Recent Tax Developments in India - DTC 2013 & APA updates

Recent Tax Developments in India -

DTC 2013 & APA updates

EY Webcast

11 April 2014

EY refers to the global organization, and/or one or more of the independent member firms of Ernst & Young Global Limited

Contents

Recent Tax Developments in India - DTC 2013 & APA Updates

► Direct taxes code (DTC) 2013

► Background

► Key provisions of DTC 2013

► Concluding thoughts

► Advanced Pricing Agreements (APA)

► Background

► Process, updates

► Concluding thoughts

Direct Taxes Code (DTC) 2013


DTC 2013, background

► Government of India’s (GOI’s) attempt to revise, consolidate and simplify direct tax

laws

► 12 Aug 2009: Draft DTC Bill, 2009 and Discussion paper released

► 15 Jun 2010: Revised discussion paper released

► Addressed 11 issues arising from the draft DTC Bill, 2009

► 30 Aug 2010: DTC 2010 placed before the Indian Parliament

► 9 Sep 2010: Referred to Standing Committee on Finance (SCF) for examination

► 9 Mar 2012: SCF submits its report after having broad based consultations with

various stakeholders

► 17 Feb 2014: Finance Minister in his Interim Budget speech states his intent to

place the DTC on the website for public discussion

► 31 Mar 2014: Revised version of “DTC 2013” released for public comments

► 153 out of 190 recommendations of SCF proposed to be accepted


DTC 2013, background

► Single code for all direct taxes

► 325 sections plus 23 schedules

► DTC 2010 had 319 sections and 22 schedules

► Attempt to simplify language when compared to Income Tax Act (ITA)

► Complete elimination of “provisos”

► “Explanation” used at only 3 occasions

► Consolidation of provisions

► Extensive use of tables & formulae

► Powers delegated to GOI/tax administrative authority

► Possibly to avoid protracted litigation on procedural issues

► Tax rates provided in the DTC 2013 itself

► Concept of annual Finance Acts (FA) to provide for tax rates done away with


Corporate tax rates at a glance


Particulars ITA tax rates (excluding surcharge and cess)

DTC 2013 tax rates

Domestic Company 30% 30%

Foreign Company 40% 30%

Branch Profit Tax (BPT) Not Applicable 15%

Dividend distribution tax (DDT) 15% 15%

Additional dividend tax on resident

shareholder

Not applicable 10% if dividend income exceeds INR

10 mn

(Introduced for the first time)

Minimum Alternate Tax (MAT) 18.5% of adjusted book profits 18.5% of adjusted book profits (It was

20% under DTC 2010)

Alternate Minimum Tax (AMT) 18.5% of adjusted total income

(Applies to non-corporate taxpayers)

18.5% of adjusted total income

(Not present in DTC 2010)

(Applies to firms and Limited Liability

Partnerships)

Residence rule for corporates

► ITA: Foreign company (FC) resident if control & management situated wholly in

India

► DTC 2010: FC resident if place of effective management (POEM) in India “at any

time in the year”

► POEM defined to mean place where executive directors or officers the company make

their decisions or perform their functions

► SCF recommends to base POEM definition on internationally accepted standards

► DTC 2013: Continues to contain the POEM rule

► FC resident if its POEM in the concerned Financial year (FY) “at any time” is in India

► Accepts SCF recommendation to align POEM definition with internationally accepted

standards

► POEM defined to mean the place where key management and commercial decisions

that are necessary for the conduct of the business of an entity as a whole are, in

substance made


Income computation

► Concept of ‘previous year’ and ‘assessment year’ replaced by a uniform concept

of FY

► Classification of income as either ‘special source’ or ‘ordinary source’

► Separate computation of ordinary source and special source income

► Special source income specified in the First Schedule

► Total income determined by aggregating

► Gross total income from ordinary sources less permissible deductions and

► Total income from special sources

► Largely in line with DTC 2010 proposals


Income computation


Ordinary source Special Source

Income from

• Employment2.

• House property3.

• Business3.

• Residuary 1

• Capital gain [for

residents as also

Non-residents

(NRs)]3

Resident Resident and NR NR

DDT

subjected

dividends

received >

INR10 million:

levy of

additional tax4

► Card game,

lottery winning,

horse race

► Unexplained

investments /

expenditure /

income, etc.4

Dividend (excluding

dividend on which

DDT is paid) Royalty,

Fees for Technical

Services (FTS),

interest, sportsman,

etc.

Excludes income

attributable to PE in

India

1 Controlled Foreign Company (CFC) income is part of residuary source 2 Computation cannot result in loss 3 Computation can result in loss 4 Inserted for the first time in DTC 2013

Additional tax on dividends for resident shareholder

► Under ITA, dividend distributed by domestic company is subject to DDT at the rate

of 15%

► Not taxed again in the hands of shareholder

► DTC 2013 proposes an additional tax levy of 10% if the total dividend income

received (subject to DDT) exceeds INR 10 mn in a FY

► Tax is to be paid by the resident shareholder over and above DDT of 15% paid by the

distributing company.

► Dividend regarded as special source income, no expenditure is allowed to be set off

against this.

► Likelihood of cascading effect in multi-tier structures

► No provision to set this off against further distributions as in case of DDT

► Significant impact on investing companies which collect dividend income on their

investments


Indirect transfer of capital asset

► ITA: Income accruing directly or

indirectly from transfer of capital

asset situated in India

► FA 2012 amended ITA to tax indirect

transfer of assets where the share or

interest derives its value substantially

from Indian assets

► “Substantially” not defined

► DTC 2013: Largely includes the FA

2012 amended ITA rule:

► The threshold of “substantially” is

stated at 20%

► PCo not taxable if Fair Market Value

(FMV) of “Indian assets” is < 20%

FCo1’s total assets

► DTC 2010 had proposed a higher

threshold limit of 50% for non-taxation


FCo2 PCo

FCo1

Ind Co

India

Overseas

Transfer of Shares in

FCo1 to FCo2

Indirect transfer of capital asset

► DTC 2013 provisions

► “Specified date” for determining FMV

defined

► The date on which the accounting

period of FCo1 ends and which

immediately precedes the date of

transfer of shares in FCo1

► Contains relief for small shareholders

► Where PCo’s holding <5% of voting

power/share capital of FCo1; and

► PCo, along with its Associated

Enterprises, does not hold the right of

management or control in relation to

FCo1, either directly or through

intermediate entities


FCo2 PCo

FCo1

Ind Co

India

Overseas

Transfer of Shares in

FCo1 to FCo2

Expanded source rule

► Transportation charges for carriage by aircraft or ship to or from India

► Insurance/re-insurance premium for covering risk in India

► Expanded definition of royalty & FTS

► Development and transfer of a design, drawing, plan or software

► Transmission by satellite, cable, optic fiber, transfer of rights in cinematograph films &

live coverage of events

► FA 2012 amendments of ITA provisions on royalty also included in DTC 2013

► Explanation introduced to clarify that use of computer software (including granting of a

license) irrespective of the medium through which such right is transferred is included in

the royalty definition

► Clarification that royalty includes consideration in respect of any right, property or

information, regardless of it being:

► In the possession of the payer; used directly by the payer or located in India

► Expression, “process” includes transmission by satellite, cable optic fibre, etc whether or

not such process is secret


Expanded source rule, interest

► FCo acquires debt for investing in/

granting loan to Ind Co

► Taxability of interest paid by FCo to

Fin Co?

► ITA: Not taxable as long as FCo does

not carry on business in India

► DTC 2013: Taxable on gross basis as

FCo uses debt for earning India

source income

► Interest paid and not claimed as

deduction in India still taxable

► DTC 2010 exempted such interest


F Co

Ind Co

India

Overseas

Fin Co Loan

Loan/Shares

Branch profit tax (BPT)

► BPT levied on PE of FC at 15%

► On income attributable (directly or indirectly) to PE

► After reducing corporate tax


Particulars on income computation of FC Amount

Total Income (includes royalty income of 400 not attributable to PE in India) 500

Income attributable directly or indirectly to PE in India 100

(Less) Corporate Tax @ 30% (30)

Taxable amount for BPT (A) 70

BPT @15% on (A) 10.50

► Liability not dependent on remittance of profits

► BPT overrides tax treaty provisions

Withholding tax (WHT) provisions

► Applies to “any person” on “specified payments” at the time of payment or credit;

WHT needs to be at “appropriate rates”

► “Specified payments” and “appropriate rates” defined in the Schedule

► Payments in kind subject to WHT

► “Appropriate rate” would be higher of prescribed rate or 20% if recipient does not

have Permanent Account Number

► Exemption to specified interest paid to NR on long term infrastructure bonds

► Provisions exist to obtain “nil” and “lower” tax WHT certificates

► Tax authority to consider ‘total income’ while issuing such certificate, applies only to

residents

► SCF recommendation that such condition should not apply to NRs accepted

► GOI may require filing of WHT returns in cases of payment made without

withholding tax


WHT provisions

► WHT on residents

► Transactions covered include interest, commission, rent, fees for professional &

technical services, non compete fee, royalty, payment to contractors, consideration for

transfer of immovable property etc

► WHT on NRs

► Certain specific payments like interest, royalty, FTS, insurance payments, dividends,

payments to sportsmen etc

► Ambiguity as to whether such amounts needs to be “chargeable to tax”

► Residuary category covers “any other sum chargeable to tax”

► Payment to Foreign Institutional Investor on sale consideration of listed securities on a

recognized stock exchange not subject to WHT

► WHT at 30% or applicable rate, whichever is higher, if recipient is situated in Notified

Jurisdictional Area (NJA)

► Treaty rates apply if such rates are more beneficial compared to DTC 2013

► Deductor obliged to furnish information on specified payments to NR


Relationship between tax treaty and domestic law

► Aligned with status under the ITA

► Preferential treatment for treaty law over domestic tax law

► In case of conflict, taxpayer can choose the more beneficial law

► Limited treaty override same as proposed in DTC 2010

► General anti-avoidance rule (GAAR)

► BPT

► CFC rules

► Treaty benefits not available until a tax residency certificate is furnished, along

with prescribed information/documents

► Levy of BPT not considered as discriminatory against foreign company

► Comparable rule for differential tax rate exists in ITA as well as in DTC 2013


Approach to tax avoidance, GAAR

► First proposed in DTC 2009;

► Adopted in ITA by FA 2012; subsequently amended by FA 2013, based on SCF

recommendations

► GAAR provisions of DTC 2013 aligned with ITA provisions, except:

► Definition of “connected person” now extends to co-subsidiaries

► Tax consequences if GAAR is invoked:

► Disregard, combine, re-characterize steps or parts of the arrangement

► Disregard any accommodating party

► Deem connected persons/ accommodating party to be one and the same person

► Re-characterize or re-allocate income/expense/deduction/relief etc.

► Re-characterize multi-party financing transaction

► Re-characterize debt financing as equity or vice versa


Controlled foreign company (CFC) rules

► Introduced for the first time in DTC 2010; part of “Second Schedule” in DTC 2013

► Aims to end tax deferral

► Undistributed income earned by a CFC is included as income of the resident

shareholder under certain circumstances

► CFC’s income computed as per defined formula

► Proportionate share of CFC income (only if positive) based on extent of control and

number of days attributed to resident and taxed as “income from residuary sources”

► Dividends from previously taxed CFC income allowed as deduction

► Certain territories not regarded as “territory with a lower rate of taxation”

► Empowers GOI to notify “white-list” of countries, new feature in DTC 2013

► Active trade or business test, passive income threshold lowered

► DTC 2013: specified (passive) income <25% of total income

► DTC 2010 contained a higher threshold of passive income <50% of total income


Transfer pricing (TP)

► Definition of “international transaction” and “intangible property (IP)”

► International transaction definition aligned with ITA definition, post FA 2012 amendment

► IP definition of DTC 2010 retained – “trained & organized work force”, “employment

contracts” not regarded as IP?

► Domestic TP was introduced for the first time by FA 2012

► SC decision in the case Glaxo Smithkline [236 CTR 113 (2010)]

► Domestic TP provisions have been incorporated in DTC 2013

► Under DTC 2013 “any expenditure” includes capital expenditure

► Does not include transaction inter se units claiming profit-linked tax holiday


Tax on net wealth

► Residents - The levy is on value of all assets irrespective of their location

► NRs / foreign citizens – Value of assets situated outside in India is outside the purview of

wealth tax

► Asset based is widened to include all financial assets (including listed and unlisted shares)

and many business assets


Particulars Existing provisions DTC 2013 provisions

Scope of Wealth

Tax

► Applicable to individuals, Hindu

Undivided Family (HUF) and

companies

► Applicable to individual, HUF and private

discretionary trust

Threshold Limit ► Wealth tax payable on net wealth in

excess of INR 3 mn

► Applies to all taxpayers

► Wealth tax payable on net wealth in

excess of INR 500 mn (INR 10 mn under

DTC 2010) as on valuation date

► Threshold applies to individuals & HUF

Rate of tax ► 1% of net wealth in excess of INR

3 mn

► 0.25% of net wealth in excess of INR 500

mn (for Individuals and HUF)

► 0.25% of entire net wealth for private

discretionary trust

► DTC 2010 proposed levy of 1%

Concluding thoughts

► The revised provisions of DTC 2013 are largely aligned with current provisions of

ITA or are a response to the recommendations of SCF

► Some changes are positive

► POEM definition reworded to align with internationally accepted standards

► Exclusion of small shareholders from indirect transfer tax levy

► Some changes are novel

► Additional dividend tax levy on resident shareholders

► Greater emphasis on “source country tax” continues

► Expanded ‘source rules’

► Lowering the threshold to 20% for trigger of indirect transfer

► Uncertainty on fate of DTC 2013?


Advance Pricing Agreement (APA)


Background: Evolution of APAs in India

► 2009: Proposal to introduce APA included in draft DTC Bill

► August 2010: DTC Bill placed before Parliament; Referred to the SCF for

examination

► February 2012: Ministry of Finance appoints director of APA program

► March 2012: SCF submits recommendations ► Mechanism of framing APA to be entrusted to independent agency

► Procedural safeguards to be introduced

► Conclusion of APA in a time bound manner

► Tax treaties to be suitably amended to include APA

► March 2012: APA introduced by Finance Bill (FB) 2012

► May 2012: FB 2012 enacted introducing APA ► New sections - 92CC and 92CD inserted in the ITA

► June 2012: APA team constituted in Delhi, Mumbai, Bangalore

► August 2012: APA rules notified

Major suggestions provided by the coalition on International taxation spearheaded

by EY have been accepted and implemented in the APA Rules (2012)


Indian APA rules: Overview of the process

► Industry overview

► Supply chain

overview

► FAR analysis

► Proposed

economic analysis

► Proposed term

► Field work (functional

interviews, review

financial statements)

► Government-to-

government process

► Position papers – face

to face meetings

► Critical assumptions

► Drafting and concluding

APAs

► Unilateral vs bilateral

► Pre-filing meeting

(anonymous)

► Pricing study and

strategy

► Annual report,

record-keeping

► Audit

► Revocation,

cancellation or

revision

► Renewal

Execution and

monitoring

Evaluation and

negotiation –

Agreement

APA request Pre-filing

► Pre-filing consultation is mandatory (also permitted on an anonymous basis) and is

the first step before filing formal application to – (a) Determine scope of APA;

(b) Identify TP issues; (c) Determine suitability of transaction for APA;

(d) Discuss broad terms of the APA.

► Post pre-filing consultation, taxpayers may file an application for either a UAPA or

BAPA; Withdrawal and amendments to application permitted under Rules.


Clarifications from CBDT: APA guide and FAQs released in May 2013 ► Pre-filing consultation being a preliminary process is non-binding

► No compulsion for taxpayer to enter into an APA for all transactions entered into.

However, if transactions are intrinsically linked to one another, APA authorities

would inform taxpayers that all such transactions would need to be covered

► The extent of details needed to be furnished in the formal application may be

discussed during pre-filing consultation meetings

► APA Authorities not bound by past audit history of the taxpayer

► Provisions exist for amendment of an APA application. Post filing, UAPA can be

converted into a BAPA, subject to conditions

► If an applicant admits to having a PE in India, he can also file a request for

determining profit attribution to the PE in India

► Annual compliance audit post an APA would not be broad based regular TP audit

but would be focused on ascertaining compliance with terms of the APA

► No firewalls against sharing of information between tax authorities

► No benefit of tolerance range to be allowed to applicants entering into an APA


APA process: Negotiation stage; typical steps

Typ

ical

ste

ps i

nvo

lved

du

rin

g t

he n

eg

oti

ati

on

sta

ge

Conducting site visits

Joint. Secy FTD approves the position paper

Position paper with tentative ALP sent to CBDT Chairperson

Data gathering post application

Economic Analysis

Chairperson CBDT sends the position paper to Joint Secretary Foreign tax

& Tax research Division (Joint. Secy FTD)

CBDT Chairperson approves position paper

APA team then offers a price in the approved range to the taxpayer

Final agreement will be signed by the CBDT and the taxpayer

If taxpayer agrees, then draft APA agreement will be sent to the CBDT

Final draft approved by the CBDT sent to Ministry of Law for consent


Negotiating APAs: Key issues for consideration

► Selection and application of the Transfer Pricing Method

► Deciding on the years over which the comparable results are to be analyzed

► Adjustment to comparable results

► Testing results during APA period

► Compensating adjustments

► Critical assumptions


APAs in India: Numbers speak !!

► 146 APA filings in “first wave” relevant to FY 2013-14 and onwards

► 80% of the applications are for UAPA

► EY handling close to 30% of applications

► 232 APA filings in the “second wave” relevant to FY 2014-15 and onwards

► 206 applications for UAPA and 26 applications are for BAPA .

► 40% relates to subsidiaries of US multinationals

► EY handling close to 35% of applications

► Applications filed in the second wave is almost 58% higher than the first wave of

applications. This reflects the confidence of taxpayers in the APA program

► 5 UAPAs signed already

► Conclusion of five APAs within a period of 12 months is commendable and does show the Indian

APA program favourable in terms of timelines

► U.S. IRS APA report for 2013 (recently released) mentions that the US has taken an average of

34 months for concluding a new UAPA and 41 months for a new BAPA

► Cumulative 400 applications is a record not achieved by any country in the initial

2 years of the APA program


APAs in India: Current status

► 5 UAPAs signed covers

► Transactions such as interest on loan, corporate guarantee, investment advisory services,

contract manufacturing

► Across industries such as Pharmaceutical, Telecom and Financial Services

► APA team is also understood to have reached an understanding with a taxpayer

on a proposed share issue transaction which has been a subject matter of

litigation

► Inter-play between Safe harbour rules and APAs

► Special emphasis on site visits in India APA Program

► Basically performed to understand business model of the applicant

► Clarified by APA Authorities that site visits will not be like searches/surveys conducted by Tax

authorities

► Review of position of Article 9(2) and BAPAs

► Currently BAPA not accepted for countries such Germany, Singapore, France, Korea

► “Synthetic Bilateral APA” could be explored as an alternative

► Need to address issues relating to staffing/ resources


EY Experience so far… a snapshot…

The EY APA experience

Countries Involved

Countries involved in the BAPA are:

► UK, Sweden and Japan

Applicants for UAPA cover

transactions with:

► Netherlands, Singapore, Germany,

Austria, Germany, Korea, France,

Australia, USA

11 Bilateral Applications out of the

total 26 applications

And

70 Unilateral Applications out of the

total 206 applications filed in the

second wave…

Major Industries include:

► Telecom, Oil and Gas, Apparel,

Information Technology, Shipping,

Pharmaceutical, Chemicals, Rubber,

Banking, Private Equity and several

other manufacturing, trading and

service industries

Major transactions include:

► Payment of royalty

► Provision of software, ITeS,

engineering & design, contract

manufacturing, business support

services etc.

► Availing intra group services

► Payment of interest/ provision of

corporate guarantee

► Share issue transactions


APAs, when to consider?

When to

consider ?

Nature of international transactions – whether a “red flag” for tax

authorities (contentious/ complex/ recurring issues)

Size and complexity of international transactions

Known opposition of tax authorities to the TP approach

Extent to which pricing outcome is sensitive to external factors and

whether APA mechanism is flexible to provide for changes

Audit fatigue and time taken to conclude an APA

Pros and cons of other dispute resolution channels

vis-à-vis the APA mechanism

Unilateral v bilateral/ multilateral and cost benefit analysis

considering all of the above


APAs: benefits & risks

► Addresses concerns around domestic tax law

process

► Provides certainty and enhances predictability

► Proactively avoids TP controversy - A BAPA and

MAPA are the only way to exclude TP

controversy risk as it binds the tax authorities of

both the countries

► Discussion at the “right level”

► Eliminates/reduces risk of economic double

taxation

► Can reduce compliance cost

► EY 2013 Global TP survey on use of APAs

► Preferred means of controversy

management after Mutual Agreement

Procedure

► 26% of parent respondents use APAs as

controversy management tools; 90% of

those who have used APAs would do so

again

Benefits Risks

► Time consuming exercise especially with BAPA

and MAPAs

► Strain on resources for taxpayers and tax

authorities – personnel and expenses

► May not provide certainty in case of a UAPA or

if an APA involves unreliable prediction on

market conditions without adequate critical

assumptions

► Taxpayers may be asked to provide detailed

information on transactions that is normally not

required in a routine audit

► Information provided can be used against

taxpayers

► May not always result in the desired outcome


Concluding remarks

Prudent preparation

required for designing a

winning APA strategy

Consider using APAs for

implementing TP

planning/ re-design

opportunities

Aggressive revenue

enforcement and

punitive interest and

penalty provisions will

present a formidable

challenge

APAs offers a window of

opportunity for

controversy management

1

2 3

4

Concluding

remarks


Questions?


This presentation contains information in summary form and is therefore intended for general guidance

only. It is not intended to be a substitute for detailed research or the exercise of professional judgment.

Neither Ernst & Young LLP nor any other member of the global Ernst & Young organization can accept any

responsibility for loss occasioned to any person acting or refraining from action as a result of any material

in this publication. On any specific matter, reference should be made to the appropriate advisor.

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