Equalisation Levy: A toothless taxing tiger

Introduction

The issue of taxing cyclopean companies such as Google, Facebook, Yahoo!, etc., has been scuffling the tax authorities in major countries around the world including India, France, United Kingdom ('UK') and United States of America ('USA'). These countries for long have been whinging at the way these digital giants operate and generate huge profits in their respective countries while having their tax base in low-tax countries such as Bermuda, Ireland, Luxembourg. But such carping have made little legal headway due to the limitations of existing taxation framework which have outlived their utility since they are based on antiquated business models.

The premier reasons of success of such companies includes the following:

• Avoidance of Permanent Establishment ('PE') in source countries – Due to failure of source countries to establish a business connection or nexus in their country (i.e. where the service recipient is located)
• Hybrid mismatch arrangements
• Treaty shopping
• Preferential tax regimes, etc.

Tax-Dodging techniques practiced by digital companies

Transnational companies like Google, Facebook, etc., have planned their affairs in a way that minimal or no taxes are paid in countries where the service recipient is located and profits are parked in low-tax jurisdictions or tax havens like Bermuda, Ireland, Luxembourg, etc. The focal issue has been their innovative tax structures. Popular tax structures used by such companies include 'Double Irish arrangement' and 'Dutch Sandwich'.

The nucleus of the issue is that transnational digital platforms don't have PEs in source countries capacitating them to usurp the even-handed share of tax of the source countries. The hitch in taxing online advertising companies such as Google or Facebook is that they charge customers in all markets that they operate in but muster nearly all of their profits in tax-friendly countries such as Bermuda, Ireland or Luxembourg, etc. It is through these techniques that such companies are able to maintain ultra-low effective tax rates. Such innovative tax optimization techniques results in base erosion and profit shifting ('BEPS') from high-tax countries to no-tax or low-tax countries.

For instance, Google, for long, has been paying trifling amount as tax in UK (country where it records its highest revenue) by structuring its transaction through Dublin, the Irish capital. This tax optimization technique of Google created a major hullabaloo in UK which finally led to investigation in its tax affairs in year 2009. That scrutiny is said to have involved visits to Google's offices and scrutiny of activities as far back as 2005. This led Her Majesty for Revenue and Customs ('HMRC'), UK to strike a deal with Google resulting the US-based search giant acceding to pay $185 million as settlement amount. However, this settlement has not gone down well with many around the world, and has invited flak from various parts of the world. Some termed this settlement as a 'sweetheart deal' and some tagged it as a 'toothless political gesture'.

Further, in India, for the longest time, Indian customers of Google's advertising service were not billed by Google India's operations but were billed by Google Ireland instead. This enabled Google to shift profits outside India, leaving Google India entity satisfied with cost-plus model. Similarly, Facebook also adopts a similar model wherein its non-resident entity having no PE in India bills to the service recipient in India, and the Indian entity is remunerated on cost-plus basis.

Global consensus to tackle BEPS

Before advancing towards the so called global consensus, it would be worthwhile to delve into the efforts made in the past to tackle BEPS. Efforts like setting up the Ottawa Taxation Framework in 1998, formation of Committee on Fiscal Affairs, formation of Technical Advisory Group in 2002, regular updation of OECD model taxation convention ('MTC'), India's Central Board of Direct Taxes ('CBDT') setting up a High Powered Committee ('HPC') on 'Electronic Commerce and Taxation' in 1999, etc., all went in vain.

Further, it is astounding to note that all these tax optimization techniques exist since long but no individual country or even OECD, United Nations ('UN') or European Union ('EU') could catch hold of these notorious strategies implemented by transnational companies. What is more interesting is the claim of the international organisations like OECD or UN that they did not anticipate the digital business to grow to that extent. In this fast paced world, not many will buy this theory of non-anticipation of growth of digital business, especially when the developed nations, including USA and UK, were technologically decades ahead of the developing countries. Therefore, these tax optimization techniques seem nothing but home-bred techniques enticed and supported by the developed nations since they, being capital exporting nations, had nothing to lose at that point in time. The sole reason of allowing companies like Google, Facebook, Apple, Amazon, Starbucks, etc. seem to be the self-interest of developed countries of becoming more powerful enabling them to have a non-negotiable bargaining power and relish the consequential benefits like employment generation, infrastructure development, etc.

It was always the capital importing nations like India, China, South Africa, etc. which had everything to lose while capital exporting nations were busy making rhetoric statements and pretending to be the great big brothers to the developing nations. But the tables have turned now and the home-bred tigers are giving the developed countries taste of their own medicine. Now having realised the same, the developed countries are busy finding ways to plug the loopholes.

Teaming up of developed and developing nations – Birth of the enterprising BEPS project

After all the melodrama, such transformational tax optimization techniques finally resulted in introduction of the enterprising BEPS project (led by Organisation for Economic Cooperation and Development ('OECD')–G20 countries ('G20)) wherein 15-point Action Plan was adopted in 2013. The action plans of the OECD–G20 BEPS project were released in a phased manner during years 2014 and 2015. Action Plan 1 – 'Addressing the Tax Challenges of the Digital Economy' specifically deals with the challenges of digital economy ('Action Plan 1').

Further, HMRC introduced Diverted Profits Tax ('DPT') (known colloquially as the 'Google Tax') wherein a charge of 25 percent was imposed on transnational companies' profits 'artificially diverted' outside the UK. This introduction of DPT invited criticism from Mr. Pascal Saint-Amans (Director of the OECD's Centre for Tax Policy and Administration) stating 'that it would have been optimal for the UK to wait for OECD consensus' (i.e. the BEPS project which was in the final stages at that time). However, UK's recent settlement with Google has made a mockery of its own

India's retort to combat BEPS

India has also been a straggler with no progress in dealing with such innovative tax optimization techniques despite setting up a HPC on 'Electronic Commerce and Taxation' way back in 1999 and despite having reservations on OECD's recommendations on E-Commerce PE.

Until recently, Indian tax authorities have been on the lookout for revenue from digital platforms by trying to establish existence of a PE in India of such transnational digital companies or terming the payments to search engines such as Google, Yahoo, etc., as 'royalty' or 'fee for technical services' ('FTS'). This issue caught attention of Indian Income Tax Tribunals ('ITAT') in various cases including Right Florists (Kolkata ITAT), Yahoo India (Mumbai ITAT) and Pinstorm Technologies (Mumbai ITAT). In case of Right Florists, tax officials asked the Kolkata-based merchant to show-cause that why it didn't withhold tax on payments made in 2006 for online advertisement on search engines of Google Ireland Ltd. and Overture Services Inc. USA (a Yahoo! entity). The Hon'ble Kolkata Tribunal ruled in favour of Right Florists Ltd. in 2013 stating that 'such payments were not taxable in India because such payments would not be considered to be FTS in the absence of human intervention in the course of provision of services. It further emphasised that since the servers of these e-commerce payees were outside India, there was no PE in India'.

Present position – Imposition of Equalisation Levy

Taking a cue from Action Plan 1 of the OECD–G20 project on BEPS, wherein several options to tackle BEPS include:

• Modification to exemptions (under Paragraph 4 of Article 5 of OECD MTC) from PE status
• New nexus based on 'significant digital presence'
• Replacing PE with 'significant presence'
• Creation of withholding tax on digital transaction

and UK's DPT, the Hon'ble Finance Minister of India, in India's Union Budget for 2016-17 presented before the Lok Sabha on February 29, 2016, proposed an 'equalisation levy' of 6 percent on certain transactions. A levy that is aimed at technology companies like Google et al that primarily make money through online advertisements, the revenue of which is usually routed to a tax haven as discussed above. An interesting part is that such levy is not a part of the existing Income-tax Act, 1961 ('ITA') but has been introduced as a separate Chapter (Chapter VIII) in the Finance Bill, 2016.

The Finance Bill, 2016 recommends a levy of 6 percent on consideration paid or payable:

• by Indian resident carrying on business or profession, or
• by Indian permanent establishment of a non-resident (Indian business)

to a non-resident not having a taxable presence in India, for providing specified online advertisement services. Also, such services include providing digital space or facility for online advertisement or any other services as may be notified later. Exclusion is provided in cases where the aggregate consideration paid by an Indian service recipient to a non-resident service provider for specified services does not exceed ` 1 lac (such paltry sum). While the levy is on a non-resident service provider, similar to withholding tax (TDS) provisions, the responsibility for payment is casted on Indian service recipient to deduct and deposit the levy. Further new sections namely section 40(a)(ib) and section 10(50) were inserted to disallow expenses pertaining to payment for advertisement services to a non-resident without deducting the equalisation levy and to exempt income of non-residents chargeable to equalization levy under the provisions of Chapter VIII of the Finance Act, 2016 respectively.

Concerns over 'Equalisation Levy' introduced by India

• Motive of introducing this levy as a separate chapter and not as a part of the existing ITA

  • The proposed 'Equalisation Levy' is not a part of the existing ITA but has been introduced as a separate Chapter (Chapter VIII) in the Finance Bill, 2016.

  • One of the obvious reasons of introducing it as a separate chapter could be to deny the treaty benefit available under the ITA and to further avoid any dispute of establishing any business connection in India or establishing it to be in nature of royalty fees or FTS.

• Whether simply by introducing it under Entry # 97 of List I (Union List) in Seventh Schedule (Article 246) of the Constitution of India, can India deny that this levy is nothing but a tax on income of non-resident rendering specified services?

  • Entry # 82 of List I (Union List) deals with 'Taxes on income other than agricultural income' and Entry # 97 deals with 'Any other matter not enumerated in List II (State List) or List III (Concurrent List) including any tax not mentioned in either of those Lists', i.e., it deals with residuary items. On careful perusal and dissection of the new chapter on Equalisation Levy, it seems that this levy is nothing but tax on income of non-resident (rendering specified services) not having a PE in India. This claim is further bolstered by reading the two newly inserted sections namely: section 40(a)(ib) and section (10)(50) in the ITA which clearly establishes nexus between ITA and new Chapter VIII of the Finance Bill, 2016. The proposed Section 40(a)(ib) has been reproduced below:

    "(ib) any consideration paid or payable to a non-resident for a specified service on which equalisation levy is deductible under the provisions of Chapter VIII of the Finance Act, 2016, and such levy has not been deducted or after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139:

    Provided that where in respect of any such consideration, the equalisation levy has been deducted in any subsequent year or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, such sum shall be allowed as a deduction in computing the income of the previous year in which such levy has been paid;"

    It is clear from the above section 40(a)(ib), that any consideration paid or payable to a non-resident for specified services wherein equalisation levy is deductible but is not deducted, the entire expense shall be disallowed for tax purposes in the books of the payer. Further, section 10(50) exempts income of non-residents which is chargeable to equalization levy under the provisions of Chapter VIII of the Finance Act, 2016. The intention of the government clearly seems to tax the income of the non-residents providing specified services to Indian residents carrying on business or profession or non-residents having a PE in India. Therefore, merely by introducing a new levy through a separate chapter would not change its nature which, in this case, is nothing but tax on income.

• Whether by keeping 'Equalisation Levy' outside the ambit of ITA, does it tantamount to treaty override?

  • Applying the principle of 'substance over form', by merely introducing a separate chapter would not allow India to walk away from its treaty obligations; it can't be a cake walk. This may defeat the entire purpose of tax treaties as if it is that simple for any country to walk away from its treaty obligations then any country can override the treaty by simply keeping it out of purview of their Income-tax law which I believe is not the intention. Some may argue that this is the result of the BEPS project wherein OECD and G20 countries have agreed for such action to counter the BEPS practiced by big players around the world. However, such unilateral step taken by India may tantamount to treaty override notwithstanding the fact that it is kept out of the purview of ITA.

  • In this regard, it is important to highlight one of the primary aids for interpretation of tax treaties i.e. Article 26 (Pacta sunt servanda) of the Vienna Convention on the Law of Treaties – 1969 ('VCLT') which require 'a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose'. Therefore, it may be argued that introduction of 'Equalisation Levy' tantamounts to treaty override.

• 'Extraterritorial' operation of such levy

  • If such payment is made for a business outside India, it may trigger a debate on the 'extraterritorial' operation of such levy and may be subject of litigation before the court of law.

• From double non-taxation to double taxation

  • Since the proposed 'Equalisation Levy' is not a part of the existing ITA, it is feared that this would lead to double taxation. India has entered into tax treaties with many countries for avoidance of double taxation which provide for exemption in the resident country for income taxed in source country (or alternatively provide for tax credit in the resident country). Double taxation of consideration received by non-resident service provider, which is subjected to equalisation levy, may not be ruled out in the absence of any changes to the tax treaty (or any overriding multilateral instrument).

  • Having said that, Paragraph 2 of Article 2 (which discusses about 'Taxes covered') of the India-US tax treaty or, for that matter, many Indian treaties, apart from income tax, cover identical or substantially similar taxes. Therefore, it would be interesting to see how the US Internal Revenue Service or tax authorities of other countries which have similar language in its treaty with India, treat equalisation levy (levy outside Indian IT tax law) for allowing tax credit under the treaty with India.

  • Further, as discussed above, applying the principle of 'substance over form', the courts may treat this levy as nothing but income tax and grant the benefit of treaty.

• Levy in absence of profits

  • The levy is independent of profits or taxability of non-resident service provider. Thus, a foreign start-up not having profits would also be subject to levy on the consideration received from Indian business. The proposed law prescribes a flat levy and does not provide for any mechanism for exemption or a lower rate.

• Who bears the brunt of such levy: End-user in India or the non-resident service provider(s)?

  • In the absence of ability to claim tax credit, the non-resident service provider(s) offering such online advertisement services may not absorb such deduction thus adding to the cost of the end user in India and thereby defeating the whole purpose of this levy.

  • With the bargaining powers of companies like Google, Facebook, etc., the tax will have to be borne by the Indian advertisers who in turn will pass on such cost to the end-user in India.

  • The end-user is already bearing the brunt in the form of service tax currently charged at 14.50 percent (enhanced to 15 percent w.e.f. June 1, 2016) under the reverse charge mechanism on the services rendered by a non-resident. Assuming the new levy of 6 percent would be charged on amount excluding service tax, the end user will bear tax cost of 20.50 percent (21 percent w.e.f. June 1, 2016) on any specified services availed from a non-resident having no PE in India. Whether input credit of service tax would be available to the end-user in India has not being analysed for this article.

• Other concerns

  • Additional cost of compliance for the person responsible to make payments to the non-resident rendering specified services and having no PE in India.

  • With legal backing for its position, the concern is that the government could go one step ahead and expand the scope of the levy as Chapter VIII specifically states 'any other service notified by CBDT'.

Conclusion

This levy is a pious effort of the Indian government which seem to be influenced by the recommendations under Action Plan 1 of the OECD–G20 BEPS project. However, I believe, it has been introduced in haste whereas only a conscientious and comprehensive approach would help further the objective of this levy. For now, this may only pullulate the litigation and may hamper the present government's one of the main agendas of non-adversial tax regime.

A more effective way to deal with such companies would be to amend the domestic tax law (and not introduce it as a separate chapter) and correspondingly amend the treaties through subsequent protocols or putting in place a multilateral instrument to ensure proper implementation of the same (how effective this multilateral instrument would be is a different challenge altogether).

Having said that, it is pertinent to mention that the Indian government should first try and put its own house in order before marching towards the non-residents. For example – Companies like Flipkart and Amazon India have been able to dodge the tax authorities by claiming themselves to be mere mediators between the end customers and the sellers, and have so far succeeded by not paying Value-added Tax (VAT) to the Indian government.