Thursday, June 02, 2011

Law Street - Economic Times (May) -Unearthing black money

Dear Readers,

Newspapers are filled with news on how essential it is for the government to unearth black money stashed away in low tax jurisdictions. Social activists are even going on hunger fasts to protest against the perceived failure of the government to tackle the black money menace.

While it appears that Mauritius has agreed to part with some information, perhaps taking a leaf from what the UK government has done in relation to Swiss accounts of UK citizens is needed. In other words, the interest income in relation to such bank accounts will be subject to a withholding tax which will be passed on to the UK treasury coffers. A quick way indeed.
Click here, for the online edition of The Economic Times, to read this column. Else, as always scroll below.
Have a nice weekend.

A bird in hand, is worth two in the bush

• India could follow UK’s example of taxing Swiss bank interest
• This will speeden by the process of bringing back black money
• Tax treaties, till amended are sacrosanct

Zenobia Aunty is one perplexed lady. Things appear to be in a complete flux in tax-land. One stand is taken today and yet another the next day. These days, poor Aunty is scared to read the newspapers or tune in to the news.

Years ago, in the famous case of Azadi Bacho, the Supreme Court has made it quite clear that Mauritius resident will not pay capital gains tax in India, on sale of Indian shares. Further, the India-Mauritius tax treaty does not even have a limitation of benefit clause, as was pointed out by the Apex Court, in this judgement.

Yet a recent news item says, that E Trade (Mauritius) which had already obtained a favourable ruling from the Authority for Advance Rulings (AAR) will have to face some sleepless nights. News reports cite that the Supreme Court has sent a notice to E Trade (Mauritius) seeking its response to the special leave petition filed by the tax department challenging this ruling given by the AAR. She wonders whether tax treaties have any sanctity at all.

While Zenobia Aunty is vehement that tax treaties are sacrosanct and bring about certainty and must be adhered to till amended, she is rooting for the efforts to bring back ‘black money’ into India.

In 2009, the Income tax Act, 1961, was amended to enable the government to enter into agreements with specified ‘non-sovereign jurisdictions’ (tax havens). Since then, India has entered into a number of Exchange of Information Agreements with various tax havens; the first such agreement was with Bermuda.

As regards countries with which India already has a tax treaty, negotiation is on-going in many instances, to bring about amendments to ensure exchange of information, if such a clause does not exist in the tax treaty. For instance, a revised treaty containing an Exchange of Information clause was signed with Switzerland.

These are steps in the right direction and such efforts need to be applauded. But, Zenobia Aunty, being an impatient lady and a cranky one at that (she blames her crankiness to a severe allergic cold), is asking: Where is the moolah?

According to her, perhaps, India needs to take a second look at the step adopted by the United Kingdom (UK). Last October, the UK and Swiss governments signed a joint declaration to work towards taxing UK owned Swiss bank accounts. Recent news reports say, the deal is almost concluded and will be announced shortly.

Swiss banks will now be obliged to tax interest payments made to UK bank account holders. Switzerland will impose a 50% withholding tax (earlier this percentage was believed to range between 20 to 30%) on income from Swiss bank accounts. This would be collected by Swiss banks, forwarded to the Swiss tax authority and then remitted anonymously to UK’s Treasury authorities. While this withholding tax will apply from the start date, it is reported that investors will have to pay a separate one-off levy in recognition of past unpaid taxes. We need to wait and see what the final fine print will be.

As part of the agreement, Swiss banks will require all British clients to supply evidence that their bank accounts comply with the UK’s tax system.
The money collected in withholding taxes will be collectively handed over to the UK Treasury and will not include any details of who has paid them. The deal therefore allows the UK to collect tax on Swiss bank accounts and at the same time allows Switzerland to retain its banking secrecy.

The UK Treasury estimates that British tax residents have 125 billion British Pounds hidden in Swiss banks. The interest earnings are not being declared and therefore not being taxed by the UK tax authorities. This deal with Switzerland will therefore be a lucrative victory for the UK Treasury. It has been estimated that the UK Treasury will earn between 3-6 billion British Pounds over the next few years as a result of this agreement.

Maybe India needs to think along these lines? It is true that under such an agreement, India will never know the names of those who stashed their money overseas. But the end result is that India will get its share of revenue, which it would have never captured or got into its kitty after ages. After all, a bird in hand is worth two in the bush.

India must be perceived as a country that is not against foreign investments or cross border transactions – unfortunately with the mixed signals being thrown out foreign investors are perplexed. Simultaneously, India must also be perceived as a country that is willing to take action to ensure that it gets its due share of money that is illegally stashed in secret bank accounts overseas.

Since this is the summer season and many are on vacation, Zenobia Aunty quotes one of her favourite travel authors. Paul Theroux said: Tourists don’t know where they’ve been, travelers don’t know where they are going. But, the tax administration and judiciary need to know the right path to walk upon, to ensure results that are best for India in the long term.

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