One of the criteria for designing cross-border corporate structures is also considering the tax exemptions/deductions and incentives the companies may be receiving in different jurisdictions. Such decisions can have a drastic effect on the culture of outbound/inbound investments. Foreign tax credit (FTC) is a mechanism through which tax credit for taxes paid in a source country is granted against the tax payable in the country of residence of the taxpayer.
The relevant Article for the elimination of double taxation of the respective Tax Treaties entered by India with other nations usually provides the mechanism to grant FTC. However, the language can vary between different DTAAs.
👉🏼For example, the India-UK Treaty / India-Canada Treaty follow the “ordinary credit method” wherein an Indian tax resident is granted a credit of taxes paid in UK / Canada from “tax payable” in India, provided the UK / Canada sourced income has been “subjected to tax” in both the jurisdictions (i.e., source and residence) and the FTC would be restricted to the extent of the Indian tax liability on the income received from UK / Canada. This computation mechanism is similar to the mechanism laid down under Rule 128 of the Income Tax Rules.
👉🏼The Indian-US Treaty represents a variant of ordinary credit method where the deduction is available from Indian tax payable to the extent of that part of income tax which is "attributable to the income" which is sourced and taxed in the USA. Hence, unlike the India-UK treaty, under India-US Treaty, no specific reference is made to the Indian income tax while providing a restriction on the quantum of credit.
👉🏼On the other hand, under India-Namibia Tax Treaty, “full credit” is available to the extent of the taxes paid in Namibia.
👉🏼In respect of countries with which India does not have a DTAA, like Jersey, provisions under the Income-tax Act (Section 91) are available which provide for FTC by the “ordinary credit” method. The FTC under this method is available on “doubly-taxed income” (i.e., income which is taxed both in India and the foreign country) to the extent of the lower Indian tax rate or foreign tax rate on such income.
One of the key issues that arises is whether the credit of taxes paid in foreign countries can be claimed in the residence jurisdiction, where the Indian Assessee has incurred net losses in India, after adjusting incomes derived from global operations. Considering that no part of the income earned abroad would suffer tax in India (i.e., not subjected to tax in India), relief under section 90/91 may not be admissible. Generally, Tax Treaties grant FTC to the extent of Indian tax liability on the income already taxed in foreign jurisdictions and do not permit the grant of refund of foreign taxes from the Indian exchequer.