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Private equity funds' buyout deals may attract higher tax
June, 06th 2016

A May tax department circular giving tax officers freedom to determine whether buyout transactions are liable for higher tax is giving sleepless nights to the country's bulge bracket buyout funds.

A Central Board of Direct Taxes ( CBDT ) circular on May 2, which deals with sale of shares of unlisted companies, provides three exceptions to the general exemption of having your profits classified as business income under the provisions of the revised treaty with Mauritius. While generally, sale of unlisted shares is to be treated as capital gains, the circular says that local tax officials could have freedom to determine whether it can be treated as business income in three categories.

One such category is when a private equity holding a majority or controlling stake in a company sells its entire stake to a third party along with control of the underlying business.

Tax experts and private equity funds worry that income-tax officers could categorise the profits or gains from exiting the investment as business income instead of capital gains and that they may have to pay higher tax.

The revised Mauritius treaty has a grandfathering clause that protects past investments but business income does not fall under the provisions of grandfathering and there is no protection.

"The recent spate of circulars seeking to give clarity on tax matters is commendable; and so is this circular regarding characterisation of income from sale of unlisted shares," said Ketan Dalal, managing partner (West), PwC India. "However, the discretion given to assessing officers in relation to income characterisation on sale of majority/controlling stake (ie business income or capital gains) seems quite baffling. It should be capital gains anyway," said Dalal.

While no notices have been sent as yet, as the circular has just come in, the fear is that assessing officers could scrutinise private equity deals.

"Though the CBDT clarification asks the tax officers to take an appropriate view in the three exceptions, as per our experience the officers would invariably take a view that wherever these situations arise, it would be treated as business income. Therefore, whenever there would be a transfer of unlisted shares along with the control and management of underlying business, the tax officer invariably in all such cases would treat the income arising from such transfer as business income and not capital gains," said Amit Maheshwari, Partner Ashok Maheshwary & Associates LLP.

Industry experts say since what would constitute transfer of control could be subjective and would vary from transaction to transaction, this can potentially turn litigious. So if a PE exits a company where it holds a majority stake or has a management control, it could face tax of anywhere around 20%. The additional levy could mean that the returns of the funds could be adversely impacted.

Most private equity players in India had always focused on buying anywhere around 15% stake. However, since 2013 many funds have been actively concluding deals where they hold a majority stake. PE majors like KKR, TPG and Blackstone amongst many others have either invested through buyout deals or have plans to do so.

The uncertainty has also caused some PE players to delay exits from investments. "As it is there is a concern over the returns, if the investment attracts tax, our returns would be impacted," said a fund which had bought majority stake in two Indian firms in 2014 and 2015. "We were looking to sell some stake in at least one of the companies, but the uncertainty over taxation is worrying," he said.

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