Business Standard

‘Google Tax did not address tax challenges of digital economy’

- RAKESH NANGIA

The digital economy was going untaxed, which led to decades of brainstorm­ing at OECD (Organisati­on for Economic Cooperatio­n and Developmen­t), resulting in ‘Action Plan 1-Addressing the tax challenges of Digital Economy’ under the Base Erosion Profit Shifting (BEPS) Project.

Being an observer of the BEPS project, a new terminolog­y was toyed by the Indian tax administra­tor to tax ‘Googles’ and ‘Facebooks’ of the world — Google Tax. A new kind of equalisati­on levy at six per cent was introduced to tax digital advertisem­ent platforms effective June 2016.

But, Google Tax was not the answer to the tax challenges of the digital economy, since it was eventually borne by Indian users and Google remained unaffected by and large from this levy.

Recently, going against the principles laid by Indian courts in the past on taxability of advertisem­ent revenue, the Bengaluru bench of Income Tax Appellate Tribunal (ITAT) has put Google India under the ‘tax net’ by asking it to pay the same on AdWords revenue of ~1,457 crore remitted by Google India to Google Ireland (GIL) over the past six years. This came as a blow to the world’s favourite search engine, which has decided to file an appeal against the ITAT order. Why was AdWords revenue remitted to Ireland? Ireland has especially low tax rates for multinatio­nal companies, leaving other countries shortchang­ed. Google has been routing its AdWords revenue to its Ireland subsidiary, GIL, to achieve tax efficienci­es. In this ruling, India has treated Google more harshly than other countries that were losing on their fair share of taxes. France’s stance Google employed 700 people in France through its subsidiary there. But, it used a division based in Ireland (GIL) to sell French customers digital services like its well-known advertisin­g platform AdWords. The case hinged on whether Google owed various taxes in France, even though it sold services from Ireland. The Paris Administra­tive Court has recently (July 2017) ruled that GIL was not liable for French corporate income tax, value added tax and local business tax. Australia’s struggle Google had an Australian firm for local operations. Advertisin­g revenues generated in Australia were not paid to this company. Rather, they were paid to an overseas firm in Singapore. Addressing this issue and ensuring their fair share of taxes, Australia levied GST on Google AdWords revenue last year (November 2016). GST in Australia cannot be levied on an overseas company, owing to which Google Singapore assigned its service agreements to Google Australia. India’s case Income of a foreign entity is chargeable to tax in India if the same falls under the category of business income where the foreign entity has a permanent establishm­ent in India or the income qualifies as royalty of fees for technical services.

In the present case, Indian tax authoritie­s have dived deeper beyond the form of the arrangemen­t in place to understand the real conduct of Google while providing the AdWords Space to advertiser­s. AdWords is not like buying ad space in a newspaper or a magazine. Rather, it is a focused targeted marketing for the product/services of the advertiser by the assessee/Google with the help of technology for reaching the targeted persons based on the various parameters of informatio­n. ITAT has distinguis­hed the earlier ruling on advertisem­ent revenue, where it was a mere display of advertisem­ent by the advertiser on the website, and held that in the present case, and since it uses patented technology, secret process and use of trademark, it qualifies as a royalty. Impact on other multinatio­nals This is a significan­t ruling for other multinatio­nals operating out of Ireland and other tax havens, merely to avoid taxes in India. They may have to relook at their arrangemen­ts that generate revenue from India, since Indian courts are clearly keeping pace with the ever evolving business models. Reading between the lines of various clauses of the arrangemen­t in place that have their source of income in India, Indian courts won’t let go of its fair share of taxes. With the general anti-avoidance rule in its toolkit, the tax planning done with the principal purpose of tax benefit won’t go unnoticed and untaxed by Indian authoritie­s.

 ??  ?? MNCs may have to relook their arrangemen­ts that generate revenue from India, since Indian courts are clearly keeping pace with the ever evolving business models
MNCs may have to relook their arrangemen­ts that generate revenue from India, since Indian courts are clearly keeping pace with the ever evolving business models
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