PLACE OF EFFECTIVE MANAGEMENT
CLARIFICATORY CIRCULAR BY GOVERNMENT OF INDIA
CLARIFICATORY CIRCULAR BY GOVERNMENT OF INDIA
Circular No. 06 of 2017 / F. No. 142/11/2015-TPL / Government of India / Ministry of Finance / Department of Revenue / Central Board of Direct Taxes / Dated: 24th January, 2017
Section 6(3) of the Income-tax Act, 1961 (the Act), prior to its amendment by
the Finance Act, 2015, provided that a company is said to be resident in India
in any previous year, if it is an Indian company or if during that year, the
control and management of its affairs is situated wholly in India. This allowed
tax avoidance opportunities for companies to artificially escape the residential
status under these provisions by shifting insignificant or isolated events
related with control and management outside India. To address these concerns,
the existing provisions of section 6(3) of the Act were amended vide Finance
Act, 2015, with effect from 1st April,2016 to provide that a company is said to
be resident in India in any previous year, if-
(i) it is an Indian company; or
(ii) its place of effective management in that year is in India .
2. "Place of effective management" is defined in the Act to mean a place where
key management and commercial decisions that are necessary for the conduct of
the business of an entity as a whole are, in substance, made.
3. The Finance Act, 2016 has changed the effectivity of the said amendment to
section 6(3) of the Act. Therefore, the amended provision would now be effective
from 1st April 2017 and will apply to Assessment Year 2017-18 and subsequent
assessment years.
4. 'Place of effective management' (POEM) is an internationally recognised test
for determination of residence of a company incorporated in a foreign
jurisdiction. Most of the tax treaties entered into by India recognises the
concept of 'place of effective management' for determination of residence of a
company as a tie-breaker rule for avoidance of double taxation. The guiding
principles to be followed for determination of POEM are enumerated in the
following paragraphs.
5. For the purposes of these guidelines, -
(a) A company shall be said to be engaged in “active business outside India” if
the passive income is not more than 50% of its total income; and
(i) less
than 50% of its total assets are situated in India; and
(ii) less
than 50% of total number of employees are situated in India or are resident in
India; and
(iii) the
payroll expenses incurred on such employees is less than 50% of its total
payroll expenditure.
Explanation: For the aforesaid purpose, -
(A) the income shall be, -
(a)
as computed for tax purpose in accordance with the laws of the country of
incorporation; or
(b) as
per books of account, where the laws of the country of incorporation does not
require such a computation.
(B) the value of assets, -
(a)
In case of an individually depreciable asset, shall be the average of its value
for tax purposes in the country of incorporation of the company at the beginning
and at end of the previous year; and
(b)
In case of pool of a fixed assets being treated as a block for depreciation,
shall be the average of its value for tax purposes in the country of
incorporation of the company at the beginning and at end of the year;
(c)
In case of any other asset, shall be its value as per books of account;
(C) the number of employees shall be the average of the number of employees as
at the beginning and at the end of the year and shall include persons, who
though not employed directly by the company, perform tasks similar to those
performed by the employees;
(D) the term “pay roll” shall include the cost of salaries, wages, bonus and all
other employee compensation including related pension and social costs borne by
the employer.
(b) “Head Office” of a company would be the place where the company's senior
management and their direct support staff are located or, if they are located at
more than one location, the place where they are primarily or predominantly
located. A company’s head office is not necessarily the same as the place where
the majority of its employees work or where its board typically meets;
(c) “Passive income” of a company shall be aggregate of, -
(i) income
from the transactions where both the purchase and sale of goods is from / to its
associated enterprises; and
(ii)
income by way of royalty, dividend, capital gains, interest or rental income;
However, any income by way of interest shall not be considered to be passive
income in case of a company which is engaged in the business of banking or is a
public financial institution, and its activities are regulated as such under the
applicable laws of the country of incorporation.
(d) “Senior Management” in respect of a company means the person or persons who
are generally responsible for developing and formulating key strategies and
policies for the company and for ensuring or overseeing the execution and
implementation of those strategies on a regular and on-going basis. While
designation may vary, these persons may include:
(i)
Managing Director or Chief Executive Officer;
(ii)
Financial Director or Chief Financial Officer;
(iii)
Chief Operating Officer; and
(iv) The
heads of various divisions or departments (for example, Chief Information or
Technology Officer, Director for Sales or Marketing).
7. The place of effective management in case of a company engaged in active
business outside India shall be presumed to be outside India if the majority
meetings of the board of directors of the company are held outside India.
7.1 However, if on the basis of facts and circumstances it is established that
the Board of directors of the company are standing aside and not exercising
their powers of management and such powers are being exercised by either the
holding company or any other person (s) resident in India, then the place of
effective management shall be considered to be in India. For this purpose,
merely because the Board of Directors (BOD) follows general and objective
principles of global policy of the group laid down by the parent entity which
may be in the field of Pay roll functions, Accounting, Human resource (HR)
functions, IT infrastructure and network platforms, Supply chain functions,
Routine banking operational procedures, and not being specific to any entity or
group of entities per se; would not constitute a case of BOD of companies
standing aside.
7.2 For the purpose of determining whether the company is engaged in active
business outside India, the average of the data of the previous year and two
years prior to that shall be taken into account. In case the company has been in
existence for a shorter period, then data of such period shall be considered.
Where the accounting year for tax purposes, in accordance with laws of country
of incorporation of the company, is different from the previous year, then, data
of the accounting year that ends during the relevant previous year and two
accounting years preceding it shall be considered.
8. In cases of companies other than those that are engaged in active business
outside India referred to in para 7, the determination of POEM would be a two
stage process, namely:-
(i) First
stage would be identification or ascertaining the person or persons who actually
make the key management and commercial decision for conduct of the company’s
business as a whole.
(ii) Second
stage would be determination of place where these decisions are in fact being
made.
8.1 The place where these management decisions are taken would be more important
than the place where such decisions are implemented. For the purpose of
determination of POEM it is the substance which would be conclusive rather than
the form.
8.2 Some of the guiding principles which may be taken into account for
determining the POEM are as follows:
(a) The location where a company’s Board regularly meets and makes decisions may
be the company’s place of effective management provided, the Board-
(i) retains
and exercises its authority to govern the company; and
(ii)
does, in substance, make the key management and commercial decisions necessary
for the conduct of the company’s business as a whole.
It may be mentioned that mere formal holding of board meetings at a place would
by itself not be conclusive for determination of POEM being located at that
place. If the key decisions by the directors are in fact being taken in a place
other than the place where the formal meetings are held then such other place
would be relevant for POEM. As an example this may be the case where the board
meetings are held in a location distinct from the place where head office of the
company is located or such location is unconnected with the place where the
predominant activity of the company is being carried out.
If a board has de facto delegated the authority to make the key management and
commercial decisions for the company to the senior management or any other
person including a shareholder, promoter, strategic or legal or financial
advisor etc. and does nothing more than routinely ratifying the decisions that
have been made, the company’s place of effective management will ordinarily be
the place where these senior managers or the other person make those decisions.
(b) A company’s board may delegate some or all of its authority to one or more
committees such as an executive committee consisting of key members of senior
management. In these situations, the location where the members of the executive
committee are based and where that committee develops and formulates the key
strategies and policies for mere formal approval by the full board will often be
considered to be the company’s place of effective management.
The delegation of authority may be either de jure (by means of a formal
resolution or Shareholder Agreement) or de facto (based upon the actual conduct
of the board and the executive committee).
(c) The location of a company’s head office will be a very important factor in
the determination of the company’s place of effective management because it
often represents the place where key company decisions are made. The following
points need to be considered for determining the location of the head office of
the company:-
If the company’s senior management and their support staff are based in a single
location and that location is held out to the public as the company’s principal
place of business or headquarters then that location is the place where head
office is located.
If the company is more decentralized (for example where various members of
senior management may operate, from time to time, at offices located in the
various countries) then the company’s head office would be the location where
these senior managers,-
(i) are
primarily or predominantly based; or
(ii) normally return to following travel to other locations;
or
(iii) meet
when formulating or deciding key strategies and policies for the company as a
whole.
Members of the senior management may operate from different locations on a more
or less permanent basis and the members may participate in various meetings via
telephone or video conferencing rather than by being physically present at
meetings in a particular location. In such situation the head office would
normally be the location, if any, where the highest level of management (for
example, the Managing Director and Financial Director) and their direct support
staff are located.
In situations where the senior management is so decentralised that it is not
possible to determine the company’s head office with a reasonable degree of
certainty, the location of a company’s head office would not be of much
relevance in determining that company’s place of effective management.
(d) The use of modern technology impacts the place of effective management in
many ways. It is no longer necessary for the persons taking decision to be
physically present at a particular location. Therefore physical location of
board meeting or executive committee meeting or meeting of senior management may
not be where the key decisions are in substance being made. In such cases the
place where the directors or the persons taking the decisions or majority of
them usually reside may also be a relevant factor.
(e) In case of circular resolution or round robin voting the factors like, the
frequency with which it is used, the type of decisions made in that manner and
where the parties involved in those decisions are located etc. are to be
considered. It cannot be said that proposer of decision alone would be relevant
but based on past practices and general conduct; it would be required to
determine the person who has the authority and who exercises the authority to
take decisions. The place of location of such person would be more important.
(f) The decisions made by shareholder on matters which are reserved for
shareholder decision under the company laws are not relevant for determination
of a company’s place of effective management. Such decisions may include sale of
all or substantially all of the company’s assets, the dissolution, liquidation
or deregistration of the company, the modification of the rights attaching to
various classes of shares or the issue of a new class of shares etc. These
decisions typically affect the existence of the company itself or the rights of
the shareholders as such, rather than the conduct of the company’s business from
a management or commercial perspective and are therefore, generally not relevant
for the determination of a company’s place of effective management.
However, the shareholder’s involvement can, in certain situations, turn into
that of effective management. This may happen through a formal arrangement by
way of shareholder agreement etc. or may also happen by way of actual conduct.
As an example, if the shareholders limit the authority of board and senior
managers of a company and thereby remove the company’s real authority to make
decision then the shareholder guidance transforms into usurpation and such undue
influence may result in effective management being exercised by the shareholder.
Therefore, whether the shareholder involvement is crossing the line into that of
effective management is one of fact and has to be determined on case-to-case
basis only.
(g) It may be clarified that day to day routine operational decisions undertaken
by junior and middle management shall not be relevant for the purpose of
determination of POEM. The operational decisions relate to the oversight of the
day-to-day business operations and activities of a company whereas the key
management and commercial decision are concerned with broader strategic and
policy decision. For example, a decision to open a major new manufacturing
facility or to discontinue a major product line would be examples of key
commercial decisions affecting the company’s business as a whole. By contrast,
decisions by the plant manager appointed by senior management to run that
facility, concerning repairs and maintenance, the implementation of company-wide
quality controls and human resources policies, would be examples of routine
operational decisions. In certain situations it may happen that person
responsible for operational decision is the same person who is responsible for
the key management and commercial decision. In such cases it will be necessary
to distinguish the two types of decisions and thereafter assess the location
where the key management and commercial decisions are taken.
8.3 If the above factors do not lead to clear identification of POEM then the
following secondary factors can be considered :
(i) Place
where main and substantial activity of the company is carried out; or
(ii) Place
where the accounting records of the company are kept.
9. It needs to be emphasized that the determination of POEM is to be based on
all relevant facts related to the management and control of the company, and is
not to be determined on the basis of isolated facts that by itself do not
establish effective management, as illustrated by the following examples:
(i) The
fact that a foreign company is completely owned by an Indian company will not be
conclusive evidence that the conditions for establishing POEM in India have been
satisfied.
(ii) The
fact that there exists a Permanent Establishment of a foreign entity in India
would itself not be conclusive evidence that the conditions for establishing
POEM in India have been satisfied.
(iii) The
fact that one or some of the Directors of a foreign company reside in India will
not be conclusive evidence that the conditions for establishing POEM in India
have been satisfied.
(iv) The
fact of, local management being situated in India in respect of activities
carried out by a foreign company in India will not , by itself, be conclusive
evidence that the conditions for establishing POEM have been satisfied.
(v) The
existence in India of support functions that are preparatory and auxiliary in
character will not be conclusive evidence that the conditions for establishing
POEM in India have been satisfied.
10. It is reiterated that the above principles for determining the POEM are for
guidance only. No single principle will be decisive in itself. The above
principles are not to be seen with reference to any particular moment in time
rather activities performed over a period of time, during the previous year,
need to be considered. In other words a “snapshot” approach is not to be
adopted. Further, based on the facts and circumstances if it is determined that
during the previous year the POEM is in India and also outside India then POEM
shall be presumed to be in India if it has been mainly /predominantly in India.
11. The Assessing Officer (AO) shall, before initiating any proceedings for
holding a company incorporated outside India, on the basis of its POEM, as being
resident in India, seek prior approval of the Principal Commissioner or the
Commissioner, as the case may be.
11.1 Further, in case the AO proposes to hold a company incorporated outside
India, on the basis of its POEM, as being resident in India then any such
finding shall be given by the AO after seeking prior approval of the collegium
of three members consisting of the Principal Commissioners or the Commissioners,
as the case may be, to be constituted by the Principal Chief Commissioner of the
region concerned, in this regard. The collegium so constituted shall provide an
opportunity of being heard to the company before issuing any directions in the
matter.
12. Illustrations:
The following are certain illustrations intended to highlight applicability of
certain principles enumerated in the foregoing paragraphs of the guidelines. The
facts assumed have been simplified to highlight the principle. Actual
determination of POEM of a company shall depend on all relevant facts.
Example 1:
Company A Co. is a sourcing entity, for an Indian multinational group,
incorporated in country X and is 100% subsidiary of Indian company (B Co.). The
warehouses and stock in them are the only assets of the company and are located
in country X. All the employees of the company are also in country X. The
average income wise breakup of the company’s total income for three years is, -
(i) 30% of income is from transaction where purchases are made from parties
which are non-associated enterprises and sold to associated enterprises;
(ii) 30% of income is from transaction where purchases are made from associated
enterprises and sold to associated enterprises;
(iii) 30% of income is from transaction where purchases are made from associated
enterprises and sold to non-associated enterprises; and
(iv) 10% of the income is by way of interest.
Interpretation:
In this case passive income is 40% of the total income of the company. The
passive income consists of, -
(i) 30% income from the transaction where both purchase and sale is from/to
associated enterprises; and
(ii) 10% income from interest.
The A Co. satisfies the first requirement of the test of active business outside
India. Since no assets or employees of A Co. are in India the other requirements
of the test is also satisfied. Therefore company is engaged in active business
outside India.
Example 2:
The other facts remain same as that in Example 1 with the variation that A Co.
has a total of 50 employees. 47 employees, managing the warehouse, storekeeping
and accounts of the company, are located in country X. The Managing Director
(MD), Chief Executive Officer (CEO) and sales head are resident in India. The
total annual payroll expenditure on these 50 employees is of Rs. 5 crore. The
annual payroll expenditure in respect of MD, CEO and sales head is of Rs. 3
crore.
Interpretation:
Although the first limb of active business test is satisfied by A Co. as only
40% of its total income is passive in nature. Further, more than 50% of the
employees are also situated outside India. All the assets are situated outside
India. However, the payroll expenditure in respect of the MD, the CEO and the
sales head being employees resident in India exceeds 50% of the total payroll
expenditure. Therefore, A Co. is not engaged in active business outside India.
Example 3:
The basic facts are same as in Example 1. Further facts are that all the
directors of the A Co. are Indian residents. During the relevant previous year 5
meetings of the Board of Directors is held of which two were held in India and 3
outside India with two in country X and one in country Y.
Interpretation:
The A Co. is engaged in active business outside India as the facts indicated in
Example 1 establish. The majority of board meetings have been held outside
India. Therefore, the POEM of A Co. shall be presumed to be outside India.
Example 4:
The facts are same as in Example 3 but it is established by the Assessing
Officer that although A Co.’s senior management team signs all the contracts,
for all the contracts above Rs. 10 lakh the A Co. must submit its recommendation
to B Co. and B Co. makes the decision whether or not the contract may be
accepted. It is also seen that during the previous year more than 99% of the
contracts are above Rs. 10 lakh and over past years also the same trend in
respect of value contribution of contracts above Rs. 10 lakh is seen.
Interpretation:
These facts suggest that the effective management of the A Co. may have been
usurped by the parent company B Co. Therefore, POEM of A Co. may in such cases
be not presumed to be outside India even though A Co. is engaged in active
business outside India and majority of board meeting are held outside India.
Example 5:
An Indian multinational group has a local holding company A Co. in country X.
The A Co. also has 100% downstream subsidiaries B Co. and C Co. in country X and
D Co. in country Y. The A Co. has income only by way of dividend and interest
from investments made in its subsidiaries. The Place of Effective Management of
A Co. is in India and is exercised by ultimate parent company of the group. The
subsidiaries B, C and D are engaged in active business outside India. The
meetings of Board of Director of B Co., C Co. and D Co. are held in country X
and Y respectively.
Interpretation:
Merely because of the Place of Effective Management of an intermediate holding
company is in India the POEM of its subsidiaries shall not be taken to be in
India. Each subsidiary has to examined separately. As indicated in the facts
since companies B Co., C Co. and D Co. are independently engaged in active
business outside India and majority of Board Meeting of these companies are also
held outside India. The POEM of B Co., C Co. and D Co. shall be presumed to be
outside India.
CLARIFICATION FOR DETERMINATION OF POEM OF A COMPANY, OTHER THAN AN INDIAN COMPANY-REG.
-----------------------------------------------------
CLARIFICATION FOR DETERMINATION OF POEM OF A COMPANY, OTHER THAN AN INDIAN COMPANY-REG.
Circular No 08 of 2017 / F. No. 142/11/2015-TPL / Government of India / Ministry
of Finance / Department of Revenue / Central Board of Direct Taxes / Dated 23rd
February, 2017
The concept of POEM for deciding the residential status of a company, other than an Indian company, was introduced by the Finance Act. 2015. The existing provision of clause (ii) of sub section (3) of section 6 of the Income-tax Act, 1961 (the Act) shall come into effect from 1st April, 2017 and accordingly, applies to Assessment Year 2017- 18 and subsequent years. Guiding Principles for determining POEM of a company were issued by Circular No. 6 of 2017 on 24th January, 2017. Press Release on POEM guidelines dated 24th January 2017 has, inter alia, stated that the POEM guidelines shall not apply to a company having turnover or gross receipts of Rs. 50 crores or less in a financial year.
2. In view of above, it is clarified that existing provision of clause (ii] of sub section (3) of section 6 of the Act, shall not apply to a company having turnover or gross receipts of Rs. 50 crores or less in a financial year.
-----------------------------------------------------
The concept of 'Place of Effective Management' (POEM) for deciding residency status of a company. other than an Indian company. was introduced in the Income Tax Act. 1961 (the Act) which has become effective from 1,1 April. 2017, i.e. Assessment Year 2017-18 onwards.
2. Guiding Principles for determination of POEM of a company were issued on 241h January. 2017 vide Circular No 06 of 2017. Further. vide Circular No 08 of 2017 dated 23rd February, 2017. it has been clarified that the POEM provisions shall not apply to a company having turnover or gross receipts of Rs 50 crore or less in a financial year.
3. Representations have been received from the stakeholders wherein concerns have been raised that as per the extant guidelines. POEM may be triggered in cases of certain multinational companies with regional headquarter structure merely on the ground that certain employees having multi-country responsibility or oversight over the operations in other countries of the region are working from India. and consequently. their income from operations outside India may be taxed in India.
4. In this regard. it may be mentioned that Para 7 of the guidelines provides that the place of effective management in case of a company engaged in active business outside India (ABOI) shall be presumed to be outside India if the majority meetings of the board of directors (BOD) of the company are held outside India.
4.1 However, Para 7.1 of the guidelines provides that if on the basis of facts and circumstances it is established that the Board of directors of the company are standing aside and not exercising their powers of management and such powers are being exercised by either the holding company or any other person (s) resident in India. then the POEM shall be considered to be in India.
4.2 It has also been provided that for this purpose. merely because the BOD follows general and objective principles of global policy of the group laid down by the parent entity which may be in the field of Pay roll functions. Accounting. Human resource (HR) functions. IT infrastructure and network platforms. Supply chain functions. Routine banking operational procedures. and not being specific to any entity or group of entities per se; would not constitute a case of BOD of companies standing aside.
5. In view of the above. it is clarified that so long as the Regional Headquarter operates for subsidiaries/ group companies in a region within the general and objective principles of global policy of the group laid down by the parent entity in the field of Pay roll functions, Accounting, HR functions, IT infrastructure and network platforms, Supply chain functions, Routine banking operational procedures, and not being specific to any entity or group of entities per se; it would, in itself, not constitute a case of BOD of companies standing aside and such activities of Regional Headquarter in India alone will not be a basis for establishment of POEM for such subsidiaries/ group companies.
6. It may be mentioned that the provisions of General Anti-Avoidance Rule contained in Chapter X-A of the Income-tax Act, 1961 may get triggered in such cases where the above clarification is found to be used for abusive/ aggressive tax planning.
The concept of POEM for deciding the residential status of a company, other than an Indian company, was introduced by the Finance Act. 2015. The existing provision of clause (ii) of sub section (3) of section 6 of the Income-tax Act, 1961 (the Act) shall come into effect from 1st April, 2017 and accordingly, applies to Assessment Year 2017- 18 and subsequent years. Guiding Principles for determining POEM of a company were issued by Circular No. 6 of 2017 on 24th January, 2017. Press Release on POEM guidelines dated 24th January 2017 has, inter alia, stated that the POEM guidelines shall not apply to a company having turnover or gross receipts of Rs. 50 crores or less in a financial year.
2. In view of above, it is clarified that existing provision of clause (ii] of sub section (3) of section 6 of the Act, shall not apply to a company having turnover or gross receipts of Rs. 50 crores or less in a financial year.
-----------------------------------------------------
CLARIFICATION RELATED TO GUIDELINES FOR ESTABLISHING 'PIACE OF EFFECTIVE
MANAGEMENT' (POEM) IN INDIA-REG.
Circular No 25 of 2017 F No 142/11/2015-TPL (Part-I) Government of India
Ministry of Finance Department of Revenue Central Board of Direct Taxes/ Dated
23rd October, 2017
The concept of 'Place of Effective Management' (POEM) for deciding residency status of a company. other than an Indian company. was introduced in the Income Tax Act. 1961 (the Act) which has become effective from 1,1 April. 2017, i.e. Assessment Year 2017-18 onwards.
2. Guiding Principles for determination of POEM of a company were issued on 241h January. 2017 vide Circular No 06 of 2017. Further. vide Circular No 08 of 2017 dated 23rd February, 2017. it has been clarified that the POEM provisions shall not apply to a company having turnover or gross receipts of Rs 50 crore or less in a financial year.
3. Representations have been received from the stakeholders wherein concerns have been raised that as per the extant guidelines. POEM may be triggered in cases of certain multinational companies with regional headquarter structure merely on the ground that certain employees having multi-country responsibility or oversight over the operations in other countries of the region are working from India. and consequently. their income from operations outside India may be taxed in India.
4. In this regard. it may be mentioned that Para 7 of the guidelines provides that the place of effective management in case of a company engaged in active business outside India (ABOI) shall be presumed to be outside India if the majority meetings of the board of directors (BOD) of the company are held outside India.
4.1 However, Para 7.1 of the guidelines provides that if on the basis of facts and circumstances it is established that the Board of directors of the company are standing aside and not exercising their powers of management and such powers are being exercised by either the holding company or any other person (s) resident in India. then the POEM shall be considered to be in India.
4.2 It has also been provided that for this purpose. merely because the BOD follows general and objective principles of global policy of the group laid down by the parent entity which may be in the field of Pay roll functions. Accounting. Human resource (HR) functions. IT infrastructure and network platforms. Supply chain functions. Routine banking operational procedures. and not being specific to any entity or group of entities per se; would not constitute a case of BOD of companies standing aside.
5. In view of the above. it is clarified that so long as the Regional Headquarter operates for subsidiaries/ group companies in a region within the general and objective principles of global policy of the group laid down by the parent entity in the field of Pay roll functions, Accounting, HR functions, IT infrastructure and network platforms, Supply chain functions, Routine banking operational procedures, and not being specific to any entity or group of entities per se; it would, in itself, not constitute a case of BOD of companies standing aside and such activities of Regional Headquarter in India alone will not be a basis for establishment of POEM for such subsidiaries/ group companies.
6. It may be mentioned that the provisions of General Anti-Avoidance Rule contained in Chapter X-A of the Income-tax Act, 1961 may get triggered in such cases where the above clarification is found to be used for abusive/ aggressive tax planning.
-------------------------------------------------------------------------------------------------
Note: Information placed here in above is only for general perception. This may not reflect the latest status on law and may have changed in recent time. Please seek our professional opinion before applying the provision. Thanks.