Any mergers and acquisitions activity is intricate in its dimensions and would be affected by a plethora of laws and regulations depending on the stakeholders involved. Deal structuring from a tax perspective is one of the critical factors for any business restructuring proposition, such that the transaction is tax neutral or results in minimizing the tax implications. Such acquisitions may be routed through direct investments or through an International Holding Company (IHC).
An IHC would be advantageous in case the promoter/company wishes to keep the cash flows generated from overseas operations outside India for future growth needs. In case of direct investments, the entire surplus amount would have to be repatriated to India and the same would be subject to tax in India, thereby reducing the disposable income in the hands of the promoter/company. Income generated overseas could be repatriated to the Indian Company in the form of interest, royalties, service or management fees, dividends, capital gains. Such income when repatriated to the Indian Company by the IHC or to the IHC by the target company would attract double taxation. Double taxation is a situation in which two or more taxes are paid for the same income/transaction which arises because of the overlap between different countries tax laws and jurisdictions. The liability is then mitigated or off settled by tax treaties between the two countries. An ideal location for an IHC would be one with low/nil withholding tax on receipts, on income streams and on subsequent re-distribution as passive income. Some of the jurisdictions preferred for repatriating back to India include Mauritius, Cyprus, Singapore and
Netherlands, which have relatively better tax treaties with India.
Essentially the Vodafone Hutch deal involved transfer of shares of a non-resident Cayman
Islands based entity