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The Mauritius government will be relieved that the Parthasarathi Shome committee, set up to review the controversial general anti-avoidance rules (GAAR), has recommended a delay in their implementation and some investor-friendly changes.
This will mean that foreign investors who route their transactions through the island nation won’t have to worry about India examining them to see if they sought to avoid tax. On the other hand, India can’t afford to hamper investment flows as its economy slows.
But India, which wanted to amend the India-Mauritius double taxation avoidance treaty, will have to wait longer as talks with the island nation will start only after India finalizes the GAAR guidelines.
Starting with 22 August talks between the two sides, Mauritius expressed concern that its position as a key investment route was being eroded because of the uncertainty over GAAR.
Only those companies that meet certain criteria, including a minimum expenditure norm in a tax haven country, can take advantage of the tax treaties, under the limitation of benefit clause.
The committee led by Shome, a former adviser in the finance ministry, suggested deferring the implementation of anti-avoidance rules by three years. The rules, aimed at cracking down on transactions the tax department may deem to be structured in such a way as to avoid tax, had shaken investor confidence.
Mauritius has accounted for nearly 40% of India’s foreign investment. Under the avoidance of double taxation treaty, companies that invest through Mauritius do not have to pay tax in India but only have to pay tax in the island. But capital gains tax is close to zero in Mauritius, making it a popular investment hub.
Talks in Port Louis between Mauritius and India last week were largely inconclusive with no breakthroughs on key disagreements such as the capital gains tax.
“Both sides met and expressed their concerns, but everything hinges on GAAR. We are committed to continue negotiations,” the person said, adding the dates for the next round of talks will be decided after India finalizes GAAR regulations.
India had introduced GAAR in this year’s national budget, giving the tax department powers to invalidate transactions entered into for the sole purpose of avoiding tax. Draft GAAR guidelines issued in June said foreign institutional investors that choose to avail of benefits under a tax avoidance pact could come under the scanner of the income-tax department, which led to worries in Mauritius.
Protests by industry and other lobbies besides concerns that investment, much needed as India tries to get the economy accelerating again, forced Prime Minister Manmohan Singh to order a review of GAAR under the expert committee headed by Shome, a former adviser to the finance ministry.
The Shome committee, which submitted its report on Saturday, recommended significant dilutions in GAAR.
“Where Circular No. 789 of 2000 with respect to Mauritius is applicable, GAAR provisions shall not apply to examine the genuineness of the residency of an entity set up in Mauritius,” the committee said.
Analysts, however, point out that the committee’s recommendations may protect foreign institutional investors more than foreign direct investment routed from the island nation.
The committee is expected to come out with final guidelines by 30 September.
“It is in Mauritius’ interests to aggressively negotiate for inclusion of limitation of benefit clause,” said Sudhir Kapadia, national tax leader, at audit and consulting firm Ernst and Young. “A limitation of benefit clause can be seen as a proxy for fulfilling the criteria of commercial substance. This will ensure that tax officers cannot apply GAAR to such transactions on flimsy grounds.”
Another recommendation of the Shome committee was that where a tax treaty has the limitation of benefit clause GAAR provisions won’t apply.
According with the agreement with Singapore, only those companies that spend a minimum of $200,000 (around Rs. 1.1 crore) in Singapore can avail of the benefits of the treaty.
India wants to renegotiate the double taxation treaty with Mauritius to check round-tripping, in which money is moved out of one country to another and brought back under the garb of foreign capital, taking advantage of tax breaks
.
While Mauritius has expressed its willingness to consider inclusion of the limitation of benefit clause and stricter provisions for issuance of tax residency certificates, it’s not in favour of any changes to article 13 of the treaty that deals with capital gains tax.
The renegotiation of the double taxation avoidance treaty was discussed during the visit to India in July by Arvin Boolell, the Mauritius minister for foreign affairs and international trade. He had told reporters that Mauritius was willing to discuss the addition of a limitation of benefit clause in the reworked treaty on the condition that the renegotiated pact would prevail over India’s domestic legislation. Mauritius will also insist on a so-called grandfathering clause to protect investments made before the changes to the existing treaty, Boolell said.
A grandfathering clause is intended to ensure that old rules continue to govern past investments and new rules apply only to future ones, to make sure that past deals aren’t retrospectively scrutinized and taxed.
During the talks, Mauritius also pitched for Indian companies to use it as a “bridge” for investment into Africa—into countries such as Mozambique, South Africa, Madagascar and Kenya. “As per the proposal, Mauritius could help Indian companies raise part of funds needed for investment besides providing its expertise” for entering markets in Africa.
Apart from Asian rival China, which has a visible and established presence across the continent, India is also facing competition from other countries such as South Korea and Malaysia. In order to source raw materials to fuel its economic growth, India has been trying to make incursions into resource and mineral-rich Africa in recent years.
The Mauritius government will be relieved that the Parthasarathi Shome committee, set up to review the controversial general anti-avoidance rules (GAAR), has recommended a delay in their implementation and some investor-friendly changes.
This will mean that foreign investors who route their transactions through the island nation won’t have to worry about India examining them to see if they sought to avoid tax. On the other hand, India can’t afford to hamper investment flows as its economy slows.
But India, which wanted to amend the India-Mauritius double taxation avoidance treaty, will have to wait longer as talks with the island nation will start only after India finalizes the GAAR guidelines.
Starting with 22 August talks between the two sides, Mauritius expressed concern that its position as a key investment route was being eroded because of the uncertainty over GAAR.
Only those companies that meet certain criteria, including a minimum expenditure norm in a tax haven country, can take advantage of the tax treaties, under the limitation of benefit clause.
The committee led by Shome, a former adviser in the finance ministry, suggested deferring the implementation of anti-avoidance rules by three years. The rules, aimed at cracking down on transactions the tax department may deem to be structured in such a way as to avoid tax, had shaken investor confidence.
Mauritius has accounted for nearly 40% of India’s foreign investment. Under the avoidance of double taxation treaty, companies that invest through Mauritius do not have to pay tax in India but only have to pay tax in the island. But capital gains tax is close to zero in Mauritius, making it a popular investment hub.
Talks in Port Louis between Mauritius and India last week were largely inconclusive with no breakthroughs on key disagreements such as the capital gains tax.
“Both sides met and expressed their concerns, but everything hinges on GAAR. We are committed to continue negotiations,” the person said, adding the dates for the next round of talks will be decided after India finalizes GAAR regulations.
India had introduced GAAR in this year’s national budget, giving the tax department powers to invalidate transactions entered into for the sole purpose of avoiding tax. Draft GAAR guidelines issued in June said foreign institutional investors that choose to avail of benefits under a tax avoidance pact could come under the scanner of the income-tax department, which led to worries in Mauritius.
Protests by industry and other lobbies besides concerns that investment, much needed as India tries to get the economy accelerating again, forced Prime Minister Manmohan Singh to order a review of GAAR under the expert committee headed by Shome, a former adviser to the finance ministry.
The Shome committee, which submitted its report on Saturday, recommended significant dilutions in GAAR.
“Where Circular No. 789 of 2000 with respect to Mauritius is applicable, GAAR provisions shall not apply to examine the genuineness of the residency of an entity set up in Mauritius,” the committee said.
Analysts, however, point out that the committee’s recommendations may protect foreign institutional investors more than foreign direct investment routed from the island nation.
The committee is expected to come out with final guidelines by 30 September.
“It is in Mauritius’ interests to aggressively negotiate for inclusion of limitation of benefit clause,” said Sudhir Kapadia, national tax leader, at audit and consulting firm Ernst and Young. “A limitation of benefit clause can be seen as a proxy for fulfilling the criteria of commercial substance. This will ensure that tax officers cannot apply GAAR to such transactions on flimsy grounds.”
Another recommendation of the Shome committee was that where a tax treaty has the limitation of benefit clause GAAR provisions won’t apply.
According with the agreement with Singapore, only those companies that spend a minimum of $200,000 (around Rs. 1.1 crore) in Singapore can avail of the benefits of the treaty.
India wants to renegotiate the double taxation treaty with Mauritius to check round-tripping, in which money is moved out of one country to another and brought back under the garb of foreign capital, taking advantage of tax breaks
.
While Mauritius has expressed its willingness to consider inclusion of the limitation of benefit clause and stricter provisions for issuance of tax residency certificates, it’s not in favour of any changes to article 13 of the treaty that deals with capital gains tax.
The renegotiation of the double taxation avoidance treaty was discussed during the visit to India in July by Arvin Boolell, the Mauritius minister for foreign affairs and international trade. He had told reporters that Mauritius was willing to discuss the addition of a limitation of benefit clause in the reworked treaty on the condition that the renegotiated pact would prevail over India’s domestic legislation. Mauritius will also insist on a so-called grandfathering clause to protect investments made before the changes to the existing treaty, Boolell said.
A grandfathering clause is intended to ensure that old rules continue to govern past investments and new rules apply only to future ones, to make sure that past deals aren’t retrospectively scrutinized and taxed.
During the talks, Mauritius also pitched for Indian companies to use it as a “bridge” for investment into Africa—into countries such as Mozambique, South Africa, Madagascar and Kenya. “As per the proposal, Mauritius could help Indian companies raise part of funds needed for investment besides providing its expertise” for entering markets in Africa.
Apart from Asian rival China, which has a visible and established presence across the continent, India is also facing competition from other countries such as South Korea and Malaysia. In order to source raw materials to fuel its economic growth, India has been trying to make incursions into resource and mineral-rich Africa in recent years.
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