Foreign portfolio investors (FPIs) are not entirely free of the minimum alternate tax (MAT) regime, despite Finance Minister Arun Jaitley saying in his Budget speech that the tax will not be levied on foreign investors.
The way the exemption has been worded in the Budget removes the ambiguity around capital gains but treatment of interest income will still be a cause for concern, besides a possibly higher compliance burden. Tax experts also say the new Bill, which comes into force from next financial year, has raised a question mark on all old cases where tax demand has already been made..
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The MAT provision was introduced to make sure the large companies that did not pay taxes due to various tax incentives could be brought under the revenue department’s net. But the tax department had sought to impose the same rule on FPIs (formerly referred to as foreign institutional investors, or FIIs) and foreign private equity firms structured as corporate entities. The move was seen affecting a large section of foreign investors. Representations on the matter were made to the government.
“To rationalise the MAT provisions for FIIs, profits corresponding to their income from capital gains on transactions in securities that are liable to tax at a lower rate shall not be subject to MAT,” said Jaitley in his Budget speech. But these words leave the status of debt investors uncertain.
“Restricting the amendment only to capital gains will imply MAT is applicable to all other cases. FPIs receiving interest income on government securities and corporate bonds are currently taxed at only five per cent. MAT will increase the rate of tax on such interest to 20 per cent,” says Suresh Swamy, partner (financial Services), PwC Tax and Regulatory Services.
Also, the amendment appears to exempt from MAT levy only the income in the form of capital gains. This leaves FPIs potentially liable to MAT on other income they earn from investments in Indian securities. Besides, the amendment is to take effect from April 1, 2015; that leaves investors exposed to MAT levy on all their income for preceding periods.
“MAT was intended to apply only to domestic companies. This was clarified in the explanatory memoranda accompanying the Budgets that introduced or modified these provisions. Clarifying that FPIs, a sub-set of foreign investors more generally, will not be liable to MAT raises the apprehension that Revenue will seek to levy MAT for all other non-resident investors. That is inconsistent with the intent underpinning MAT’s introduction,” BMR Legal said in a statement.
“This will technically create a situation where they will have to pay tax,” agrees Rajesh Gandhi, partner, Deloitte Haskins & Sells LLP.
According to Riaz Thingna, partner, Walker Chandiok & Co, the way the clarification on FPIs is worded is ambiguous and, in fact, might lead to more litigation in future. “This needs more clarity as tax liabilities on FPIs still remain.”
“This will not affect a large number of investors. But if someone is from a treaty jurisdiction like the Netherlands or Singapore, he will have to deal with a higher tax rate under the MAT that could be levied,” says Bijal Ajinkya, partner, Khaitan & Co.
It is believed the clarification on MAT will have been worded better to say it does not apply to FPIs, rather than saying capital gains will not be subject to MAT. “The current clarification can be seen as suggesting MAT is applicable to all income earned by foreign investors, except capital gains. It is also unclear whether foreign investors will now have to go through all compliance procedures required under the Act, such as getting a tax certificate from a chartered accountant and preparing books of account. These funds do not draw up any India specific profit-and-loss account,” says Swamy.
In addition, offshore funds not registered as FPIs will possibly still be subject to MAT.
“In an ‘unfortunate miss’, though FPIs/FIIs have been removed from MAT implications, no such relief has been considered for offshore funds that do not fall within the FPI/FII category,” says Khaitan’s Ajinkya.
The tax department has served notices on a little more than three dozen foreign investors and private equities, asking them to pay MAT. The tax demand from the 35 private equities alone is over Rs 1,000 crore.
STILL ON THE MAT
Exemption only applies to capital gains
Even exempt FPIs will have to complete compliance procedure and show why MAT is not applicable
Wording suggests MAT will apply in the cases where exemption is not available
Doubts on pending cases
FPIs who get interest income will still be subject to MAT
- Offshore funds not registered as FPIs will also remain subject to tax