1. Introduction
The OECD Model Tax Convention on Income and on Capital provides that there are two principles based on which the countries across levy taxes – the source of income and the residential status of the taxpayer.[1] The former principle provides that an income earned by a person can be taxed in a country solely based on a connection between the said country and the source of income generation.[2] The latter principle provides that regardless of where the income is earned by a person, it can be taxed by a country if the said person is a resident of the said country.[3]
Most countries levy taxes based on both the source of the income as well as the residential status of the taxpayer. Thus, a resident is taxed on both domestic and foreign sources of income, whereas a non-resident is only taxed on domestic sources of income.[4] However, at times situations of double taxation arise when a company is taxed in both its resident State as well as the contracting State.[5] Therefore, Double Taxation Avoidance Agreements (DTAAs) not only help in providing double taxation reliefs but also prevent the obstruction of trade/investment/capital.[6]
This paper primarily aims to analyse the importance of the residential status of a company under the Income Tax Act, 1961. To do so, it explains the shift from the “control and management test” to the “place of effective management” test (also called the “tie-breaker test” under the DTAAs) to determine the residential status of a company under Section 6(3) of the Income Tax Act, 1961. Further, the paper analyses how companies that are non-resident in India are taxed in India if they have a “permanent establishment” in India. Lastly, the paper analyses the clarifications issued by the OECD Secretariat on the impact of Covid-19 on the residential status of a company.
2. Place of effective management (POEM)
2.1. Prior to the 2015 Amendments
Prior to the amendments set forth by the Finance Bill, 2015.— Section 6(3) of the Income Tax Act, 19617 provided that a company shall be deemed to resident in India in the immediately preceding year if either of the two conditions is satisfied:
(1) it must be an Indian company; or
(2) the “control and management” of its affairs are wholly inside India in that particular year.8
In Radha Rani Holdings (P) Ltd. v. Director of Income Tax9,the issue before the Tribunal was whether “control and management” of the affairs of a company incorporated in Singapore were wholly inside India under Section 6(3) of the Income Tax Act, 1961. The Tribunal made the following observations:
(1) “Control and management” of the affairs of a company must be central “control and management” and not daily activities/businesses. What matter is where the control and direction power lies as well as where “the head and the brain” of the company is situated.10
(2) Majority shareholding in the company does not imply powers of “control and management” and does not determine residence.11
(3) The situs of the key board meeting (i.e. Singapore) was relevant and therefore, the company was a non-resident is India. Moreover, the tax residence certificate obtained by the company by Singapore taxation bodies was enough for material evidence to show that the company was a non-resident in India.12
(4) Thus, the control and direction power as well as “the head and the brain” of the company are situated at the place where the key meetings of the board of the directors of the company are held.13 It is immaterial whether the company trades its good/services at that place itself or not.14
2.2. Post the 2015 Amendments
Post amendments set forth by the Finance Bill 2015.— Section 6(3) of the Income Tax Act, 1961 provided that a company shall be deemed to resident in India in the immediately preceding year if either of the two conditions is satisfied:
(1) it must be an Indian company; or
(2)the “place of effective management” of its affairs are inside India in that particular year.15
Furthermore, the Explanation is added to Section 6(3) of the Income Tax Act, 1961 and it defines a “place of effective management” as one where the key management and commercial decisions, necessary for the conducting the business of the company, are made in substance.16 This definition resembles the one given under Article 4 of the OECD Model Tax Convention on Income and on Capital which states that there may be various places of management of a company’s affairs but there is only one place of “effective” management.17
Thus, to determine POEM, the following elements must be established:
(i) there must be a “place”;
(ii) the “key management and commercial decisions”, are made in that place;
(iii) these decisions must be “necessary for conducting the business of the company”; and
(iv) these decisions must be made in “substance” in that place.18
Effective from assessment year 2017-2018, the amendments only led to a change in determining the residential status of a foreign company, whereas there is no change in determining the residential status of an Indian company.19 Moreover, it is imperative that POEM is determined separately for each year i.e. the test is conducted every year and POEM is determined in context to the immediately preceding year.20
The Central Board of Direct Taxes (CBDT), along with various other notifications, released Circular No. 6 on 24-1-201721 and Circular No. 8 on 23-2-201722, giving out rules/guidelines for the determination of POEM.23 Some of the key rules/guidelines are:
(i) If a foreign company is deemed to be a resident in India, its income must be computed as per Section 115-JH of the Income Tax Act, 196124.25
(ii) Section 6(3)(ii) of the Income Tax Act, 1961 does not apply to a company whose turnover/gross receipts is Rs 50 crores/less in that particular financial year.26
(iii) POEM must be determined in accordance to whether or not the company has an “active business outside India” (ABOI).27
To understand the method of ABOI, two factors are considered:
(1) company is engaged in ABOI; and
(2) company is not engaged in ABOI.28
A company is said to be engaged in ABOI only if:
(1) the passive income not more than 50% of the total income of the company;
(2) less than 50% of the assets of the company are inside India;
(3) less than 50% of the number of employees of the company are either located inside India/residents in India; and
(4) the payroll expenses made on such employees is less 50% of the total payroll expenses of the company.29
If these conditions are not satisfied, then the company is said to not be engaged in ABOI.30
First, if the company is said to be engaged in ABOI, the company’s POEM will be outside India if the meetings of the board of the directors of the company, in majority, are also held outside India.31 However, the company’s POEM will be inside India if the powers of management of the company’s affairs are being exercised by either a holding company or any other person resident in India (and not its board of directors).32
Second, if the company is said to not be engaged in ABOI, a two-stage process is followed. First, the person(s) who makes the key management and commercial decisions, necessary for the conducting the business of the company as a whole, is identified.33 Second, the place where such decisions are made by person(s) will be determined.34 While the former stage is extremely necessary too, the latter stage is more important.35
In a nutshell, prior to the amendment, various foreign companies were not deemed to be resident in India solely because the “control and management” of the affairs of such a company was partly outside India. Thus, the “control and management” test was replaced by the “place of effective management” test (POEM).36 The primary object behind POEM is to tax the shell companies located outside India which were being exempted from paying the said taxes due to their supposed residential status.37 Moreover, under most Double Taxation Avoidance Agreements (DTAAs), POEM is considered to be a “tie-breaker” test to determine the residential status of a company.38
3. Permanent establishment
A “permanent establishment”, like a business connection, requires that a company in one contracting State also has a physical presence in another contracting state. In other words, the objective behind the notion of a “permanent establishment” is to determine whether one contracting state has the right to tax the profits/income of a company of (i.e. resident in) another contracting State.39 In other words, the notion of a “permanent establishment” can lead to a company, non-resident in India, to be taxed by the Indian authorities.
3.1. Fixed place permanent establishment
Article 5 of the OECD Model Tax Convention on Income and on Capital provides for what constitutes a “permanent establishment”.40 Article 5(1) of the OECD Model Tax Convention on Income and on Capital defines a “fixed place permanent establishment” as “a fixed place of business through which the business of an enterprise is wholly or partly carried on”.41 Thus, to constitute a “fixed place permanent establishment”, the following attributes must be established:
(i) There should be a place of business i.e. any premises, facilities, installations, equipment/machinery, etc., regardless of whether they are owned/rented or not.42
(ii) The place of business must be fixed i.e. the place of business must be established at a distinct place with a certain level of permanence.43
(iii) “At the disposal” test must be satisfied i.e. the fixed place of business must be at the disposal of the company. For this test, three elements are considered:
(1) whether company has an effective power to use such fixed place of business;
(2) the extent of the presence of the company; and
(3) the nature of activities performed by the company at such fixed place of business.44
In Formula One World Championship Ltd. v. CIT45, one of the most significant cases, the Supreme Court had to determine whether a UK tax resident constituted a “fixed place permanent establishment” in India under Article 5 of the India-UK Tax Treaty.46 To understand the how the Supreme Court reached its decision47, it is imperative to analyse the case in depth.
Formula One World Championship Ltd. (FOWC) was incorporated as per the UK Laws and is also a tax resident in the UK Federation Internationale de l’Automobile (FIA), the regulatory body for international motor sports events owned all commercial rights in the FIA Formula One World Championship (i.e. the F-1 Championship).48 These commercial rights were initially transferred in favour of Formula One Asset Management Ltd. (FOAM). FOWC had entered into various agreements with FIA and FOAM.49 Under these agreements, all commercial rights in the FIA Formula One World Championship were transferred in favour of FOWC for a period of 100 years starting from 1-1-2011, thereby making FOWC a commercial rights-holder (CRH) in the FIA Formula One World Championship.50
Thereafter, Jaypee Sports International Ltd. (Jaypee) was inclined to acquire the rights for hosting, staging as well as promoting the event of F-1 Grand Prix of India.51 Thus, Jaypee entered into an agreement i.e. the Race Promotion Contract (RPC) with FOWC on 13-9-2011. Under the RPC, FOWC granted the rights to host, stage as well as promote the event of F-1 Grand Prix of India in favour of Jaypee for a consideration of 40 million USD.52 Further, upon the conditions set forth in RPC, Jaypee also entered into various agreements with Allsport Management SA, Beta Prema 2 Ltd., and Formula One Management Ltd. (FOM), affiliates of FOWC. Therefore, F-1 races were conducted in India in 2011, 2012 and 2013.53
Both FOWC and Jaypee approached the Authority for Advance Rulings (AAR) to seek a clarification upon whether FOWC is liable to be taxed under the Income Tax Act, 1961. The AAR held that given the facts and circumstances of the case at hand, FOWC did not constitute a “permanent establishment” in India and the consideration of 40 million USD paid by Jaypee to FOWC would be taxable as “royalty” under the Income Tax Act, 1961.54 Aggrieved by this decision, FOWC and Jaypee appealed to the High Court of Delhi. The High Court of Delhi reversed and overturned the decision of the AAR. It was held that FOWC constituted a “permanent establishment” in India and the consideration of 40 million USD paid by Jaypee to FOWC cannot be taxable as “royalty” under the Income Tax Act, 1961.55
Aggrieved by this decision of the High Court of Delhi56, FOWC and Jaypee further approached the Supreme Court. The issues before the Supreme Court were whether FOWC constituted a “permanent establishment” under Article 5 of the India-UK Double Taxation Avoidance Agreement (DTAA), and accordingly, whether the consideration paid by Jaypee to FOWC would be taxable in India.57
To address the aforementioned issues, the Supreme Court made the following observations:
(1) The Buddh International Circuit has been used to conduct various races, including the F-1 Grand Prix. Therefore, there were economic/business activities being undertaken at the Buddh International Circuit, and therefore, it was a place of business.58
(2) The Buddh International Circuit could not be used for any other event/activities at the time of the F-1 Grand Prix. Moreover, FOWC had permanent access to the Buddh International Circuit at the time of the F-1 Grand Prix, irrespective of the duration of such permanence. Therefore, Buddh International Circuit is not merely a place of business but is a fixed placed of business.59
(3) Even if FOWC’s permanent access was for merely 3 days, such an access was full and exclusive. Moreover, although Jaypee was the promoter of the F-1 Grand Prix, the powers/rights exercised by it were limited and were subjected to the controlling powers and approvals of FOWC. Thus, since FOWC performed all the key activities had full and exclusive access, as well as effective controlling/decision-making powers, the “at the disposal” test stands satisfied.60
Thus, the Supreme Court held that the Buddh International Circuit was a “fixed place permanent establishment” of FOWC and therefore, the income/profits generated by FOWC will be taxable under the Income Tax Act, 1961 regardless of the duration of the control over the “fixed place” as well as the fact that FOCW is non-resident in India.61
3.2. Construction permanent establishment
On one hand, Article 5(3) of the OECD Model Tax Convention on Income and on Capital provides that to constitute a “construction permanent establishment”, a building site, installation or construction project must last for more than 12 months.62
“Building site, installation or construction project” not only includes the construction of buildings but also includes construction of roads/canals/bridges, renovation/maintenance of buildings/roads/canals/bridges, etc.63Further, to calculate the 12-month period, a site begins to exist from the day the work is started and ceases to exist once the work is completed or is permanently abandoned.64Most importantly, a site will not cease to exist if the work is temporarily disrupted which can be due to seasonal/other reasons.65 Further, this12-month period is applicable to individual sites/projects and the time previously spent on other sites/projects (which are not connected to the current site/project) should not be taken into consideration.66
On the other hand, Article 5(3)(a) of the UN Model Double Taxation Convention between Developed and Developing Countries provides that to constitute a “construction permanent establishment”, a building site, installation or construction project must last for more than 6 months.67
3.3. Agency permanent establishment
Article 5(5) of the OECD Model Tax Convention on Income and on Capital provides that an “agency permanent establishment” is constituted if a person is acting on behalf of the company, and the said person habitually concludes the company’s contracts or has an authority to conclude contracts in the name of the company in the contracting State.68
A person, whose activities create an “agency permanent establishment”, is deemed to be a “dependent agent”.69 Such dependent agents can be a company/individual and neither requires to not a place of business in the contracting State nor requires to be a resident of the contracting State.70
The so-called authority to conclude contracts in the name of the company not only includes the authority to conclude contracts made literally in the name of the company but also includes the authority to conclude contracts that are binding on the company, regardless of whether they are literally in the name of the company or not.71 Moreover, such an authority must be used to conclude contracts which deal the proper business operations of the company.72
Lastly, it is necessary that the dependent agent “habitually” makes use of the said authority to constitute an “agency permanent establishment”. In other words, the said authority must not merely be transitory in nature.73
4. OECD’s clarifications on the impact of Covid-19
Covid-19 has not only created a lot of chaos across the world but has also led the authorities of various countries to take unprecedented measures – most importantly the travel restrictions and quarantine requirements. Such measures have, therefore, directly impacted cross-border workers/employees who are unable to perform their duties/work physically in the country of their employment.74 This unprecedented situation, further raised taxation issues because these cross-border workers/employees were stranded in countries that they were not residents in.75 Therefore, OECD Secretariat issued certain clarifications under the provisions of the international tax treaties to determine the impact of Covid-19 on the residential status of companies.76
4.1. Place of effective management
Due to Covid-19 restrictions/government directives, there may be dislocation of Directors and/or Chief Executive Officers of various foreign companies, thereby leading to the change in the location where the key managerial decisions are made.77 Therefore, the “place of effective management” of a foreign company may be considered to be in India, thereby making the foreign company to be a resident in India. Such a situation will not only lead to unnecessary tax liabilities upon the foreign companies but will also create the problem of dual residency.78
However, the OECD Secretariat has issued clarifications provide that a temporary dislocation of the Directors and/or Chief Executive Officers of various foreign companies, due to Covid-19 restrictions/government directives, should not change the residential status of foreign companies, especially if the tie-breaker rules are applied.79
4.2. Permanent establishment
Covid-19 may impact the residential status of a company as its workers/employees may be dislocated to countries other than the one where the work happens or where the company is resident.80Such a situation may seem to create a “permanent establishment” of the company in the countries where the workers/employees are dislocated, thereby leading to a tax liability.81 However, the OECD Secretariat has issued the following clarifications to show that Covid-19 may not impact the residential status of a company:
4.2.1. Fixed place permanent establishment
As shown above, to constitute a “fixed place permanent establishment”, it is necessary that there is a certain level of permanence and to be at the disposal of the company.82 However, if the company’s business is partly carried on at an “home office” of the worker/employee due to Covid restrictions/government directives, it cannot be said to be at the disposal of the company because merely one individual is using the said office.83 Moreover, it is clarified that if the work done by the worker/employee is not permanent i.e. is only happening at home due to Covid-19 restrictions/government directives and will eventually end, it cannot be said to constitute a “fixed place of business” or a “fixed place permanent establishment”.84
4.2.2. Construction permanent establishment
As shown above, to constitute a “construction permanent establishment”, it is necessary that a building site, installation or construction project must last for more than 12 months under the OCED Model85 and 6 months under the UN Model86. Moreover, as shown above, a site will not cease to exist if the work is temporarily disrupted. Therefore, even if the work is temporarily disrupted due to Covid-19 restrictions/government directives, a “construction permanent establishment” can be established.87
4.2.3. Agency permanent establishment
As shown above, an “agency permanent establishment” is constituted if a person (a dependent agent) is acting on behalf of the company, and the said person habitually concludes the company’s contracts or has an authority to conclude contracts in the name of the company in the contracting State.88 Due to Covid-19 restrictions/government directives, a dependent agent of a non-resident company who is working from home could establish an “agency permanent establishment”.89 However, it is unlikely that a dependent agent’s activities will be “habitual” by merely working from home in the contracting State for a temporary time period that too due to Covid-19 restrictions/government directives.90
5. Conclusion
It can be seen that both the “place of effective management” test as well as the “construction permanent establishment” play a very crucial role in determining the residential status of a company under the Income Tax Act, 1961, thereby leading to tax-related implications/liabilities upon the company.
It can also be seen that the pandemic caused by Covid-19 has caused several hardships/difficulties for companies across the world. While the OECD Secretariat has issued clarifications on the impact of Covid-19 on the residential status of a company, the Central Board of Direct Taxes (CBDT has only issued guidelines for the impact of Covid-19 on the residential status of individuals in India. There has not yet been any clarifications/guidelines given on the impact of Covid-19 on the residential status of a company in India. Moreover, since India is not an OECD member country, there is no certainty about the application of the clarifications provided by the OECD Secretariat. In the absence of any such clarifications/guidelines by the CBDT on the impact of Covid-19 on the residential status of a company in India, reliance can only be placed upon judicial precedents and the bare provisions of the Income Tax Act, 1961, both of which are not enough for this unprecedented chaos created by Covid-19.
To conclude, it is imperative to note that countries such as USA, UK, Australia, Canada, New Zealand, etc. have also issued clarifications/guidelines on the relaxations/reliefs on the residential status of companies due to Covid-19. Therefore, Indian authorities must also borrow from these clarifications/guidelines and provide certainty to the companies with regards to their tax implications/liabilities.
*3rd year student, LLB, O.P. Jindal Global University. The author can be reached at paridhijainx@gmail.com.
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[2]Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
[3]Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
[4]Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
[5]Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
[6]Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
8S. 6, Income Tax Act, 1961; Kanga, Jamshedji B., and Nani A. Palkhivala, The Law and Practice of Income Tax, 11th Edn., LexisNexis, 2020.
9(2007) 110 TTJ (Del) 920.
10(2007) 110 TTJ (Del) 920.
11(2007) 110 TTJ (Del) 920.
12(2007) 110 TTJ (Del) 920.
13Narottam and Pereira Ltd. v. CIT, 1953 SCC OnLine Bom 142; Bhimji Naik v. CIT, 1946 SCC OnLine Bom 82.
14Egyptian Hotels Ltd. v. James Mitchell, (1914) 3 KB 118 (CA); Cesena Sulphur Co. Ltd. v. Nicholson, (1876) 1 TC 83 : (1876) 1 Ex D 428.
15S. 6, Income Tax Act, 1961; Kanga, Jamshedji B. and Nani A. Palkhivala, The Law and Practice of Income Tax, 11th Edn., LexisNexis, 2020.
16S. 6, Income Tax Act, 1961; Kanga, Jamshedji B. and Nani A. Palkhivala, The Law and Practice of Income Tax, 11th Edn., LexisNexis, 2020.
17Model Tax Convention on Income and on Capital 2017 (Full Version), OECD Publishing, 2019.
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20Kotha, Ashrita Prasad, Place of Effective Management Test in the Income Tax Act, 1961: Is it the Right Way Forward?, NUJS L. Rev, 2015.
21Circular No. 6 of 2017, January 24, 2017, 391 ITR (St.) 243.
22Circular No. 8 of 2017, February 23, 2017, 392 ITR (St.) 7.
23Kanga, Jamshedji B, and Nani A. Palkhivala, The Law and Practice of Income Tax, 11th Edn., LexisNexis, 2020; Kotha, Ashrita Prasad, Place of Effective Management Test in the Income Tax Act, 1961: Is it The Right Way Forward?, NUJS L. Rev, 2015.
24 Section 115-JH, IT Act, 1961.
25Notification No. S.O. 3039(E), 22-6-2018, 405 ITR (St.) 35.
26Circular No. 8 of 2017, 23-2-2017, 392 ITR (St.) 7.
27Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
28Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
29Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
30Kotha, Ashrita Prasad, Place of Effective Management Test in the Income Tax Act, 1961: Is it the Right Way Forward?, NUJS L. Rev, 2015.
31Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
32Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
33Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
34Circular No. 6 of 2017, 24-1-2017, 391 ITR (St.) 243.
35Kanga, Jamshedji B. and Nani A. Palkhivala, The Law and Practice of Income Tax, 11th Edn., LexisNexis, 2020.
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37Kotha, Ashrita Prasad, Place of Effective Management Test in the Income Tax Act, 1961: Is it the Right Way Forward?, NUJS L. Rev, 2015.
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46Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
47Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
48Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
49Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
50Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
51Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
52Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
53Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
54Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
55Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
56Formula One World Championship Ltd. v. CIT, 2016 SCC OnLine Del 6144.
57Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
58Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
59Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
60Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
61Formula One World Championship Ltd. v. CIT, (2017) 15 SCC 602.
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