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Relief for Indian MNCs likely as government mulls diluting POEM rules
April, 28th 2017

Indian companies with overseas subsidiaries are likely to get some leeway around transfer pricing, withholding tax and advance tax requirements under the place of effective management (POEM) rules, two people with knowledge of the matter said.

The government is considering issuing a circular saying that these requirements won't apply to companies whose POEM is in India, they said. It would clarify that POEM is only for income declaration purpose in India, one of them added. Such a clarification is expected to stop trigger happy income tax officers from complicating matters for Indian multinationals.

POEM is a framework introduced by the government in the current financial year to determine the tax payable by a foreign company, including subsidiaries of local firms, which for all purposes is managed from India. Previously, such companies weren't required to pay tax in India unless its affairs were fully controlled and managed from this country.

As the rules stand today, Indian tax officers can demand that Indian multinationals, which they believe have POEM in India, to comply with all taxation regulations in the country. This, say experts, could create a lot of complications for many companies that have foreign subsidiaries. Responding to a questionnaire, a spokesperson for the Central Board of Direct Taxation said: "The circular (if any) to be issued by CBDT and its contents shall be made public after due vetting."

"Many Indian multinationals that have a POEM in India may face demands to withhold tax or have transfer pricing adjustments as ambiguity prevails around this in the current regulations. There are also issues around carry forward of losses, claim of depreciation, etc., relating to the past period," said Rajesh H Gandhi, partner, Deloitte Haskins & Sells LLP. "However, if the government comes out with clarifications on the transition provisions, it will provide clarity on applicability of POEM to Indian multinationals."

Industry trackers said there is a fear that some income tax officers may start raising tax demands under POEM on Indian multinationals if the ambiguity continues. There have been demands that the government scrap POEM altogether. While that may not happen anytime soon, the clarification, or transition circular, would effectively mean that POEM would be diluted to quite an extent.

Industry experts say as of now, foreign companies having a POEM in India will be obligated to do withholding tax compliance in respect of payments made to residents. However, they may not to be obligated to comply with dividend distribution tax compliance where the dividend is declared and paid outside India.

"If POEM is regarded in India and withholding has not been done, there would be adverse tax consequences for the financial year ending March 31, 2017. It may be helpful form the ease of doing business perspective if the government can issue a clarification that withholding tax obligations should not be applicable to foreign companies having PEOM in India," said Amrish Shah, senior adviser, transaction tax, EY. Many companies have already put in place a lot of structures whereby they hope to escape POEM regulations.

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