Taxation of Expatriates and International Workers: an insight
By

-- By Vipul K. Raheja, Advocate, Delhi High Court --

Taxation of Expatriates and International Workers: an insight

 

1.       EXPATRIATE MEANING-

 

First of all we need to know who is an expatriate. Though there is no specific meaning of an expatriate as per Income Tax Act, 1961. However, in general terms, an expatriate is a Person living in a country other than his or her country of Citizenship, often temporarily or for work reasons. MNC’s increased integration into growing economies has led to a substantial rise in the cross-border movements of people. The people involved in such cross-border movement are known as expatriate i.e. a person temporarily residing and employed in another country while still remaining citizen of his home country  and such cross-border movement is known as secondment. The term expatriate is derived from the Latin word, ex-patria,  which means out of the country. Expatriate is defined as, a person who lives outside their native country or a person residing in a foreign country. 

 

2.       WHAT IS SECONDMENT ?

 

Secondment means the temporary assignment of an employee from an entity (lending employer) in a foreign country to an entity (receiving employer) carrying on business in host country, supported by the existence of an employer-employee relationship between the individual and the receiving employer. Such movement of people can be in different capacities i.e. employee, professional etc.

 

3.       RESIDENTIAL STATUS-

Residential status of a person is determined on the basis of physical presence in India and as per Section 6 of Income Tax Act, 1961.

For the taxation of expatriates, residential status has to be determined as per Income Tax Act, 1961 ANDDouble Taxation Avoidance Agreement (DTAA, defined below).

India has a residence-based taxation system. There are three categories of tax residency under Indian law:

·         a- Resident and ordinarily resident (ROR)

·         b-Resident but not ordinarily resident (RNOR)

·         c-Non-resident (NR)

Expats who qualify as ROR are taxed on their worldwide income. 

Expats who are RNOR or NR are only taxed on income that comes from an Indian source.

A person would qualify as a resident of India if he satisfies one of the following 2 conditions-

·          Stay in India for 182 days or more in the Previous year; 

·       Stay in India for the immediately preceding 4 years is 365 days or more and 60 days or more in the previous year.

If you do not meet these standards, you will be considered a non-resident for tax purposes. If you qualify as a resident, you will be either an ROR or an RNOR. 


You will be considered an RNOR and taxed as a non-resident if either of the following is true:

·         i) You have been a non-resident for at least  nine of ten previous tax years.

·         ii) You have been in India for less than 730 days in the previous seven years.

Otherwise, you will be considered an ROR and taxed on your worldwide income.

 

4. Double Taxation Avoidance Agreement

 

Double Taxation Avoidance Agreement (DTAA) is a tax treaty that is signed between two or more countries for helping taxpayers in avoiding double tax payments on the same income as set out under Section 90 of Income Tax Act, 1961. As it is very clear and obvious from the name of this treaty (Double Taxation Avoidance Agreement) that the purpose of this treaty is to avoid double taxation on the same income. 

 

Double Taxation Avoidance Agreement becomes applicable when an individual is a resident of one nation but earns income in another nation.

 

It is very important to determine the Residential Status of the expatriate under the Double Tax Avoidance Agreement (Treaty) with that country. At times, an expat employee may be a resident of both the countries under the taxation laws of respective countries. Under such circumstances, ‘Tie Breaker Rule’ as mentioned in the Treaty has to be applied to determine his residential status. There are various factors which are considered for this Tie Breaker rule such as- Permanent Home, Centre of vital interest, Habitual abode, Nationality, and competent authorities.  

The most common methodology for avoidance of double taxation used in Indian tax treaties are:  

·        Exemption method — under this method, the country of Residence does not tax the income, which according to DTAA may be taxed in the country of Source of income. Alternatively, the Country of source limits its right to tax income from sources in its country.  

·        Credit method — under this method, country of Residence includes income from country of Source in the taxable total income of the tax payer and calculates its tax on the basis of such taxpayer’s total income (including income from country of Source). It then allows a deduction from its own taxes for taxes paid in Country of Source with respect to income earned there. 

 

5. Social Security Agreement-

 

Before coming to the taxability of an expatriate, we should know about the Social Security Agreement. The idea behind signing a Social Security Agreement between two countries is with the prime objective of protecting the interests of cross-border workers. This is done with the objective of ensuring that workers from both countries are treated equally in terms of Social Security.

Certain home countries cast an obligation on the employer to contribute to the social security schemes in respect of the employees hired in non-home countries. The inclusion of social security contribution in taxable salary quantum of expatriate has been debated time and again in the past but the courts have held that such inclusion cannot be done as it amounts to contingent payments to which the employee has no right till the contingency occurs.

 

6. Taxability of Expatriates in India -

 

As per the provisions of Section 14 of Income Tax Act, 1956, there are 5 heads of Income under which the income of a person can be classified. These are: 

(A) Salary 

(B) Income from House Property 

(C) Income from Business and Profession. 

(D) Capital Gains 

(E) Income from Other sources

Analysis of income under each head for expatriates has been done with respect to the domestic tax laws and provisions given in the Double Tax Avoidance Agreements of India with other countries.

 

(A)   SALARY 

 

Salary income of expatriates would be taxable in India under the provisions of the Income Tax Act, in case the same is either received or deemed to be received in India or in case it accrues or is deemed to be accrued in India. 

 

The extent of Indian Tax Liability depends on the residential status of an individual based on his physical stay in India and the extent to which their income is taxable in India. The Taxability of salary paid to an expatriate employee for services rendered in India depends upon the residential status of the expatriate, which is to be determined under the domestic law of the host country as well as the home country. In case of a conflict i.e. where the expatriate becomes resident of host country as well as home country, recourse is made available to Tie Breaker rules given in the DTAA entered between host country and home country to decide the Final residential status of an expatriate. However, where there exists no DTAA, the benefit of tie breaker rules would not be available. 

 

Similarly, in certain cases, expatriates are required to pay a notional tax equivalent to a home country tax which would have been paid had he/she remained in the home country with that level of salary, commonly known as hypothetical tax. Deduction of hypothetical tax of an expatriate is a debated issue and different views have been taken by the courts in the past depending upon the facts and circumstances of each case. Further, to ensure that the expatriate is not at loss in secondment, the employer undertakes to bear the tax to be paid in the host country so that the net take away home salary in the hands of the expatriate does not suffer. 

 

Salary earned by an expatriate for rendering services in India is taxable in India except where the expatriate claims exemption on account of short term visit, either under the domestic law or under the DTAA, upon fulfilment of specific conditions mentioned therein.

 

(B) INCOME FROM HOUSE PROPERTY 

(Sections 22 to 25) deal with Income from House Property under the domestic laws. The scope of income covered depending on the residential status of an assessee is as under: 

                                                          ROR                     RNOR        NR

                                                      Resident and                          Resident but not                    Non

               Ordinarily resident               Ordinarily resident                       Resident

_____________________________________________________________________________

Situation

1..House Property situated in India,            Yes                  Yes             Yes

Income received in India

 

2..House Property situated in India,            Yes                  Yes             Yes

Income received outside India

 

3..House Property in foreign country,       Yes                  Yes             Yes

Income received in India

 

4..House Property in foreign country,       Yes                  No              No

Income received in foreign country

 

Thus, if the house property is situated in a foreign country – 

1) A Resident assessee is taxable under section 22 in respect of the annual value of a property situated in a foreign country. 

 

2) A RNOR or NR is, however, chargeable under section 22 in respect of income of a house property situated abroad; if income is received in India during the previous year. 

 

Non-residents should be careful about taxation of deemed let out property. If they own more than one residential house, and if either is not given on rent, one of them will still be taxable as deemed let out property. This condition applies to immovable properties owned globally. Say, if a self-occupied house was owned abroad, and the other house was in India,theassessee would have to pay tax on deemed rent in India if it is not let out. 

 

(C)    INCOME FROM BUSINESS OR PROFESSION

According to the domestic law, the taxation of business profits of non-residents in India is kicked off with a business connection in India. The inference of business connection in India as per the Income Tax Act is quite wide and would lead to deeming the Income ‘to accrue or arise’ for the foreign enterprise in India. 

1) Global Income is taxable for Residents. 

2) For RBOR and NR, taxability of Income from business or profession depends on whether such business or profession is carried out via a Permanent Establishment” (PE) situated in India. 

 

(D) CAPITAL GAINS 

Capital gains are taxable as per domestic law as follows–

                                                          ROR                     RNOR        NR

                                                     Resident and                                 Resident but not             Non

               Ordinarily resident                         Ordinarily resident           Resident

_____________________________________________________________________________

Situation

1..Capital Asset situated in India,           Yes             Yes             Yes

Income received in India

 

2..Capital Asset situated in India,           Yes             Yes             Yes

Income received outside India

 

3..Capital Asset in foreign country,      Yes             Yes             Yes

Income received in India

 

4..Capital Asset in foreign country,      Yes             No              No

Income received in foreign country

 

(E) INCOME FROM OTHER SOURCES 

 

1) Income from other sources includes interests, dividends (excluding exempt dividend u/s 10), fees for technical services, etc not covered under the other heads of income. 

 

2) As per the domestic tax law, they are taxable as provided under Section 56 of the Act.

3) Income of Non-residents will be taxable if it arises in India. 

 

Conclusion: 

The taxation framework for expatriates in India, endeavors to achieve equity, transparency, and compliance. By aligning with the principles of residence-based taxation, India aims to tax income earned within its boundaries while providing avenues for double taxation relief through DTAA. 

The availability of exemptions, deductions, and compliance requirements further facilitates expatriates in meeting their tax obligations effectively. A comprehensive understanding of the taxation system enables expatriates to navigate the Indian tax landscape smoothly, fostering economic growth and harmonious integration.

•••••

 


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