Presentation on dtaa by sirc institute of ca dt.14 3-09

SIRC of ICAI, Chennai Certificate Course on DTAA PRESENTATION ON PARTNERSHIPS UNDER THE LAW OF TAX TREATIES Presented by: Mr. Paresh P. Shah P.P. Shah & Associates Chartered Accountants Email: paresh@bom3.vsnl.net.in

OVERVIEW Meaning of Partnership Taxation of Partnership Firms under Domestic Laws. Partnership under Treaty Laws Application of double Tax Convention – Issues OECD Report Commentary to the OECD model Uses of Partnership – A Hybrid entity. India’s Tax Treaty & Partnerships Legal Position LLP Act, 2008 Partnership Act, 1932

Meaning of Partnership Dictionary Meaning : Oxford The State of being Partner or Partners An association of two or more people as Partners The number of runs added by a pair of batsman before one of them is dismissed or the inning ends. International Tax Glossary , [IBFD 5 th Edition] An association of two or more persons (individuals or in some cases companies) established for the purpose of making a profit, the profit (or loss) being shared among the partners in predetermined proportion.

Meaning of Partnership Cont’d… OECD Entities that qualify as such under civil and commercial law as opposed to tax law. Civil & Commercial Law Partnership Act, 1932 Companies Act, 1956 LLP Act, 2006 These law decides as to Juridical Person or not

Meaning of Partnership Cont’d… Classification of Entity as Partnership – Characteristic Non Tax: - Is legal Person - Perpetual Succession - Need of Registration - Profit motive - Who owns asset & assumes liabilities - Who is bound by action of partners - Management of

Meaning of Partnership Cont’d… Classification under general laws Under Civil Law jurisdiction Formal Partnership is a Legal Person, Informal is not a Legal Person, Types - Three major types are General Partnerships Limited Partnerships Limited by Shares

Meaning of Partnership - Types General Partnership No Share Capital No Separate Management Unlimited Liability Not a Separate Legal Entity

Partnership – Types Cont’d… Limited Partnership Two types of Partners, General Partners and Limited Partners, atleast one of each type General Partner is normally involved in day to day work, Limited Partner is restricted General Partner is jointly and severally liable for obligation of the Partnership. Limited Partner make contributions and his/her liability is limited to such contribution Limited Partner shares in the profits of the partnership

Partnership – Types Cont’d… Partnership - Limited by Shares Generally, it is a company that combines the features of Limited Partnership. Where liability of atleast one member is unlimited Liability of other members limited to their Share Capital

Partnership – Types Cont’d… Silent Partnership Similar to Limited Partnership Identity of silent partner may not be made Public Liability limited to fixed percentage of debts or limited to contribution

Partnership under Taxation Laws - Classification Important classification: Two types 1. Taxable 2. Fiscally transparent Terminology for Entity Legal Entity, person and legal person Body (Civil & Common Law) Unit (OECD commentary) Foreign Business Organisation (Inland Revenue UK)

Partnership under Taxation Law - Classification Terminology Non-transparent Transparent Taxed as Company Taxed as Partnership Legal entity Pass through Taxable Unit Fiscally Transparent Separate taxable entity Flow through Non Transparent Disregarded Opaque Transparent

Taxation Law - Country Approach Taxed as corporations Election to be taxed as corporation Taxation of Partners/Members collected from partnership Taxation as fiscally transparent entity

Taxation of Partnership Firms - Double Tax Convention (DTC) Introduction to issues of International taxation Is Partnership entitled to DTC benefits If not, are the partners entitle to those treaty benefits What treaty Articles are applicable Issues when States involved, decides, different classification of the entity Conflict of qualification

Taxation under DTC-Introduction OECD Report Committee on Fiscal Affairs published a report entitled “Issues in International taxation”, The application of the OECD Model Tax Convention to Partnerships (the Report) Partnership according to Civil or commercial laws System of taxation where both Residency and Source give rise to taxation, there are risk of Double taxation or non-taxation associated with a) the different classification of a given entity in the State of Residence and the State of Source b) the different tax treatment in these States of a given entity despite common classification

Taxation under DTC - Treaty benefits Relevant Articles in OECD/UN models Art.1 Persons covered The convention shall apply to Persons who are residents of one or both of the contracting States Art.3(1)(a) Persons Art.4 Resident Art.2 Taxes Covered

Taxation under DTC - Treaty benefits Persons An Individual, a Company and any other body of persons [Art.3(1)(a)] A Partnership is a person. A Partnership is either a company or an other body of persons [Commentary to Article 3 at paragraph 2]

Taxation under DTC - Treaty benefits Resident: [Art.4(1)] Any person who under the laws of the that State is liable to tax therein by reason of his domicile, residence, place of management, or any other criterion of a similar nature Partnership: If treated as a company liable to corporate taxation therefore Resident and therefore may claim treaty benefits Fiscally transparent  not liable to tax  not a Resident May not claim tax benefits under DTC Members of the Partnership - may claim the treaty benefits Mixed character: Benefit is doubtful

Taxation under DTC - Partnership Report Paragraph 40 of 1999 report “For the purposes of determining whether the partnership is liable to tax the real question is whether the amount of tax payable on the partnership income is determined in relation to the personal characteristics of the Partner”

Taxation under DTC OECD Model conventions on Partnership Article 1: Paragraph (2) to (6.7) Article 3: Paragraph (2) and (10.1) Article 4: Paragraph (8.2) to (8.4) Article 5: Paragraph (19.1) Article 15: Paragraph (6.1) and (6.2) Article 23: Paragraph (32.1) to (32.7), (56.1) to (56.3), (69.1) to (69.3)

Taxation under DTC – Conflict of Attribution (CoA) Different classification of entity in State Source by Partners in R (Resident) State Treating entity as taxable instead of non taxable Non taxable instead of taxable Conflict of qualification Income treated differently when paid to partner

Taxation under DTC: CoA-I State R State P State S Taxable Entity Transparent Transparent Business Profits (NO PE) State P & S treats, P as transparent therefore treats A & B as tax payers, whereas State R allocates income to P as it treats the entity as taxable and therefore income is not liable to tax in State R. Partnership Partner A Partner B

Taxation under DTC: CoA-II State R State P State S Transparent Taxable Business Profits (NO PE) State S & P treats P as taxable so income is taxed by State P. State R treats it as transparent, tax is paid by A in State R Subsequently when dividend is paid by P, withholding tax in State P will also apply Partnership Partner A Partner B

Taxation under DTC – Conflict of Qualification (CoQ) State R- Transparent State P- Transparent Business Profits State R treats receipt as profit State S treats the payment as Interest Partnership Partner A Partner B Loan Interest Share of Profit

Taxation under DTC (CoQ) Partner A is entitles to P-R DTC, there is disagreement between State R & State P as to which provisions of the DTC are applicable? State P is a Source State applies its DTC and treats the payment as interest from partnership. It also determines that A being a tax payer in State R, Art.11 of DTC will apply to A to restrict with holding @ 10%. Under DTC of A, it is not a interest but business profits taxable under Art.7 Consider Exemption method in State R Also consider if no withholding on interest income in State P.

Taxation under DTC (CoQ) State R-Transparent State P-Transparent Business Profits Here State P considers the payment as distribution of share of Partner A and therefore Art.7 can be applied by State R. State R however considers it as receipt of Interest subject of Art.11 of the DTC. Consider application of Art.23A or 23B for credit method applicable to receipt of interest credit of taxes cannot be more than what is permitted under Art.11(2) Consider no withholding tax under Art.11(2) of the DTC. Partnership Partner A Partner B Loan Interest Profit

Triangular Situation – Partnership with Sub PE R State P State S State Transparent Austrian Partners have Constituted PE as per the Austria-Germany tax treaty Germany can tax only profits allocated to PE in Germany How profits of UK PE & SW PE can be allocated, to German PE or to Austrian Resident under Austria-UK or Austria-SW tax treaty? Austrian Partners Germany PE in UK PE in SW for 13 months 13 months Germany Partnership a PE of Austrian Parent

Taxation under DTC – Advantage of Partnership US Co. is profitable, its subsidiary (100%) in France, F Co., is making losses and it is expected to continue making losses for couple of years. The legal form of F Co. is SA, a corporation under US check the box Rules, US Co. wants to check the box for F Co.?

Income Tax Act,1961 (ITA) & Partnership Tax law recognizes various entities Company (including foreign company), Partnership Firm, AOP No specific rules on circumstances under which an foreign entity would be classified as company/partnership/ AOP (or even disregarded) Determination would have to be based on legal characteristics of the entity based on foreign law • Can create practical as well as technical difficulties in determination

Entity Classification can have bearing on the following: Determination of residency Eligibility for treaty benefits Nature of income derived by entity/ members and tax treatment thereof Application of provisions in the Act which are entity specific ITA

India-U.S. Tax Treaty Article 4(1)(b): The term “resident” means any person who, under the laws of that [residence] state, is liable to tax therein ... provided, however, that in the case of income derived or paid by a partnership… this term applies only to the extent that the income derived by such partnership…is subject to tax in that state as the income of a resident, either in its hands or in the hands of its partners… Issues arising from the treaty: Under which state's laws is it determined whether the entity is a partnership? When is income derived by a partnership “subject to tax” in the residence country? To what extent does the treaty apply when the entity is established in a third state? Can a U.S. LLC which has elected to be taxed as a partnership be eligible for treaty benefits?

Application of India-U.S. Tax Treaty – Inbound Case US LLC “checks-the-box” and taxed as transparent entity in U.S. U.S. Member taxed on interest India likely to regard LLC as “foreign company” LLC not liable for U.S. tax by virtue of election LLC may be denied treaty benefit as it is not a “resident” 1996 U.S. Model Treaty could prevent this result U.S. Member Ind Co Interest U.S. LLC

IndCois member in US LLC which owns US Corp US LLC earns dividends from US Corp US LLC “checks-the-box” and taxed as transparent entity in US but as a taxable entity for India IndCo not liable for residence country tax on LLCs income Treaty benefits may be denied Similar result likely under 1996 US Model Treaty Application of India-U.S. Tax Treaty – Outbound Case Ind Co U.S. Corp Dividends U.S. LLC

India-U.K. Tax Treaty Article 3(1)(f): Partnership not considered as a “person”for purpose of treaty, subject to exception in Art. 3(2) Article 3(2): A partnership treated as a taxable unit in India shall be treated as a person Issues arising from the treaty: Applicability of treaty benefits to U.K. general partnerships? Applicability of treaty benefits to U.K. LLPs? Can a U.K. partnership be treated as a taxable unit in India and quality for treaty benefits?

Tribunal High Court Rulings on Taxation of Law Firms DCIT v Chandbourne & Parke LLP (2005) 93 TTJ 734, Maharashtra State Electricity Board v DCIT (2003) 90 ITD 793 [Freshfields case], Clifford Chance UK v DCIT (2002) 76 TTJ 725, IT Appeal 181 decided by Bombay High Court on 26 th Dec’2008, High Court in its decision following the Judgement of Supreme Court in Ishikawama Harima 288 ITR 408 held that if Services are rendered within India and are part of Business or Profession of such Non-Resident Person in India then only such services will be chargeable to tax in India. Taxability to be determined under Article 15 (Independent Personal Services) of the treaty Law Firms taxable if they had a fixed base or if any of its personnel spent more than 90 days in India for providing services Multiple counting of common days to be avoided for measuring 90 day test Residency of partnership and applicability of treaty not discussed in the rulings

Country practices I Partnerships are always regarded as liable to tax France does not agree that when treaty application is refused to a partnership, the partners would always be entitled to the treaty benefits.

Country practices II Canada – Germany Treaty Article 29 Miscellaneous rules 2. It is understood that nothing in the Agreement shall be construed as preventing: (a) Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust or controlled foreign affiliate, in which that resident has an interest;

Country practices III Art. 7 (6) Germany – Kazakhstan This Article shall also apply to income from participation in a partnership. It shall further apply to remuneration received by a partner from the partnership for activities in the service of the partnership and for the granting of loans or the provisions of assets, where such remuneration is attributable under the tax law of the Contracting State in which the permanent establishment is situated to the income derived by a partner from that permanent establishment.

Country practices IV Protocol Finland – Germany (a) With respect to a partnership resident in the Republic of Finland, the following shall apply: (i) Income from sources within the Federal Republic of Germany may be taxed in that State; however, to the extent it can be attributed to the participation in the partnership of a person who is not a resident of the Federal Republic of Germany, Articles 6 through 17 and 21 of the Convention shall apply; this income may be taxed in the Republic of Finland, but a taxcredit is granted in accordance with Article 23, paragraphs 1 and 6 of the Convention. (ii) Income from sources within the Republic of Finland may be taxed in that State; however, if they can be attributed to the participation in a partnership of a person who is not a resident of the Republic of Finland, Articles 6 through 17 and 21 of the Convention shall apply; for the taxation in the Federal Republic of Germany, this income is treated in accordance with Article 23, paragraphs 5 and 6 of the Convention. (iii) Income from sources other than those mentioned under (i) and (ii) which: -- can be attributed to the participation in a partnership of a person who is not a resident of the Federal Republic of Germany may only be taxed in the Republic of Finland; -- can be attributed to the participation in a partnership of a person who is a resident of the Federal Republic of Germany may only be taxed in that State.

Country practices IV Protocol provision I Netherlands – Poland In case an entity that is treated as a body corporate for tax purposes is liable as such to tax in a Contracting State, but the income of that entity is taxed in the other Contracting State as income of the participants in that entity, the competent authorities shall take such measures that on the one hand no double taxation remains, but on the other hand it is prevented that, merely as a result of application of the Convention, income is (partly) not subject to tax.

Country practices V USA Check the box rules Regulations sections 301.7701-2 and 301.7701-3 Right for eligible entities to elect to be treated as a company, as a partnership or to have the entity disregarded altogether

Indian Partnership Act, 1932 & LLP Act, 2008 Particulars Liability of Partners Registration Limited Liability Partnership Limited to the extent of Capital Contributed by each Partner No Personal liability except incase of Fraud, Wrongful act, etc. LLP is incorporated under LLP Act and incorporation is mandatory Partnership Unlimited Personal liability of each Partner Can be registered. Registration is not compulsory

Indian Partnership Act, 1932 & LLP Act, 2008 Particulars Agreement Legal Status Participation Limited Liability Partnership Incorporation document essential It is a legal entity separate from its partners, having perpetual succession Each partner can take part in business of LLP, but agreement can provide to the contrary Partnership Written agreement is not essential Not a legal entity separate from its partners Each partner can take part in the business of firm but agreement can provide to the contrary

Indian Partnership Act, 1932 & LLP Act, 2008 Particulars Mutual Agency Liability for Statutory Compliance Limited Liability Partnership Every partner of LLP is an agent of LLP but not of other partners. Thus he can bind LLP by his acts but not other partners Only designated partners are liable Partnership Every partner of the firm is agent of firm and also of other partners. He can bind partnership firm as well as other partners by his Acts All partners are liable

LLP & ITA Whether a person as defined u/s. 2(31) A legal person under Civil Law A separate taxable unit as it is liable to taxed in India Other attributes of taxable entity

Presentation on dtaa by sirc institute of ca dt.14 3-09

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Presentation on dtaa by sirc institute of ca dt.14 3-09