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Overseas Equity Shares allotted under ESOPs

Darshan Jain (CA) (137 Points)

19 August 2022

I am a resident working in Google India. I have been issued Google Stock Units in under the Stock option program. Now, I want to sell the stocks in the US of say $100,000 and reinvest the money in other stocks. Whether I am required to repatriate the proceeds arising out of the sale of such securities as per Regulation 22 of the Foreign Exchange Management (Transfer or Issue of Any Foreign Security) (Amendment) Regulations, 2004 or is the transfer covered under the LRS, as provided in Q4 of FAQ's available at https://m.rbi.org.in/scriptts/FAQView.aspx?Id=115#Q4 ?

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Adv. Ravish Bhatt, ADIT, CIOT (Dual Qualified Lawyer/ Solicitor International Tax Affiliate CIOT) (1110 Points)
Replied 20 August 2022

Strict Legal Interpretation Regulation 22(4) of FEM(Transfer or Issue of Any Foreign Security) Regulations specifically provides for repatriation of proceeds of sale of foreign stocks acquired under regulation 22(1) or 22(2) and one could not therefore seek to cover this transaction under LR scheme. Additionally Transfer or issue of Foreign Security Regulations come in force after introduction of LR scheme and despite that RBI does not say that proceeds could be kept overseas and rather specifically requires proceeds to be repatriated despite being conscious of existing LR scheme. So proceeds must be repatriated.

Any LR requires the purpose to be mentioned and also PAN number to be furnished in Form A-2. Objective seems to be to keep RBI and taxman in loop about purpose and amount of remittance. Q4 seems to be dealing with a distinct situation of overseas JV and WOS direct investment.

However, if proceeds are to be brought here only for the purpose of getting them out under LR again, though I am not sure, there must be some provision for filing LR declaration without actual repatriation.

Please treat this as general suggestions / discussion only.

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Darshan Jain (CA) (137 Points)
Replied 20 August 2022

I hope there is some declaration that could be filed without actual repatriation. It does not feel prudent to repatriate and remit again under the LRS. I am also looking out for a solution; would keep the thread updated. Thanks for the answer!

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