International Taxation in Nepal

Transcription

1 International Taxation in Nepal International Taxation is best regarded as the body of legal provisions of different countries that covers the tax aspects of cross border transactions. With the resultant explosion in 'globalisation', every country's trade and commerce becomes increasingly more globalized. Once an entity extends its arm beyond its national borders, it is most likely to fall within the ambit of the tax laws of another country. The Sovereign right to levy tax, can be exercised by either the country where the income is generated ( Source Country ) or the country where the taxpayer resides, (Resident Country ). In case of cross-border transactions, if both the nations resort to tax, it results into double taxation. Double Taxation has a cascading effect on the cost of operations and effectively acts as a hindrance to cross border investments, trade, commerce and services. Therefore, in the international taxation regime, it is important for respective countries to the transaction to prevent double taxation. Hence, to avoid double taxation on the same income, countries enter into an agreement or tax treaty, which is commonly referred to as Double Taxation Avoidance Agreement (DTAA). Considering this issue, Government of Nepal (GoN), vide section 73(1) of Income Tax Act, 2058 (I.T. Act) has reserved the right to conclude an international agreement with foreign country to avoid double taxation. Further, section 73(4) obliges GoN to exempt income or payment or to apply the reduced tax rate to income or payment where any international agreement contains a provision to do so. So far, GoN has entered into tax treaties with ten countries (i.e. India, Qatar, China, Austria, Korea, Mauritius, Norway, Pakistan, Sri Lanka & Thailand) for the avoidance of double taxation. Resident and Non-Resident concepts As per section 2(ao) of the I.T. Act, "Resident person" means the following person in respect of any income year: "(1) In respect of a natural person, (a) Whose normal abode is in Nepal, (b) Who has resided in Nepal for 183 days or more during a continuous period of 365 days of any income year, or (c) Who is deputed by Government of Nepal to a foreign country in any time of the income year. (2) A partnership firm, (3) In respect of a trust, such trust (a) Which is established in Nepal, (b) The trustee of which is a resident person in an income year, (c) Which is controlled by a resident person or by a group of persons comprising such a person, directly or through one or more interposed entities, (4) In respect of a company, such company,

2 (a) Which is incorporated under the law of Nepal, (b) Management of which has been effective in Nepal in any income year.(5) Village Development Committee, Municipality, or District Development Committee, (6) In respect of an entity of any foreign government or provincial and local government under that government, such entity, (a) Which is established under the laws of Nepal, or (b) Management of which is effective in Nepal in any income year. (7) An organization or entity established under any treaty or agreement, and (8) A foreign permanent establishment of a non-resident person situated in Nepal." Similarly, as per section 2(q) of the Income Tax Act, 2058, 'Non-Resident Person' means any person save the resident person. A person who is a resident as per the domestic laws of a country is taxed on worldwide income in that country. So a person, who satisfies the residence test as per the domestic laws of more than one country, suffers tax on worldwide income in more than one country. This gives rise to resident-resident conflict between the countries and results in juridical double taxation of income. In order to avoid this juridical double taxation, the DTAA contains provisions to ensure that a person is resident of only one of the countries that claim its resident status, and thereby assign the residence based taxing rights to that country. Article 4 of the DTAA defines the term resident. It essentially comprises of the following: 4(1) Definition "1.For the purposes of this Agreement, the term resident of a Contracting State means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that state." In this way, the definition of residence under domestic laws of the country is assimilated into the DTAA as the DTAA definition of a resident. After applying article 4(1), if the individual continue to remain resident of more than one country then the following will apply. 4(2) Tie breaker rules for dual resident individuals "2.Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows: (a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests); (b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State,

3 he shall be deemed to be a resident only of the State in which he has an habitual abode; (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national; (d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement. Article 4(2) sets out the following hierarchy of tests, which are applied progressively to establish the state of residence of the individual. The ratio behind these tests is to give benefit of DTAA to the state which has the closest nexus with the income. Availability of permanent home If he has permanent home available in both states then; Centre of Vital Interest If the individual has a permanent home in none of the contracting states, or if he has a permanent home in both the countries, and it is not possible to determine his centre of vital interests, then; Habitual Abode: "Habitual" implies repeatedly and persistently and "Abode" is a place of residence. If he has an habitual abode in both the states or in neither of them, then; Nationality If he is a national of both the states or neither of them, then; Mutual Agreement Procedure Article 4(3)-Tie breaker rules for dual resident persons other than individuals "3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated. If the State in which its place of effective management is situated cannot be determined, then the competent authorities of the Contracting States shall settle the question by mutual agreement". Article 4(3) states that, if a person other than an individual can be considered as resident of both the contracting states, the tie-breaker rule provides that the 'place of effective management' will be considered as the resident state. "Effective management" means the actual conduct of business, where the brain of the business is located. An entity may have more than one place of management, but it can have only one place of effective management at any one time. If it is impossible to locate 'place of effective management' then residency is determined through mutual agreement procedure. Diagrammatic presentation Test of Residence

4 Yes Yes By CA. Nirmal Bhattarai Whether the person satisfies the test of residence as per domestic tax laws of more than one country No No need to apply the provisions of DTAA. Apply the residence test as per DTAA Article 4(1). Whether the person is a resident of more than one country as per the definition of Article 4(1)- "Resident of a Contracting State" No Assign residence based taxing rights to that country where the person satisfies the test of residence as per Article 4. The person is a 'dual resident' for the purpose of DTAA. Apply the 'tie breaker' rules to find out the country of residence. Resident and Non-Resident charge to tax Section 3, charging section of the I.T. Act states as follows: "Tax shall be levied on each of the following persons in each income year and be collected/ realized pursuant to this Act: (a) A person who has taxable income in any income year, (b) A non-resident person's foreign permanent establishment situated in Nepal, which sends income of any income year pursuant to Sub-sections (3) and (4) of Section 68, and (c) A person who receives payment final tax withholding in any income year."

5 From the above mentioned provisions of the I.T. Act, it can be understood that, tax can be levied on the global income of the person resident in Nepal and in case of Non-Resident person on the income which has source in Nepal. Person/Income Resident Non-Resident Domestic Taxable Taxable Foreign Taxable Not Taxable TDS on Payments to Non-Resident Section 88 of the I.T. Act states as follows: "In making payment by a resident person for interest, natural resource, rent, royalty, service charge having source in Nepal, and if the person is an approved retirement fund, in making payment of amount of any retirement payment, the person shall withhold tax at the rate of Fifteen percent of the total amount of payment." From the above, it can be understood that while a resident person makes payment to any person (this also includes Non-Resident) for the aforesaid transactions, then tax shall be deducted at the rate fifteen percent. As already stated above, section 73(4) obliges GoN to exempt income or payment or to apply the reduced tax rate to income or payment where any international agreement contains a provision to do so. Therefore, where any international agreement contains the reduced rate of tax to be withheld as compared to the domestic tax rate, then the tax authority is obliged to apply the reduced rate as provided in such agreement. Taxation of Permanent Establishment Taxation of Permanent Establishment (PE) is dealt by Article 7 'Business Profits' of the DTAA. The basic principle laid down in Article 7 is that 'business profits' are taxable only in the country of residence of the enterprise earning income, unless such profits are attributable to a PE which is situated in the country of source. When an enterprise of a resident country carries on business in source country tax authorities of the source country have to ask themselves two questions before they levy tax on profits of the enterprise; the first question is whether the enterprise has a PE in their country; and if the answer is in affirmative the second question is what, if any, are the profits on which that PE should pay tax. Article 7 is concerned with the rules to address the second question. Attribution of business profits of a PE under Article 7 of Tax Treaty

6 Below is the diagrammatical representation of Article 7 of Tax Treaty which is based on OECD model convention. Article 7(1): "The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits that are attributable to the permanent establishment in accordance with the provisions of paragraph 2 may be taxed in that other State." Key aspects: PE test for each source of income. No guidance on how to interpret the term profits of an enterprise. Existence of PE must for attribution. Business should be carried on and only preparatory activities do not trigger attribution. Only profits attributable to such PE are taxable in the source country. Article 7(2):"For the purposes of this Article and Article [23A] [23B], the profits that are attributable in each Contracting State to the permanent establishment referred to in paragraph 1 are the profits it might be expected to make, in particular in its dealings with other parts of the enterprise, if it were a separate and independent enterprise engaged in the same or similar activities under the same or similar conditions, taking into account the functions performed, assets used and risks assumed by the enterprise through the permanent establishment and through the other parts of the enterprise." Key Aspects:

7 Functionally separate entity approach will be applied to determine profit. Hence PE will be treated as distinct and independent enterprise engaged in same or similar activities under same or similar conditions. Below diagrammatical representation provides an overview of Article 7(2). Article 7(3):"Where, in accordance with paragraph 2, a Contracting State adjusts the profits that are attributable to a permanent establishment of an enterprise of one of the Contracting States and taxes accordingly profits of the enterprise that have been charged to tax in the other State, the other State shall, to the extent necessary to eliminate double taxation on theses profits, make an appropriate adjustment, the competent authorities of the Contracting states shall if necessary consult each other." Key Aspects: In determining profits of a PE, deduction shall be allowed for expenses (including executive & general administrative) incurred for the PE inside or outside the source country in accordance with and subject to limitations of domestic law (i.e. section 33 of the Income Tax Act, 2058). No deduction amount paid by PE to the HO or to any other offices of the enterprise, except reimbursement of actual expenses

8 For use of patents or other rights in the form of royalties, fees or other similar payments For specific services performed or for management in the form of commission (Manual is Silent in this respect). For money lent in the form of loan. The amount invested in the PE will be treated as capital of the Permanent Establishment. In respect of the loan amount sanctioned by the enterprise or related enterprises, the same will be treated as capital of the PE unless the same is provided to PE on arm's length price. But if the total asset to capital ratio is more in PE as compared to the enterprise, then the amount which falls short to equate that ratio will be treated as capital and not loan. (Reference from manual.) Article 7(4):"Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article." Key Aspect: Specific articles prevail over general article. Double Taxation Relief Unilateral and Treaty Relief As have already been discussed, double taxation means taxing the same income twice in the hands of the assessee. In Nepal, a person is taxed on the basis of his residential status. Likewise, it may happen that he is taxed on this basis or on some other basis in another country on the same income. However, it is a universally accepted principle that the same income should not be subjected to tax twice. In order to take care of this situation, I.T. Act has provided for double taxation relief. Types of Relief Relief from double taxation can be provided mainly in two ways: i) Bilateral Relief; and ii) Unilateral Relief Bilateral Relief Under this method, the governments of the two countries can enter into an agreement to provide relief against double taxation by mutually working out the basis on which the relief is to be granted. Bilateral Relief may be granted in either one of the following methods: a) Exemption Method: Under this method, the particular income is taxed in only one of the two countries; and b) Tax Relief Method/Credit Method: Under this method, the country of residence of the tax payer allows him credit for the tax charged therein in the country of source. Unilateral Relief This method provides for relief of double taxation by the home country even where no tax treaty has been entered by the two countries. In the context of Nepal, Section 71 of the I.T. Act provides for foreign tax adjustment thereby providing unilateral relief wherein it is stated that any

9 resident person may claim for adjustment of tax for the foreign income tax paid by that person in any income year to the extent of the tax paid for assessable foreign income of that person in that year. This section further clarifies that a) Separate computation is to be done for assessable foreign income having source in each country. b) Foreign tax adjustment claim shall not be made, in respect of the assessable foreign income, at the rate of tax higher than the average rate of tax of Nepal payable by that person in that year in respect of each computation. c) Average rate of tax of Nepal means the rate to be set by multiplying with one hundred the amount to be set by dividing the amount of tax payable by a person as referred to in Clause (a) of Section 3 in any income year by the taxable income of that person in that year prior to the adjustment of any foreign tax in that year. d) Any income tax paid in respect of the foreign income which is not entitled to adjustment by virtue of the limit may be carried forward in the coming year, and shall be deemed to be paid in respect of the assessable foreign income in the future income year of the person having source in the country where such foreign income has been earned.