What’s with the title?
In Sanskrit भगिना (Bhaginā) refers to a sister and अनुज (Anuj) means a brother. And what does this have to do with the topic at hand?
Now, I’m not sure why I’m cooking up this story, but hey, let’s roll with it. So in my silliest of the writing skills I am taking help of these sanskrit terms to concoct an introduction paragraph for this post which I really don’t have any reason to write. Sigh !! Okay let’s begin.
We are going to discuss the taxation specific relationship between the associates and like a click-baiter I am trying to find a pretty thin (but yet existing) parallel in the world of financial regulations with these Sanskrit words. Much like the nuanced relationship between familial counterparts, the subsidiary companies and related parties and individuals’ taxation of associates unveils a story of interconnectedness and tax implication. In the tax narrative we will discuss the relationship between the related parties alongside the primary taxpayer.
Associates for financial reporting purposes
Now this is in itself a rather lengthy discussion which has already been covered in my other post: Transfer of tax base between associates
Associates for tax purposes
For taxation purposes,
As per Income Tax Act, 2058 Section 2(Ka.Na): Associated Persons means two or more persons or group of such persons where one may reasonably be expected to act in accordance with the intentions of the other and includes:
1. An individual and a relative of the individual; or
2. An individual and a partner of the individual; or
3. A foreign permanent establishment and its owner; or
4. An entity and a person who, either alone or together with an associate or associates controls or may benefit from 50 percent or more of the rights to income, capital, or voting power of the entity, as the case requires, either directly or through one or more interposed entities; or
5. A person who is an associate of such person
Provided that, the term does not include the following persons: Employees, Persons prescribed by the department as not being associate persons.
Section 2(Ka.Na) addresses the crucial concept of “associated persons” in the context of tax regulations. Throughout the Income Tax Act, specific provisions are applied to associated persons, primarily to ensure fair arm’s length treatment. Due to their relationships, associated persons may exploit tax reduction arrangements that would not be available to independent individuals. The definition of “associated persons” is expansive, outlined in Section 2(Ka.Na) as a scenario where it is reasonable to expect that one person will act in line with the wishes of another. This is a subjective criterion and actual action in line / intention of the other is not even mandatory, though it may hold relevance while making the assessment.
The limitation to the generality of the definition of Associates
Section 2(Ka.Na) supplements the general definition by specifying inclusions in the concept of “associated persons.” Individuals, relatives, and partners are “presumed” to be associated. This generality may create complications where even the non-market transaction that relates to one separate individual made without any knowledge / participation of the other associate may be recognized as a “transaction with associate” that could impair the fairness of taxation and assessments. A chance to rebut this “presumption” could have been more relevant but such opportunities for rebuttal have not been provided in the text of the law.
Thankfully, paragraph 207 of the The Commonwealth of Symmetrica Income Tax Act after which our tax law is modeled after explains this rebuttal as a possibility that may be persuasive in the context of our law as well. Paragraph 207 of the Commentary states that such “presumption” can be contested by demonstrating to the tax administration that the general test in Section 2(Ka.Na) is not met. The general test here refers to “Associated Persons – means two or more persons or groups of such persons where one may reasonably be expected to act in accordance with the intentions of the other.” However, this exception may be persuasive in the context of our law because of the fact that Section 2(Ka.Na) of the Income Tax Act, 2058 and Section 107(2) of the Commonwealth of Symmetrica are drafted quite differently. Our law specifically excludes the right of the Commissioner of the Revenue Authority to exclude relationships with relatives and partners as “associate relationship” if he finds the facts satisfactory to that extent.
Even under the model law of Symmetrica, certain inclusive categories of “associated persons” in foreign branches and its owner, entity and its group of associated persons collectively with majority holdings are irrefutable and the Commissioner of the Revenue Authority does not have the right to preclude them from the associate relationship.
This brings an interesting confusion – does the general exception under the Section 2(Ka.Na) of the Income allow the Inland Revenue Department of Nepal to potentially non-recognize the “associate relationship” even in the cases of the (i) foreign branches and its owner, (ii) entity and its group of associated persons collectively with majority holdings even when the model tax law does not envision that?
This deviation of the Income Tax Tax, 2058 from the Model Tax Law certainly brings an interesting case where the department may have absolutely subjective criteria to establish an associate relationship as it may find convincing unless we have an objective criteria to establish associate relationship. We do not have such “associated parties transactions” guideline issued by the Department as of now – so much of the things are open to interpretation. In such a case the definition of related parties under NAS 24: Related Party Disclosures may be helpful to solve the doubts.
Although entities are separate, transactions between associates can be characterized
For transactions between associates, the definition of payment under Section 2(ha) of Income Tax Act, 2058 is quite wide and covers the circumstances such as the intercompany transactions between parent and subsidiaries, sister companies and other such related parties. Income Tax Act has not expressly restricted such transactions, but caution should be applied when making such transactions within associated entities.
Section 2(ha) of the Income Tax Act, 2058
“Payment” means the following activities:
(1) If the money or property owned by any one person is transferred to another person and the liability of any other person is transferred to that person,
(2) If the ownership over any property created by any person devolves on another person after the creation of that property or if any person bears the onus of liability of another person,
(3) If any person delivers service to another person,
(4) If any person uses any property owned by another person or such property is available for such use.
Because once such transactions are made between the associated persons, there may be subsequent gains/losses to either of the associated persons by at the point of transactions or by the way of favorable or unfavorable settlement of such transactions at a later date. This may lead to value shifting between the associated persons which may have tax consequences. Tax authorities under Section 29 of the Income Tax Act reserve a right to recharacterize such transactions. This risk may be immediate or remote depending on the nature of the transaction.
Section 29 of the Income Tax Act, 2058: Indirect payments
If any person gets indirect benefit from the payments made by the payer or a person associated with him or her or specifies another person to receive the payment, the Department may, by issuing a notice in writing, treat such other person or specified person as the recipient of payment.
Some relevant decisions from courts
- स्याकार कम्पनी लिमिटेड विरुद्ध ठुला करदाता कार्यालय ०७४-RB-०४९६
- आन्तरिक राजश्व कार्यालय विराटनगर बिरुद्ध पशुपति मेटल इण्डष्ट्रिज २०६२ सालको दे.पु.नं. ३३१२
In the above decisions, the taxpayer provides interest-free funds to its sister organizations or associated entities, controlled and managed by the same group. The taxpayer did not adequately explain the purpose of giving these funds, raising concerns about the tax-avoidance scheme used to reduce the tax burden. The decision suggests that such interest-free transactions, without clear business purposes may be considered a tax avoidance scheme. Thus the tax officer’s decision on not allowing the taxpayer to deduct such an amount as an interest expense was upheld by the court citing the provisions under Section 29, 35 and definitions of the associated parties under Income Tax Act, 2058. The case highlights the scrutiny and implications of associated transactions in the context of tax avoidance and the need for clear business justifications for financial dealings between related entities.