Tax Planning In India: Start With A Crystal Ball

For a company that does business internationally, it’s always a challenge to keep track of all relevant national tax laws. A firm operating in India, however, needs more than just smart financial and legal advisors; it needs a crystal ball.

Indian legislators recently passed a bill that retroactively imposes $7 billion in taxes in connection with about 18 corporate mergers that were not subject to Indian tax at the time they occurred. The law affects deals in which Indian assets were transferred between non-Indian companies.

India has already tried to collect taxes on at least eight of these deals, including the acquisition of a controlling interest in Hutchison Whampoa Ltd.’s Indian operations by the Dutch subsidiary of U.K.-based Vodafone Group PLC in 2007. In addition to seeking a tax bill of around $2.2 billion on the $11 billion deal, India demanded penalties that might have doubled Vodafone’s liability. Vodafone took the case to India’s Supreme Court. The court ruled earlier this year that the company didn’t owe Indian taxes because Hutchison’s Indian assets were held by a unit registered in the Cayman Islands, meaning no Indian companies were involved.

At the time of the ruling, experts already expected that India’s new tax code, set to be implemented in 2013, would subject similar future deals to tax in India. But the Indian parliament went a step further, amending the country’s 1962 Income Tax Act to make it as if the new taxes had been in effect all along.

This is not the first time India has ensnared a foreign company with a law that seems to require precognitive powers or the aid of a time machine. Last year, the country sought to deny the American telecommunications company Qualcomm, Inc., the right to use broadcast spectrum licenses after it had already collected nearly $1 billion from Qualcomm (QCOM) in an auction. Qualcomm finally got its spectrum last month, nearly two years after the auction, but its usage period is now down to 18 months. The company has entered into a deal to transfer ownership of its Indian assets to Bharti Airtel Ltd., India’s largest mobile operator, by the end of 2014.

Vodafone has indicated that it intends to seek international arbitration on the grounds that the retroactive taxes violate an India-Netherlands investment treaty.

Vodafone is right to stand up for its interests, but it should not be required to stand alone. As I wrote at the time of the Qualcomm dispute, individual companies, no matter how big they are, cannot be expected to go head-to-head with sovereign nations. When a country abuses its rulemaking power at foreign companies’ expense, national governments (and, in the case of European firms like Vodafone, the European Union) have a responsibility to defend the rights of their enterprises and those enterprises’ shareholders around the globe.

Perhaps the international community is already working behind the scenes to deal with India’s undue affinity to foreign companies’ money. There is a place for quiet diplomacy. The fact that this is a recurring problem, however, indicates that if diplomatic pressure is being applied, it is not being applied very effectively.

Until the international community signals that it is dealing seriously with India’s game-playing, or until the Indian government recognizes that a stable regulatory environment is the best way to attract much-needed foreign investment, businesses would be well-advised to approach the country with caution. Or to invest in a fortune-telling department.

About Larry M. Elkin 559 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

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