
Article #104 of the Georgian tax code is dedicated to determining a source of income for purposes of taxation in Georgia. We should rely on ONLY on article 104 of GTC when we analyze whether the income is the Georgian source or not.
Article #104 is very long and complicated, entirely discussing it would require writing more than 20 pages, so I will briefly analyze the most important and most frequently applicable paragraphs of this article which will hopefully demonstrate that the term “foreign source income” shall not be understood literally, as any income received from abroad.
Note: Article 104 does not directly provide the definition of “foreign source income” but explains what is a “Georgian source income” and whatever is not a “Georgian source income” is automatically a “foreign source income”, so if the income does not fall in neither paragraph provided in the mentioned article, it means that the income comes from the foreign source.
Article 104 of Georgian tax code:
1.“For the purposes of this Section, Georgian source income shall be:
- c) income earned from the delivery of services in Georgia. For this purpose, unless otherwise provided by this article, services shall be deemed to be delivered in Georgia, if:
c.g) a service provider and a service recipient are in different states and the service provider is a Georgian resident, except where the service provider delivers services through its permanent establishment in another country that confirms the fact that the service provider has delivered services in another country (other than in Georgia).”
My understanding of the definition of the source of service fee (above paragraph) is the following:
If a cross-border service delivery takes place and a service provider and service recipient are residents of different states, the income gained from this transaction shall be categorized as Georgian source income, if a provider is a Georgian resident and opposite, the income is a foreign source if a provider is a non-resident (with some exceptions).
Let put this in other words: based on the paragraph above, the service fee is Georgian source income if it comes from abroad and the service fee is foreign source income if it comes from Georgia.
For example, if a Georgian resident individual provides translation service to a French company, and a French company remunerates this service and transfers money to Georgia, this income is considered as Georgian source income regardless of the fact that the income was actually received from abroad because the service provider is Georgian resident.
As a result, that income is taxable in Georgia because it is not considered as a “foreign source income”.
So, as you see, the definition of “foreign source income” sometimes is understood opposite to literal meaning: If money is received from abroad, it is a Georgian source income and if money is paid from Georgian to abroad, it is a foreign source income.
Notably, the rule above has several exceptions (e.g., a permanent establishment in Georgia, accruing costs by a non-resident on Georgian territory for provision service to a resident, etc.) which even increases the number of cases when the income is considered as Georgian source.
The exceptional rules are not analyzed in this article. If you need more detailed analyses of article 104, please contact me here.
Which type of income received from abroad is usually foreign source income?
The sub-paragraph “c.g” of article 104 which I briefly explained above, refer to service provisions and frequently are subject to different interpretations (complicated clause), however, there are types of incomes which with greater certainty are considered as foreign sources of income if they are received from abroad.
The non-exhaustive list of those types of incomes is following:
- Capital gain from reselling shares of a foreign company (with exception)
- Capital gain on selling crypto.
So, if a natural person is a resident of Georgia and owns shares in a foreign company and receives dividends from those shares, this income in the majority of cases is not taxable in Georgia. The same applies to interest, pension, royalty and capital gain received from abroad to Georgia.
To put it in a simpler way, the passive income received from abroad is usually considered as foreign source income while this rule does not apply to an active income.
Therefore Georgia is a very attractive place for stock traders because neither dividend nor interest or capital gain from this activity is not taxed in Georgia in the majority of cases, however, as entirely in article 104, those rules also leave room for various interpretations which I will explain below.
Dividend received from abroad might NOT be seen as “dividend” but rather as an active income
It is important to note here that when I talk about dividend income above, I mean a real passive income that a person receives from purely holding the shares. On the other hand, if an individual owns a so-called “one-man company” abroad, where he/she does create most of the value of the company (e.g. he/she personally performs services which are consequently sold by the foreign company) and he/she received an only dividend from this company, this income might not be perceived as dividend by Georgian tax authorities and be qualified as “Salary” or “service fee “or “other income” and therefore taxable in Georgia.
So, each case needs individual analyses before you qualify your income as a Georgian or foreign source.
In addition to above, the article 104 includes one very “tricky” paragraph with the following wording:
“q) (Georgian source income is) other income earned from carrying on activities in Georgia.”
In my opinion, this paragraph is applicable only in case if a certain type of income will not fall in any other paragraph of article 104 as the paragraph “q” says “other income”. Nevertheless, in certain cases, the mentioned paragraph can be applied by tax authorities as a legal base for claiming that the individual’s certain income belongs to the Georgian source.
Especially when a certain income received by an individual from abroad is associated with her/his active work conducted while living in the territory of Georgia.
For example, the mentioned paragraph can be applicable in a case when a person creates a main value in her/his foreign company and actually performs some business activities on behalf of this company while living in Georgia and receiving only dividends or if an individual does some day-to-day trading.
This is not fully clear though, because, on the one hand, the wording “carries on the activity in Georgia” can be “used” by tax authorities in their favour when interpreting the law, on the other hand, if the income is the qualified dividend, royalty, interest, capital gain, etc. such income cannot be qualified as “other income” (an important precondition for applying the paragraph “q”) because the income has already been categorized in above paragraphs of the article 104.
The term: “carrying on activities in Georgia”
Also, if a person just holding a share, stock, and receiving dividends, capital gain, interest, just holding, in my opinion, shall not be considered as “carrying on activities in Georgia”.
This is my opinion, but it is not known what the official position of Georgian tax authorities on this issue is. As of today, there is not any official guideline providing clarification of the application of the mentioned paragraph “q”. Also, each case is individual, even a small detail of the case can change the tax implication. That’s why in each business case, the issue requires individual, thorough analyses before giving the most correct qualification to the income and determining its source. For the individual analyses just book the appointment on www.tpsolution.ge
What could be the best solution regarding the taxation of your Georgian source income?
If after reading this article you find out that your income actually is a Georgian source and does not fall under the category of tax exemption, there are still ways to enjoy the tax incentives in Georgia:
- Obtain status of “small business” and pay only 1% tax of the revenue (applies to a certain type of activities, not all, under 500 000 Gel annual revenue).
- For IT people, obtaining a status of “Virtual Zone Person” or “International Company”.
- Register an LLC in Georgia (especially if you plan to reinvest your profit in Georgia), etc.
Conclusion-Georgian and foreign source income
According to Georgian tax law, withholding taxation on payments to non-residents applies only in case if paid income is categorized as received from a Georgian source. Also, natural persons are exempted from personal income tax on the foreign source income in Georgia.
Non-Georgian source income is in fact exempted from personal income tax in Georgia, however, the term “foreign source income shall not be understood literally as it sounds, but article 104 shall be analyzed for determining the source of a certain income.
Regarding the active income, the rule provided by article 104, is opposite of the literal understanding of the term (any income which comes from abroad), the reason is explained above.
In General, article 104 is frequently subject of interpretation and its application requires individual analyses but what we can clearly know is that the service fee received from the resident of Georgia from abroad while living and working in Georgia is a Georgian source and taxable by personal income tax in the country. The same principle does not apply to passive income. In many cases, passive income (e.g., dividend, interest, capital gain) received from abroad shall be considered as a foreign source, however, neither this rule is straightforward nor requires individual analyses.
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