Editorials, GS-2, Uncategorized

Changes in the tax treaty with Mauritius

What is DTAA?

Double Taxation Avoidance Agreement (DTAA) also referred as Tax Treaty is a bilateral economic agreement between two nations that aims to avoid or eliminate double taxation of the same income in two countries.

 

Importance of this

  • It is not unusual for a business or individual who is resident in one country to make a taxable gain (earnings, profits) in another. This person may find that he is obliged by domestic laws to pay tax on that gain locally and pay again in the country in which the gain was made. Since this is inequitable, many nations make bilateral double taxation agreements with each other. In some cases, this requires that tax be paid in the country of residence and be exempt in the country in which it arises.
  • These treaties benefit institutions and individuals who earn in countries other than their country of residence, provided such an arrangement exists between their country of residence and the country/countries where their income sources are.
  • India has DTAA with over 80 countries; it plans to sign such treaties with more countries. The major countries with which it has signed the DTAA are the US, the United Kingdom, the UAE, Canada, Australia, Saudi Arabia, Singapore and New Zealand.

 

What was the problem with Mauritius?

  • Mauritius, and other tax havens, has almost negligible taxes. This was encouraging companies to route their investments in India through “shell” companies (those that exist only on paper) in Mauritius and avoid paying taxes.

 

How big was the problem?

  • The DTAA was a major reason for a large number of foreign portfolio investors (FPI) and foreign entities to route their investments in India through Mauritius. At $94 billion, Mauritius has been the largest FDI source for India, accounting for 34% of total FDI in India between 2000 and 2015.

 

How do people use tax havens to avoid paying taxes?

  • Through “round tripping” or “treaty shopping”

How does round tripping work?

  • Round tripping refers to routing of investments by a resident of one country through another country back to his own country.
  • You get money out of India and transmit it to a tax haven with whom India has a bilateral tax avoidance treaty such as the double-taxation avoidance agreement (DTAA). In the tax haven, this money is treated as capital of a registered corporate entity. You now invest this money back in an Indian company as foreign direct investment (FDI) by buying stakes or invest it in Indian equity markets.

How does this help in avoiding taxes?

  • The entire purpose of this exercise is to window-dress as foreign capital your original money that you had taken out from India.
  • In the entire process, you end up paying zero or negligible taxes. In India, you can claim tax exemption citing the DTAA arguing that you have paid taxes in the source country. In the source country, taxes are negligible since it is a tax haven.

 

Why has the treaty been amended?

  • It is a move in line with the government’s initiatives to curb black money in the system, money laundering and tax avoidance.
  • It is also expected to discourage speculators and non-serious investors, and thereby reduce volatility in the market.

 

What are the changes that will plug this gap?

  • Under the original bilateral agreement between the two nations, capital gains from the sale of securities can only be taxed in Mauritius. However, the gains from the sale of shares held for less than 12 months are treated as short-term capital gains within India and attract a 15 per cent short-term capital gains tax. This has created an anomaly, thanks to a double taxation avoidance agreement with Mauritius, that meant business entities operating out of Mauritius escaped even paying short-term capital gains tax on share transfers. This has been exploited even by domestic Indian investors, who have resorted to routing their equity investments via Mauritius to avoid the tax liability at home.
  • The changed DTAA will make it mandatory to pay capital gains tax on sale of shares in India by companies registered in Mauritius.
  • While the protocol gives India the right to tax capital gains arising from sale or transfer of shares of an Indian company acquired by a Mauritian tax resident, it proposes to exempt investments made until March 31, 2017, from such taxation. The government also said that shares acquired between April 1, 2017 and March 31, 2019 will attract capital gains tax at a 50% discount on the domestic tax rate — i.e., at 7.5% for listed equities and 20% for unlisted ones.
  • The full tax impact of the protocol will fall on investments beginning April 1, 2019, when capital gains will attract tax at the full domestic rates of 15% and 40%.

 

Why rules are not suddenly changed?

  • Instead of a sudden and retrospective change, the government has chosen to give ample time for all investors to adjust.
  • Thus the amended tax provisions will come into effect 11 months later and existing investors, who acquire shares before April 1 2017 will not be taxed.
  • Further, firms will be taxed at a concessional rate for the first two years, until March 31 2019, to help them transition to the new regime.

What about previous investments?

  • The new rules will not apply only to investments made before April 1, 2017, meaning share sale of investments made before this date will be exempt from capital gains tax.

 

Which companies will benefit from the reduced tax rates during the first two years?

  • The benefit of 50% reduction in tax rate during the transition period from April 1, 2017 to March 31, 2019 shall be subject to a limitation of benefit (LOB) Article.
  • A Mauritius-registered company (including a shell or conduit company) will not be entitled to lower tax rate, if it doesn’t spend at least Rs 27 lakh in Mauritius in the previous 12 months. This is called ‘purpose and bonafide business test’.

 

  • GAAR are aimed at curbing tax avoidance and aim to give tax authorities the right to scrutinise transactions that they feel have been done to avoid taxes.
  • Under GAAR corporations may be forced to restructure salaries of employees if taxmen conclude that these were structured only to avoid taxes. Similarly, if a foreign investment transaction from Mauritius has taken place with intent to exploit DTAA, it will come under GAAR.
  • Implementation of GAAR will take place from April, 2017.

 

Impact and Analysis

(i) Impact on the India-Singapore DTAA: Article 6 of the protocol to the India-Singapore DTAA states that the benefits in respect of capital gains arising to Singapore residents from sale of shares of an Indian Company shall only remain in force so long as the analogous provisions under the India-Mauritius DTAA continue to provide the benefit.

Thus the amended tax regime will also apply to capital gains of Singapore-based companies, due to the direct linkage of the Singapore double taxation avoidance agreement (DTAA) clause with the Mauritius DTAA.

(ii) Impact on shares held by FPIs: Under the Indian income-tax law, shares of listed Indian companies held by FPIs are deemed to be capital assets irrespective of the holding period or the frequency of trading equity carried out by the concerned FPI. As such, income from sale of shares results in capital gains and at present, FPIs enjoy the benefits of the capital gains provisions under the India-Mauritius DTAA. Such investments will also be impacted by the amendment.

(iii) Foreign Investment might decline: Since investments until March 31, 2017 have been exempted from capital gains tax, there is no risk of an immediate outflow of funds. However, the protocol will impact all prospective investments with effect from April 1, 2017.

Experts feel that while some investors who are bullish on India may advance their plans and invest before April 1, 2017 in order to save tax, many others will raise their due diligence procedure on investments, factoring in the tax cost in the returns they generate i.e. it could hurt short-term foreign investor inflows into India, particularly from companies whose investment strategies are guided by minimising taxes. This could pull down markets initially.

 

Is any country likely to benefit as a result of the amendment?

Experts say the Netherlands may emerge as an attractive destination for FPIs following the changes to the Mauritius treaty. The India-Netherlands treaty is a smart treaty, and it can emerge as a preferred alternative for FIIs especially those in Europe. The treaty provides that if a company based in Netherlands holds less than 10% equity in an Indian entity, it would not attract capital gains on the sale of those shares to residents or non-residents. Even if it were to own more than 10% equity in an Indian company, the treaty allows it to sell the shares to a non-resident without attracting tax.

Editorials, GS-3, Indian Economy, Uncategorized

A taxing agenda

Summary:

India’s income tax department recently released time series data for the period 2000-01 to 2014-15. This was an attempt to enhance transparency and encourage analysis which could provide insights for policymakers. This is also being seen as an attempt by the government to sensitize many on the need for the affluent to contribute more at a time of growing disparities.

Worrying trends shown in the data:

  • There are just 18,359 individuals who have reported earnings in excess of Rs 1 crore in 2011-12 and paid tax on it.
  • Just 1% of individuals, who declared their income in assessment year 2012-13, accounted for almost 20% of the taxable income.
  • Among corporates, a little more than 5% of the companies accounted for a whopping 94% of the taxable income.
  • Direct tax collections have fallen drastically in the last five years, growing at an average annual rate of 8.5% between assessment years 2011-12 and 2015-16, compared to the 14.1% over the previous five years.
  • The drop in the growth rate of direct tax collections was accompanied by an equally dire slowdown in the growth of corporate tax. Corporate tax grew at an average annual rate of 7.1% between assessment years 2011-12 and 2015-16, down from the heady 15.6% seen in the previous five years.

Hence, it can be concluded that Indian income-tax base is very narrow. The problem of large-scale evasion or avoidance continues.

Limitations of Indian tax structure which result in tax evasion:

  • High rate of taxation.
  • Failure to curb bribery.
  • Lack of simplified procedures.
  • Existence of large number of taxes.
  • Complex tax laws and loopholes in the existing taxation policy.
  • Lack of unorganized and systematic administrative structure.
  • Deficiencies in implementing penalty provisions.

What can be done to improve the tax base?

  • The focus has to remain on widening the income-tax base, and recent efforts to phase out exemptions must be speeded up. Meanwhile, the narrowness of the tax base should lead to some introspection on the part of the tax authorities.
  • The tax department has to work out more up-to-date methods of identifying potential taxpayers.
  • The streamlining of various data sources already accessible to the government must be carried out through cross-checking of information from various sources.
  • Using big data techniques, multiple streams of data can be mined for individuals who have consistent spending patterns in excess of their declared income. This will allow for more focused audits.
  • I-T form for those with several sources of income should be made even simpler. Online and paperless filing of returns and payment of tax should be made possible.
  • The government’s approach to tax amnesty must be re-examined in light of this data. The government needs to push through meaningful reform like taxing large farm incomes and rationalising bounties enjoyed by the well-off, to widen the base.

Conclusion:

For a country like India, which needs to spend on health, education and social security and also build social and physical infrastructure, it is critical to address the challenges on the tax policy front swiftly. These include both the widening and deepening of the tax base, whittling down of exemptions and improving compliance, especially by leveraging technology. The release of data offers an opportunity to policymakers to engage in a wider public debate on the current tax policy, including on the capital gains tax — on which the government has kicked off a corrective step in this year’s budget.

GS-3, Indian Economy, Uncategorized

Two committees to ensure consistency in tax policies

The Union Government has constituted two new committees:

  1. Tax Policy Research Unit (TPRU)
  2. Tax Policy Council (TPC)
  • Aim: To streamline the taxation policy and administration
  • These committees have been constituted based on the recommendation of the Tax Administration Reform Commission (TARC)

Tax Policy Research Unit

  • The TPRU will be headed by Revenue Secretary
  • It will carry out studies on various topics of fiscal and tax policies
  • It will assist the TPC in taking appropriate policy decisions and shall prepare tax proposal and analysis of legislative intent
  • It will also take decisions on expected increase or decrease in tax collection and economic impact
  • It will comprise of officers from CBEC, CBDT as well as economists, researchers, statisticians and legal experts

Tax Policy Council

  • The TPC will help the government in identifying key policy decisions for taxation
  • It shall aim to have a consistent and coherent approach to the issue of tax policy
  • It will look at all the research findings coming from TPRU and suggest broad policy measures for taxation
  • The council will be headed by Union Finance Minister
  • It shall have 9 members – Minister of State for Finance, Commerce Minister, NITI Aayog Vice-Chairman, Chief Economic Advisor and Finance Secretary
  • It would also have secretaries from the department of Revenue, DEA, DIPP and Ministry of Commerce

Background:

  • Presently, taxation policy and administration is handled in the CBDT and the CBEC
  • But there are also two independent boards Tax Research Unit (TRU) and Tax Policy and Legislation (TPL) wings which are also sending proposals to the Union Finance Minister
  • TARC in its First Report had identified handling of tax policy and related legislation as one of the areas in need of structural modifications
  • In order to bring consistency, multidisciplinary inputs and coherence in taxation policy making, it had recommended establishment of Tax Council supported by a common Tax Policy and Analysis (TPA) unit to cater to needs of both direct and indirect taxes
GS-3, Indian Economy, Uncategorized

Arvind Subramanian Panel on GST Tax Rates

  • The Chief Economic Advisor Arvind Subramanian led panel submitted its report on Possible Tax rates under Goods and Services Tax (GST) to Finance Minister Arun Jaitley
  • Union government had set up the committee under chairmanship of CEA Dr. Subramanian in June 2015 to arrive at GST rates by factoring in the economic growth rate,  taxpayer base and tax compliance levels

Recommendations:

  • Standard GST rate of 17-18%- It is the rate at which most products would likely be taxed
  • Not to specify GST rate in Constitutional Amendment Bill
  • Revenue-neutral rate of 15-15.5%- It is a single rate at which there will be no revenue loss to the centre and states in the GST regime
  • Eliminate all taxes on inter-state trade including one per cent inter-state tax on transfer of goods
  • Two options for states: Single rate of 1% or a range of 17-18%
  • Allocation to states will depend on revenues raised by Centre and states
  • Three-tier GST rate structure:
  1. Essential goods will be taxed at a lower rate of 12%
  2. Demerit goods such as luxury cars, aerated beverages, pan masala and tobacco products will be taxed at 40%
  3. Remaining all goods will be taxed at a standard rate of 17-18%
  • Excluded real estate, electricity and alcohol and petroleum products while calculating tax rates but suggests bringing them under the ambit of GST soon
Editorials, GS-3, Indian Economy, Uncategorized

Sort out the tax maze

Article Link

Recent Panama leaks have exposed various loopholes in India’s tax regime. It is widely being assumed that tax havens are used only for illegal activities. However, tax havens are more likely to be used not just for illegal activity but even for legitimate businesses.

  • People prefer tax haven for the sake of avoiding taxes. But there are very thin lines between the legal and the illegal. The difference between tax evasion and tax avoidance is one such line.
  • Tax evasion involves not paying taxes on your income and is illegal. Tax avoidance, on the other hand, is about managing your taxes across different tax jurisdictions to take advantage of differences in tax rates, such as corporate tax rates, in tax treatment of different kinds of income, such as capital gains, and in tax treaties among countries.
  • Tax havens such as Panama, the British Virgin Islands and the Bahamas try to attract business by offering low tax rates and easy compliance.

Problems with Indian tax regime:

In India, tax rates are higher, the system is complicated and capital controls restrict foreign financial transactions.

  • Various tax laws have made compliance more costly in India. India is ranked 157 in the ease of paying taxes.
  • Further, the effective tax on profit is higher: The corporate tax rate and the dividend distribution tax put together make the tax rate on profits nearly 50%.
  • The capital gains tax makes financial transactions even more unattractive. This regime is made more tortuous by an onerous set of capital controls.

Tax avoidance as cheating:

Some countries, including OECD countries, consider even tax avoidance as illegal.

A number of OECD initiatives have been taken to reduce tax avoidance:

  • An agreement on Base Erosion and Profit Shifting (Beps) aims to prevent companies from choosing low-tax jurisdictions to book profits in.
  • The Automatic Exchange of Information (AEOI) framework will facilitate information flows among signatories.
  • The Foreign Account Tax Compliance Act (Fatca) targets non-compliance by US taxpayers and compliant countries have to provide customer information to the US government.

However, there are some cases in which the actions are clearly illegal-

  • First, when the underlying activity is criminal, say, drug or arms trade. These activities are covered under the Prevention of Money Laundering Act. As a member of the Financial Action Task Force, India works with other member countries to prevent the use of the proceeds of crime.
  • The second is when there are cases of tax evasion: A person does not declare to the tax authorities in her home country her income, which is paid into a bank account of her company in Panama, and no taxes are paid. Here, a distinction between tax evasion and avoidance is relevant. If taxes have been paid in the tax haven at its lower tax rate, then there may be no illegality. When India introduces the General Anti-Avoidance Rule (Gaar), some of these activities may become illegal.
  • The third case is if there is a violation of capital controls. This is an India-specific issue. Under the Liberalised Remittance Scheme (LRS), every Indian resident is allowed to invest $2,50,000 abroad every year. In 2004, the limit was one-tenth of this. Money remitted abroad is from income on which tax has already been paid. If the amount invested abroad exceeds the amount allowed by the RBI, it is a violation of the law.
  • Fourth, the illegality may be the non-declaration of assets held abroad. A provision in the Finance Bill introduced in 2015 made it criminal not to declare foreign assets in annual tax returns. If the assets held in tax havens have been declared, then it is not illegal to hold them.

Why be concerned about these issues?

There is a widespread perception that offshore companies are conduits for money laundering, illegal transactions, tax evasion or parking unexplained wealth. Hence, it is necessary to keep an eye on such activities and prevent them.

What’s needed?

  • First, rationalisation of capital controls should be a top priority. Many government reports have laid out the path forward.
  • Second, India must move to a simple tax regime with lower compliance costs. The blueprint is ready in the Direct Taxes Code.

Conclusion:

The new government at the Centre has the opportunity to simplify our tax laws that reduce the scope for disputes between taxpayers and revenue authorities. The objective should be to encourage voluntary compliance and severely penalise tax evasion. This, along with clarity on introduction of a new Direct Taxes Code and a roadmap for the implementation of a nationwide Goods and Services Tax, will go some way in creating a non-adversarial tax climate conducive to growth and investment. In the long run, this is the only sustainable path to revenue generation.

Editorials, GS-3, Indian Economy, Uncategorized

A Ringside View of the Proposed GST

Article Link

If implemented, GST will be the single most important tax reform in the country since independence. However, it has been in the offing for a decade now and continues to figure as a top priority on the economic agenda of the government.

What’s the issue now?

Although the model GST has been the subject of wide scrutiny and debate, most of the discussions have been centred on its road to passage or on its larger form and structure. Many issues of significance, which will be crucial to the making of a robust and successful GST, have largely been underplayed.

Issues associated with the GST:

  1. Dilution of uniform GST rate:

A lot has been discussed on the benefits of uniformity that the GST would usher in. It was expected that the GST would obviate potential rate wars between the states by putting in place a uniform tax rate by combining Central GST (CGST) and State GST (SGST).

  • However, a Report of the Rajya Sabha Select Committee has indicated that a uniform GST rate would be diluted by giving States the freedom to impose the SGST within a band of rates in order to meet revenue expediencies or as a policy tool. Experts argue that this move undermine the true spirit of the GST Bill.
  1. GST Dispute Settlement Authority:

The failure to incorporate a GST Disputes Settlement Authority, as was provided for in the 2011 Bill, is a serious lacuna that must also be filled. The Authority would have reined in any deviations affecting the harmonised structure of the GST.

  • Now, instead, all issues concerning rates, exemptions, and so on are to be decided by the GST Council (of which the Centre and States are members) by consensus, which may prove elusive given the political, social and revenue dynamics at play.
  • Hence, the GST Council must be supplemented and reinforced with a GST Disputes Settlement Authority in toto as provided for in the 2011 Bill.
  1. Voting pattern within the GST Council:

It is also argued that the new GST Bill is unduly weighted in favour of the Centre. According to the new pattern, within the GST Council, the centre will get one-third share in voting rights. On the other hand, states’ collective share will be limited to two-third. In effect, each State, irrespective of size, representation and GDP contribution, will command an equal vote, a structure which militates against the basic spirit of representative democracy enshrined in the Constitution.

  • This provision also opens up the Council to greater manoeuvring by the Centre on issues that it seeks to pass or veto.
  • Hence, in the interests of true “cooperative federalism”, the share of the States in voting in the GST Council must be enhanced to 75% and the share of the Centre brought down to 25%.
  1. Rewarding destination states:

The existing tax system has typically followed a model of rewarding States where production activity is based (origin States), as opposed to States where consumption is high (destination States). Accordingly, most States have incentivised the setting up of local industries in order to drive growth and augment tax collections.

  • But, GST is trying to disturb this delicate balance. GST, by nature, is a destination-based consumption tax. While origin States may chalk out measures to redress the imbalance, consumption and production patterns will not alter overnight, and industrialised States could be left in the lurch, at least in the immediate aftermath of the GST.
  • In such a scenario, it will be difficult to predict the reaction of industrialised States. There is also the troubling prospect that such an aggrieved State may seek to substantially deviate from the uniform model.
  • Hence, before proceeding further, it is the responsibility of the centre to make some alternative arrangements for these origin states.
  1. Disparity in IT connectivity:

Unlike the existing system, which has greater scope for manual intervention, the GST aims to achieve a tectonic shift to a singular digitised compliance set-up. While this would be a great leap forward if implemented well, what has perhaps been underestimated is the huge geographical disparity across the length and breadth of India in terms of IT connectivity and functionality.

  • With Digital India campaign the government has planned to address this issue. But, it has a long way to go to achieve reasonable Internet penetration. As a result, in some sections of the country today, manual tax compliance remains the only option.
  1. Dependence of GST on IT:

The proposed GST is also highly dependent on IT. For instance, the Integrated Goods and Services Tax (IGST) mechanism, which enables the crucial fungibility of taxes across States, will be unworkable outside an automated set-up, especially given the sheer volume of transactions that the GST will subsume. The proposed IT infrastructure will have to be suitably equipped, as any snags would effectively render the levy dysfunctional.

  1. Conflict between the Centre and the States:

Under the GST, States will have the constitutional power to tax on a par with the Centre, bringing a host of service sectors within their scope for the first time.

  • However, past precedent has shown that such dual taxing power has resulted in complete chaos at the cost of assesses.
  1. Issues of place of supply:

With GST in place, it is expected that issues of place of supply will also arise, with the Centre and States each asserting that the respective supply has occurred within their jurisdiction, so as to be able to garner the tax revenue. Poorly drafted rules will only aid and abet the confusion.

  1. Approach of revenue authorities:

With the implementation of the GST in India, many taxpayers will, for the first time, be exposed to the State authorities. It is possible that these tax payers may be abused by the state authorities. Hence, clear and objective guidelines should be put in place to whittle down the potential for any abuse of discretion.

Conclusion:

Along the road to GST, it is also critical that these issues are subjected to the same level of governmental and public scrutiny so that the implementation of GST is a success in letter as well as in spirit.