Construction PE-Finer Aspects

Construction PE- Finer aspects

Article 5(3) of UN model provides for existence of construction PE as under;-

A building site, a construction, assembly or installation project or supervisory activities in connection therewith, but only if such site, project or activities last more than six months

Herein after a building site, a construction, assembly or installation project or supervisory activities is being referred to as construction project. Further UN model convention is use, where required.

In this article attempt is made to dwell upon ambiguous issues surrounding around Construction PE. These aspects have been grouped as under:-

1.       Association with Construction Project- Whether every association of Foreign resident (R)  with Construction project in Source state, will render that association as PE of foreign Resident i.e whether in the following case, R will be deemed to have construction PE in source state:-

a)      Where R makes available its employees to construction Project operated by S

i)                    To be worked under the control and supervision of R.

ii)                   To be worked under the control and supervision of S.

b)      Where R makes available its equipment to be used in construction project operated by S

i)                    Equipment to be operated by R

ii)                   Equipment to be operated by S.

2.       Delegation of Work- Foreign Resident (R)  was awarded the work of construction activities for construction project in source state, which it delegated to Third Person as under:-

a)      Entire activities are delegated to Third person on Principal to Principal basis with the consent of Project Owner i.e all construction activities will be carried out by Third person, but foreign resident will continue to be responsible to project owner.

b)      Only part of the activities of project, (say labour work) was delegated to Third person, who has to perform under control and Supervision of R.

Whether in above cases, R will be deemed to have Construction PE in source state?

3.       Holding –Subsidiary Relationship – A holding company, being resident of foreign state, was awarded a contract to supply equipment and it installation work was awarded to Subsidiary company.

Whether in the instant case, Holding company will be deemed to have construction PE on account of construction/assembly activities being conducted in source state by its subsidiary?

Before deliberating on above-stated contentious issues, it is worthwhile to analyse the position of Article 5(3) vis-à-vis Article 5(1) i.e whether Article 5(3) stand on footing independent of Article 5(1)or else.

Article 5(1)

a)      Article 5(1) commences with words “Permanent Establishment means…”, thereby implying that said article give exhaustive definition of term Permanent establishment, laying down certain test for evaluating the existence of PE.

b)      These test are as under:-

i)                    Place of business test

ii)                   Permanence test &  Location test

iii)                 Disposal Test

iv)                 Business activity test

Article 5(2)

Article 5(2) starts with words “Permanent Establishment includes…”, thereby implying that said article gives inclusive definition, stating therein certain places (Branch , office, place of management, which are considered as PE.

Article 5(3)

Article 5(3) initialled with words Permanent Establishment encompass…”, implying that this article too gives an inclusive definition of term PE.

Analysis

1.       The definition clause generally defines the term in either exhaustive manner or inclusive manner. But if the term is defined to cover both exhaustive and inclusive sense, it implies that inclusive definition needs to take its colour from principles enunciated in exhaustive definition. It would be Incongruity, if inclusive definition is given independent meaning de-hors the essentials ingredients of exhaustive definition.

2.       OCED commentary

With respect to Article 5(2), Para 41 of OCED commentary provides as under:-

This paragraph contains a list, by no means exhaustive, of examples, each of which can be regarded, prima facie, as constituting a permanent establishment. As these examples are to seen against the background of general definition of given in paragraph 1, it is assumed that the contracting states interpret the terms listed, a place of management , a branch, an office etc., in such a way such places of business constitute permanent establishment only if they meet the requirement of paragraph 1

3.       Thus based on afore-said analysis, a conclusion can be drawn that construction project before enjoining upon itself the label of PE, has to satisfy all the evaluation test of Article 5(1), except permanence test, for which duration of 6 months is substituted. In other words article 5(3) has to be read co-jointly with Article 5(1). Similar conclusion was drawn in Cal Dive Marine Construction (Mauritius) Ltd. - 315 ITR 334 by Authority for Advance Ruling.

Evaluation of Construction PE on critical aspects enumerated above

Assessment of existence of construction PE on association/activity with construction project is being evaluated on consideration of following aspects:-

a)      Satisfaction of PE test stated in Article 5(1), except duration test

b)      OCED commentary

c)       Legal Precedents

1.      Association with Construction project

i)                    Evaluation of Article 5(1) Tests

Suppose Resident of Foreign state (R) makes available its personnel/equipments on construction project (owned and operated by Resident of Source State (S)) in following 4 scenarios:-

a)      Employees work under the control and supervision of S (Non-Control employee)

b)      Employees work under the control and supervision of R (Control Employee)

c)       Equipment is being operated by S, without involvement of R (Non-control equipment)

d)      Equipment is being operated by R (Control equipment)

Analysis

1.       Place of business, Disposal Test and Business Activity test, cumulatively, provide that Foreign resident should have  a place of business in source state, from where he can pursue his entrepreneurial activity in his own right.

2.       The place in source state, where the output of foreign enterprise is being used/utilised would not by itself render that place as PE, unless foreign enterprise is actively carrying on business activities in source state.  This spirit is also enshrine in Section 9 of Income Tax Act as under:-

i)                    Section 9 deemed income through or any Business connection in India as income accruing or arising in India.

ii)                  Further Explanation 1 to section 9(1) provides in case of business of which all operations are not carried out in India, the income deemed to accrue or arise in India, shall be only such part of income as is reasonably attributable to the operations carried out in India.

3.       Had the afore-said test being not interpreted this way, then every consumption of product of foreign enterprise in source state would render such consumption point as PE of foreign enterprise, which is neither intended in domestic law nor is the same mandated in DTAA.

4.       Thus based on afore-said, raison d'être for satisfaction of test in afore-said  scenarios are summarise as under:-

S.No.	Scenarios	Satisfaction of Place of business, Disposal Test and Business Activity test
1.	Non-Control Employee/Equipment	Tests are not satisfied -No Business Activity in the Source state-
2.	Control-Employee/Equipment	Tests are satisfied -Business Activity in his own right in source state, as R is actively supervising the employee/Operating the equipment, to execute the Construction Project.

ii)                  OCED Views

OECD commentary on Article 5(1)

Relevant excerpts from Para 8 of said commentary are as under:-

If an enterprise of state lets or lease facilities, ICS equipment, buildings or intangible property to an enterprise of other state without maintaining for such letting or leasing activity a fixed place of business in other state, the leased facility, ICS equipment, building or intangible property, as such, will not constitute a permanent establishment of lessor provided contract is limited to mere leasing of ICS equipment

iii)                Legal Precedents

Tekniskil (Sendirian) Berhard v CIT (1996) 222 ITR 551 (AAR)

ARR has held that a lessor of personnel, who furnishes staff for operation and management of barge used for installation activities does not carry on installation activities when such staff is working under the control and direction of the lessee and lessor is merely responsible for staff welfare and hence no creation of PE of lessor.

               

Conclusion

Based on consideration of satisfaction of Article 5(1) tests, OECD Commentary & legal Precedent, following conclusion can be drawn:-

a)      Employees work under the control and supervision of S – No construction PE

b)      Employees work under the control and supervision of R – Existence of Construction PE

c)       Equipment is being operated by S, without involvement of R –No Construction PE

d)      Equipment is being operated by R (Control equipment) - Existence of Construction PE.

Caveat

a)      In certain DTAA, the provision of technical personnel & Leasing of commercial or industrial equipment by foreign enterprise to source state enterprise is covered under Fees for Technical Services (FTS) and Royalty respectively. Thus in above cases, where is no PE, income from leasing of personnel /equipments may be taxable as FTS /Royalty in source state.

b)      However explanation 2 to section 9(1)(vii) provides that Fees for Technical services does not include consideration for for any construction, assembly or like project undertaken by recipient. In Pintsch Bamag 318 ITR 190 (AAR) (2009), Authority held that the component of technical or consultancy services incidental to the execution of project cannot be segregated and brought within the scope of FTS.

2.       Delegation of Work

Foreign Resident was awarded the work of construction activities for construction project in source state, which it delegated to Third Person as under:-

a)      Entire activities are delegated to Third person on Principle to Principle basis with the consent of Project Owner i.e all construction activities will be carried out by Third person, but Foreign resident will continue to be responsible to project owner.(Delegation without Supervision)

b)      Only part of the activities of project, (say labour work) was delegated to Third person, who has to perform under control and Supervision of R. (Delegation with Supervision)

Analysis

i)                    PE valuation Test & OCED Commentary

1.       Among different PE’s evaluation test, one of them is Business Activity test in source state, which require conduct of business in source state.

2.       As per para 10 of OCED Commentary on Article 5(1)­­­­ , with respect to fixed place of business, foreign enterprise may carry on business in source state, either through its own employees or dependent agent.

3.       At this point, it is essential to mentione that Article 5(5) dealing with Agency PE will not come into picture on account of following reasons:-

a)      Agency relationship will create agency PE of foreign enterprise in source state, when said enterprise has no fixed place of business in source state and business of enterprise is conducted through agent.

b)      If foreign enterprise has fixed place of business in source state, then active conduct of business thereat by dependent agent will create Fixed PE under Article 5(1)

4.       The main question for consideration is what meaning could be attributable to word “Dependent” with regard to conduct of business by agent at fixed place of business of foreign enterprise in source state. Mine understanding is being captured as below:-

a)      Merely pecuniary dependency of agent/sub-contractor on Principle/contrcator is not contemplated.

b)      Operational dependence /independence are the things which matter most, concept akin to satisfaction of Disposal test either by principle/agent

i)                    Disposal test mandate the authority to carry on business at fixed place of business in source state in its own right without inference by anybody

ii)                   Agent/sub-contractor having entire operational independence, without supervision/involvement by principle/contractor, seems to satisfy disposal test on its part. Thus failure on the part of principle/contractor to satisfy disposal test, a conclusion can be drawn that principle is not carrying on business in source state.

iii)                 Performance by agent/sub-contractor, with dependency on principle/contractor for supervision and other guidance, seems to satisfy disposal test by principle/contractor and hence carrying on business in source state on the part of principle/contractor.

5.       Conclusion

a)      Delegation without Supervision – Existence of Construction PE seems doubtful, as business activity test is not met by contractor. In such case, however if sub-contractor is resident of foreign state and satisfying other requirements of Article 5(3), mainly duration of 6 months, the sub-contractor will be deemed to have construction PE.

b)      Delegation with supervision – Existence of Construction of PE, as business activity test is met by contractor.

ii)                  Legal Precedent

Pintsch Bamag 318 ITR 190 (AAR) (2009)

a)      Applicant was awarded a awarded a contract for various activities in connection with construction of “Ship Channel” by TPT

b)      Applicant sub-contracted most of its work to sub-contractor, with the consent of TPT with express stipulation that sub-contracting does not exonerate the main contractor (the applicant) from liabilities under the Contract.

c)       Authority held that in the instant case, the sub-contractor does not constitute PE of Applicant, which can only in the case when sub-contractor constitute dependent agent. In rendering this decision, Authority also drew support from decision of the Andhra Pradesh High Court in CIT vs. Vishakapatnam Port Trust 144 ITR 146

3.       Holding- Subsidiary Relationship

a)      As per Article 5(8), a holding (Company resident of foreign state) subsidiary (Company resident of source state) relationship will not per se makes subsidiary a permanent establishment of source state.

b)      However if subsidiary’s execution of  construction/assembly project is actively monitored/supervised/guided by holding company (on the basis of afore-said analysis), then subsidiary company may constitute construction PE of Holding company.

In India’s future economic growth, Infrastructure development occupies a prime place, which in turn is partly dependent upon the support of global players. In such situation, enhance clarity on the concept of Construction PE is essential requirement to prevent tax litigation.

BEPS- Action 6 Report - Preventing the Granting of Treaty Benefits in Inappropriate Circumstances-LOB-Summary

Base Erosion Profit Shifting

Action 6 Report – Preventing the Granting of Treaty Benefits in Inappropriate Circumstances

Action 6 of the BEPS Action plan identified treaty abuse and in particular treaty shopping, as one of the most important sources of BEPS concerns

Action 6 Report makes following recommendations with regard to treaty shopping:-

1.       Treaties include in their title and preamble, a clear statement that contracting states intend to avoid creating opportunities for non-taxation or reduced taxation through tax evasion or avoidance including treaty shopping arrangement.

2.       To include in tax treaties a specific anti-abuse rule based on limitation-on-benefits provision which will address a large number of treaty shopping situations based on legal nature, ownership in, and general activities of, resident of contracting state

3.       To include in tax treaties a more general anti-abuse rule based on Principal purpose of transactions or arrangements (Principal Purpose test or PPT)

Limitation-on-Benefits

Background

1.       The benefits under treaty are available to persons who are resident of either of contracting states involved in treaty.

2.       Resident  of contracting are defined under treaty to include person who are liable to taxation therein by reason on domicile, residence, place of incorporation, place of management or any other criterion of similar nature.

3.       Based on above- stated residential criterion, it was fairly easy for MNC to satisfy the residential status in a state and obtain the treaty benefits entitlement to that state.

4.       Action 6 report proposes to insert set of new article in tax treaty to prevent the treaty benefits in inappropriate cases.

The new of set of Article relating to Limitation-on-benefit is proposed in 6 paragraphs as under:-

Para -1- Declaration-The benefits under treaty will be available to residents who are QUALIFIED RESIDENT at the time when treaty benefit is being sought, hereinafter referred to as relevant time.

Para 2 – Provide criterion for determination  of qualified resident by reference to the nature or attributes of various categories of various persons. Qualified resident is entitled to all treaty benefits.

Para 3 - Treaty Benefit for specific item of income-It provide that person is entitled to benefit under treaty with respect to an item of income even such person in not a qualified resident as per para 2, as long as such item of income is derived in connection with the active conduct of trade or business in that person’s state of residence

Para 4 – It provides for derivative benefit rule that allow companies owned by resident of third states to obtain treaty benefit provided that these resident would have been entitled to equivalent benefits, if they had invested directly.

Para 5 – It provides for Discretionary relief  ,whereby  the Competent authority of a contracting state is empowered to grant treaty benefits where the other provisions of Article would otherwise deny these benefits.

Para 6 –  Definition clause for the purpose of this Article.

Ø  Para 2 – Provides criterion for Resident to be Qualified Resident for following entities

a)      Individual – No specific Criterion, implying that Resident Individual is Qualified Resident by default.

b)      Contracting state or a political sub-division or local authority thereof or a person that is wholly –owned by such state, political sub-division or local authority- No Specific Criterion

c)       Listed Company or entity – Specific Criterion

d)      Pension Fund – Specific Criterion

e)      Unlisted Company or entity- Specific Criterion.

·         Listed Company or entity

Company or entity which is resident of Contracting state is qualified resident, if

1.       Qualified Residential Status for Holding company or entity -Throughout  the taxable period that includes relevant time, the principal class of its shares is regularly traded on one or more recognised stock exchange (as agreed in the treaty) and either

a)      Its principal class of shares is primarily traded on one or more recognised stock exchanges located in the contracting state of which company or entity is resident or

b)      The company’s or entity’s primary place of management and control is in the resident contracting state

(Hereinafter referred to as Listed Entity)

OR

2.       Qualified Residential Status for Subsidiary Company or entity -Throughout  the taxable period that includes relevant time , at least 50% of aggregate voting power and value of shares in the company or entity is owned, directly or indirectly, by listed Companies or entities (Qualified Resident) referred to in (1) above.

Example – Suppose Company S, 70% subsidiary of Company H, is incorporated in X Country whose shares are listed in Y Country. Company H is also listed company and whose shares are primarily traded in Country X. Now Qualified Residential Status of Company S in Country is as under:-

a)      Company H is qualified Resident of Country X.

b)      Company S will be qualified Resident of Country X solely on account of more than 50% of voting power is held by Qualified Resident of Country X.

Words Required Special importance

a)      Regular Traded

b)      Primarily Traded

c)       Primary place of management and control

Model Commentary has explained the above-mentioned Words

a)      Regularly Traded

For shares are to be considered regularly traded on one or more stock exchange throughout the taxable period, it is necessary that more than a very small percentage of the shares be actively traded during a sufficiently large number of days included in that period.

b)      Primarily Traded

Principal class of share is primarily traded on one or more recognise stock exchange located in the contracting state of which the company or entity is resident if, during the taxable period, trading of such shares on stock exchange located in resident contracting state exceeds the trading of such shares on other stock exchange in any other state.

c)       Primary place of management and control

The company’s or entity’s primary place of management and control is in the resident contracting state if

i)                    Executive officers and senior management employees

ii)                   Exercise day-to-day responsibility for

iii)                 The strategic, financial and operational policy decision

iv)                 More in resident contracting state than in other state and

v)                  The staffs of such person conducts more of day-to-day activities necessary for preparing and making those decision in resident contracting than in other state.

The term is distinguish from place of effective management which was interpreted as the place where most senior person (Board of Directors) made the key management and commercial decision necessary for conduct of company’s business.

·         Unlisted Company or entity

Action Report provides that unlisted company or entity is to satisfy two tests simultaneously, to enable them to being Qualified Resident:-

a)      Ownership Test

b)      Base Erosion Test

Ownership test

Unlisted company or entity, which is resident of contracting state, will be Qualified Resident on the basis of ownership test upon satisfaction of following conditions:-

i)                    On at least half the days of taxable period  that include relevant time

ii)                   50% or more aggregate voting power and value of shares are, directly or indirectly, owned by following qualified resident of that contacting state:-

a)      Individual

b)      Contracting state or a political sub-division or local authority thereof or a person that is wholly –owned by such state, political sub-division or local authority

c)       Pension Fund

d)      Listed Entity

Example

·      A (P) Ltd is company incorporated in Country X and its 70% equity shares are held by B (P) Ltd, which is incorporated in Country Y. The entire equity share capital of B (P) Ltd are held by Individual who are residents of Country X. In this case A (P) Ltd will be Qualified Resident based on ownership test, as more than 50% its shares are indirectly owned by resident Individuals of Country X.

·      A (P) Ltd is company incorporated in Country X and its equity shareholding are as under:-

Ø  70% is held by B (P) Ltd, which is incorporated in Country Y

Ø  30% is held by Individuals who are resident of Country Y

The equity Shareholding of B (P) Ltd is as under:-

Ø  70% is held by Individuals who are resident of Country X

Ø  30% is held by individuals who are resident of Country Y

The question for consideration is how to determine quantum of Indirectly shareholding of Individual resident of Country X  in A (P) Ltd

Ø  Will it be 49% (70% of 70%) (70% of shareholding of B, which in itself held 70% holding is A, is held by resident Individuals of Country X)

Ø  Will be 70% (Since B is holding more than 50% shareholding in A, the shareholding of B will represent shareholding of A)

OCED or bilateral negotiation will further provide clarity on determination of indirect shareholding.

Base Erosion Test

Unlisted company or entity, which is resident of contracting state, will be Qualified Resident on the basis of Base Erosion test upon satisfaction of following conditions:-

i)                    Less than 50% of Gross Income of taxable period that include relevant time, determined under tax laws of said company or entity state of residence

iii)                 Is paid or accrued to following persons who are not qualified resident of company or entity resident  contacting state:-

a)      Individual

b)      Contracting state or a political sub-division or local authority thereof or a person that is wholly –owned by such state, political sub-division or local authority

c)       Pension Fund

d)      Listed Companies

ii)                   In the form of payments deductible for tax purpose in  said company or entity state of residence, other than Arm length payment in the ordinary course of business for services or tangible property.

Example:-

1.       Suppose X Ltd is Resident of Country A and all its shareholding are held by Individuals who are residents of Country A

2.       Gross Income of X Ltd is 1,00,000 and following deductible payments are to persons who are residents of Country B

a)      30,000 to P, being at Arm length Price

b)      40,000 to Q, not being at Arm length Price

3.       Tests for X  Ltd,  to judge Qualified resident of Country A

a)      Ownership Test – Since all shareholders are resident of Country A, ownership test is being met

b)      Base Erosion Test

i)                    70% (70,000) of Gross Income is paid to persons who are not residents of Country A

ii)                   30,000 payments is at Arm Length Price

iii)                 Only 40,000 (40% of Gross income) is paid to persons who are not resident of Country A

iv)                 Since less than 50% of Gross Income is deductible payment, which is made to person who are not residents of Country A, base erosion test is also met

c)       Since both ownership and base erosion test is met, X ltd is Qualified resident of Country A.

Clarifications required

Before incorporating the said clause as per a part of LOB article, contracting states should attempt to provide clarification on following aspects:-

a)      Determination of Gross Income

i)                    Gross income is an accounting concept and taxation laws of most country provide rules and regulations for determination of taxable income.

ii)                   Whether Gross income is considered at Sale level or Gross profit level?

b)      Time period for quantification of Deductible payments

Base erosion test is satisfied when less than 50% of deductible payment of taxable period that include relevant time, are made to non-qualified residents

i)                    Suppose X Ltd, resident of Country A, sought treaty benefits under treaty between Country A and B on 1/7/2015.

ii)                   The taxable period in country A is Financial Year

iii)                 Question for consideration is whether base erosion test should be tested for last concluded financial year i.e FY 13-14 or said test should be tested for provisional financials till 1/7/2015.

c)       Determination of Arm Length Price

Arm length price payment to non-residents are deemed as payment to Resident for evaluating base erosion test

i)                    Will the self-evaluation of Arm length Price by tested party is sufficient or

ii)                   The arm length price be certified by taxation authority of tested party state of residence

d)      Base erosion test Certification

Who shall be relevant authority to certify the satisfaction of said test by tested party.

Ø  Para 3- Provides for treaty benefits with respect to an item of income from other contracting state

A resident of contracting state, whether qualified resident or not as per para 2, is entitled to treaty benefit with respect to item of income derived from other contracting states, if following conditions are met:-

1.       Resident of Contracting states is engaged in active conduct of business in that that state.

2.       The nature of business is other than business of making or managing investment for own account, unless these activities are part of activities of banking, insurance or securities activities carried out by bank or financial institution

3.       The income is derived from other contracting state in connection with or is incidental to that business.

4.       In case an item of income derived from other contracting state is from business activity carried by resident of contracting state or an associated enterprise of said resident, then business activity carried out in contracting state of resident must be substantial in relation to business activities carried out in other contracting state by that resident or its associate enterprise.

Critical points:

1.       The important point for consideration is that item of income should be derived from other contracting state, irrespective of how its taxability right is distributed between contracting state.

2.       The Treaty benefits to an item of income is broadly two fold

a)      Concessional taxation in the state of source

b)      Double taxation avoidance in the state of residence, either under exemption method or credit method.

It is assumed that treaty benefit to an item of income includes both concessional taxation in state of source and double taxation avoidance in state of residence.

Highlighted words carries special significance and as such explained in the model commentary

a)      Active Conduct of Business

An entity will be considered to be engaged in active conduct of business only if persons through whom entity is acting (such as officers and employees of company) conduct substantial managerial and operational activities in the resident state.

b)      In connection with

An item of income is derived in connection with business if the income producing activity in the state of source is a line of business that

i)                    Forms a part of

ii)                   Is complementary

To the business conducted in the state of residence by income recipient.

·         Forms part of

A business activity in the resident state, generally will be considered to be form part of business conducted in the state of source if two activities involve

i)                    Design , manufacture or sale of same products or types of products or the provision of similar services

ii)                   Thus for  same products or types of products or the provision of similar services, line of business in the state of residence may be

1)      Upstream – Provide inputs for manufacturing process in the state of source

2)      Downstream  - Sell the outputs generated from manufacturing process in the state of source

3)      Parallel – Sell the same sorts of  products that are being sold by the business carried on in the state of source

·         Complementary

For two activities to be complementary, the activities need not relate to same type of products or services but

i)                    They should be part of same overall industry and

ii)                   Be related in the sense that success or failure of one activity will tend to result in success or failure for the other

c)       Incidental to

An item of income derived from state of source is incidental to the business carried on in the state of residence if the production of item facilitates the conduct of business in the state of residence

d)      Substantial

Determination of substantiality of business in state of residence in comparison with business in other contracting state shall be based on following factors

i)                    Comparative size of business in each contracting state

ii)                   Nature of activities performed in each contracting state and relative contributions made to business in each contracting state

iii)                 Relative size of economies and markets in two contracting states

The model commentary has given various examples to illustrate the above-mentioned terms

Ø  Para 4 - It provides for derivative benefit rule that allow companies owned by resident of third states to obtain treaty benefit provided that these resident would have been entitled to equivalent benefits, if they had invested directly

A company which is resident of contracting state is entitled to treaty benefits, if at the relevant time, following conditions are met:-

a)      At least 95% of aggregate voting power and value of shares is owned, directly or indirectly, by 7 or fewer persons that are equivalent beneficiaries and

b)      Satisfaction of Base Erosion test as under

i)                    Less than 50% of Gross Income of taxable period that include relevant time, determined under tax laws of said company or entity state of residence

ii)                   Is paid or accrued to equivalent beneficiaries.

iii)                 In the form of payments deductible for tax purpose in  said company or entity state of residence, other than Arm length payment in the ordinary course of business for services or tangible property

Equivalent beneficiaries

In the concept of equivalent beneficiary, following contracting states are involved

1.       Resident of Third State (State “T”)

2.       Residence state of Company (state “R) i.e. company for which criterion of Residential status for treaty benefit is evaluated

3.       Source state (State “S) from which Income would accrue to State R.

The term Equivalent beneficiary means resident of State T, if either of following conditions are met:-

Condition 1

Resident of state T is equivalent beneficiary if

a)      Such resident is either Individual, Contracting state or a political sub-division or local authority thereof or a person that is wholly -owned by such state, political sub-division or local authority, pension fund or listed company and

b)      It is entitled to all benefits of treaty between state T and state S, by virtue of being qualified residents of State T based on similar conditions of qualified residents containing in the treaty between State R and State S, such conditions being part of treaty between state T and State S or if treaty between State T and State S does not have comprehensive Limitation on benefit article, it is a resident (under Article 4) of either State R or State S and

c)       In respect of income being dividend, interest and Royalty referred to in Article 10,11 & 12, the rate of Tax under treaty between State T and State S is equal to or lower than rate of tax under treaty between State R and State S.

Condition 2

Resident of State is equivalent Beneficiary if

a)      Such resident is either Individual, Contracting state or a political sub-division or local authority thereof or a person that is wholly -owned by such state, political sub-division or local authority, pension fund or listed company and

b)      Is qualified resident of either state R or State S

Para 5 – It provides for Discretionary relief , whereby  the Competent authority of a contracting state is empowered to grant treaty benefits where the other provisions of Article would otherwise deny these benefits

Para 5 provides as under:-

a)      Where resident of one of contracting state is not entitled to all benefits of treaty under para 1 to para 4

b)      Such resident may apply to competent authority of that state to grant benefits

c)       In such scenario, the competent authority may grant these benefits, if after considering relevant facts of the case, determine that neither establishment, acquisition nor maintenance of resident, nor conduct of business, had as one of principal purpose of obtaining benefits under treaty.

Summary

Upon implementation of Limitation on benefit article in Treaty, a resident of contracting state will be entitled to treaty benefits on satisfaction of certain conditions, as under:-

S.No	Treaty Benefit	Satisfaction of Condition
1.	a) All treaty Benefit, including treaty benefit from item of income in source state not connected with business in resident state. b) Income from business of making investment or managing investments for resident’s own account.	Para 2 or Para 4 or Para 5
2	Treaty benefit on item of income from source state connected with active conduct of business in resident state	Para 3