Tuesday 6 August 2013

Employee Stock Options granted by foreign employer is liable to tax in proportion to the period of services rendered in India: Delhi Tribunal

 


The Delhi Bench of the Income Tax Appellate Tribunal (“ITAT”) has delivered an important ruling in the case of Robert Arthur Keltz (“the taxpayer”). The ITAT has held that only that portion of employee stock options would be liable to tax as a perquisite in India which is relatable to the services rendered by the taxpayer in India, and not pertaining to the whole grant period.



In this special edition of BMR Edge, we have summarized the facts of the case and the ruling of the ITAT.


Facts of the case


The taxpayer, an employee of United Technologies International Operation, USA (“UTIO”), was deputed to its Indian Liaison Office wef April 1, 2006 under a tax equalization policy. Such a policy ensured that the taxpayer does not pay excess taxes (ie, over and above the taxes (“hypo tax”) that he would pay had he continued to stay in his home country) in the host country due to the commencement of international assignment. As part of the tax equalization policy, the employer calculated a hypo tax and excluded the same from the employee’s pay.


Further, he was granted options of 34,000 shares on January 9, 2004 by UTIO, when the taxpayer was outside India. The stock options had a vesting period of 3 years i.e. from January 9, 2004 to January 9, 2007. The options vested partially and were exercised by the taxpayer during the period of his Indian assignment.


The taxpayer being a resident and not ordinarily resident during the concerned tax year while filing his return of income offered to tax the amount of proportionate stock perquisites earned in India. Also, by the virtue of tax equalization policy, the taxpayer has excluded the amount of hypo tax from his salary.


The Assessing Officer (“AO”) rejected the claim of the taxpayer and brought to tax the entire perquisite value of stock options when the options were exercised while he was in India. In addition, the AO has also added back the amount of hypo tax to the base salary of the taxpayer.


Appellate Commissioner’s ruling


Aggrieved by the order of AO, the taxpayer preferred an appeal before the Commissioner of Income Tax (Appeals) [“CIT (A)”] who reversed the AO’s order upholding the claim of the taxpayer. The key observations of the CIT (A) order were as follows:


· In relation to the stock options, the taxpayer had been in India for only a part of the time of the vesting period and therefore, only the proportionate stock option benefit which is attributable to the period spent in India was chargeable to tax in India. Reliance was placed on the ruling of Eric Morquxer and Ghorayed Emile[1] , circular no. 9 / 2007 dated December 20, 2007 pertaining to the Fringe Benefit Tax (“FBT”) regime and OECD guidance report on treatment of stock options to support his view.


· The disallowance on account of hypo tax was rejected by relying on the Delhi High Court (“HC”) ruling in the case of CIT v. Dr. Percy Batlivala.[2]


Aggrieved by CIT (A)’s order, the AO filed an appeal before the Delhi ITAT.


Revenue’s contentions


The key contentions of Revenue are summarized below:


· The whole perquisite amount on account of stock options should be liable to tax in India. Reliance was placed in the ruling of Sumit Bhattacharya[3] , a decision of Special Bench of the Mumbai ITAT. The ruling principally distinguished stock options from stock appreciation rights. Also it was held, that the benefit which the employee would get on the date of exercising the option to purchase the shares would be liable to tax as a perquisite. The value of such perquisite would be the difference between market price of shares as on the date of grant and the price for which the assessee has purchased the shares. If the shares are granted free of cost, then the entire value of shares would be a perquisite, on the date the employee becomes the owner of the shares.


· Hypo tax forms part of the taxpayer’s taxable salary on the understanding that income has already accrued to him and no specific exemption or deduction has been granted for hypo tax under the Income-tax Act, 1961.


Taxpayer’s contentions


The key contentions of taxpayer are summarized below:


· The shares were allotted to the taxpayer outside India and thus, the benefit arising there from cannot be deemed to be received in India.


· The stock option benefit does not accrue or arise or deemed to accrue or arise to the taxpayer in India since the options granted represents a future right of the taxpayer to receive the shares of UTIO, once the vesting condition is complied with. In other words, the employee should continue his employment over the vesting period. In case the vesting condition is not met then the options would lapse.


· Since, the taxpayer has been in India only for a part of the time of the vesting period, only a proportionate stock option benefit which is attributable to the period spent in India accrues to the taxpayer.


ITAT’s ruling


The Delhi bench of ITAT has ruled in favour of the taxpayer holding as under:


· Since the taxpayer has not rendered service in India for the whole grant period, only such portion of the perquisite value of stock options would be taxable in the hands of the taxpayer which is related to the period of his Indian assignment.


· Placing reliance on the principal laid down in the ruling of ACIT v. Ellin ‘D’ Rozario[4], it was held that only proportionate salary would be liable to tax in India if a part of the activity done by the taxpayer has no relation to any India specific job or activity.


· With regard to the addition made on account of hypo tax, the findings of the CIT (A) were allowed by following the Delhi HC judgment in the case of Dr. Percy Batlivala.

No comments:

Understand CCD & CPS.

  Certificates of Deposit It is a fixed income financial tool that is governed by Reserve Bank of India and is issued in a dematerialized ...