Key regulatory provisions applicable to mobile employees

Transcription

1 Key regulatory provisions applicable to mobile employees Ashish Gupta 28 June 2014

2 Contents FEMA Provident Fund / Social Security Immigration / Visa 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 1

3 FEMA Residency Bank accounts and deposits/liberalised remittance scheme Receipt and remittance of salary Overseas social security and insurance Investment in securities/grant of ESOPs Investment in immovable property Investment outside India

4 Residency 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 3

5 Persons Coming to India Person Resident in India Person resident in India (PRII) - Section 2(v) of FEMA General rule - stay more than 182 days in India in the preceding financial year (FY), applicable to person: coming for taking up employment in India coming for carrying on a business or vocation in India coming for any other purpose with the intention to stay in India for an uncertain period Change in residential status is automatic and no intimation to the RBI is required. PRII - Other Important Terms The difference between person resident but not permanently resident is defined in various regulations A person resident in India is one who has come: for employment of a specified duration (irrespective of length thereof); or for a specific job or assignment, the duration of which does not exceed three years 4

6 Persons Going Abroad/Staying Overseas Person Resident Outside India Person resident outside India (PROI) - Section 2(v) of FEMA General rule stay l82 days or less in India in the preceding FY, applicable to person: leaving India for taking up employment outside India leaving India for carrying on a business or vocation outside India leaving India for any other purpose with the intention to stay outside India for an uncertain period Change in residential status is automatic and no intimation to the RBI PROI is -required Other Important Terms Non Resident Indian (NRI) is defined in various regulations (may vary) PROI is a citizen of India or a person of Indian origin (PIO) PIO is defined in various regulations (may vary) Citizen of any other country other than (Pakistan or Bangladesh) who at has any time held an Indian passport or if he/parents/grandparents were citizens of India or is a spouse of an Indian citizen/a PIO 5

7 Case Study 1 Residential Status Background Mr. A is an Indian citizen working in an Indian company Mr. A has got a job in a U.S. company in the U.S. and will leave India on 1 February 2014 Mr. A intends to work in U.S. for three years Mr. A s stay in India is more than 182 days during FY and FY Issue What will be Mr. A s residential status in India for FY and FY ? Comments Mr. A resided in India for more than 182 days in FY and FY However, as Mr. A is leaving India for employment, he would qualify as PROI for FY (from 1 February 2014) and FY

8 Case Study 2 Residential Status Background Mr. B is an NRI who came to India after five years in November 2013, for family reasons Mr. B is employed by a U.S. company and receives salary in the U.S. Mr. B s total stay in India will not exceed two years While in India, Mr. B will continue rendering services to the U.S. company Issue What will be Mr. B s residential status in India? Comments Mr. B would qualify as PROI in India for FY and

9 Bank Accounts and Deposits 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 8

10 PRII Bank Accounts FEM (Foreign Currency Accounts by PRII) Regulations, 2000 Notification 10 Can hold the following foreign currency accounts in India Resident Foreign Currency (RFC) which the PRII can open with relatives as joint holders (survivor basis) Resident Foreign Currency (Domestic)[RFC (D)] which the resident individual can open Can hold the following accounts outside India: o o o o Foreign Currency Account maybe opened: by a PRII who has gone abroad for visit/studies; balance to be repatriated on return by an employee while on deputation from outside India for remittance under the Liberalised Remittance Scheme for trade and exhibition 9

11 PRII Bank Accounts Bank accounts RFC A/c RFC(D) A/c Who can open PRII - returning NRI/PIO A resident How and when can it be opened? Account type Remittances With foreign exchange received as pension/superannuation/mo netary benefits from an outside employer, realisation on conversion of assets, gift or inheritance, insurance proceeds Savings, current, term deposit Can be used for all capital and current account transactions With foreign exchange received in the form of currency notes, bank notes, travellers cheque on visit outside due to payment of services, unspent foreign exchange, gift from overseas visit, insurance proceeds Current Can be used for permissible capital and current account transactions 10

12 PROI Bank Accounts in India FEM (Deposit) Regulations, 2000 Notification 5 Can hold the following accounts/deposits in India Non Resident Ordinary (NRO) account Non Resident External (NRE) account Foreign Currency Non Resident (FCNR) account Discontinued - Non Resident (Non-Repatriable) Rupee Deposit Scheme Discontinued - Non-Resident (Special) Rupee (NRSR) Account Scheme Change in status to PRII If FCNR deposit holder becomes PRII, deposit can be held till maturity Others have to convert to a resident account or funds have to be transferred to a RFC account 11

13 PROI Bank Accounts in India Bank accounts NRO A/c NRE A/c FCNR B A/c Who can open PROI NRI NRI How and when can it be opened? Account type Accounts in which currency By conversion of existing savings on a PROI status, by remittances from abroad Savings, current, recurring and fixed deposit Only Indian rupees By remittances from abroad, or by transfer from other NRE/FCNR accounts Savings, current, recurring and fixed deposit Only Indian rupees By remittances from abroad, or by transfer from other NRE/FCNR accounts Term deposit for one to five years In any permitted foreign currency Joint A/c Repatriation of funds Permitted, with residents Current income is fully repatriable Principal up to USD1 million per financial year Permitted with non-residents only Entire balances including interest freely repatriable Permitted with non-residents only Entire balances including interest freely repatriable 12

14 Case Study 3 Bank Accounts Background Mr. C is an Indian citizen, assigned to Turkey for a year. This will be his first trip outside India. Mr. C has a savings bank account in India, and will continue to earn interest and dividend therein. During his assignment, he will receive salary in his bank account in Turkey. Mr. C will remit a part of his salary to India for the purpose of paying off mortgages, making investments. On his return, he will close his bank account in Turkey and remit all the funds to his Indian bank account. Issue Can Mr. C maintain and keep open his Indian savings account during his assignment? Once he remits his salary into India, can he again repatriate to Turkey or any other country? 13

15 Case Study 3 Bank Accounts Comments Mr. C is proceeding for employment outside India and is therefore a PROI Mr. C s savings account to be re-designated as a NRO account Alternately, Mr. C may consider opening a fresh NRE/FCNR account through inward remittances Repatriation is permissible from a NRE/FCNR account On his return to India, Mr. C would be PRII; Mr. C s NRO account will be re-designated, the NRE account will be closed, FCNR deposits maybe held up to maturity even though PRII Monies from NRE/FCNR account may be transferred to RFC accounts for retaining repatriation benefit; RFC accounts can be maintained till he is a PRII During temporary visits the PROI can retain NRO/ NRE accounts 14

16 Facilities for PRII Liberalised Remittance Scheme (LRS) of USD125,000 for resident individuals Available for any permitted capital/current account transactions Remittance restricted to Bhutan, Nepal and specified countries Opening, maintaining and holding of foreign currency accounts overseas/india permissible Banks prohibited from extending credit facilities for this scheme Investor can retain/invest income overseas LRS in addition to facilities in Schedule III of FEM (Current Account Transactions) such as private/business travel, studies, medical treatment etc.- except gift/donation Sr. Remittance facility New limits No 1. LRS - for any permitted current account/capital account transactions 2. Gifts/Donations 3. Investment in overseas companies (subject to conditions) USD125,000 Nil part of the above limit Nil part of the above limit 15

17 Facilities for Foreign Nationals/NRI/PIO Remittance of current income NRI/PIO can remit current income from a NRO account Foreign citizens can re-designate savings account into NRO accounts to receive legitimate dues after assignment Remittance of assets by foreign national of non Indian origin If retired from employment in India or inherited assets from a PRII or widow of an Indian citizen who was PRII, the person can remit up to USD1 million for the FY subject to conditions and documentation for acquisition/inheritance, payment of taxes etc. Remittance of assets by NRI/PIO General remittance from NRO USD1 million per FY subject to conditions and documentation 16

18 Receipt and Remittance of Salary 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 17

19 Receipt and Remittance of Salary Facilities for PRII Income tax to be paid on the entire salary as accrued in India Full salary may be received into a foreign currency account outside India by: Foreign citizen employed by a foreign company and on deputation to its Indian office/branch/subsidiary/jv; Indian citizen employed by a foreign company and on deputation to its Indian office/branch/subsidiary/jv. Full salary (net of income tax) may be remitted to a foreign currency account outside India by: Foreign citizen employed directly with an Indian company 18

20 Receipt and Remittance of Salary FEM (Current Account Transactions) Regulations, 2000 GSR 381(E) Remittance for maintenance of close relatives abroad (without prior RBI approval): Net of taxed salary of a resident, not permanently resident, and: is a foreign citizen is an Indian citizen on deputation to office/branch/subsidiary/jv in India of a foreign company In other cases USD 100,000 per FY is allowed 19

21 Overseas Social Security and Insurance 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 20

22 Remittance towards Overseas Social Security FEM (Remittance of Assets) Regulations, 2000 Notification 13 Remittance of overseas social security contributions for PRII by an Indian company An Indian company may remit its contribution towards provident fund/superannuation/pension fund for expatriate staff in its employment Expatriate to be resident but not permanently resident in India i.e., employee on fixed term duration, not exceeding three years Expatriates should be seconded from a foreign company who maintains the pension fund outside India 21

23 Remittance towards Overseas Insurance Policies FEM (Insurance) Regulations, 2000 Notification 12 Inclusion of PRII in an overseas general insurance scheme Continuation of policy issued when PROI is permitted Issuance of fresh policy requires permission from the central government Where premiums are paid by making remittance from India, maturity/claim proceeds are to be repatriated to India, within seven days of receipt Inclusion of PRII in an overseas life insurance scheme Continuation of policy issued when PROI is permitted Issuance of fresh policy requires permission from the RBI Where premiums are paid by making remittance from India, maturity/claim proceeds are to be repatriated to India, within seven days of receipt 22

24 Investment in Securities/Grant of ESOPs 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 23

25 Investment in Securities in India FEM (Transfer or Issue of Security by a PROI) Regulations, 2000 Notification 20 Reg 3 PROI generally not permitted to issue or transfer any security in India, except when permitted by the RBI (subject to satisfaction of certain conditions) Reg 8 Indian company may issue shares under ESOP Directly/through a trust to its employees/employees of its joint venture/wholly owned subsidiary outside India, who are PROI Face value of shares to be issued up to 5 per cent of the paidup capital of the company Scheme to be in accordance with SEBI guidelines Report providing details, to be issued to RBI within 30 days 24

26 Foreign Security FEM (Transfer or issue of any foreign security) Regulations, 2004 Notification 120 Reg 20 Resident may apply to RBI for permission to acquire shares In a foreign entity Offered as consideration of professional services General permission if within the overall limit of the LRS RBI will consider the following points before granting permission Nature of profession and individual s net worth His forex earnings/balance in EEFC/RFC Financial track of foreign entity, etc. 25

27 Case Study 4 Investment in Shares in India Background I am an Indian citizen working in the U.S. since five years. I want to open a broking account in India to trade in shares of Indian listed companies Issue Can I invest in shares as well as derivative contracts? Can I repatriate the profits back to the U.S.? Comments Yes, under FDI/QFI (Qualified Foreign Investors) on repatriation basis and under PIS (Portfolio Investment Scheme) on repatriation and non-repatriation basis Where investment on repatriation basis is in full Where on non-repatriation basis is from NRO up to USD1 million per calendar year 26

28 Case study 5 Investment in Shares Outside India Background Mr. D is an Indian citizen He has always been staying and working in India He wants to open a broking account in London to make investments in shares listed on the LSE Issue Can he make investments in such shares? Comments Yes, Mr. D can remit USD125,000 per FY for purchase of securities under LRS 27

29 ESOPs Issued by Foreign Parent to Indian Employees FEM (Transfer Or Issue of Any Foreign Security) Regulations, 2004 Notification 120 Foreign parent company may issue shares under ESOP to a PRII Under a Cashless ESOP Scheme not involving any remittance from India Under an ESOP Scheme provided: PRII is employee/director of its Indian office/branch/subsidiary Shares are offered globally on uniform basis Indian company submits an annual return to the RBI through AD giving details of remittances 28

30 Investment in Immovable Property 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 29

31 Immovable Property in India FEM (Acquisition and transfer of immovable property in India) Regulations, 2000 Notification 21 Acquisition of immovable property by NRI/PIO NRI - Any immovable property other than agricultural land/plantation or farm house through permitted payment mode PIO - Any immovable property other than agricultural land/plantation or farm house through permitted payment mode, gifts from PRII/NRI/PIO or through inheritance Permitted modes of Payment (NRI/PIO): Remittance through normal banking channels Debit to NRE/NRO/ FCNR(B) account Definition of PIO for this regulation does not include spouse of an Indian citizen/a PIO 30

32 Immovable Property in India Transfer of immovable property NRIs: Transfer any immovable property to PRII Transfer any immovable property (except agricultural land/plantation property/farm house) to NRIs/PIOs PIOs: Transfer any immovable property (except agricultural land/plantation property/farm house) to PRII by way of sale Transfer agricultural land/plantation property/farm house by way of gift or sale to PRII, being a citizen of India Transfer residential or commercial property in India by way of gift to PRII/NRI/PIO Restriction on repatriation Amount invested or its foreign currency equivalent If residential property then repatriation is restricted to two such properties Remittance facility in respect of sales proceeds of immovable property not available to citizens of Pakistan, Bangladesh, Sri Lanka, China, Afghanistan, Iran, Nepal and Bhutan 31

33 Immovable Property in India Questions? Can it be acquired/purchased? Can it be acquired as gift? Can it be inherited? What is the mode of payment? Can it be sold/transferred? Can it be transferred as a gift? NRI Yes, except agricultural property, plantation, farmhouse Yes, except agricultural Yes Inward remittance, debit to NRE/NRO/ FCNR(B) Both for a PRII For all immovable property, except agricultural for an NRI/PIO Same as above PIO (does not include spouse of an Indian citizen/pio) Yes, except agricultural property, plantation, farmhouse Yes, from PRII/NRI/PIO Yes Inward remittance, debit to NRE/NRO/ FCNR(B) For PRII and Indian citizens: any immovable property including agricultural For PRII and non-indian citizens: any immovable property except agricultural For PRII and Indian citizens: any immovable property For PRII (other than Indian citizen)/nri/pio: any immovable property except agricultural 32

34 Immovable Property Outside India (IMPO) FEM (Acquisition and Transfer of Immovable Property Outside India) Regulations, 2000 Notification 7 No prohibition on acquisition and transfer of IMPO for: Foreign citizens Acquired by PRII on or before 8 July 1947, and continued to hold with RBI permission Acquisition and transfer of IMPO by PRII Gift/inheritance from PROI Purchase out of funds in RFC account IMPO as acquired above can be gifted to a relative who is a PRII Acquisition by an Indian company having overseas offices for its business and for residential purpose of its staff Others modes of acquisition by PRII Foreign currency acquired and held outside India Under the Liberalised Remittance Scheme 33

35 Case Study 6 Investment in Property Outside India Background I am an Indian citizen. I often travel to Dubai for business. I propose to buy a penthouse in Dubai. Issue Can I remit monies directly to the vendor of the penthouse to acquire the house? Comments Yes, from funds in a RFC account, or From USD 125,000 p.a. (USD500,000 p.a. for a family of four); or From funds acquired and held outside India 34

36 Investment Outside India 2014 KPMG, an Indian Registered Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. 35

37 Investment In Security Outside India FEM (Transfer or issue of any foreign security) Regulations, 2004 Notification 120 PRII is generally not permitted to issue or transfer any foreign security, except when permitted by the RBI (subject to satisfaction of certain conditions) Following investments under general permission: Purchase from Resident Foreign Currency (RFC) account (other than real estate or banking) Bonus on existing holding of foreign shares Purchase from foreign currency resources outside India by a person when not permanently resident in India Gift/inheritance Purchase under the Liberalised Remittance Scheme No restrictions/conditions on sale of foreign securities acquired as above. 36

38 Provident Fund /Social Security

39 Provident Fund Covered Establishment An establishment employing 20 or more persons engaged in specified industry notified by the Indian Government. Any establishment employing even less than 20 persons can opt to be covered voluntarily under the PF Act. Who is an employee? Any person employed in or in connection with the work of a covered establishment and who gets his wages directly or indirectly from the employer; Any person employed by or through a contractor in or in connection with the work of a covered establishment. Excluded Employee (Coverage on a If the employee s salary exceeds INR 6,500 per 38

40 Provident Fund Scheme Employer Contribution Employee contribution Government Contribution Total EPFS 3.67% 12% 0% 15.67% EPS 8.33% 0% 0% 8.33% Total 12% 12% 0% 24% 39

41 Coverage of Cross-Border Employees International workers Special provisions notified on 1 October 2008 specify the following as International Workers (IWs) under the EPF Act: All foreign nationals, holding other than an Indian passport Indian employees who have contributed to the social security programme of a country that has a Social Security Agreement (SSA) with India and who have gained or are going to gain eligibility for benefits under this SSA only Exemption from contributions for IWs If they are contributing to social security in their country of origin; and Obtained a Certificate of Coverage (COC) under the relevant SSA; Or Deputed from a country with which India has entered into a bilateral comprehensive economic agreement with, before 1 October

42 Regulations on International Workers: Current Status The IWs have to be enrolled from the first day of their employment in India irrespective of salary level, unless exempted PF rules to apply irrespective of where the salary is paid PF and pension contribution on full salary Insurance scheme contribution (0.5 per cent) will be capped to a salary of INR

43 Regulations on International Workers: Current Status Indian employees working in SSA countries with COC will not be IWs Refund for employees covered under SSA possible on cessation of employment in India IWs from a non-ssa country will receive a PF refund on retirement after reaching 58 years of age PF accumulations will be paid to IWs in their bank account directly or through the employer 42

44 Provident Fund Contributions Contributions If less than 58 years age: Employee s contribution is 12% towards PF Employer s contribution is 8.33% towards Pension plus 3.67% towards PF If more than 58 years age: Employee s contribution is 12% towards PF Employer s contribution is 12% towards PF Interest on contributions made is payable at prescribed rates Withdrawal of PF allowed at achieving age 58 years (and not being in employment) If continuous years of service has exceeded 10 years, Pension contributions may be withdrawn 43

45 Social Security Agreements A SSA is a bilateral instrument to protect the interests of the workers in the host country SSA provides for avoidance of double coverage and equality of treatment with the host country workers SSA generally covers the following benefits: Detachment: exemption from social security contribution in host countries Exportability of benefits Totalisation of contributory periods for determining eligibility 44

46 Current Status of SSAs SSAs signed and in force Belgium Germany Switzerland Denmark Luxembourg France Republic of Korea Netherlands Hungary SSAs signed but not in force Czech Republic Norway Finland Canada Japan Sweden Austria Portugal SSAs under negotiation Australia Russia Thailand Spain Sri Lanka 45

47 Immigration / Visa

48 Work Permit /Employment Visa Employment visa: Highly skilled/qualified professionals coming for employment, execution of contract, to provide technical services, etc. Not granted for routine, ordinary, or clerical jobs; due to availability in India. Salary should be greater than USD25,000 per annum; subject to few exceptions. Foreigners wishing to work with NGOs may be paid up to a ceiling of INR 10,000 per month. Family members/dependents granted X visa. Conversion of X visa of spouse may be permitted to E visa subject to fulfillment of applicable conditions like approval of MHA another conditions regarding E visa. Ministry of Home Affairs ( MHA ) has clarified that for working out the salary threshold limit: In addition to salary and other allowances paid in cash, the value of perquisites like rent free accommodation, etc. which form part of the salary for the purpose of calculating income tax may be taken into account. 47

49 Business Visa Business visa: For establishing business venture For exploring possibilities for purchase/sale of products For technical meetings and attending board /general meetings For recruitment Fir consultations and participation in exhibition/trade fairs To foreign experts/specialist on a short visit with objective of monitoring work For tour conductors and travel agents for conducting business tours. Duration multiple entry up to five years Family members granted X visa 48

50 Other Types of Visa Dependa nt ( X ) visa Tourist visa Confere nce visa Spouse and dependents of a foreign national. Economic / business activities are prohibited. Visit to India for recreation, sight seeing, etc. Visa on Arrival facility for citizens of 12 countries. Granted to foreign nationals attending a conference, seminar or workshop as a participant or speaker. Project visa Studen t visa Journal ist visa To work on power or steel project. No minimum salary threshold limit imposed. Restriction on the number of visas based on the capacity of the project. For students who intend to visit India for study in recognized institutions in India. Student visa can be converted into research visa. Granted to foreign professional journalists and photographers for up to three months. Additional approvals are required for filming documentaries. 49

51 Questions & Answers & Questions Answers 50

52 Thank you Ashish Gupta, Partner - Tax (agupta1@kpmg.com) Bengaluru Solitaire, 139/26, 3rd Floor, Inner Ring Road, Koramangala, Bangalore Tel Fax Chandigarh SCO st floor. Sector 8 C Madhya Marg Chandigarh Tel : Fax Kochi Syama Business Center 3rd Floor, NH By Pass Road, Vytilla, Kochi Tel : Fax: Kolkata Infinity Benchmark, Plot No.G-1, 10th floor, Block - EP & GP, Sector - V, Salt Lake City Kolkata Tel: Fax: KPMG, an Indian Partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name, logo and "cutting through complexity" are registered trademarks or trademarks of KPMG International Cooperative ("KPMG International"). The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such Chennai No. 10, Mahatma Gandhi Road, Nungambakam, Chennai Tel Fax Delhi Building No.10, Tower B, 8th Floor, DLF Cyber City, Phase II Gurgaon Haryana Tel Fax Hyderabad /2 Reliance Humsafar, 4th Floor Road No. 11, Banjara Hills Hyderabad Tel Fax Mumbai Lodha Excelus, 1st Floor, Apollo Mills Compound, N.M. Joshi Marg, Mahalakshmi, Mumbai Tel Fax Pune 703, Godrej Castlemaine Bund Garden Pune Tel: / 65 Fax: Ahmedabad Safal profitaire B4, 3rd Floor, Corporate Road Opp. Auda Garden, Prahlad Nagar Ahmedabad Tel: Fax: