Wednesday, February 6, 2008

SHORT SALES - TAX ANGLE

BL ISSUE of 07-02-08

Short sales tax angle: CBDT wants system in place first

Contra point
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference, especially for the foreign institutional investors.

K.R.Srivats
New Delhi, Feb 6

The Central Board of Direct Taxes (CBDT) wants to clarify or spell out the tax implications of short-selling and securities lending and borrowing by institutional investors only after a full-fledged securities lending and borrowing (SLB) scheme is put in place by the stock exchanges.
The Securities and Exchange Board of India had in December last year said that the SLB scheme would be within the overall framework of “Securities Lending Scheme 1997.”
Although institutional short-selling was to start on February 1, 2008, it has been delayed reportedly on account of want of clarification from the CBDT on certain taxation aspects.
When contacted, official sources in the revenue department said that the CBDT could clarify or spell out the tax implications only after the SLB is put in place.
“How can one decide on the tax implications unless one knows for sure how the borrowing and lending scheme is proposed to be played out. Taxation is only incidental and subsequent issue. That cannot be a reason why an independent regulatory body should hold the implementation of institutional short selling,” sources said.
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference especially for the foreign institutional investors.
“FIIs would like clarity on whether short-selling and the profits made from them would be treated as trading profits or capital gains. It would be big issue for entities, say from Hong Kong, which do not enjoy treaty protection. Any decision to treat them as trading profits would imply a tax rate of 42 per cent. Moreover, there is also the risk that their entire income (not only from short selling) would be treated as trading profits,” Mr Hiresh Wadhwani, Partner (Financial Services), Ernst & Young, told Business Line.
Initially, contracts with a tenure of seven trading days are proposed to be introduced. Apart from the characterisation of income (trading profits or capital gains), sources said that there are taxation issues such as levy of securities transaction tax on the lending and borrowing side of the transactions. There is also an issue whether short selling would be considered as “speculative” transactions by the tax department.
“Whether STT is applicable on borrowing of securities or not should be spelt out,” a tax expert said, although many felt that STT will not apply for lending and borrowing of securities even if these are done through the stock exchange platforms.

Related Stories:SEBI willing to review share margin requirement system
SEBI firm on short-selling

COMMENT:
----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Thursday, February 07, 2008 8:34 AM

Contra point
Some tax experts, however, point out that there are taxation issues on which clarity from the tax department could make a huge difference, especially for the foreign institutional investors.

IS NOT THE LEGAL POSITION ON THE SUBJECT MATTER (TAX CONSEQUENCES ON 'TRANSFER' OF STOCK) ALREADY MUDDLED UP TO THE MAXIMUM EXTENT HUMANLY POSSIBLE, BY REASON OF THE DEPARTMENTAL CIRCULARS HITHERTO ISSUED IN THE RECENT TIMES?

DOES NOT THE EXPECTATION OF, OR DEMAND FOR, ANY CLARITY FROM THE TAX DEPARMENT ON THE 'POINT' BEAR TESTIMONY TO THE IMMATURITY IN THE THINKING BEHIND??

BE THAT AS IT SHOULD, IS IT NOT A MATTER IN WHICH THE GOVERNMENT IS LEFT WITH RATHER A HOBSON'S CHOICE (!) -'BETWEEN THE DEVIL AND THE DEEP BLUE SEA'???

WHY THERE IS SCOPE FOR THE TAX EXPERTS TO AT ALL BONAFIDE BELIEVE THAT THE PRESENT PROVISIONS OF THE INCOME-TAX LAW ARE NOT CLEAR ENOUGH, GIVING RISE TO NEED FOR ANY CLARIFICATION WHATSOEVER ON THE 'POINT' ????

V Swaminathan
(vswami@vsnl.com)

PS: Of relevance:

CBDT Cir. 751 Dt. 10-02-07 (224 ITR (St.) 1

Also for wealth of guidance/foreign literature, see: Google - Lending of Securities -Tax consequences

Tuesday, January 8, 2008

TRANSFER PRICING REGULATIONS

Opinion - Financial Policy

Some ‘pain points’ for the Finance Minister

With the Finance Minister in the midst of a summation of earlier Budgets, here are some irritants in the tax system that need to be addressed at the earliest, to prevent harassment of the genuine taxpayer.

G. Srinivasan

The Finance Minister, Mr P.Chidambaram, is in the midst of making a summation of all his earlier budgets, for Union Budget 2008-09. With the UPA Government facing general elections in 2009, expectations run high of a populist Budget, also reinforced by the results of the recent Gujarat and Himachal Pradesh assembly elections where the BJP cruised back to power comfortably. A cursory glance at the mid-year review of the economy, presented to Parliament by Mr Chidambara m on the last day of the winter session, and the subsequent endorsement to the Eleventh Plan by the National Development Council on December 19, showed that for greater inclusive growth, there is a clear need to foster the fiscal space.
……………

Transfer pricing
Under Sections10A and 10B, tax exemption is granted on the incomes of 100 per cent export-oriented units (EOUs) and units in special economic zones and software technology parks (STPs) doing IT business to service overseas customers. But the provision of transfer pricing, which is made applicable to these units, poses difficulties. There is scarcely reason to subject these cases to transfer pricing since their entire income is exempt. Yet even these units are made to fork out tax because of the adjustments made by the transfer-pricing officer to declared income. Hence units claiming exemptions u/s 10A and 10B should be removed from the purview of transfer pricing regulations.
……………..

FROM V SWAMINATHAN

vswami@vsnl.com
----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Wednesday, January 09, 2008 9:12 AM
Subject: Fw:

----- Original Message -----
From: ramsunders
To: blfeedback@thehindu.co.in
Sent: Wednesday, January 09, 2008 9:03 AM
Ref. - TRANSFER PRICING:

IT IS FOR ANYONE TO SEE THAT, -

Ø MOSTLY, IN THE TREATIES, THERE ARE PROVISIONS ESPECIALLY DEALNG WITH (A) BUSINESS PROFITS, AS ALSO CERTAIN OTHER INCOME, AND (B) “ASSOCIATED ENTERPRISES”.

Ø AS PER THE SETTLED LEGAL POSITION, THOSE SPECIAL TREATY PROVISIONS SHOULD HAVE AN OVERRIDING EFFECT / OUGHT TO PREVAIL, IF / AS THE CORRESPONDING PROVISIONS OF THE IT ACT ARE NOT BUT INCONSISTENT/ INCOMPATIBLE THEREWITH.

ON THE AFORESTATED PREMISE, A MORE BASIC BUT “ACUTELY PAIN (FUL) POINT” REQUIRING TO BE POSED TO THE HONOURABLE FM IS THIS:

WHY AT ALL THE TRANSFER PRICING REGULATIONS AS PER THE IT ACT MUST BE OF RELEVANCE SO AS TO APPLY, IF THEY PRIMA FACIE ARE INCONSISTENT WITH THE SPECIAL PROVISIONS OF THE COMPREHENSIVE TAX TREATY INDIA HAS WITH THE COUNTRY OF WHICH THE NON-RESIDENT (FOREIGN) ENTERPRISE (IN RELATION TO WHICH THE OTHER ENTERPRISE, BEING A PARTY TO AN INTERNATIONAL TRANSACTION, COMES TO BE TREATED AS AN “ASSOCIATED ENTERPRISE”) IS A RESIDENT?

Going by past experience, it seems quite unlikely that, the relevant provision (the Proviso) having been consciously brought in on the statute, any such suggestion as made in the write-up for an amendment of the law would be favorably looked into, or even been made a serious note of, by the government.

Instead, should not the concerned assessees try and seek legal recourse by resting/ pivoting their pleas on the treaty provisions!

NOTE: Some of the points made in my published articles on the subject of transfer pricing (see the Taxmann website) may be found to provide some clues.

Saturday, October 27, 2007

DOWN TO EARTH

BUSINESS LINE, OCT. 27, ‘07

“Grounded Airbus offers in-flight experience” made for an interesting reading; rather an experience.

One’s guess is, Gupta, the ex-Pilot must be a down to earth person. He deserves to be complimented for his chivalrous disposition; and, more so, for his simplicity personified.

Primarily, for providing an in-flight experience to those who could not afford to take to the air, but at the same time minus the otherwise attendant perils; such as, besides a throbbing heart, bird-hit, engine failure, running out of fuel, etc., etc., often leading to an emergency landing.

By the way, do u happen to have ever made a curious notice of that Man who takes it into his head to stir out, and walk up and down the aisles of the plane in the air; with seemingly no purpose. That too, even while one could hear an alert to the passengers to fasten their seat belts, or to remain seated so as not to inconvenience the fight staff serving food, so on and so forth. More particularly, the air, which he wears on his person – may be, just to impress upon the others fastened in their seats that he belongs to that rare species of the so-called frequent fliers. But at whose cost? – most probably, of his employer or the government.

Is the FM listening!

PS: That Man obviously is from the other extreme; far away from the down to earth.

Friday, October 26, 2007

HOME, SWEET HOME!!

SO LONG AS ONE, ESPECIALLY IF HE LIVES IN A CITY LIKE BANGALORE (NOTABLY, OF LATE DECLARED “A CLASS ONE CITY”), REMAINS WITHIN THE FOUR WALLS OF HIS HOME - PROVIDED, OF COURSE, HE CAN AFFORD TO DO SO, BUT NOT COMPELLED TO DO OTHERWISE- HE COULD LIVE IN PEACE, BOTH OF MIND AND BODY; ALSO BE AT PEACE WITH SELF.

ONCE HE GETS OUT OF HIS HOME AND STEPS ON A PUBLIC ROAD, HE SELDOM COULD BE ASSURED OF ANYTHING, INCLUDING HIS OWN GOD-GIVEN LONGIVITY.

WITH THE EVER INCREASING INDISCIPLINE AND GROSS DISRESPECT FOR THE RULES OF THE ROAD ON THE PART OF ITS USERS, PARTICULARLY THOSE RIDING OR DRIVING A VEHICLE (BE IT A SO CALLED 2 OR 3 OR 4 WHEELER), THEY TAKE CONTROL OVER YOUR DESTINY; THEREBY RELIEVING THE CREATOR HIMSELF FROM HIS SELF-IMPOSED RESPONSIBILITY FOR SUCH CONTROL.

MAY BE, SO IS THE LAMENTATION ONE OFTEN HEARS FROM THOSE ESPECIALLY IN THEIR ADVANCED AGE.

THE YOUTHS OF TODAY, EVEN IF HE IS OF MIDDLE AGE, HAVE NO TIME TO SPARE OR CARE, MUCH LESS TO REFLECT ON SUCH THINGS.

THE MORAL OF THE STORY IS, - OLDIES HAVE NO BUSINESS TO VENTURE OUT OF THEIR ABODE.

WAYS OF LIFE

WHILE ON A MORNING WALK, AN OLD MAN WHO BELIEVED IN, RATHER WAS PROUD OF, HIS OWN WORLDLY WISDOM, BEING DEPRESSED BY WHAT WAS HAPPENING ALL AROUND, FACING A PASSERBY, A SEEMINGFLY BUSY BODY, LAMENTED: THERE IS NO SALVATION AT ALL FOR OUR COUNTRY!

TO BE ONLY CONFRONTED WITH A REPARTEE: WHY NOT! YOU SIMPLY NEED TO QUIT THE COUNTRY!

(PROVIDED, OF COURSE, ONE CAN SUGGEST A BETTER PLACE ANY WHERE AROUND THE GLOBE! ; EXCEPT THE ARCTIC, OR THE SNOWCAPPED PEAKS OF THE ALPS OR HIMALAYAS) –

INTENTIONALLY YOURS, IN THE SMALLEST FONT

Friday, September 21, 2007

My Unpublished Letters (contd)

4. OH! LORD RAM!

E'mailed to TOI on 09-18-'07 :

Ref. "Lord Ram is imaginary : MK" (Sep. 18). In today's context , any one , perhaps except a few such as VIPs, is obligated to keep ready and tender a proof of one's own (photo) identity, even for trivialities like delivery of a mail by a courier.

No wonder MK has demanded a proof of -
Ram' s identity and His qualification in engineering!

PS: THOU, THE CREATOR THYSELF, ART NOW AT THE MERCY OF NONE OTHER THAN THE ONE CREATED BY THEE!!

ANYWAYS, IS THAT NOT THE WAY OF TODAY'S WORLD ???!!!

DOES THAT "I" IN "VIP" / "VVIP" STAND FOR THE PROVERBIAL "I ? " WHICH HAS REMAINED TO HAUNT THE MINDS OF THE SOCALLED SEEKERS OF THE TRUTH OF LIFE OF MORTALS , FOR EVER ?

IS IT NOT A CRYING NEED OF THE HOUR THAT WE SHOULD NOW HAVE ONE MORE CATEGORISATION - "VVVIP"?

Wednesday, September 12, 2007

3. E'mailed to Business Line on 08-23-'06

QUOTE

This refers to "SEBI to resume UIN registration" (Business Line, August 23). As regards PAN, under the Income-tax Act/Rules, it is made mandatory, only in the case of, among others, a person chargeable to income-tax and if the value of any of his transactions in ecurities/shares exceeds the minimum prescribed (Rs 1 lakh/50,000). However, SEBI has, ignoring the aforesaid basic criteria, issued two directives purporting to make PAN mandatory for all demat account holders and all entities/persons transacting in the cash market, effective from 1st October 2006. As such, the directives, in so far as they mandate PAN on a blanket basis, contrary to /overstepping what is provided in the Income-tax Act/Rules are prima facie in excess of the powers of SEBI.

As regards UIN, this is going to simply add to the already existing list of several identification numbers for different purposes, including direct and indirect taxes, passport, electoral roll, etc., but may eventually serve no significant purpose. For, as past experience might have demonstrated, the present regime of several identification numbers has the necessary consequence of the utility or efficacy of all or many of them being diluted. Instead, why not our country emulate the wisdom of Singapore, where every person is, right from his birth/coming into being, compulsorily allotted a single identification number (known as NRIC) and required to quote it for almost all practical purposes, governmental or otherwise? As that might, for obvious reasons, ensure the sole underlying objective of an overall effective governance and enforcement.

UNQUOTE

PS: According to a rcent media report, the value of the demat accounts frozen pursuant to SEBI's mandate on PAN run into over a lakh of crores in rupees (?).

Tuesday, September 11, 2007

SWAMILOOK

My Unpublished letters (contd)

2. E'mailed to TOI on 09-02-'07

QUOTE:

THE REPORED BAN ON YOGA BY A COUPLE OF CHURCHES IN UK, COMMENTED ON BY SRI SRI AS UNFORTUNATE (TOI , SEPTEMBER 2), DESERVES TO BE RANKED AS THE MOST CRUEL JOKE OF ALL TIMES. THE PERPETRATORS OF THE BAN OUGHT TO HAVE REALISED THAT IT IS NO DIFFERENT FROM ANYONE TRYING TO BAN, THAT TOO IN THE NAME OF RELIGION, THE GOD-GIVEN PULSE RATE OR BREATHING RATE OF HUMANS.

UNQUOTE