Place of effective management (POEM)

There has been change in section 6(3) regarding the determination of residential status of Company. As per the new provisions the residential status of companies which are not incorporated under the corporate laws of India, would be determined by the concept of "Place of Effective Management".

Place of effective management is defined in the Income Tax Act to mean a place where key management and commercial decisions that are necessary for the conduct of business of an entity as a whole are, in substance made.

'Place of effective management' (POEM) is an internationally recognised test for determination of residence of a company incorporated in a foreign jurisdiction. Most of the tax treaties entered into by India recognises the concept of 'place of effective management' for determination of residence of a company as a tie-breaker rule for avoidance of double taxation.

In the memorandum to Finance Bill 2015, the hon'ble finance minister has given the following explanation for introduction of POEM:

"The modification in the condition of residence in respect of company by including the concept of effective management would align the provisions of the Act with the Double Taxation Avoidance Agreements (DTAAs) entered into by India with other countries and would also be in line with international standards. It would also be a measure to deal with cases of creation of shell companies outside India but being controlled and managed from India."

Why the Change in provision: The extant provisions allowed tax avoidance opportunities for companies to artificially escape the residential status by shifting insignificant or isolated events related with control and management outside India.

Effective from:  The amended provision would be effective from 1st April 2017 and will apply to Assessment Year 2017-18 and subsequent assessment years.

Change in the provisions will majorly impact the Indian companies with operations outside India, companies which have set up foreign JV's and or wholly owned subsidiary.

"Further, it is proposed to define the place of effective management to mean a place where key management and commercial decisions that are necessary for the conduct of the business of an entity as a whole are, in substance made. Since POEM is an internationally well accepted concept, there are well recognised guiding principles for determination of POEM although it is a fact dependent exercise. However, it is proposed that in due course, a set of guiding principles to be followed in determination of POEM would be issued for the benefit of the taxpayers as well as, tax administration.

These amendments will take effect from 1st April, 2016 and will, accordingly, apply in relation to the assessment year 2016-17 and subsequent assessment years."

Budget Memorandum 2015

POEM shall impact

Draft Guiding Principles for determination of Place of Effective Management (POEM) of a Company was issued by CBDT on 23rd Dec 2015 which was left for public comments. F. No. 142/11/2015-TPL. There were lot of ambiguities which needed clarity.

CBDT issued Circular No. 06 of 2017dated: 24th January, 2017 for issuing guiding principles for determination of POEM.

Guiding principles [1]for determination of POEM

Guiding Principles to be followed for determination of POEM are enumerated in the following paragraphs.

 Terms defined in the guidelines

• Active business outside India
• Head Office
• Passive income
• Senior Management

For the purposes of these guidelines, -  

(a) A company shall be said to be engaged in "active business outside India" if the passive income is not more than 50% of its total income; and

(i) less than 50% of its total assets are situated in India; and
(ii) less than 50% of total number of employees are situated in India or are resident in India; and
(iii) the payroll expenses incurred on such employees is less than 50% of its total payroll expenditure.

Explanation: For the aforesaid purpose, -

(A) the income shall be, -

(a) as computed for tax purpose in accordance with the laws of the country of incorporation; or
(b) as per books of account, where the laws of the country of incorporation does not require such a computation.

(B) the value of assets, -

(a) In case of an individually depreciable asset, shall be the average of its value for tax purposes in the country of incorporation of the company at the beginning and at end of the previous year; and
(b) In case of pool of a fixed assets being treated as a block for depreciation, shall be the average of its value for tax purposes in the country of incorporation of the company at the beginning and at end of the year;
(c) In case of any other asset, shall be its value as per books of account;

(C) the number of employees shall be the average of the number of employees as at the beginning and at the end of the year and shall include persons, who though not employed directly by the company, perform tasks similar to those performed by the employees;

(D) the term "pay roll" shall include the cost of salaries, wages, bonus and all other employee compensation including related pension and social costs borne by the employer.

Data to be taken for determination of active business outside India:

• For the purpose of determining whether the company is engaged in active business outside India, the average of the data of the previous year and two years prior to that shall be taken into account.
• In case the company has been in existence for a shorter period, then data of such period shall be considered.
• Where the accounting year for tax purposes, in accordance with laws of country of incorporation of the company, is different from the previous year, then, data of the accounting year that ends during the relevant previous year and two accounting years preceding it shall be considered.

(b)"Head Office" of a company would be the place where the company's senior management and their direct support staff are located or, if they are located at more than one location, the place where they are primarily or predominantly located. A company's head office is not necessarily the same as the place where the majority of its employees work or where its board typically meets;

(c) "Passive income" of a company shall be aggregate of, -

(i) income from the transactions where both the purchase and sale of goods is from / to its associated enterprises; and

(ii) income by way of royalty, dividend, capital gains, interest or rental income;

However, any income by way of interest shall not be considered to be passive income in case of a company which is engaged in the business of banking or is a public financial institution, and its activities are regulated as such under the applicable laws of the country of incorporation.

(d)"Senior Management" in respect of a company means the person or persons who are generally responsible for developing and formulating key strategies and policies for the company and for ensuring or overseeing the execution and implementation of those strategies on a regular and on-going basis.

While designation may vary, these persons may include:

• Managing Director or Chief Executive Officer;
• Financial Director or Chief Financial Officer;
• Chief Operating Officer; and
• The heads of various divisions or departments (for example, Chief Information or Technology Officer, Director for Sales or Marketing).

Substance over form:  Any determination of the POEM will depend upon the facts and circumstances of a given case. The POEM concept is one of substance over form. It may be noted that an entity may have more than one place of management, but it can have only one place of effective management at any point of time. Since "residence" is to be determined for each year, POEM will also be required to be determined on year to year basis. The process of determination of POEM would be primarily based on the fact as to whether or not the company is engaged in active business outside India.

Determination of POEM in case of a company engaged in active business outside India

Majority meetings of BOD: The place of effective management in case of a company engaged in active business outside India shall be presumed to be outside India if the majority meetings of the board of directors of the company are held outside India.

BOD Standing aside: However, if on the basis of facts and circumstances it is established that the Board of directors of the company are standing aside and not exercising their powers of management and such powers are being exercised by either the holding company or any other person (s) resident in India, then the place of effective management shall be considered to be in India. For this purpose, merely because the Board of Directors (BOD) follows general and objective principles of global policy of the group laid down by the parent entity which may be in the field of Pay roll functions, Accounting, Human resource (HR) functions, IT infrastructure and network platforms, Supply chain functions, Routine banking operational procedures, and not being specific to any entity or group of entities per se; would not constitute a case of BoD of companies standing aside.

Determination of POEM in case of a companies other than engaged in active business outside India

In cases of companies other than those that are engaged in active business outside India, the determination of POEM would be a two stage process, namely: -

The place where these management decisions are taken would be more important than the place where such decisions are implemented. For the purpose of determination of POEM it is the substance which would be conclusive rather than the form.

Some of the guiding principles which may be taken into account for determining the POEM are as follows:

(a) The location where a company's Board regularly meets and makes decisions may be the company's place of effective management provided, the Board-

(i) retains and exercises its authority to govern the company; and
(ii) does, in substance, make the key management and commercial decisions necessary for the conduct of the company's business as a whole.

It may be mentioned that mere formal holding of board meetings at a place would by itself not be conclusive for determination of POEM being located at that place. If the key decisions by the directors are in fact being taken in a place other than the place where the formal meetings are held then such other place would be relevant for POEM. As an example, this may be the case where the board meetings are held in a location distinct from the place where head office of the company is located or such location is unconnected with the place where the predominant activity of the company is being carried out.

De facto delegation by BOD: If a board has de facto delegated the authority to make the key management and commercial decisions for the company to the senior management or any other person including a shareholder, promoter, strategic or legal or financial advisor etc. and does nothing more than routinely ratifying the decisions that have been made, the company's place of effective management will ordinarily be the place where these senior managers or the other person make those decisions.

(b) Place of development of develops and formulates the key strategies and policies: A company's board may delegate some or all of its authority to one or more committees such as an executive committee consisting of key members of senior management. In these situations, the location where the members of the executive committee are based and where that committee develops and formulates the key strategies and policies for mere formal approval by the full board will often be considered to be the company's place of effective management.

The delegation of authority may be either de jure (by means of a formal resolution or Shareholder Agreement) or de facto (based upon the actual conduct of the board and the executive committee).

(c) Location of head office: The location of a company's head office will be a very important factor in the determination of the company's place of effective management because it often represents the place where key company decisions are made.

The following points need to be considered for determining the location of the head office of the company: -

Senior management in a single location: If the company's senior management and their support staff are based in a single location and that location is held out to the public as the company's principal place of business or headquarters then that location is the place where head office is located.

If the company is more decentralized (for example where various members of senior management may operate, from time to time, at offices located in the various countries) then the company's head office would be the location where these senior managers, -

(i) are primarily or predominantly based; or
(ii) normally return to following travel to other locations; or
(iii) meet when formulating or deciding key strategies and policies for the company as a whole.

Location of highest level of management: Members of the senior management may operate from different locations on a more or less permanent basis and the members may participate in various meetings via telephone or video conferencing rather than by being physically present at meetings in a particular location. In such situation, the head office would normally be the location, if any, where the highest level of management (for example, the Managing Director and Financial Director) and their direct support staff are located.

Decentralised senior management: In situations where the senior management is so decentralised that it is not possible to determine the company's head office with a reasonable degree of certainty, the location of a company's head office would not be of much relevance in determining that company's place of effective management.

(d) The use of modern technology impacts the place of effective management in many ways. It is no longer necessary for the persons taking decision to be physically present at a particular location. Therefore, physical location of board meeting or executive committee meeting or meeting of senior management may not be where the key decisions are in substance being made. In such cases the place where the directors or the persons taking the decisions or majority of them usually reside may also be a relevant factor.

(e) In case of circular resolution or round robin voting the factors like, the frequency with which it is used, the type of decisions made in that manner and where the parties involved in those decisions are located etc. are to be considered. It cannot be said that proposer of decision alone would be relevant but based on past practices and general conduct; it would be required to determine the person who has the authority and who exercises the authority to take decisions. The place of location of such person would be more important

(f) Shareholders involvement in certain cases: The decisions made by shareholder on matters which are reserved for shareholder decision under the company laws are not relevant for determination of a company's place of effective management. Such decisions may include sale of all or substantially all of the company's assets, the dissolution, liquidation or deregistration of the company, the modification of the rights attaching to various classes of shares or the issue of a new class of shares etc. These decisions typically affect the existence of the company itself or the rights of the shareholders as such, rather than the conduct of the company's business from a management or commercial perspective and are therefore, generally not relevant for the determination of a company's place of effective management.

However, the shareholder's involvement can, in certain situations, turn into that of effective management. This may happen through a formal arrangement by way of shareholder agreement etc. or may also happen by way of actual conduct. As an example, if the shareholders limit the authority of board and senior managers of a company and thereby remove the company's real authority to make decision then the shareholder guidance transforms into usurpation and such undue influence may result in effective management being exercised by the shareholder.

Therefore, whether the shareholder involvement is crossing the line into that of effective management is one of fact and has to be determined on case-to-case basis only.

(g) Routine operational decisions:  It may be clarified that day to day routine operational decisions undertaken by junior and middle management shall not be relevant for the purpose of determination of POEM. The operational decisions relate to the oversight of the day-to-day business operations and activities of a company whereas the key management and commercial decision are concerned with broader strategic and policy decision. For example, a decision to open a major new manufacturing facility or to discontinue a major product line would be examples of key commercial decisions affecting the company's business as a whole. By contrast, decisions by the plant manager appointed by senior management to run that facility, concerning repairs and maintenance, the implementation of company-wide quality controls and human resources policies, would be examples of routine operational decisions. In certain situations, it may happen that person responsible for operational decision is the same person who is responsible for the key management and commercial decision. In such cases, it will be necessary to distinguish the two type of decisions and thereafter assess the location where the key management and commercial decisions are taken.

Secondary factors can be considered

If the above factors do not lead to clear identification of POEM then the following secondary factors can be considered: -

(i) Place where main and substantial activity of the company is carried out; or
(ii) Place where the accounting records of the company are kept.

It needs to be emphasized that the determination of POEM is to be based on all relevant facts related to the management and control of the company, and is not to be determined on the basis of isolated facts that by itself do not establish effective management, as illustrated by the following examples:

(i) The fact that a foreign company is completely owned by an Indian company will not be conclusive evidence that the conditions for establishing POEM in India have been satisfied.

(ii) The fact that there exists a Permanent Establishment of a foreign entity in India would itself not be conclusive evidence that the conditions for establishing POEM in India have been satisfied.

(iii) The fact that one or some of the Directors of a foreign company reside in India will not be conclusive evidence that the conditions for establishing POEM in India have been satisfied.

(iv) The fact of, local management being situated in India in respect of activities carried out by a foreign company in India will not , by itself, be conclusive evidence that the conditions for establishing POEM have been satisfied.

(v) The existence in India of support functions that are preparatory and auxiliary in character will not be conclusive evidence that the conditions for establishing POEM in India have been satisfied.

No single principle will be decisive in itself: It is reiterated that the above principles for determining the POEM are for guidance only. No single principle will be decisive in itself. The above principles are not to be seen with reference to any particular moment in time rather activities performed over a period of time, during the previous year, need to be considered. In other words a "snapshot" approach is not to be adopted. Further, based on the facts and circumstances if it is determined that during the previous year the POEM is in India and also outside India then POEM shall be presumed to be in India if it has been mainly /predominantly in India

Prior approval of the Principal Commissioner or the Commissioner

The Assessing Officer (AO) shall, before initiating any proceedings for holding a company incorporated outside India, on the basis of its POEM, as being resident in India, seek prior approval of the Principal Commissioner or the Commissioner, as the case may be.

Further, in case the AO proposes to hold a company incorporated outside India, on the basis of its POEM, as being resident in India then any such finding shall be given by the AO after seeking prior approval of the collegium of three members consisting of the Principal Commissioners or the Commissioners, as the case may be, to be constituted by the Principal Chief Commissioner of the region concerned, in this regard. The collegium so constituted shall provide an opportunity of being heard to the company before issuing any directions in the matter.

 Summary

Stage 2: Determination of place where these decisions are in fact being made

Determination of Active business outside India

Illustrations

The following are certain illustrations intended to highlight applicability of certain principles enumerated in the foregoing paragraphs of the guidelines. The facts assumed have been simplified to highlight the principle. Actual determination of POEM of a company shall depend on all relevant facts.

Example 1: Company A Co. is a sourcing entity, for an Indian multinational group, incorporated in country X and is 100% subsidiary of Indian company (B Co.). The warehouses and stock in them are the only assets of the company and are located in country X. All the employees of the company are also in country X. The average income wise breakup of the company's total income for three years is, -

(i) 30% of income is from transaction where purchases are made from parties which are non-associated enterprises and sold to associated enterprises;

(ii) 30% of income is from transaction where purchases are made from associated enterprises and sold to associated enterprises;

(iii) 30% of income is from transaction where purchases are made from associated enterprises and sold to non-associated enterprises; and

(iv) 10% of the income is by way of interest.

Interpretation: In this case passive income is 40% of the total income of the company. The passive income consists of, -

(i) 30% income from the transaction where both purchase and sale is from/to associated enterprises; and
(ii) 10% income from interest.

The A Co. satisfies the first requirement of the test of active business outside India. Since no assets or employees of A Co. are in India the other requirements of the test is also satisfied. Therefore, company is engaged in active business outside India.

Example 2: The other facts remain same as that in Example 1 with the variation that A Co. has a total of 50 employees. 47 employees, managing the warehouse, storekeeping and accounts of the company, are located in country X. The Managing Director (MD), Chief Executive Officer (CEO) and sales head are resident in India. The total annual payroll expenditure on these 50 employees is of Rs. 5 crore. The annual payroll expenditure in respect of MD, CEO and sales head is of Rs. 3 crore.

Interpretation: Although the first limb of active business test is satisfied by A Co. as only 40% of its total income is passive in nature. Further, more than 50% of the employees are also situated outside India. All the assets are situated outside India. However, the payroll expenditure in respect of the MD, the CEO and the sales head being employees resident in India exceeds 50% of the total payroll expenditure. Therefore, A Co. is not engaged in active business outside India.

Example 3: The basic facts are same as in Example 1. Further facts are that all the directors of the A Co. are Indian residents. During the relevant previous year 5 meetings of the Board of Directors is held of which two were held in India and 3 outside India with two in country X and one in country Y.

Interpretation: The A Co. is engaged in active business outside India as the facts indicated in Example 1 establish. The majority of board meetings have been held outside India. Therefore, the POEM of A Co. shall be presumed to be outside India.

Example 4: The facts are same as in Example 3 but it is established by the Assessing Officer that although A Co.'s senior management team signs all the contracts, for all the contracts above Rs. 10 lakh the A Co. must submit its recommendation to B Co. and B Co. makes the decision whether or not the contract may be accepted. It is also seen that during the previous year more than 99% of the contracts are above Rs. 10 lakh and over past years also the same trend in respect of value contribution of contracts above Rs. 10 lakh is seen.

Interpretation: These facts suggest that the effective management of the A Co. may have been usurped by the parent company B Co. Therefore, POEM of A Co. may in such cases be not presumed to be outside India even though A Co. is engaged in active business outside India and majority of board meeting are held outside India.

Example 5: An Indian multinational group has a local holding company A Co. in country X. The A Co. also has 100% downstream subsidiaries B Co. and C Co. in country X and D Co. in country Y. The A Co. has income only by way of dividend and interest from investments made in its subsidiaries. The Place of Effective Management of A Co. is in India and is exercised by ultimate parent company of the group. The subsidiaries B, C and D are engaged in active business outside India. The meetings of Board of Director of B Co., C Co. and D Co. are held in country X and Y respectively.

Merely because the Place of Effective Management of an intermediate holding company is in India the POEM of its subsidiaries shall not be taken to be in India. Each subsidiary has to be examined separately. As indicated in the facts since  companies B CO. C CO. and D CO. are independently engaged in active business outside India and majority of Board meeting of these companies are also held outside India. The POWM of B.CO., C CO., and D CO., shall be presumed to be outside India.

Way out

Determination of residential status is the key factor in determination of taxability of Income. With the change in section 6(3) given the new definition of corporate tax residence in India, it has become very important for foreign companies, for overseas joint ventures, or subsidiaries of Indian entities to review, analyse and change if required the corporate decision making process presently followed.

Documentation is the key to showcase of substance. It is compulsory to properly document the process and demonstrate adherence thereto in substance at the ground level to mitigate any potential tax risks arising from the change in the definition.

Highlighted below are some of the illustrative practical suggestions that might help in substantiating the POEM of a foreign subsidiary or joint venture in foreign jurisdiction:

(a) Independent Board of Directors(BOD) of the foreign entity

The BOD of the foreign entity should be an Independent and autonomous body. The decisions of the BOD should be well informed and duly deliberated upon. The deliberations undertaken by the BOD should be documented and recorded appropriately in the minutes of the meeting.

(b) Place and Nature of Decisions 

To the extent possible, the BOD meetings of the foreign entity should be held only in the foreign country. No strategic/major commercial decisions should be taken in the meetings, if any held in India. The minutes of the meeting should be properly documented. All the directors should attend these meetings outside India.

(c) Clarity on Key roles and activities

Charter documents should bring out clearly the key business role and activities of the foreign subsidiaries or JVs in foreign jurisdiction. Shareholders agreements, employment agreement and any other incorporation or other document should adequately provide all powers to run the business activities on its own to foreign subsidiaries or JVs in foreign jurisdiction. Foreign corporate law compliances to be undertaken- minutes, quorum, registers, secretarial records, etc. should be maintained in the registered office of the foreign country.

(d) Extent of parent company support and stewardship function

Parent company's influence on subsidiary should be restricted to only to give visionary direction to its business and shall, at no time, extend to the actual steering of the subsidiary's key activities. It should be ensured and documented that exercise of powers by the parent company must be in the capacity of majority shareholder to protect its interest and not to take control of subsidiary and run it. The general meeting of the shareholders, where the key decisions are taken like declaration of dividend, sale of undertakings etc. (Where parent company, being the majority shareholder, can decide on matters) should preferably be held in the country of incorporation. The decision of the appointment of directors of the foreign subsidiary should not be taken in India; however, a recommendation may be made by the representative directors of the parent company in India. Parent company should only recommend the actual decision should be taken by the subsidiary company after due deliberation. Communication flow regarding management decisions and functions should be appropriately documented.

(e) Board of Directors and Senior management

As far as possible the key managerial personnel of the company like Executive directors, CEOs, COOs, CFOs of the foreign subsidiary should not be of Indian nationality and should be based outside India. Mostly in case of BOD and Senior management it so happens that they are not fully acquainted about the exposure arising out of their roles. Therefore, to make proper orientation and create awareness amongst BOD and Senior management about the issues related to POEM by conducting regular sessions for them highlighting key dos and don'ts while with regard to important aspects like conducting business, their international mobility, meetings, video conferencing, work permit documents, communicating through emails etc. As seen above one of the most relevant factor in determination of POEM is the where the key decisions are made, the location of HO and the location of BOD therefore it become very pertinent that various working documents like appointment letters, titles of designations offered, work visas, business cards, service records, domicile proofs, and social security compliances of the BOD and Senior management should be critically examined from the POEM perspective and should be regularly reviewed. The powers of the respective BOD and Senior management about taking any strategic or commercial decisions should be documented adequately and such decisions should be subjected to BOD approval. Due consideration should also be given to the information posted on the website of the foreign subsidiary or the Indian parent company about the foreign company's operations as well as about the key functions and role of the executive directors and officers of the foreign company should be regularly reviewed and updated.

[1] Circular No. 06 of 2017, F. No. 142/11/2015-TPL , Government of India ,Ministry of Finance, Department of Revenue ,Central Board of Direct Taxes , Dated: 24th January, 2017