Central Board of Direct Taxes issues final Guidelines for determination of Place of Effective Management for corporate residency

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1 24 January 2017 EY Tax Alert Central Board of Direct Taxes issues final Guidelines for determination of Place of Effective Management for corporate residency Executive summary Tax Alerts cover significant tax news, developments and changes in legislation that affect Indian businesses. They act as technical summaries to keep you on top of the latest tax issues. For more information, please contact your EY advisor. The test of residency for foreign companies in the Indian Tax Laws (ITL) was amended in As per the amended rule which was then proposed to be applicable from tax year commencing on 1 April 2015, a foreign company could be treated as a resident of India if its Place of Effective Management (POEM), in a given year, is in India. Pursuant to this, the Central Board of Direct Taxes (CBDT), the highest Indian tax administrative body, had, vide Press Release dated 23 December 2015, issued a draft of guidelines for determination of POEM (Draft Guidelines) 1. Subsequently, the applicability of the POEM provision under the ITL was, vide Finance Act 2016, deferred to tax years commencing from 1 April 2016 onwards. On 24 January 2017, after due public consultation, the CBDT issued a Circular providing the final guiding principles for determination of POEM of a foreign company in India (the Guidelines). The Guidelines emphasize that the test of POEM is one of substance over form and is to be determined having regard to the facts and circumstances of each case on a yearly basis. The Guidelines provide that the determination of POEM is primarily based on whether or not a company has Active Business Outside India (ABOI). The ABOI test needs to be evaluated on the basis of: (i) Nonpassive income of the taxpayer and (ii) The asset base, number of employees and payroll expenses outside India. For companies which satisfy ABOI test, the POEM is deemed to be outside India if majority of the Board meetings are held outside India, unless facts suggest that the Board of Directors (BOD) is not the de facto decision-making authority. 1 Refer EY Tax Alert dated 24 December 2015

2 For companies other than those engaged in ABOI, the Guidelines prescribe a twin test: (a) Identification of persons who take key management and commercial decisions. (b) Determining the place where these decisions are, in fact, made. In this behalf, the Guidelines also provide relevant factors, such as determination of the location of Board meetings, or location of the Head Office (HO), who constitutes senior management etc. It is also stated that the place of implementation of decisions or the place where routine dayto-day decisions are taken is not relevant for determination of POEM. Furthermore, POEM is not to be determined by taking a snapshot view, but by considering activities performed over a period of time during the year for which POEM is determined. The Guidelines also deal with determination of POEM in cases where participation in decision-making by the Board is by use of telephone or videoconferencing or by way of circular resolutions. It also deals with impact of decisions by shareholders and draws distinctions between decisions on matters reserved for shareholders and decision that restrict the authority of the company. By way of a safeguard, the Guidelines require two-step approvals as per which the tax officer has to seek prior approval from a senior tax officer before initiation of proceedings and approval of a collegium of three senior officers who will give an opportunity of hearing to the taxpayer before deciding on the residency of the foreign company. The Guidelines also provide five examples illustrating the applicability of guiding principles in determination of POEM. Details of the examples are to be found in the attached Appendix A. At Appendix B, we have, for ease of reference, tabulated the changes which are made by the Circular as compared to text of draft Guidelines. Background The test of residency for foreign companies under the ITL was amended in As per the amended rule applicable from tax year commencing on 1 April 2016, a foreign company is treated as a resident of India if its POEM, in a given year, is in India. The earlier test of residency for foreign companies required that the whole of its control and management should be in India. As explained by the Explanatory Memorandum 2 and in the Circular 3 issued by the CBDT, such liberal threshold resulted in shift of profits by incorporating shell companies outside India, which were largely controlled from India. As part of the Explanatory Memorandum, it was clarified that the Government of India (GOI) shall issue a set of guiding principles for determination of POEM for the benefit of taxpayers and the tax administration. Pursuant to this, after due public consultation the CBDT has vide a Circular 4 dated 24 January 2017 (the Circular), issued the final Guidelines for determination of POEM of foreign companies in India. This Tax Alert summarizes the Circular which lays down the Guidelines for determining whether POEM of a company is in India. General principles: A substance over form approach The Guidelines provide for certain general principles of relevance for determination of POEM as under: i. Determination of POEM depends on the facts and circumstances of a given case. 2 Explanatory Memorandum reflects statement of object and purpose for introducing a particular legislation. 3 No. 3 of No. 6 of 2017

3 ii. iii. iv. The concept is one of substance over form. An entity may have more than one place of management, but it can have only one POEM at any given point of time. POEM needs to be determined on a year-to-year basis for determining residence. v. The principles recited in the Guidelines for determining POEM are by way of guidance and no single principle is decisive. vi. Review and study of all facts related to the management and control of the vii. viii. company would be relevant and POEM determination cannot be based on isolated facts. The principles contained in the Guidelines are not to be applied by taking a snapshot view, but activities performed over a period of time, during the tax year, need to be considered. If, during the tax year, POEM is in India as also outside India, POEM shall be presumed to be in India if it was mainly/predominantly in India. Foreign companies which fulfil the test of ABOI The test of determination of POEM for the following two categories of foreign companies are reflected in the flow chart below: Identification of POEM Active Business outside India (ABOI) test Companies fulfilling the test of ABOI Companies other than those fulfilling the test ABOI POEM outside India if majority BOD meetings outside India However, if de facto decision making authority is not BOD but Indian parent or resident, POEM shall be in India Stage 1: Identification of persons who actually make the key management and commercial decision for conduct of the company s business as a whole Stage 2: Determination of place where these decisions are in fact being made Guiding principles provided for determining POEM

4 POEM determination for companies fulfilling the ABOI test A company is said to be engaged in ABOI if it fulfils the cumulative conditions of 5 : a. Its passive income (wherever earned) is 50% or less of its total income and b. In respect of each of the following, the threshold is less than 50%: Its total assets situated in India (assets test); Total number of employees situated in India or residents in India (employees test); Payroll expenses incurred on such employees compared to total payroll expenditure (payroll test). For the above purpose, passive income is the aggregate of: a. Income from the transactions where both, the purchase and sale of goods, is from or to its associated enterprises (AEs). b. Income, by way of royalty, dividend, capital gains, interest (except for banking companies/public financial institutions 6 ) or rental income, whether or not involving AEs. For the purpose of ABOI test, Income is income as computed for tax purposes in accordance with laws of country of incorporation or as per books of accounts where there is no requirement of computation of income for tax purposes. Value of assets is to be determined on the basis of average as at the beginning and at the end of the previous year by adopting value for tax purposes in the country of incorporation for depreciable assets and at book value for other assets. Number of employees is taken based on average as at the beginning and at the end of the year. Also, this includes other persons who perform tasks similar to those performed by employees, though not employed directly by the company. Payroll cost is defined inclusively to include the cost of salaries, wages, bonus and all other employee compensation, including related pension and social costs borne by the employer. If the foreign company qualifies the ABOI test, its POEM is presumed to be outside India if majority BOD meetings of the company are held outside India. However, if the facts and circumstances establish that the BOD is not the de facto decision-making authority but such powers are, in fact, being exercised either by the Indian parent or any other person resident in India, then POEM shall be considered to be in India. Merely because the BOD follows general and objective principles of global policy of the group laid down by the parent entity for the group without the policies being specific to any entity or group of entities, it would not constitute a case of BOD of companies standing aside. Such policies may be in the field of payroll functions, accounting, Human Resource (HR) functions, IT infrastructure and network platforms, supply chain functions, routine banking operational procedures. 5 An average of the above data of the previous year and two years prior or shorter period for which company has been in existence needs to be taken into account for the ABOI test. If the accounting year for tax purposes for the foreign entity is different from the tax year in India, then the data of accounting year that ends during the relevant tax year and two preceding years will be considered. 6 Whose activities are regulated under the applicable laws of the country of incorporation

5 POEM determination for companies other than those fulfilling the ABOI test For companies other than those engaged in ABOI, determination of POEM is a two-stage process: i. Identification or ascertaining the person or persons who actually make the key management and commercial decision for conduct of the company s business as a whole. ii. Determination of place where these decisions are, in fact, being made. For this purpose, the following guiding principles may be taken into account: While enumerating the guiding principles, it is clarified that the place of decision-making is more important than that of implementation. Furthermore, significance of substance over form is emphasized. i. Location of BOD If the BOD retains and, in substance, exercises the authority to govern the company and make key management and commercial decisions necessary for the conduct of the company s business as a whole, then the place where the BOD regularly meets and makes decisions may be the company s POEM. If the key decisions are made by the directors at a place other than the place of formal meetings, such other place would be relevant for POEM. For e.g., if the BOD meetings are held at a location other than the HO, or such location is distinct from the place where the predominant activity of the company is carried on. If the BOD has delegated the decisionmaking authority to the senior management 7 or any other person, including shareholder(s), promoter, strategic or legal or financial advisor, etc. and routinely ratifies their decisions, then the POEM will ordinarily be the place of such actual decision making. ii. Delegation to committees If the BOD has formally or de facto delegated authority to one or more committees consisting of members of senior management (e.g., executive committee consisting of members of senior management), then the place where such a committee develops and formulates key decisions for mere formal approval by the BOD will often be considered to be POEM. iii. Location of company s HO The location of the company s HO is an important factor in determination of POEM, as it often represents the place where key decisions are made. The HO is defined to be the place where company s senior management and their direct support staff are predominantly located. If a company is decentralized (e.g., where various members of senior management operate across countries), then the HO would be where the senior managers are predominantly based; or the place to which they normally return to following travel to other locations; or place where they meet when formulating or deciding key strategies and policies for the company as a whole. In case of meetings by way of telephone or videoconferencing, the HO would normally be the location where the highest level of management (for e.g., the Managing Director and the Financial Director) and their direct support staff is located. If the senior management is decentralized such that it is not possible to determine the HO with reasonable degree of certainty, the HO would not be relevant for determining POEM of the company. 7 Senior management has been defined to mean persons generally responsible for developing and formulating key policies and strategies and for ensuring or overseeing implementation of the same on a regular and ongoing basis. While designations may vary, they may include MD, CEO, FD, CFO, COO or divisional/departmental heads (e.g., Chief Information or Technology Officer, Director of Sales or Marketing).

6 iv. Place of residence of directors/decisionmakers relevant where modern technology is used Use of modern technology means that physical presence is no longer necessary for BOD or committee meetings. In such cases, the place where majority of the directors or decision-making persons usually reside may be relevant. v. Place of decision making in case of circular resolutions In case of circular resolution 8, the POEM evaluation is done having regard to the factors like frequency, type of decisions made, location of the parties involved in those decisions, etc. The proposer of resolution alone would not be relevant. The evaluation will need to be done based on the past practices and general conduct to determine the person who has and who exercises the authority to take decisions. vi. Decisions by shareholders Decisions made by shareholders on the matters which are reserved for shareholder resolution under corporate law are not relevant for determination of POEM since these decisions typically affect the existence of the company itself or the rights of the shareholders, rather than the conduct of the company s business from a management or commercial perspective. Illustrations of such decisions are: sale of all or substantially all of the company s assets, the dissolution, liquidation or deregistration of the company, modification of the rights attaching to various classes of shares or the issue of a new class of shares etc. In certain situations, involvement of shareholders may lead to effective management either through formal arrangement- say, by way of shareholders agreement, or by actual conduct. This may happen illustratively where the shareholders limit the authority of board and senior managers of a company such that the real authority to make decision is removed from the Board and the shareholder guidance transforms into usurpation and undue influence. However, this is a fact-specific exercise to be determined on case to case basis. vii. Place of implementation or execution of decisions not relevant The place where management decisions are taken would be more important than the place where such decisions are implemented. Day-to-day routine decisions taken by junior and middle management are not relevant for determining POEM. Operational decisions relating to day to day business operations and activities need to be distinguished from broader strategic and policy decisions. For Example: A decision regarding opening of a major new manufacturing facility or discontinuing a major product is an example of key commercial decision affecting the company s business as a whole. As against that, decisions by the plant manager to run the facility, implement countrywide quality control, HR policies, etc. are examples of routine decisions. POEM evaluation is to be done after distinguishing between types of decisions if strategic and routine decisions are taken by the same person. viii. Secondary factors (if the above do not lead to clear identification of POEM): Place where the main or substantial activity of the company is carried out or Place where the accounting records of the company are kept. No POEM scenarios illustrated Illustratively, POEM cannot be established to be in India merely because: i. The foreign company is completely owned by an Indian company; or ii. Foreign company has a Permanent Establishment (PE) in India; 8 Or, round robin voting

7 iii. iv. One or some of the directors of a foreign company reside in India; or Local management in India is in respect of activities carried out by a foreign company in India; or v. There exists in India, support functions that are preparatory and auxiliary in character. Administrative safeguard of two-stage approval If, on the basis of its POEM, the tax officer proposes to initiate proceedings to hold a foreign company to be resident in India, prior approval of senior tax officers, viz., the Principal Commissioner or the Commissioner of Income Tax (PCIT/CIT) shall be necessary. Additionally, prior approval of a collegium of three members consisting of Principal Commissioners or the Commissioners (or constituted by them) is needed before holding that foreign company is POEM resident. The collegium will grant opportunity of the hearing to the taxpayer before issuing directions to the tax officer. Examples illustrating the applicability of guiding principles The Circular provides five examples to illustrate the applicability of the Guidelines. The first three deal primarily with the ABOI test, being (i) the passive income test, (ii) the payroll test and (iii) number of Board meetings. The fourth example illustrates a case of de facto exercise powers by shareholders. The fifth example clarifies that in an outbound structure, merely because the POEM of an overseas intermediate holding company is in India, it would not mean that the POEM of all further subsidiaries held by the intermediate company (who are engaged in ABOI and whose BOD meetings are held outside India) is in India. Comments The Circular issued by the Government provides guiding principles to be followed for determination of POEM. The Circular acknowledges that concept of POEM was introduced in Indian legislation to amend the earlier laws which permitted tax avoidance opportunities for companies to artificially escape residential status by shifting insignificant or isolated control or management outside India. As part of the Circular, guidance is provided on resolution of various parameters of ABOI test. Interest income earned by banks or public financial institution is kept outside the category of passive income. It is clarified that adherence by BOD of foreign company to general group policy on various business functions is not determinative of POEM. Further, decisions by shareholders on matters which are reserved for shareholder decisions or the decisions which may affect the existence of the company, (but not the decisions on conduct and management of the business), do not impact POEM determination. The Circular also provides illustrations on application of ABOI test and also clarifies that POEM trigger for intermediate holding company does not mean that POEM of all further downstream subsidiaries is in India.

8 However, there are still certain issues which are likely to be of concern to the taxpayers. Particularly, despite the fact that the final Guidelines are issued towards the fag end of the year, the same is expected to apply from 1 April Further, except interest income of banking company, operative income from interest, royalty etc. continues to get classified as passive income. The final Guidelines continue to look at average of three year parameters of income, assets, employees etc. In respect of companies which do not fulfil the ABOI test, the Circular has listed several criteria and, multiple factors for determination of POEM, without defining the hierarchy of elimination and without providing guidance on the weightage of each factor. This is likely to make the exercise subjective and uncertain, on a year-to-year basis. Given that the stated object of introducing POEM is to target shell structures, it would have been useful to keep entities in comparable tax jurisdictions as also overseas listed companies outside the scrutiny of POEM. An overarching statement that POEM is a deterrent measure, and not a revenue raiser, would also have been of significance to taxpayers. The taxpayer will have to carefully monitor and assess impact on various operations carried out in India and outside India of the foreign entities in the structure to determine their POEM.

9 Appendix A - Gist of illustrations and interpretation provided in the Circular Illustratio n no. 1. B Co A Co 100% cos. Stock in warehouses India In Country X (Outside India) Facts Country X (Outside India) ACo is subsidiary of BCo and is a sourcing entity for the Indian multinational group The assets (viz. stocks in warehouses) of ACo are located in country X All the employees of ACo are in Country X Average income-wise breakup of total income of A Co for three years include: Income % Purchases Sales 30 % Non-AEs AEs 30 % AEs AEs 30 % AEs Non-AEs 10 % Interest income CBDT interpretation Income Test Satisfied: Passive income is 40% of the total income of the company, consisting of: 30% from the transaction where both purchase and sale is from/to AEs 10% income from interest Assets Test, Employees Test: Since no assets or employees of A Co are in India the other requirements of the test is also satisfied A Co is engaged in ABOI 2. In addition to facts listed at Illustration no.1, In Country X (Outside India) Out of 50 employees of ACo, 47 employees, who are managing the warehouse, storekeeping and accounts of the company, are located in Country X. Annual payroll expenditure of 50 employees is INR 50 M In India The other three employees i.e Managing director(md), Chief executive officer (CEO) and Sales head are resident in India Annual payroll expenditure of above employees is INR 30 M Passive Income Test (as above) and Employee Test is satisfied as more than 50% of the employees are also situated outside India Assets Test satisfied: All the assets are situated outside India Payroll Test not satisfied: The payroll expenditure in respect of the MD, CEO and the Sales head being employees resident in India exceeds 50% of the total payroll expenditure Therefore, A Co is not engaged in ABOI 3. In addition to facts listed at Illustration no.1, In Country X (Outside India) All the directors of the ACo are Indian residents During the relevant tax year, five meetings of the BOD is held, out of which two are held in Country X and one in Country Y. The A Co is engaged in active business outside India as the facts indicated in illustration 1

10 Illustratio n no. In India Facts Two out of five BOD meetings were held in India CBDT interpretation The majority of board meetings have been held outside India Therefore, POEM of ACo shall be presumed to be outside India 4. In addition to facts listed at Illustration no.3 It is established by the AO that: Although ACo s senior management team signs all the contracts, for all the contracts above INR 1M, ACo must submit its recommendation to BCo and B Co makes the decision whether or not the contract may be accepted It is also seen that during the previous year more than 99% of the contracts were above INR 1M and over past years also the same trend in respect of value contribution of contracts above INR 1M is seen The facts suggest that the effective management of the ACo may have been usurped by the parent company BCo Therefore, POEM of ACo may, in such cases, be not presumed to be outside India even though ACo is engaged in active business outside India and majority of board meetings are held outside India 5. Parent Co ACo (Dividend/interest income) BCo Op co India CCo Op co Country X DCo Op co Country Y An Indian MNC group has a local holding company ACo in Country X ACo has 100% downstream subsidiaries in the form of BCo and CCo in Country X and DCo in Country Y ACo has income only by way of dividend and interest from investments made in its subsidiaries POEM of ACo is in India and is exercised by ultimate parent company of the group BCo, CCo and DCo are engaged in active business outside India Meetings of Board of Directors of B Co, CCo and DCo are held in respective countries. Merely because the POEM of an intermediate holding company is in India the POEM of its subsidiaries shall not be taken to be in India. Each subsidiary has to be examined separately. Since BCo, CCo and DCo are independently engaged in active business outside India and majority of board meetings of these companies are also held outside lndia, POEM of these companies shall be presumed to be outside lndia

11 Appendix B: Changes made by the Circular as compared to text of draft Guidelines. Draft Guidelines Determination of POEM primarily based on whether or not a company has ABOI on the basis of: (i) Passive income (ii) asset base, (iii) number of employees and (iv) payroll expenses. For such companies, the POEM is deemed to be outside India if majority board meetings are held outside India, unless facts suggest that the Board of Directors (BOD) is not the de facto decisionmaking authority. Interest income constituted passive income for determination of ABOI. Final Guidelines The Final Guidelines contain further Explanation as to the determination of these factors to reduce ambiguities. For this purpose, Income is income as computed for tax purposes in accordance with laws of country of incorporation or as per books of accounts where there is no requirement of computation of income for tax purposes. Value of assets is determined on the basis of average as at the beginning and at the end of the previous year by adopting value for tax purposes in the country of incorporation for depreciable assets and book value in respect of other assets. Number of employees are taken based on average as at the beginning and at the end of the year. Also, employees include those person, who perform tasks similar to those performed by employees though not employed directly by the company. Payroll cost is defined inclusively to include the cost of salaries, wages, bonus and all other employee compensation including related pension and social costs borne by the employer. Clarifies that interest income would not constitute passive income for banking companies or public financial institutions and whose activities are regulated as such under the applicable laws of its country of incorporation. Where on the basis of facts and circumstances it is established that the BOD is standing aside and the management powers are, in fact, being exercised by the holding company or any other Indian resident, then the POEM of the company will be regarded to be India. In determining ABOI, the average of the data of the tax year and two years prior to that shall be taken into account. If the BOD has de facto delegated the authority to make key decisions of the company to the senior management or any other person including a shareholder and does nothing more than routinely ratifying these decisions, the POEM will be the place where the senior management or other person makes those decisions. No clarification on circular resolutions Clarifies that merely because the BOD follows general and objective principles of global policy of the group laid down by the parent entity and not being specific to any entity or group of entities as such would not constitute a case of BOD of companies standing aside. These may be in the field of payroll functions, accounting, Human Resource (HR) functions, IT infrastructure and network platforms, supply chain functions, routine banking operational procedures. Where the accounting year for tax purposes, in accordance with laws of country of incorporation of the company, is different from the Indian tax year, then, data of the accounting year that ends during the relevant tax year and two years preceding it shall be considered Scope of any other person clarified further by including promoter, strategic advisor, legal advisor, financial advisor, etc. Provides guidance on use of circular resolutions for taking key decisions. The proposer of decisions alone would be not be

12 Draft Guidelines Final Guidelines relevant; but based on frequency and type of decisions, past practices and general conduct, the person who has the authority and who exercises the authority to take decisions would be relevant. No clarification on shareholder intervention Clarifies that decisions made by shareholders on matters which are reserved for shareholder decision under corporate law are not relevant for determination of POEM since these decisions typically affect the existence of the company itself or the rights of the shareholders as such, rather than the conduct of the company s business from a management or commercial perspective. However, it needs to be determined on a case-to-case basis if shareholder involvement is crossing the line resulting into effective management, whether by formal arrangement (i.e. shareholder agreement) or by way of actual conduct (i.e. usurpation). Day-to-day routine operational decisions undertaken by junior and middle management shall not be relevant for the purpose of determination of POEM. Provides instances of factor not relevant for determination of POEM. Tax officer is to seek approval from the Principal Commissioner or the Commissioner if he/she proposes to initiate proceedings for holding a foreign company as resident in India on the bases of POEM. Provides further guidance and illustration as to what constitutes operational decisions as opposed to key decisions. Additional exclusion for permanent establishment of foreign company in India as a relevant factor while determining POEM. The Circular now requires two stage approval viz. prior approval of Principal Commissioner / Commissioner before initiating proceedings. Additionally, prior approval of collegium of threemembers consisting Principal Commissioners or the Commissioners is needed before holding that foreign company is POEM resident. The collegium will be constituted by the principal Chief Commissioner of the region. The collegium will grant opportunity of being heard to the taxpayer before issuing directions.

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