Software Tax Characterization Helpdesk Quarterly August 2012

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1 Software Tax Characterization Helpdesk Quarterly August 2012 Characterizing foreign software revenues is a complex challenge for large and small software firms alike. Variations in the rules around the world affect the best way to do business in a given market. LawInContext s Software Tax Characterization Helpdesk is an online resource for software companies seeking to quickly access relevant legal and tax information in order to more efficiently manage their global withholding tax exposures in 40 countries around the world. This newsletter highlights a few of the recent updates and developments from the period of June 2012 August 2012 that are covered in more detail within the Software Tax Characterization Helpdesk. For more information on the Software Tax Characterization Helpdesk please visit or contact us at INSIDE THIS ISSUE Key Country Developments for : India Malaysia Thailand Site Demonstrations with Free Trial Access! Software Tax Characterization Country Coverage LawInContext Contact Information Key Country Developments INDIA Income Characterization Under Indian law, payment of royalties is subject to withholding tax. The Indian courts have issued conflicting decisions in respect of whether or not payment for use of computer software is a royalty payment. To reinstate the legislative intent, the Finance Act 2012 has amended section 9(i)(vi) of the Income Tax Act, 1961 (ITA) with retrospective effect from June 1, 1976 to clarify that the consideration for use or right to use of computer software is royalty. Therefore, an importer of packaged computer software would now be required to withhold tax on payments made to the software suppliers. However, if the assessee is able to successfully argue that the payments made are not royalty under the provisions of the applicable tax treaty, then the payment cannot result in tax liability and, consequentially, no withholding will be required on such payments. It is noteworthy that, recently, in the case of B4U International Holdings Ltd. vs. DCIT, the Mumbai Income Tax Appellate Tribunal held that the provisions of the

2 relevant tax treaty being the same and unchanged, the amendments of the Finance Bill 2012 will have no effect in the Tribunal s decision and that the assessee will be able to claim the benefit under the relevant tax treaty. For more information on the amendment to the ITA, see the homepage of the India country report as well as topic: Statement of the Law, subtopic: Domestic Law. India Contributing Authors: Aliff Fazelbhoy and Statira H. Ranina ALMT Legal, Mumbai, India. MALAYSIA Transfer and Indirect Tax The introduction of the Goods and Services Tax (GST) to replace the current Sales Tax and Service Tax regime in Malaysia has been postponed indefinitely due to the general public s lack of approval. Notwithstanding, a Draft Registration Guide was issued by the Royal Malaysian Customs, the authority which would oversee the implementation and enforcement of the GST. See the homepage of the Malaysia country report. Free Trade Agreements (FTAs) The Malaysia-Australia Free Trade Agreement was concluded on March 30, 2012 and will take effect on January 1, See the homepage of the Malaysia country report. Tax Treaties The Double Taxation Agreements which Malaysia has signed with Hong Kong and India, would be implemented after the completion of the ratification procedures. The latest Exchange of Information Protocol entered into by Malaysia with South Africa came into force on March 9, See the homepage of the Malaysia country report. Malaysia Contributing Author: Adeline Wong Wong & Partners (member firm of Baker & McKenzie), Kuala Lumpur, Malaysia. THAILAND Withholding Tax Where a royalty is paid to a non-resident company not carrying on business in Thailand, the royalty will be subject to withholding tax at a rate of 15% under the Revenue Code, unless reduced by an applicable tax treaty. If the recipient of the royalty is a non-resident company that is in fact regarded as carrying on business in Thailand, the royalty will be subject to only 3% withholding tax, but the royalty must be included with other income and subject to a normal corporate income tax at the rate applicable to net profits for each respective tax year. Generally, companies or registered partnerships are subject to corporate income tax at a flat rate of 30% on net profits for each tax year. However, the rate is reduced to 23% in

3 2012 and to 20% in 2013 and 2014 pursuant to Royal Decree No.530 (the Decree). Such corporate income tax reduction is a temporary measure that will be in effect for only three fiscal years commencing from the fiscal year The rate will revert to 30% in 2015 onward if the Decree is not renewed. See topic: Statement of the Law, subtopic: Domestic Law. Thailand Contributing Author: Kitipong Urapeepatanapong Chulalongkorn University, Bangkok, Thailand. Site Demonstrations with Free Trial Access! LawInContext is pleased to offer web-based site demonstrations with free trial access to the Software Tax Characterization Helpdesk. Please contact: Oksana Kemp +41 (0) Anant Patel +41 (0)

4 The Software Tax Characterization Country Coverage The Americas Argentina Brazil Canada Chile Colombia Mexico Peru United States Venezuela Africa and The Middle East Israel South Africa Australia China Hong Kong India Indonesia Japan Korea (South) Malaysia New Zealand Philippines Singapore Taiwan Thailand Europe Austria Belgium Czech Republic France Germany Greece Hungary Italy Netherlands Poland Portugal Russia Spain Sweden Switzerland United Kingdom

5 LawInContext Pte. Ltd. (Reg. # R) 8 Marina Boulevard #05-01 Marina Bay Financial Tower 1 Singapore UNSUBSCRIBE Should you have questions or comments, please To unsubscribe to this newsletter, please respond with "UNSUBSCRIBE" in the subject line CONTACT US For more information, site demonstrations or pricing, please contact: LawInContext c/o LawInContext Pte. Ltd. (Zurich branch) Holbeinstrasse Zurich, Switzerland +41 (0) LawInContext Pte. Ltd. ( LawInContext ) was created by the global law firm Baker & McKenzie and provides cost-effective access to online legal information and training tailored to select communities of clients. LawInContext is neither a law firm nor authorized to practice law. No attorney-client relationship will be formed or deemed to be formed with Baker & McKenzie or contributing law firms through the use of LawInContext s legal information, knowledge management, and training services. This may, in some jurisdictions, be considered Attorney Advertising for Baker and McKenzie and other contributing firms. A full disclaimer is available at

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