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Tax Planning

here is nothing which hurts more than payment of taxes. One question that goes through every tax payers mind is how can I reduce my tax liability? Reducing tax liability is not always a bad or illegal exercise. There are legitimate ways to reduce taxes through proper tax planning and such methods are always encouraged. But unfortunately, there is also a tendency to reduce tax through illegal or colourable methods. They are not accepted practice and can invite problems. There are three methods which are commonly used by the taxpayers to reduce their tax liabilities Tax evasion, Tax Avoidance and Tax Planning Tax evasion: Dishonest taxpayers try to reduce their taxes by concealing income, inflation of expenses, falsification of accounts and willful violation of the provisions of the Income-tax Act. Such unethical practices often create problems for the tax evaders. Tax department not only imposes huge penalties but also initiates prosecution in such cases. Tax Avoidance: Tax avoidance is minimizing the incidence of tax by adjusting the affairs in such a manner that although it is within the four corners of the laws, it is done with a purpose to defraud the revenue. It is the act of dodging without directly breaking the law. For example if A gives gift to his wife, the income from the asset gifted will be clubbed in the hand of A. But to avoid this clubbing provision A decides to give gift to Bs wife and B reciprocates it by giving gift to As wife. This is not tax planning but tax avoidance. Such practices are not acceptable. In the words of Justice Rangnath Misra of Supreme Court in the case of McDowell & Co Limited v CTO [1985] 154 TR 148, Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honorable to avoid payment of tax by resorting to dubious methods. Tax Planning: Tax planning is arrangement of financial activities in such a way that maximum tax benefits, as provided in the income-tax act are availed of. It envisages use of certain exemption, deductions, rebates and reliefs provided in the act. Some examples of tax planning are given below: Residential status: Sometime by better tax planning a taxpayer can avoid becoming resident in a particular year. The advantage of this is that if he is non-resident in a particular year, he is not liable to be taxed for his overseas income in India. In case he becomes resident in India for tax purpose, he is taxed for his worldwide income. However, this may not have any effect if the tax paid abroad on overseas income is equal to more than the tax payable on such income in India, as the taxpayer is entitled to get credit of taxes paid abroad in case that income gets taxed in India.

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Individuals investment: Taxpayer can plan investment in a manner so that overall return is optimum. This may involve analyzing different investment options taken into consideration, availability of tax deduction u/s 80C, exemption of interest/dividend income on a particular investment, capital gain, possibility of exemption from capital gain, rate of return, risk factor, liquidity etc. Employees remuneration: There is no effect on the tax liability in the hand of the employer on account of designing of salary package of employees. Still, every employer wants to design the salary package in a way so that the incidence of tax on the employee is kept to minimum. By doing this, the take home pay of the employee is increased. To design such a package it is necessary to understand how perquisites and benefits are taxed and which are those perquisites or benefits which are not taxed or taxed at concessional rate. It is also necessary to understand the how Fringe Benefit tax is payable, as it may be advisable for the employer to pay FBT instead of letting that benefit be taxed in the hand of the employee through allowances. New Business, What should be the form of ownership? : While starting his business, taxpayer can plan his taxes by evaluating tax implication in different choices available like individual proprietorship, partnership firm or company. Proprietorship is easy to establish with less cost and with no restriction on enjoyment of profit. The tax rate is also less because of slab system of taxation. However, it is suitable for small business only. Partnership firm: If there is more than one person having common interest in the business then it makes sense to incorporate as partnership firm. The tax liability may be a little more than proprietorship but firm can reduce this tax liability by taking advantage of initial exemption available in the hand of various individual partners by providing for their salary and interest within the given limit. This will work if the partners have no other source of income. In the case of company the tax rate is highest and the dividend is further subjected to tax. However, the limited liability and ability to raise finance are also important factors other than taxes. Also there is no limitation on the salary payable to Director. New Business, Location of Business: the correct selection of location of business also plays an important role in Management decision making. There are a few locational tax advantages in the Income Tax Act which must be considered while arriving at the decision. In other words, when one is trying to start a new business or start a new unit in the existing business, it can consider locating business in a place so that it get some tax exemption which will reduce the tax liability. Important sections of income-tax act which will help in this tax planning are: 1. 2. 3. 4. Section 10A: Newly established undertaking in Free Trade Zone, Electronic Hardware Technology Park or Software Technology Park. Section 10AA: Newly established undertaking in Special Economy Zone. Section 10B: Newly established 100% Export Oriented Undertaking. Section 10BA: Newly established manufacturing unit producing hand made article or things or artistic value with wood (not being imported) as the main raw material. At least 90% must be exported. Section 80IB: Industrial undertaking located in industrial backward state or district. Section 80IC: Undertakings or enterprises located in notified area in North Eastern State, State of Sikkim, Himachal Pradesh, Uttranchal.

5. 6.

New Business: Nature of business: Before starting a business it is important to know various tax incentives available under the Income Tax Act for some specific types of business. Most of such exemptions have now become non-existent. However, in the following cases, fresh business may still get tax exemption.

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1. 2. 3. 4.

Export Business : Under Section 10A, 10AA, 10B, 10BA, Developer of SEZ: 80IAB Infrastructure Development: 80IA Business of Scientific Research & development, production/refining of mineral oil, development and building of housing project approved by a local authority, operation & maintenance of hospital in rural area, processing, preservation & packaging of fruits or vegetables: Section 80IB

Management Decision - Capital Structuring: In Financial Management Course, students are taught to understand the basis of arriving at the decision about capital structure, i .e. debt, equity or preference shares. The factors like risk, cost and control are relevant. In addition one must understand the tax implication and should also consider this while deciding the best mix to optimize shareholders return. Dividend on share is not allowable deduction in the hand of the company; however, interest on debt paid is allowable deduction. The cost of raising equity is a capital expenditure which can only be capitalized and amortized in certain conditions (may not be amortized in all cases). However, the cost of raising debt is allowed as deduction. This has direct implication in calculating corporate tax liability. On dividend from Indian company, the company is liable to pay DWT and then such dividend is exempt in the hand of the shareholders. Management Decision: Make or buy: In Financial management course, students are taught to understand the basis of arriving at the make or buy decision considering capacity utilization, inadequacy of fund, cost of fund, latest technology, variable cost of manufacturing etc. While arriving at this decision due consideration must also be given to tax implication as this will certainly influence the decision. One must consider that if one decides to make, there is less outflow due to tax benefit on depreciation/ interest and tax advantage available due to location of manufacturing in a particular area. These tax advantages have already been listed earlier. If the company is able to take advantage of any of these tax incentives, the decision to make may come out better in comparison to decision to buy. Management Decision: Own or Lease: Concept of leasing is gaining immense popularity. One private airline has recently sold and taken back the same aircraft on lease. In the process it got some funds in its account. One factor which influenced its decision was that the lease rental paid to foreign enterprise is not subject to withholding tax if the lease agreement has been approved by the Central Government. Other factors which must be considered for tax implications are that in case of buying the asset, the assessee will be entitled to deduction on the account of depreciation and interest, while in case of lease he will be entitled to deduction on account of lease rental which will be higher in the initial years. Hence, tax consideration will also influence management decision to own or lease. Capital Gain: It is important to understand that long term capital gain tax is less than normal tax on business or interest income. Further in case of equities, where security transaction tax is paid, there is no long-term capital gain and short-term capital gain is only charged at 10%. Even if the taxpayer has long term capital gain he has the opportunity to reduce it by properly investing it in approved bonds of National Highway Authority or Rural electrification Corporation under section 54EC or investing in house property under section 54 and 54F. Thus if some one has an option to earn regularly or through capital gain, the earning through capital gain will attract less tax. This will influence the investment decision of the taxpayer. Amalgamation: There is limitation in the Income-tax Act for carry forward of losses. It is quite possible that one of the group companies is making profit and another group company is making losses. Some of these losses may be getting lapsed due to time limitation. One can not transfer profit of one Group Company to another just like that as it would amount to tax avoidance and can invite trouble. The tax

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planning in such cases could be to merge the two companies. However, it must be ensured that the conditions of merger as given in the Income-tax Act are satisfied. These are 1. All property and liability of the amalgamating company or companies immediately before the amalgamation becomes the property of the amalgamated company by virtue of amalgamation; Shareholders holding not less than 75% in value of the shares in the amalgamating company or companies become shareholders of the amalgamated company by virtue of the amalgamation Conditions as prescribed in section 72A of the Income-tax Act are satisfied by both amalgamating company and the amalgamated company.

2.

3.

Chapter Review

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