GENERAL ANTI-AVOIDANCE RULES (GAAR) AND ITS IMPLICATIONS ON INDIAN ECONOMY
Mr. Sumit Kumar Malviya,
Assistant Professor of Economics
ACADEMIC YEAR: 2018-19
MAHARASHTRA NATIONAL LAW UNIERSITY, NAGPUR
TABLE OF CONTENTS
TOC o “1-3″ h z u INTRODUCTION PAGEREF _Toc525589349 h 1OVERVIEW PAGEREF _Toc525589350 h 1CHAPTER-1 PAGEREF _Toc525589351 h 2GAAR IN INDIA PAGEREF _Toc525589352 h 21.1INTRODUCTION PAGEREF _Toc525589353 h 21.2NEED FOR GAAR PAGEREF _Toc525589354 h 21.3HISTORY OF GAAR PAGEREF _Toc525589355 h 31.4EXCEPTIONS PAGEREF _Toc525589356 h 41.5IMPACT ON ECONOMY PAGEREF _Toc525589357 h 41.6MERITS OF GAAR PAGEREF _Toc525589358 h 51.7DEMERITS OF GAAR PAGEREF _Toc525589359 h 61.8SAAR v. GAAR PAGEREF _Toc525589360 h 7CHAPTER-3 PAGEREF _Toc525589361 h 8GAAR IN OTHER COUNTRIES PAGEREF _Toc525589362 h 83.1 IN AUSTRALIA PAGEREF _Toc525589363 h 83.2 IN CANADA PAGEREF _Toc525589364 h 83.3 IN CHINA PAGEREF _Toc525589365 h 93.4 IN U.S.A. PAGEREF _Toc525589366 h 93.5 IN U.K. PAGEREF _Toc525589367 h 10CHAPTER-4 PAGEREF _Toc525589368 h 12GAAR AND LAW PAGEREF _Toc525589369 h 124.1 PROVISONS OF GAAR IN INDIA PAGEREF _Toc525589370 h 124.2 GAAR AND FOREIGN INSTITUTIONAL INVESTORS PAGEREF _Toc525589371 h 134.3 VODAFONE JUDGEMENT- THE AFTERMATH PAGEREF _Toc525589372 h 15CONCLUSION PAGEREF _Toc525589373 h 16BIBLIOGRAPHY PAGEREF _Toc525589374 h 17WEB BASED ARTICLES PAGEREF _Toc525589375 h 17CASES PAGEREF _Toc525589376 h 19
INTRODUCTIONOVERVIEW”Taxation is the art of plucking the goose so as to obtain the largest possible amount of feathers with the smallest possible amount of hissing.” – Jean Baptiste Colbert.
In other words, tax policies are designed to extract the largest possible amount of revenue from Multi-National Corporations (MNCs) with the least bit of economic and political change. One such tax policy which reflects the traditional debate between tax avoidance and tax evasion is that of the implementation of the General Anti Avoidance Rules (GAAR) in the Act. In essence, the GAAR is a set of statutory rules which are designed to scrutinize such transactions and arrangements, which are entered into by the taxpayers with the sole objective to circumvent their tax liabilities.Anti-avoidance rules are divided into two main categories: “general” and “specific.” A general anti-avoidance rule (GAAR) is a set of broad principles-based rules within a country’s tax code designed to counteract the perceived avoidance of tax. GAAR is a concept within law that provides the taxing authority a mechanism to deny the tax benefits of transactions or arrangements believed not to have any commercial substance or purpose other than to generate the tax benefit(s) obtained. Tax law designed to deal with particular transactions of concern are termed as either specific anti-avoidance rules (SAARs) or, less commonly, targeted anti-avoidance rules (TAARs). The ultimate purpose of a GAAR is to stamp out unacceptable tax avoidance practices. A GAAR is typically designed to strike down those otherwise lawful practices that are found to be carried out in a manner which undermines the intention of the tax law such as where a taxpayer has misused or abused that law.
CHAPTER-1GAAR IN INDIAINTRODUCTIONThe commercialization and industrialization also involve problems of tax avoidance. This has resulted in an increase in the loss to the national revenue. To deal with this very situation, General Anti-Avoidance Rule has been proposed in the Indian Legislature. General Anti-Avoidance Rule, most popularly known as GAAR Rules were first introduced in the direct tax code (DTC). It was first introduced in India by Mr. Pranab Mukherjee, the then Finance Minister in March 2012. It was announced in the fiancé bill 2012 that it will be reintroduced with some changes which are required and will be in effect from 1st April 2014. GAAR was adopted from the south African tax laws. The rule targeted, primarily, all the companies that were set up in Mauritius as Shell Companies. General Anti-Avoidance Rules (GAAR) have been codified in the Indian income tax law to counter aggressive tax planning arrangements. These provisions, empower the Indian revenue authorities to declare an arrangement as an ‘impermissible avoidance arrangement,’ if the main purpose of the agreement is to obtain a ‘tax benefit’, and the arrangement lacks or is deemed to lack commercial substance. An Expert Panel has been constituted on GAAR to undertake stakeholder consultations to finalize the guidelines for GAAR. Some provisions of GAAR have attracted a lot of criticism from foreign investors, therefore main target of setting up of Panel is reviewing provisions of GAAR to critically analyze the same and try to address the concern of Investors wherever possible, without defeating the main purpose of GAAR.
NEED FOR GAARIt is important to mention that GAAR is meant to deal specifically with incidence of tax avoidance and not with incidence of tax evasion. Organization for Economic Corporation and Development (OECD) has clearly brought out the difference between tax avoidance and tax evasion. The introduction of the GAAR can be justified on the ground that revenue collection is one of the most important rights of the government and associated with this right is the right to introduce measures like GAAR for ensuring that the incidence of tax avoidance is reduced. Tax avoidance like tax evasion undermines the achievement of public financing objective of collecting revenue in an efficient, equitable and effective manner. India being an attractive destination for multinational corporations for investment purpose, it becomes all the more important to have a well-defined tax legislation. Although there are Specific Anti Avoidance Rules to deal with specific ways of tax avoidance, yet there are transactions that do not fall within the bracket of these specific tax avoidances. In order to deal with such tax avoidance arrangements, GAAR needs to be introduced.
HISTORY OF GAARThe very concept of GAAR can be traced back to Duke of Westminster’s case. It was this landmark case that marks the beginning of the concept of substance v. form. Lord Russell in this case observed that ‘given that a document or a transaction is genuine, the Court cannot go behind it to some supposed underlying substance.’ This was followed by several decisions given by Courts of various countries on the same linbut with different interpretations. This includes the Ramsay’s case which brought about a change in the decision of the Duke of Westminster’s case. In this case the Court held that the principle of the Duke of Westminster’s case must not be over extended. If it is visible that a document or a transaction was intended to be a part of a nexus, then even the form of the transaction cannot prevent it from being regarded as such. This judgment received its full recognition in the case of Inland Revenue Commissioner v. Burmah Oil Co. Ltd., wherein Lord Simon observed that Ramsay’s case brought about a significant change in the role of judicial authorities in tax avoidance cases.
In India, it is ruling in the Mc. Dowell’s case which must be given the credit for bringing the very concept of GAAR to India. The Court held that ‘tax planning may be legitimate provided it is within the framework of law. However, a colorable device cannot be a part of tax planning’. However, the Indian Government proposed to introduce GAAR through the Direct Tax Code Bill of 2010. The DTC Bill introduced in the Parliament was referred to the Standing Committee. The Committee had been set-up under the Chairmanship of Director General of Income-tax (International Taxation). It made certain specific suggestions with regard to changes that need to be incorporated in the GAAR provision of the DTC Bill. Thereafter, the Committee presented the Finance Act, 2012 which made provision for GAAR which incorporated the provision made under Direct Tax Code Bill, 2010 along with the modifications suggested by the Committee. Thus, the implementation of GAAR is delayed. It is expected to come into being from 1st April, 2013.
EXCEPTIONSThe GAAR provisions are applicable to income arising on or after April 01, 2017. Gains arising from transfer of investments made up to March 31, 2017 have been exempt. Further, the GAAR provisions are not applicable in the following cases:
Where the tax benefit from an arrangement in a relevant tax year does not exceed INR 30 million (USD 450,000 approx.);
Where Foreign Portfolio Investors (FPIs) registered with the Indian market regulator do not avail any tax treaty benefits;
Investment made by a non-resident by way of offshore derivative instruments or otherwise, directly or indirectly through an FPI.
IMPACT ON ECONOMYAfter the announcement made by the Finance Minister in March 2012, there has been a significant decline in the investments made by foreign entities. There has been uncertainty over the impact of regulations on the foreign institutional investors. Indian equity markets showed higher deviations and instability after the announcement as the investors have become cautious in making their investments. In initial 3 months, markets showed good figures in terms of investment interest but not so well after the announcement as shown by the figures in the table below:
MONTH GROSS PURCHASE (CR) GROSS SALE (CR) NET INVESTMENT (CR) CUMULATIVE INVESTMENT ($MN)
January 2012 50,467.40 40,109.90 10,357.70 2,037.22
February 2012 79,898.60 54,686.60 25,212.10 5,127.67
March 2012 63,795.10 55,413.80 8,381.10 1,684.82
April 2012 41,091.90 42,200.50 -1,109.10 -205.53
May 2012 6,716.50 5,840.40 876.10 166.21
The rule targeted, primarily, all the companies that were set up in Mauritius as Shell Companies. These companies had no motive of doing business in Mauritius. The core motive was to route investments into India, utilizing the tax friendly treaty signed between the two nations.
Due to the changes, the income earned through investments from FII and FDI will now be taxed. This increases companies total tax liabilities and they will have to revisit their investment plans.
MERITS OF GAARThe provision of GAAR is applicable on all individuals, partnerships and firms, wherever tax benefit exists from the arrangement. It is based on the substance over form doctrine. This gives the tax authority the power to scrutinize any arrangement that they think might have been undertaken for the purpose of tax benefit. For instance, the authorities have the power to question the salary structure if it is suspected that the structure has been chosen primarily for tax benefit. The real intention of the parties to the arrangement can be identified by studying the substance of each transaction.
The proposed GAAR puts the burden of proof on the tax authority to prove that the arrangement has been undertaken for the purpose of tax benefit and is, therefore, an impermissible avoidance arrangement. This shifts the burden off the shoulders of the taxpayer who would otherwise have been subjected to the harassment by the tax authority to reveal all the information related to the arrangement. The current provision of GAAR helps in addressing the limitation of judicial interpretation of the tax laws that helps the taxpayers in escaping the tax liability, even when the substance of the transaction provides for the tax liability.
The non-resident investors who cannot be directly taxed for their investments through Foreign Institutional Investors (FII) can now be indirectly taxed through GAAR. GAAR contains provisions for taxing the FIIs on behalf of the non-resident investors. Naturally, the FIIs will recover this tax from the investors.
DEMERITS OF GAAR
Government through the introduction of GAAR has provided lot of power to the tax authorities. They can take the tax benefit out of any transaction if they feel that its sole purpose is avoiding taxes. This may lead to harassment of honest investors. One of the main areas of concern for investors is that GAAR empowers Tax authorities to declare an arrangement as invalid, if it is entered into by the assesse with the objective of obtaining a tax benefit. Therefore, under proposed provisions of GAAR, power given to tax officials is subjective in nature and tax officials have wide-ranging powers to declare any arrangement as “an impermissible avoidance arrangement”. Secondly, under GAAR provisions, onus to prove is on the assesse that tax benefit is not the main purpose of an impugned arrangement. An anti-abuse provision that shifts the burden of proof on the assesse goes against the fundamental principle of “innocent unless proven guilty”. Another area of major concern for foreign investors is in the context of applicability of Double taxation avoidance treaties. However, as far as India is concerned, the rules are so highly ambiguous that since its inception, India has received a lot of condemnation for it despite its global acceptance especially because it was introduced immediately after the controversial Vodafone-linked retrospective amendment in 2012 and it was seen as an attempt on part of the Indian policymakers to deliberately counter the Supreme Court’s decision and assume control over the situation. Further, these rules were introduced without holding consultations with stakeholders and were therefore perceived as the government’s ploy to increase its revenue on the pretext of aggressive tax planning.
SAAR v. GAAR
Similar to GAAR, there exist certain anti avoidance rules which are particular to an issue. They are referred to as Specific Anti-Avoidance Rules (SAAR). Since the time the provisions of GAAR were introduced into public domain through draft and committee reports, it has been argued by the stakeholders that GAAR should not apply where SAARs exist i.e. there are specific anti-avoidance rules already present in the Act relating to that case. However, this argument was not accepted and a circular specifically addressed this issue by clarifying that the provisions of SAAR and GAAR can co-exist and are applicable, as may be necessary in the facts and circumstances of the case. Hence, the position on this issue is a policy one and not a legal one and a defense to the invocation of GAAR in cases where a SAAR exists will need to be based on the factors such as existence of arrangement, tax benefit, main purpose, tainted elements etc.
CHAPTER-3GAAR IN OTHER COUNTRIESThe provisions of the GAAR are to be found in case of few other countries as well, if not in all other countries.
3.1 IN AUSTRALIA
The tax anti-avoidance rule for Australia is to be found in Part IV of the Income-tax Assessment Act, 1936 (ITAA). The Explanatory Memorandum to the Tax Laws Amendment Act (No. 2), 1981 which introduced Part IVA brought out the purpose of bringing in such an arrangement. It stated that the provision is applicable to those arrangements which are of “blatant, artificial or contrived kinds” and not to “arrangements of a normal business or family kind, including those of a tax planning nature.” Further, the second reading speech stated that the provision is not intended to cast any unnecessary prohibition on legitimate tax planning in managing the commercial affairs.
3.2 IN CANADA
The provision of the Canadian GAAR is to be found in section 254 of the Income-tax Act of Canada. The purpose of GAAR can be drawn from the reading of the explanatory note which says that section 245 aims at preventing abusive tax avoidance arrangement or transactions and is not intended to interfere with legitimate commercial transaction or family transaction.
The Canadian Revenue Authority (CRA) has a Committee that advises on whether GAAR is applicable to a particular situation or not? There are following three steps that need to be fulfilled for attracting the provisions of GAAR in any transaction:
(i) tax benefit is arising from the arrangement,
(ii) the transaction is an avoidance arrangement, as it has not been organized for any bona fide purpose other than tax benefit,
(iii) the avoidance transaction is abusive.
A comparison of GAAR in India with that of Canada reveals that the provisions are similar in both the countries.
3.3 IN CHINAIn China, it is the Enterprise Income Tax Law (EITL) that contains provisions of the GAAR. Several other guidelines have also been issued by the Chinese authorities for implementation of the GAAR.
EITL provides that “If an enterprise engages in a business arrangement without bona fide commercial purposes that results in reducing its taxable revenue or taxable income, the tax bureau has the right to make adjustments based on reasonable methods.”
Further, the State Administration on Taxation has also issued a Circular on the “Implementation Measures of Special Tax Adjustments” which contains guidelines for implementing GAAR. The circular provides that the authorities can undertake actions under GAAR in case of transactions that amount to abuse of tax incentive, tax treaties, corporate structure or amounts to use of tax havens for escaping tax liability. It is also provided that the doctrine of substance over form must be applied to determine whether an enterprise has undertaken transaction only for the purpose of tax benefit or whether there is some bona fide commercial purpose also involved? This can be done by analyzing the time of the arrangement, the substance and form of the arrangement, the relationship between each step and also the tax benefit of the transaction. This very provision is in line with the proposed GAAR in India, which emphasizes on the doctrine of ‘substance over form.”
3.4 IN U.S.A.USA does not have a general statutory anti-avoidance rule, rather depends on specific anti-abuse provision along with treaty clauses to deal with tax avoidance. However, in order to bring about uniformity in tax laws, US enacted section 7701(o) which codified the economic substance doctrine. The economic substance doctrine has been defined as a common law doctrine which does not allow certain tax benefit to a transaction that does not have economic substance or lacks a business purpose. The business purpose test is undertaken to identify whether the transaction has been undertaken only for tax benefit or it has some other business motive also? Along with this test comes the economic substance test. This test is similar to the ‘business purpose’ test as proposed in India.
In September, 2010, the Large Business and International Division of the Internal Revenue Service issued a directive for ensuring consistency in application of economic substance doctrine. It said that in case of application of the doctrine, it must be approved by the appropriate director of field operation at the examination level. The examiner must study the circumstance, i.e., must follow the substance over form doctrine to identify whether the doctrine is to be applied or not? The examiner also needs to inform the taxpayer that the examiner is thinking of applying the economic substance doctrine. Further, if the various conditions for applying the doctrine given in the directive are applicable and the examiner feels that the doctrine must be applied, then the taxpayer must be given sufficient time to explain his position either in writing or in person explaining his position whether the doctrine must be applied or not?
Thus, even if USA does not have general anti-avoidance rule, it has legislations that work in the same manner as the general avoidance rule in other countries in ensuring that incidence of tax avoidance is reduced.
3.5 IN U.K.
UK does not have any general anti-avoidance provision. The taxpayer is allowed to choose any transaction that will create least tax liability but it will have the same legal and economic consequences. The domestic law has legislations for dealing with specific unavoidable tax avoidance incidences.
A study group was constituted to analyze the need of GAAR in the UK. The study showed that introducing GAAR would not be beneficial for the UK. This is because it will put a curb on the ability of the business to choose sensible tax planning that will be beneficial for the taxpayer as well. However, it suggested that introducing GAAR for dealing exclusively with abusive tax arrangement would prove to be of help.
Both, UK and India, stand on the same footing as of now. Both these countries do not have any anti-avoidance rule. However, there is a big gap in the approach of both these countries for introducing GAAR. In UK, GAAR is being introduced with consultation from members of the tax department and the general public. India needs to learn this lesson from the UK.
CHAPTER-4GAAR AND LAW
4.1 PROVISONS OF GAAR IN INDIA
Chapter X-A of the Finance Act, 2012 contains provisions of the GAAR. Under the proposed GAAR, any arrangement entered into by an assessee may be declared to be an impermissible avoidance arrangement and the consequence of entering into such an arrangement may be determined from the proposed provisions.
Further, the Act says that an arrangement can be called as an impermissible avoidance arrangement, if the main purpose or one of the main purposes of entering into such an arrangement is to obtain tax benefit and such an arrangement creates rights, or obligations, which are not ordinarily created between persons dealing at arm’s length; results, directly or indirectly, in the misuse or abuse of the provisions of this Act; lacks commercial substance or is deemed to lack commercial substance and is not carried out in a bona fide manner. The onus of proving an arrangement as an impermissible avoidance arrangement is on the Revenue authorities. However, once the revenue authorities prove that the arrangement is an Impermissible Avoidance Arrangement, then the burden of proof shifts on the taxpayers to prove that the arrangement was entered into with a bona fide business purpose.
No prescribed norm has been laid down in the proposed GAAR to determine the main purpose of an arrangement. Reference, therefore, needs to be drawn from GAAR of other countries. The South African Revenue Services (SARS) Draft Guide to GAAR provides that the main purpose can be determined by analysing the facts and circumstances of the arrangement and not merely by the subjective purpose of the taxpayer in entering into such an arrangement, at the time of entering into the arrangement or subsequently.
4.2 GAAR AND FOREIGN INSTITUTIONAL INVESTORSThe Committee constituted to reintroduce General Anti Avoidance has further been asked also to examine the impact of the retrospective change in the Income Tax law on foreign institutional investors and portfolio investors. Amendments by way of GAAR have been proposed primarily targeting the much publicized case of Vodafone- Hutch deal.
VODAFONE INTERNATIONAL HOLDING v. UNION OF INDIA ; ANR (2012) 6 SCC 613
This is a case concerning an ‘indirect transfer’ of shares wherein Vodafone B.V. had made a 100% acquisition of CGP Holdings from Hutchinson Telecommunications International Ltd. (HTIL) and CGP Holdings controlled 67% of the stake in Hutchinson Essar Ltd. (HEL), which was an Indian joint venture. In 2007, CGP investment based at Cayman Island was an intermediary company of Hutchinson of Hong Kong. This CGP company’s investments had 67% shares of Hutch Essar India. Now when Vodafone bought CGP, they indirectly brought and became owner of Hutch Essar as well. The tax department was of the view that this transaction had the effect of indirect transfer of assets situated in India and thus tax liability arises for Vodafone.
In a battle that lasted five years, the fundamental issue before the Court was whether an offshore transfer of shares between two foreign companies that resulted in indirect transfer of shares of an Indian company could be taxed in India, given the fact that the foreign buyer (Vodafone B.V.) had acquired economic control over the Indian shares.
Bombay High Court ruled in favour of the Indian government but on further appeal by Vodafone to the Supreme Court, the decision turned in favour of Vodafone. In its landmark ruling, the Supreme Court ruled that profits arising out of such transfer of shares could not be taxed in India since it did not result in the transfer of a capital asset situated India. Interpreting Section 9(1) (i) of the Income Tax Act, 1961 (Act), the Court categorically held that the provision was not a ‘look through’ provision and hence, did not encompass ‘indirect transfers’. Further, it was observed that in order to determine the true nature of a transaction, the tax authorities must ordinarily take the ‘look at’ approach and should resort to the ‘substance over form’ rule only when it is established that the transaction is a sham. It was also held that in case of indirect transfers, the situs of the assets is located outside India and hence the transaction was not taxable in India. During the course of delivering the verdict, the SC had also made certain other observations, particularly that such transactions could only be brought under the tax net through an express legislation. Further, the SC dismissed the Indian tax authority’s jurisdiction over the offshore transaction and concluded that the Indian tax authorities did not have any right to levy tax on the “offshore share sale”.
In a haste to tax Vodafone, the Indian government amended Section 2(47) of the Act through Section 3 of the Finance Act, 2012 with retrospective effect, thereby rendering the verdict worthless and making Vodafone B.V. liable to pay tax. This harshness of the Indian government was severely criticized by investors and tax experts from all across the globe. Although the legislature through its amendment to the term ‘transfer’ sought to tax all indirect transfers, it did not provide for the meaning or definition of what ‘indirect’ would encompass. Disguised as ‘clarificatory’ and only to ‘remove doubts’, this amendment has not only floundered the established principle of ‘certainty’ in the rule of law but has also given a severe blow to foreign investment.
At present, the Income Tax department has served a notice upon Vodafone B.V. in respect of seizure of its assets upon non-payment of its tax liability which has now been doubled to include penalty and interest as well. such a move on part of the tax authorities reflects the complete disconnect between the policy makers and the implementers, thereby increasing the uncertainty surrounding the issue. The matter has thus been taken across the border and Vodafone has decided to pursue the same in arbitration against the Indian government.
4.3 VODAFONE JUDGEMENT- THE AFTERMATHThe government of India immediately filed a review petition against the SC judgment in the Vodafone tax case, and termed the judgment as one that suffered from many errors apparent on record and which failed to consider the case submitted by the Indian tax authorities. The SC dismissed the petition filed by the Indian government as without merit and needing no reconsideration.
The dismissal of the review petition signified the end of judicial options for the Indian government on the Vodafone transaction and led to a slew of tax policy changes resulting in retrospective amendments, domestic anti avoidance rules, new regulations to combat black money and culminating in India’s active role in global tax policy reform.
CONCLUSIONGAAR undoubtedly is a significant step towards diminishing tax avoidance, but keeping in view the thick and thin of its implementation the provisions of proposed GAAR can be assessed with both, narrow and wide view. The wider view asserts that the existing provision will prove to be sufficient in ensuring the reduction of tax avoidance arrangement only if applied and interpreted with due discretion in order to meet the desired objective.
However, when assessed with a narrow perspective the provisions of GAAR show-case certain loopholes. Some of these loopholes have been pointed out by the Committee set-up under the Chairmanship of Director General of Income-tax as well as by the expert Committee. They have suggested the corrective measures. These measures if incorporated will make GAAR even more effective. The guidelines for GAAR should leave no room for any kind of ambiguity in its implementation.
Underlying principle of these guidelines is to help tax authorities to curb the practice of tax avoidance and hence achieve the broader objective of overall public welfare. Revenue from taxes is the main source of finance for investment in projects for public improvement; therefore, any attempt aimed at avoiding tax cannot be appreciated.
It is worth appreciating that the Indian Legislature has taken a step ahead to deal with the growing number of instances of tax avoidance. Introducing such a provision in India will take India to the league of other nations having similar provision. GAAR as a provision in itself shall prove to be effective with the incorporation of suggestions and proper understanding of the recommendations by the authorities.
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