VCs, PEs Operating as Trusts Face Tax Burden

A tax tribunal has held that indirect taxes are applicable on expenses incurred by venture capital, private equity and mutual fund firms, even under the trust structure.

This means expenses such as ‘carry fees’ legal fees and salaries incurred by a fund that is held in a trust structure could face indirect taxes going ahead.

The question before the Bengaluru bench of Customs, Excise and Services Tax Appellate Tribunal was whether the expenses incurred by a trust are taxable. The trust in question was a venture capital fund and a fund management company, both owned by a banking company.

Many VC funds, PE, and other alternate investment funds (AIFS) including mutual funds based in India use trust structures for investment. The tribunal also held that salaries paid to fund managers should also face indirect taxes. The ruling also looked into whether these trusts offer “banking” services and if they can be taxed accordingly.

While the ruling was for service tax under the erstwhile tax regime, this is set to impact even the GST, say tax experts.

“As per the ruling, it has been held that the trust is a separate entity and any expense incurred by a trust, right from the carry distribution to legal fees or any other expenses are deemed as the value of services provided by the trust to the investors,” said Abhishek Goenka, partner at Aeka Advisors.

“This may impact many AIF structures including VC, PE and mutual funds even under the GST regime.”

Legal experts say the question whether a trust incurring an expense can be considered ‘providing services’ or whether the ‘doctrine of mutuality’ applied in these situations, had led to differing views earlier too.

However, this is for the first time that the funds have come under controversy.

“The doctrine of mutuality of interest has been a subject matter of debate for various sectors such as clubs, resident welfare associations and certain banking transactions,” said Abhishek a Rastogi, partner at Khaitan & Co. “The taxability for the pre-negative list, negative list and the GST regimes could differ based on facts, legal provisions and the service recipient.”

Tax experts point out that unlike the direct tax regulations-income tax, international tax-the indirect tax regime doesn’t recognize or define the ‘pass through’ structures.  S-ET

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