In what could lead to an increase in domestic tax liabilities of many Indian conglomerates and multinationals, the government is set to introduce a framework for Base Erosion and Profit Shifting (BEPS), a global agreement to check tax avoidance by multinationals, in the upcoming Budget.
Industry sources expect the BEPS framework to come into being immediately after the Budget, from April 1.
BEPS is a guideline released by the Organisation for Economic Co-operation and Development ( OECD) that would allow country-by-country reporting — to check the various tactics multinationals play to avoid and reduce taxes they pay. While there are 15 standards under BEPS, India in the first round may not create a framework for all of those.
Industry trackers say that many companies that were dwelling in tax arbitrage through complicated structures would come under scrutiny and transparency could improve.
“Structures involving financing arrangements and supply chain that lack economic substance, or, are present in low tax jurisdictions, will come sharply in focus. Master file disclosure requirements will present a peek into the complete structure and supply chain of large Indian outbound conglomerates, thereby shifting the focus by jurisdictions on auditing only direct transactions to focussing on the entire value chain to assess and understand relative contributions,” said Sameer Gupta, partner and leader, financial services, tax and regulatory, at EY.
CASH BOX Many Indian companies would see their patents registered abroad being taxed in India. With a clear view to pay lower tax or have a tax arbitrage, many companies have created ‘cash box’ or shell companies in tax havens, which reap the benefits of the patents when the technologies start making revenue. Such shell companies generally are registered in Luxembourg, Ireland and the Virgin Islands.
Even the tax treaties with many countries like Mauritius, which has seen a lot of controversies in India, would be irrelevant. Under BEPS, the Indian revenue authorities would be able to check facts around the intermediary companies registered in these tax havens. While this is set to increase the transparency as far as companies are concerned, there is also a worry that this could lead to increase in litigations in India, especially around transfer pricing.
“So, you have a global law (BEPS) with municipal interpretation. The issue is not BEPS but the interpretation of the law as every country would interpret it as per their requirement,” said Rohan Shah, managing partner at law firm Economic Laws Practice.
IMPLICATION FOR POEM BEPS would also have far-reaching implications implications to some domestic laws. Industry experts say that if the government chooses to adopt CFC (controlled foreign company) under the BEPS, it would make the recent POEM (place of effective management) irrelevant.
“If the government decides to adopt the CFC under the BEPS guidelines, then a large part of the POEM may be irrelevant and would be replaced. Going ahead, under CFC regime, passive income of many Indian companies would be taxed on current basis and I see in some specific outlines which were under GAAR, specifically with respect to substance over form and Treaty abuse, make its way under BEPS,” said Uday Ved, a senior tax consultant.
The government had released POEM guidelines recently, which had created some fear among companies. However, most industry trackers feel that many in the government have been voicing their concerns around the way many companies have complicated tax structures. BEPS is perceived by many in the revenue department as a of their stand.
Industry experts say revenue authorities have been giving importance to actual functions and conduct in India rather than the contractual arrangements. This is being reflected in the action plans under BEPS as well.
“To my mind, BEPS recommendations will now strengthen this approach during audits. Further, the three tier transfer pricing documentation including country-bycountry reporting is expected to be introduced in India in this year’s budget proposals which could cover more than 150 large India headquartered MNCs having international transactions,” said Rohan Phatarphekar, partner and national head, global transfer pricing services, KPMG.
By Sachin Dave, ET Bureau | 20 Jan, 2016,