ICAI NIRC. ODI, LRS, ECB & FEMA Updates. CA. Amithraj AN. April 25,

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1 ICAI NIRC ODI, LRS, ECB & FEMA Updates April 25, amithraj123@gmail.com

2 Contents ODI Regulations LRS Updates ECB & NCD Round Tripping Issues Overview of Indian Tax Concepts Options for Investing 2

3 Section 1 ODI Regulations

4 Routes for ODI Routes for ODI by Indian Parties Subscription to MoA Contribution to capital Purchase of existing shares (Stock exchange/ Private Placement) Specifically prohibited activities Real Estate* and Banking Business Automatic Route Approval Route Authorized Dealer Prior approval of RBI * Real Estate Business means buying and selling of real estate or trading in Transferable Development Rights but does not include development of townships, construction of residential/ commercial premises, roads or bridges 4

5 ODI Overview, including Financial Commitment Indian Party Company, LLP and Registered Firm LLP Recent Addition Equity Shares & Preference Shares 100% Debt Convertible/ Nonconvertible 100% Guarantee CCPS shall be treated at par with equity shares Financial Guarantee Bank Guarantee, with Counter Guarantee Performance Guarantee 100% 100% 50% No Distinction Between Equity, Preference & Debt for ODI purposes 5

6 ODI Regulations for Automatic Route Total financial commitment not to exceed 400% of the net worth Total Financial commitment Investment can be made by way of equity or equity and debt/ guarantee Equity includes CCPS Only debt without equity participation not permitted (under Auto Route) Energy & Natural Resources sector investment exceeding specified limits permitted with RBI approval Conditions All Indian entities are prohibited from investing in real estate and banking business under automatic route Must be engaged in bonafide business activity Investment in un-incorporated entities not permitted (except Oil & Gas sector) 6

7 ODI Regulations for Automatic Route Investment in shares of existing company mandatory valuation requirements > USD 5 mn: SEBI regd. Category I Merchant Banker/ Investment Banker/ Merchant Banker regd. in host country Valuation < USD 5 mn: Valuation by CA/ CPA Investment by way of swap of shares SEBI regd. Category I Merchant Banker/ Investment Banker/ Merchant Banker regd. in host country ADR/ GDR Swap: Valuation by Investment Banker Prior approval of FIPB required?? 7

8 Calculation of Financial Commitment (400% of NW) Net-worth as on last audited Balance Sheet date Net worth means paid up capital and free reserves Securities premium? Position of newly incorporated companies/ firms Last audited Balance Sheet Should it be mandatorily March 31? Net-worth of holding co (holding at least 51% stake) or subsidiary co (in which at least 51% stake is held) includible if not availed of by such holding or subsidiary co Entire amount of guarantees (50% in case performance guarantee) to be considered RBI approval required for remittance on breach of performance guarantee > 400% net-worth Ceiling not applicable for investments out of EEFC or funds raised through ADRs/ GDRs Maximum limit would be: 400% of net worth (including guarantees) + Balance in EEFC A/ c + ADR/ GDR proceeds 8

9 Total Financial Commitment Some Issues Particulars I Co Sub1 (60%) Sub2 (40%) F Sub (75%) India Co Equity Share Capital Preference Share Capital General reserves Securities Premium Account Capital reserves Revaluation Reserves Total % 40% 75% Sub 1 Sub 2 F Sub What is the Net Worth of I Co (including the net worth subsidiaries) as per ODI Regulations 9

10 Total Financial Commitment Some Issues Debt I Co Negative N/W I Co N/W % Equity 100% Equity 100 India Sub India Sub N/W 100 ODI Limit 400% of India Sub N/W ODI Limit 800 Foreign Sub Foreign Sub 10

11 Total Financial Commitment Some Issues I Co I Co India SPV1 XYZ Ltd. (UK) Debt SPV1 XYZ Ltd. (UK) Outside India Guarantee External party Debt 100% 100% XYZ2 Ltd (UK) XYZ2 Ltd (UK) 11

12 Total Financial Commitment Some Issues Individual Promoter I Co I Co Guarantee Guarantee India Outside India SPV1 SPV1 Guarantee Guarantee XYZ Ltd. (UK) Guarantee XYZ Ltd. (UK) XYZ2 Ltd (UK) External party Debt XYZ2 Ltd (UK) Guarantee Guarantee External party 12

13 Investment through SPV I Co I Co I Co India Outside India SPV1 SPV1 SPV1 OpCo SPV2 OpCo OpCo SPV2 13

14 Swap of Shares Some Issues Original structure and transaction steps Resultant Structure India Issue of shares I Co Equity I Co Equity Outside India Transfer of shares Foreign Hold Co F Sub Co Foreign Hold Co F Sub Co I Co acquires the shares of F Sub Co and issues its own shares to Foreign Hold Co Whether the above situations involve share swap envisaged by Outbound Regulations? 14

15 Guarantee Corporate guarantee on behalf of fist level step down operating JV/ WOS is permitted Direct subsidiary can be an operating or a SPV Corporate guarantee on behalf of second/ subsequent level step down operating subsidiary is permitted under approval route Indian Party, indirectly, holds atleast 51% stake Renewal/Rollover of an existing guarantee shall not be treated as a fresh financial commitment: No change in the end use of guarantee No change in terms, conditions & amount except validity period of guarantee Fresh reporting is done in Form ODI 15

16 ODI Steps Step 1 Board Resolution for investment in overseas entity Step 2 Valuation of shares only if it is acquiring existing company Step 3 Reporting in Form ODI within 30 days from the date of remittance Step 4 RBI will allot UIN for investment in entity Step 5 Filing of share certificates with the AD within 6 months Other Post investment changes needs to be reported within 30 days 16

17 ODI Reporting All transactions relating to investment in WOS to be routed through one AD Bank branch ODI comprises of four parts: Part I includes the following: Section A Details of Indian Party Section B Details of Investment in New Project Section C Details of Investment in Existing Project Section D Funding for WOS Section E Declaration by Indian Party Section F Certificate by the Statutory Auditors of the Indian Party Part II Reporting of Remittances Part III Annual Performance Report (APR) Part IV Report on Closure/ Disinvestment/ Voluntary Liquidation/ Winding up of WOS 17

18 ODI Reporting Key Aspects Second remittance not to be made pending allotment of UIN UIN should be received for the first investment in a company, before proceeding with set-up of another company Changes in equity shareholding of JV/ WOS to be reported within 30 days Downstream investment by JV/ WOS to be reported within 30 days How many levels of subsidiaries covered within this reporting requirement? 18

19 Disinvestment in JV/ WOS Sale Gift Accounting write-off Asset sale/ slump sale Forms of Disinvestment Buy-back Dilution Capital Reduction/ Repayment Liquidation/ Merger/ Demerger 19

20 Disinvestment in JV/ WOS Disinvestment when transferee is another Resident Compliance of Regulation 6(2) by transferee Disinvestment to PROI (Non-resident) Auto Route applicable if Overseas company is a listed company Listed Indian Party with 100 Cr. Net worth Unlisted Indian Party with total investment not over US$ 10mn Listed Indian Party with less than 100 Cr. Net-worth but also investment is less than US$ 10mn 20

21 Disinvestment Conditions Sale is effected through stock exchange Valued by CA/ CPA if sold through a private arrangement linked to latest audited balance sheet Overseas concern in operation for at least full year All APR & Accounts are filed with the ADs Indian Party is not in adverse notice of Regulatory Authorities in India Amount is repatriated not later than 90 days from date of sale 21

22 Divestment Few Illustrations I Co 1 I Co Allotment of shares Merger I Co 2 Foreign Sub Foreign Sub Foreign Sub Merger RBI Approval? RBI Approval? 22

23 ODI Latest Circulars Creation of charge on shares of JV/ WOS/ Step Down Subsidiary in favour of domestic/ overseas lender Charge permitted to be created across all levels Financial commitment of 400% to be complied with Position where there is no further overseas investment? Funds raised by overseas JV/ WOS/ SDS should be used for core business activities and not for investing back in India in any manner whatsoever Permissibility of current account transactions Statutory auditors' certificate that funds have not been utilized for direct or indirect investments in India to be obtained by the designated AD Setting-up/ acquiring the multi-layered structure of overseas entities is under examination by the RBI Round tripping briefly touched upon 23

24 ODI Latest Circulars Creation of charge on the domestic assets in favour of overseas lenders to the JV / WOS / step down subsidiary Financial commitment of 400% to be complied with Position where there is no further overseas investment? The domestic assets, on which charge is being created, are not securitized Funds raised by overseas JV/ WOS/ SDS should be used for core business activities and not for investing back in India in any manner whatsoever Permissibility of current account transactions Statutory auditors' certificate that funds have not been utilized for direct or indirect investments in India to be obtained by the designated AD The overseas lender undertakes that, in the event of enforcement of charge, they shall transfer the domestic assets by way of sale to a resident only Wherever creation of charge involves pledge of shares of an Indian company, the pledge shall also be governed by the extant FEMA provisions Setting-up/ acquiring the multi-layered structure of overseas entities is under examination by the RBI 24

25 ODI Latest Circulars Creation of charge on overseas assets in favour of domestic lender Charge permitted to be created across all levels Financial commitment of 400% to be complied with Position where there is no further overseas investment? The domestic assets, on which charge is being created, are not securitized Funds raised by overseas JV/ WOS/ SDS should be used for core business activities and not for investing back in India in any manner whatsoever Permissibility of current account transactions Statutory auditors' certificate that funds have not been utilized for direct or indirect investments in India to be obtained by the designated AD The invocation of charge resulting into the domestic lender acquiring the overseas assets shall require prior approval of the Reserve Bank Wherever creation of charge involves pledge of shares of an Indian company, the pledge shall also be governed by the extant FEMA provisions Setting-up/ acquiring the multi-layered structure of overseas entities is under examination by the RBI 25

26 Section 2 LRS Updates

27 Overseas Investments by Individuals Limit under LRS up to USD 125,000 per annum/ per person Possibility of pooling limits of individual family members Acquisition of immovable property abroad under the LRS route permitted again Portfolio investment in listed companies overseas permitted under LRS route Investment in unlisted companies covered under ODI Regulations Investment limit flows from LRS Combined limit for LRS and ODI Reporting requirements brought in for ODI by individuals Resident individuals cannot invest in foreign companies having downstream subsidiaries Position of existing investments by resident individuals can such companies set-up downstream subsidiaries Individuals cannot invest in specified counties, including Mauritius 27

28 Overseas Investments by Individuals Options Option 1 Gift Route Option 2 ESOP Route NR Individuals Gift NR Resident Individuals Foreign Co Foreign Co ESOP Indian Sub Indian Sub Resident Individuals Employment Possibility of further investing under Rights Issue route? Can ESOP of say 80% be granted Tax issues Perquisite 28

29 Overseas Investments by Individuals Options Option 3 ODI Route for Corporates Resident Individuals Indian Co/ LLP Option 4 Rights Issue Route NR Foreign Co Assignment of Rights Resident Individuals Investment Foreign Co Indian Sub Indian Sub Round Tripping? Investors' preference Justifiable Argument?? Not recommended 29

30 ESOPs to Indian Residents No permission required for cashless ESOS; no remittance AD may allow remittance for acquiring equity shares of Foreign Co F Co can issue shares to employee/ directors of Indian office/ branch/ sub/ Indian Company in which foreign holding at least 51% of equity Shares offered under ESOP offered by F Co globally on uniform basis Foreign Co to repatriate dividends/ sales proceeds within specified time frame Foreign Co can repurchase ESOP shares provided: Shares issued in accordance with FEMA Rules and Regulations Repurchase in terms of initial offer document Annual return submitted by I Co Falls under ODI Investment into Mauritius permitted? 30

31 Section 3 ECB & NCD

32 ECB ECB means overseas borrowings by Indian companies forex or INR denominated Automatic route/ approval route Eligible borrowers for raising ECB: Real sector manufacturing Software, hotels, hospitals can access ECB ITeS? Miscellaneous services sector training activities, R&D activities, supporting infra sector ECB can be raised only from hold co or group co Specified NBFCs, NGOs, Trust engaged in micro finance Holding companies, CICs Recognized lenders for raising ECB: International banks, multilateral financial institutions (such as IFC, ADB, CDC etc..) International capital markets Export credit agencies and suppliers of equipment Foreign collaborators or foreign equity holders holding at least 25% in the equity share capital of the Indian company Ultimate holding company/ group companies 32

33 ECB ECB liability-equity ratio shall not exceed 4:1 for ECB > USD 5 mn from holding co Equity = Equity share capital + Free Reserves (including securities premium) Securities premium should have been brought in by the lender Reserves 100% is considered, but Securities Premium is specifically identified 4 : 1 limit is on cumulative basis (existing + proposed ECB) ECB from ultimate holding co/ group cos Ultimate holding co should have an indirect shareholding > 51% Group co and borrowing co should be subsidiary of the same parent Indirect subsidiary? Limits: Non-services sector USD 750 mn per FY Services sector USD 200 mn per FY Minimum average maturity/ repayment period weighted average of period from each drawing to repayment ECB up to USD 20 million 3 years ECB above USD 20 million 5 years 33

34 ECB Payment of interest All-in-cost ceilings: Maturity period between 3 to 5 years LIBOR basis points Maturity period more than 5 years LIBOR basis points Interest + fees and expenses in forex, except commitment fee, pre-payment fee Expenses incurred in INR including WHT are not included Penal interest should not be > 2% of all-in-cost of ECB Permitted end uses: Capital expansion Outbound investment Import of services, technical know-how and payment of license fees End-use restrictions ECB proceeds cannot be utilized for: Repayment of rupee loans Investment in real estate Deployment in capital markets and acquiring an Indian company General working capital and corporate purposes (except under Approval Route) Acquisition of land 34

35 ECB Withholding tax rate ECB denominated in forex Concessional rate of 5%++ available to ECB borrowed between July 1, 2012 and July 1, 2017 Other cases 20%++ ECB denominated in INR 40 %++ Or tax treaty rate, whichever is beneficial ECB denominated in INR Lender should mobilise Indian Rupees through swaps undertaken with AD Bank The all-in-cost of such ECBs should be commensurate with prevailing market conditions Swap premiums are being added to all-in-cost ceiling All other conditions applicable to the automatic and approval routes to be complied with Refinancing of an existing ECB Existing ECB may be refinanced with fresh ECB Fresh ECB should have lower all-in-cost and outstanding maturity of the original ECB is maintained 35

36 ECB ECB for general corporate purposes, including working capital AD Bank Approval Borrowing only from direct holding co, holding minimum of 25% stake Minimum average maturity of 7 years End use On-lending to group companies/ step-down subsidiaries in India not permitted Repayment of the principal shall commence only after completion of 7 years No prepayment before maturity Can this ECB after draw down be assigned to non-parent, say a recognized financial institution ECB with an initial tenure of 15 years, with an option for repayment after 7 years whether permissible? Immediate drawdown of funds meant for Rupee expenditure Bifurcation of utilization of ECB proceeds towards foreign currency and Rupee expenditure to be provided in Form-83 Borrower shall repatriate ECB proceeds meant for Rupee expenditure in India for credit to their Rupee accounts These funds can be deposited in FDs upto 6 months 36

37 ECB Repayment of Rupee Loans Companies in infrastructure sector and hotel sector and should be consistent foreign exchange earner Rupee loan should have been availed for 'capital expenditure' Limit 75% of the average annual export earnings realized during the past 3 FYs or next 3 FYs Auditors/ CA Certificate required Repayment of ECB out of forex earnings 37

38 ECB Delegation of approving authority to AD Banks Changes/modifications in the drawdown/repayment schedule Changes in the currency of borrowing Changes in the name of the Borrower Company Change in the recognized lender Cancellation of LRN Change in the end-use of ECB proceeds Reduction in amount or all-in-cost of ECB Raising ECB from indirect equity holders and group companies Proposals involving change of lender when the ECB is from foreign equity holder direct/ indirect equity holders and group company Transfer of ECB on merger 38

39 NCD Regulation 5 of FEMA 20 governs foreign investment under NCD route SEBI registered FPIs (including FIIs and QFIs) are allowed to invest in listed NCDs or bonds, government securities/ treasury bills, commercial papers, units of mutual funds, primary issue of NCDs, etc. Primary issue with the condition that NCDs/ Bonds are committed to be listed within 15 days of investment. Terms of offer to have a clause that if not listed within 15 days, the issuer shall immediately redeem/ buyback SEBI (Foreign Portfolio Investors) Regulations, 2014 govern investment by FPIs Three categories of FPI Investors: CAT I : includes Government, Govt agencies, sovereign funds, etc. CAT II : includes mutual funds, investment trusts, insurance companies, etc. CAT III : includes corporate bodies, trusts, foundations, individuals, etc. NRIs cannot register as FPIs Person seeking FPI registration should engage a Designated Depository Participant (DDP) for obtaining the registration DDP shall also act as a custodian of securities for the FPI 39

40 NCD Any Indian company (private or public) can issue NCDs on a private placement basis NCDs are listed in Wholesale Debt Market (WDM) segment of stock exchange Listing not necessary if investment is in 'infrastructure' sector NCDs subscribed/ purchased by FPIs are not treated as ECB No end-use restrictions and also conditions applicable to FDI investors under FDI policy would not apply No restrictions on the interest remittances and also on redemption However, NCDs with a maturity of less than one year are regulated by RBI NCDs can be secured against mortgage of assets of the issuing company NCD issue to comply with SEBI (Issue and Listing of Debt Securities) Regulations Compliance with Company Law requirements Private placement related provisions Does it amount to acceptance of deposit? Stamp duty implications under Indian Stamp Act 0.05% per year of the face value of the debenture, subject to a maximum of 0.25% or Rs. 25 lakhs, whichever is lower 40

41 NCD Issue Process Board Approval for allotment of NCD and convening of EGM Shareholders Approval for allotment of NCD Appointment of credit rating agency, RTA and debenture trustee Obtain ISIN for the Company from the depository (NSDL/ CDSL) Finalisation of Information Memorandum, debenture trust deed Subscription and allotment of NCDs Obtaining rating certificate for the NCD issue Obtain In-principle approval for listing from the stock exchange Filing of listing agreement and other documents with stock exchange and NCD listing Registration of charge and other RoC filings Estimated Time Frame : 6-8 Weeks (Approx) 41

42 Section 4 Round Tripping Issues

43 Round Tripping Meaning View I Round Tripping of Funds Indian Company/ Party View II Round Tripping of Structure Indian Company/ Party Funds Non Resident Investors Foreign Company Funds Foreign Company Funds Funds Indian Company Indian Company 43

44 Round Tripping Likely Challenges ODI Regulations ODI for bonafide business activities Financial services not permitted ECB Regulations Leveraging overseas for investment into India could amount to Deemed ECB End-use restrictions can be violated FDI Regulations Not genuine foreign investor Debt funds could be rerouted into India 44

45 Round Tripping Illustrations Indian Company/ Party Indian Company/ Party Bank PE Investors < 50% Loan Funds Foreign Company Equity Foreign Company Equity Equity Indian Company Indian Company Risk High Risk Moderate 45

46 Round Tripping Illustrations Indian Company/ Party Bank Foreign Investor Loan Funds Foreign Company Whether Direct or Indirect Investment Transfer Indian Company Risk Moderate/ High 46

47 Round Tripping Illustrations Foreign Investor Indian Company Foreign Company Transfer Foreign Company Foreign Company Indian Company Risk Moderate 47

48 Section 5 Overview of Indian Tax Concepts

49 India Tax Implications Taxation of Dividend from Overseas Investments Dividends received from an overseas company is liable to tax at % Expenses incurred for earning such dividend income are not deductible Any expenses incurred (including interest) shall be disallowed In case the Indian entity has operating income and debt funded incremental tax cost on disallowance of interest Section 14A?? At least 26% in the equity of foreign company for triggering 115BBD Implications of spreading shareholding over different entities Taxation of Interest Income from Overseas Investments Interest received from an overseas company is liable to tax at 33.99% Rate of interest to comply with Indian transfer pricing regulations Interest on debt borrowed and used for on-lending overseas allowable as deduction 49

50 Modes of Funding Equity Shares Lower rate of tax on foreign dividend % No transfer pricing implications on rate of dividend Portion of expenses incurred towards investment are disallowed as per Section 115BBD of the IT Act Convertible Preference Shares (CPS) Lower rate of tax on dividend % Rate of dividend to comply with Indian transfer pricing implications Tax payable on declaration of dividend Other implications are similar to equity investment Debt/ Convertible Debentures (CD) Higher rate of tax on interest 33.99% Rate of interest to comply with Indian transfer pricing regulations Tax break on interest in SPV may not be available in the absence of income chargeable to tax 50

51 India Tax Implications Broad Framework for Investing Equity Debt Equity + Debt I Co I Co I Co F Co F Co F Co Equity/ Debt? Equity Equity/ Debt? Debt Equity/ Debt? Equity + Debt 51

52 Section 6 Options for Investing

53 Options for Investing Option 1 Option 2 Option 3 India Co India Co India Co Operating Cos SPV AHC Operating Cos Mauritius SPV Dutch SPV Operating Cos Operating Cos 53

54 Options for Investing Particulars Tax Efficiency Ease of Compliance with FEMA Flexibility Ease of implementation Option 1 Direct Investments Double taxation of income, i.e. in source country as well as India Need to comply for each investment No Simple structure, easy to implement and less administrative costs Option 2 Investment through Special Purpose Vehicle Option 3 Investment through International Hold Co and Special Purpose Vehicle Double taxation of income at the time of repatriation from SPV to India - No single jurisdiction which gives an effective structuring Most tax efficient Yes Challen ging Less Flexible Yes More complex than option 1, require more time for implementation, administrative costs would also be more than option 1 Need to manage higher number of entities. More complexities and higher administrative costs 54

55 Thank You amithraj123@gmail.com Views expressed in the presentation are personal

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