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Setting up a Business in India for Foreign Companies
17.03.2023Preamble
Given India’s rapidly growing market, the country’s investment potential has enticed a slew of foreign companies to establish their presence in India. Over the last few years, initiatives have been taken to ensure that establishing a business in India is more straightforward and foreign companies are encouraged to invest in the country.
Foreign investment in India is governed by the Foreign Direct Investment (FDI) policy announced by the Government of India and the provisions of the Foreign Exchange Management Act (FEMA) 1999. The Reserve Bank of India (RBI) has issued a notification which contains the relevant regulations. Foreign investment is freely permitted in almost all sectors. Foreign Direct Investments (FDI) can be made under two routes—the Automatic Route and the Government Route. Under the Automatic Route, the foreign investor or the Indian company does not require any approval from the RBI or the Government of India for the investment. Under the Government Route, approval by the Foreign Investment Promotion Board (FIPB), the inter-ministerial body responsible for processing FDI proposals and making recommendations for Government approval, is required.
Prohibited areas
Foreign investment in any form is prohibited in a company, a partnership firm, a proprietary concern or any entity, whether incorporated or not (such as Trusts) which is engaged, or proposes to engage, in the following activities:
- Business of a chit fund, or
- A nidhi company, or
- Agricultural or plantation activities, or
- Real estate business, or construction of farm houses, or
- Trading in Transferable Development Rights (TDRs).
Please note that real estate business does not include the development of townships, construction of residential/commercial premises, roads or bridges. To further clarify, partnership firms/proprietorship concerns having investments as per FEMA regulations are not allowed to engage in the print media sector.
In addition to the above, investment in the form of FDI is also prohibited in certain sectors such as:
- Retail trading.
- Atomic energy.
- Lottery business.
- Gambling and betting.
- Agriculture (excluding floriculture, horticulture, development of seeds, animal husbandry, pisiculture and cultivation of vegetables, mushrooms etc. under controlled conditions and services related to agriculture and allied sectors) and plantations (other than tea plantations).
Mode of Investment
Indian companies can freely issue equity shares / convertible debentures and preference shares subject to valuation norms prescribed under FEMA regulations. Issue of other types of preference shares such as non-convertible, optionally convertible or partially convertible are considered debt. As such, the guidelines applicable for External Commercial Borrowing (ECB), viz. eligible borrowers, recognised lenders, amount and maturity, end use stipulations and so on, will apply to such issues. Since these instruments are denominated in rupees, the rupee interest rate will be based on the swap equivalent of the London Inter-Bank Offered Rate (LIBOR) plus the spread permissible for ECBs of corresponding maturity. As far as debentures are concerned, only those which are fully and mandatorily convertible into equity, within a specified time would be reckoned as part of equity under the FDI Policy.
Business Structure Allowed
We look at a few important facets of available structures in India.
A foreign company can begin to establish a business in India by incorporating/registering or by establishing a liaison, project or branch office in India. To have a permanent establishment in India, a foreign company or national can either form a private limited company in accordance with the Act or form a limited liability partnership as per the provisions of the Limited Liability Act, 2008.
Following are the entry strategies for foreign companies to establish a legal presence in India:
Joint Ventures
Foreign companies can establish a business by forming a strategic partnership with business entities in India. International joint ventures have become essential wherein two business entities join forces to achieve a commercial objective. Joint ventures are becoming the ideal way to enter industries where 100% of FDI is not permitted in India.
Joint ventures are a relatively a low-risk route opted for by foreign companies wishing to enter the Indian market, provided these companies conduct appropriate due diligence on the Indian partners prior to forming an alliance. It allows the foreign investor to benefit from the Indian partner’s established market and consumers, distribution channels, local know-how and management.
Wholly Owned Subsidiary
By allowing foreign companies to establish wholly-owned subsidiary companies in India, the Indian market provides a convenient and beneficial business environment for these foreign entities. Foreign companies can set up wholly-owned subsidiaries by making 100% FDI in India through an automatic route (as defined previously) subject to the provisions of the Reserve Bank of India (RBI), Foreign Exchange Management Act, 1999 and the Act.
Requirements for Establishing a Company in India
Forming a new company provides flexibility and freedom as it can be structured in accordance with the requirements, objectives and obligations of both parties. A private limited company must have at least 2 (two) shareholders, while a public company should have at least 7 (seven) shareholders. Under the Act, it is a mandate that at least one director of every company is a resident of India [any person who has lived in India for more than 186 (one eighty-six) days is considered an Indian resident]. For a company to be registered, it must have an address in India. The legal jurisdiction applicable to the company will be determined by the city in which the company’s registered office is located.
Foreign companies can choose to establish a company with three directors, two being foreign nationals from the parent company and as a legal mandate, one being an Indian citizen. Further, as there is no requirement for minimum shareholding by the Indian director, foreign companies or nationals have the freedom to hold 100% of the shares of the Indian company.
Branch Office
For a foreign company to establish a temporary presence in India, a branch office is an effective strategy. The branch office is an extension of a foreign company and can engage in commercial business as a representative of the parent company.
Businesses keen on setting up a branch office should meet the following criterion as prescribed by the RBI:
- The applicant must be a body corporate incorporated outside India;
- The net worth of the parent company must not be less than USD 100,000 or its equivalent;
- The parent company should have a profit-making record during the immediately preceding five financial years in the home country.
Once established with the prior approval of the RBI, a branch office may remit profits of the branch outside India, subject to RBI guidelines and applicable taxes. Companies incorporated outside of India that are involved in manufacturing or trading are permitted to set up branch offices in India with the prior approval of the RBI. These branch offices are allowed to represent the parent company in India and carry out activities including, but not limited to, the following:
- Export/import of goods.
- Rendering professional or consultancy services.
- Promoting technical or financial collaborations between Indian companies and parent companies.
- Representing the parent company in India and acting as buying/selling agent in India.
Liaison Office
A liaison office serves as a communication link between the parent company, principal place of business or head office and entities in India, but it does not engage in any commercial, trading, or industrial activity, either directly or indirectly, and is restricted to gathering and providing information to potential Indian consumers.
Businesses wanting to set up a liaison office should meet the following criterion as prescribed by the RBI:
- The applicant must be a body corporate incorporated outside of India.
- The net worth of the parent company must not be less than USD 50,000 or its equivalent.
- The parent company should have a profit-making record during the immediately preceding three financial years in the home country.
Liaison offices are not allowed to undertake any business activity or to earn any income in India. The expenses of liaison offices are covered through inward remittances of foreign exchange from the head office outside India.
Project Office
As the name suggests, project offices are established by foreign companies to execute specific projects as per contracts to represent the parent company’s interests in India.
The RBI has granted general permission to foreign companies to establish project offices only if they have secured a contract, to execute a project in India, from an Indian company and subject to the following conditions:
- The project is funded directly by inward remittance from abroad; or
- The project is funded by a bilateral or multilateral international financing agency; or
- The project has been cleared by an appropriate authority; or
- A company or entity in India awarding the contract has been granted a term loan by a public financial institution or a bank in India for the project.
The RBI has given general permission for setting up project offices in India if the above-listed criterion is met. However, if the listed conditions are not met, the foreign company must approach the RBI for approval.
Analysis of Differences Between Liaison Office, Branch Office & Wholly Owned Subsidiary
| Basis | Liaison Office [LO] | Branch Office [BO] | Wholly Owned Subsidiary (WOS) |
| Meaning | A Liaison Office [also known as representative office] can undertake only liaison activities i.e. it can act as a channel of communication between Head Office abroad and parties in India. It is not allowed to undertake any business activity in India and cannot have any income in India. | Companies incorporated outside India and engaged in manufacturing or trading activities are allowed to setup Branch Offices with specific approval by the RBI. Normally, the Branch Office should be engaged in the activity of the parent company. | An incorporated entity formed and registered under the Companies Act, 1956. It is a distinct legal entity, apart from its shareholders. |
| Constitution |
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|
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| Permitted Activities |
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| As per its ‘main objectives’ stipulated in the Memorandum of Association subject to Indian regulations. |
| Criteria for set up |
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| A private company is required to be incorporated with a minimum authorised & paid up capital of INR 100,000 and minimum two subscribers. No requirement of track record of parent company as shareholder |
| Typical Terms of approval |
|
| A private company is required to be incorporated with a minimum paid-up capital of INR 100,000 and minimum two subscribers. Broadly, it:
The conditions will be different for Public Limited Companies. |
| Time limit of approval | Normally 3 years from the date of approval. | Normally 3 years from the date of approval. | Until the company decides to close down. |
| Basic Registration | The following registrations / approvals will be required:
| The following registrations / approvals will be required:
| The following registrations / approvals will be required:
|
| Liabilities of parent company/Head office | Parent company’s liability is unlimited for all acts and omission of LO. | The liability of the Branch is unlimited. The assets of the parent company are at risk of attachment in case the liabilities of the branch exceeds its assets. | The liability of the Parent company is limited to the extent of its shareholding in the WOS. The assets of the foreign company are not subject to any attachments. |
| Permitted Incomes | The entire expenses of the LO in India will be met out of the funds received from Head Office through normal banking channels. There will not be any income of the LO. | The entire expenses of the BO in India will be met either out of the funds received from Head Office through normal banking channels or through income generated by it in India. | All income arising out of its business activities. |
| Indian Income Tax | Since there is no income accrual, there is no income tax. LO is required to file information in Form 49C with the Income Tax Department. | Since a branch office of a foreign company is taxed as a foreign company in India, it is taxed @ 41.2% or 42.23% if the taxable income exceeds INR 10,000,000 during any financial year (FY). | Any Indian company is taxed @ 30.90% or 33.99% if the taxable income exceeds INR 10,000,000 during any financial year (FY). |
| Payment of Dividend to Parent | Cannot pay dividend. | Dividend/surplus distribution to Parent is tax free subject to normal tax in India | Dividend can be paid & now shareholders need to pay tax. |
| Management | LO is managed by Authorised Representative, resident in India (Country Manager) | BO is managed by Authorised Representative, resident in India (Country Manager). | Minimum two directors (can be foreign national, no need to be resident in India). |
| Audit a. Statutory Audit | Financials would be liable for statutory audit by a chartered accountant. | Financials would be liable to statutory audit by a chartered accountant. | Financials would be liable for statutory audit by a chartered accountant. |
| b. Internal Audit | Not Applicable. | Not Applicable. | Applicable, subject to conditions. Paid up capital + free reserves exceeding certain limits. |
| c. Tax Audit | Not Applicable | Applicable for cases where turnover exceeds INR 4 million. Non compliance would result in a penalty @ 0.5 % of the total turnover or INR 0.1 million, whichever is the lesser amount. | Applicable in case of turnover exceeding INR 4 million. Non compliance would result in a penalty @ 0.5 % of the total turnover or INR 0.1 million, whichever is the lesser amount. |
| Transfer Pricing | Not Applicable | Applicable | Applicable |
| Annual Compliance a. Filing |
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|
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| b. Meeting | Not Applicable. | Not Applicable. | Board – One meeting per quarter. Shareholder – One meeting per year. |
| Remittance of Profit to Parent company | None, except upon closure of LO. | Profits can be freely repatriated to the Parent Company subject to payment of applicable taxes. |
|
| Borrowing | Not allowed | The BO is not allowed to borrow locally unless given prior approval by the RBI. |
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Conclusion
Various factors are to be considered before choosing the best strategy for establishing a business in India including, but not limited to, the due diligence of the Indian partners, exit strategies, Indian laws and regulations, and operational issues such as connectivity, employment and state-wise regulations. Additionally, the preferred path for a foreign company to establish a presence in the Indian market will also depend on the company’s specific requirements, such as the size of its operations, expansion and commercial goals.
For any questions or advice about establishing a business in India as a foreign company, please get in touch with us at mumbai@ecovis.in.
CA R.L.Kabra
Chairman Emeritus
ECOVIS RKCA, India
SPACs and key considerations for audit and financial reporting
17.03.2023Although special purpose acquisition companies or SPACS have been around for decades, the last 3 years have become more popular as they have proven to be a good opportunity for private companies to enter the public market, mainly in the United States.
But what is a SPAC and what kind of audit could help you prepare for SEC audits? A Special Purpose Acquisition Company or SPAC, is an investment vehicle through which a developer agent makes an initial public offering (IPO) to raise capital and with those resources buy companies. This vehicle supports a unit which is made up of a share and an option (warrant), which can be exercised by the holder.
SPACs have a period of two years to make the acquisition, during this time the amount raised will be invested in a treasury bond and deposited in a custodian bank, only a portion will be retained for working capital needs. If the acquisition is not made in that period or the investors do not agree with the transaction, the remaining money will be returned to the holders, who have the right to vote.
What are some of the risks and challenges associated with merging a private company with a SPAC? According to Paul Munter, Acting Chief Accountant, here are some of the most relevant challenges:
Market and timing Risks
Some of the risks and challenges associated related to merging a private company with a SPAC arise due to the time line of such transactions, as SPACs have the potential to take private companies to public markets faster than in a traditional initial public offering.While a SPAC has 18-24 months to identify and complete a merger with a target company or liquidate and return proceeds to shareholders, the merger can occur within a few months, triggering a series of related regulatory reporting and listing requirements. Therefore, it is essential that target companies have an comprehensive plan to address the demands resulting from becoming public on an accelerated schedule, as they are potentially subject to review by SEC (Securities and Exchange Commission) staff.
It is essential that the combined public company have a capable and experienced management team that understands the information and internal control requirements and expectations of a public company and can effectively execute the comprehensive business plan in an expedited manner.
Financial reporting Risks
The combined public company must have finance and accounting professionals with sufficient knowledge to produce high-quality financial reports, which comply with all applicable accounting rules and regulations, including the SEC’s deadlines and periods.
Companies often face complex issues related to accounting and reporting their merger with the SPAC, such as the following:• Prepration of the financial statements in accordance with US Generally Accepted Accounting Principles (“US GAAP”) or, alternatively, preparation in accordance with International Financial Reporting Standards.
- Disclosure requirements, related to the identification of the predecessor entity, the form and content of the financial statements, and the preparation of pro forma financial information;
- Identification of the entity in the merger, as the acquirer, including variable interest entity considerations, and whether the transaction is a business combination or reverse recapitalization;
- Accounting for payment or compensation agreements and complex financial instruments;
- Application of other US GAAP such as earnings per share, segment reporting, and expanded disclosure requirements for certain topics, such as fair value measurements and postretirement benefit arrangements; and
- Determination of the effective dates of the modifications or new accounting standards.
Internal Control Risks
Public companies are required to maintain internal control over financial reporting (“CIIF”) and disclosure controls and procedures (“CPD”).
Pursuant to section 404(a) of the Sarbanes-Oxley Act (“SOX”), management is required to conduct an annual assessment of its ICFR. It is important that management understands when the first annual assessment is required, if an audit report thereon is required under Section 404(b). In addition, management is required to evaluate the effectiveness of the CPD on a quarterly basis.
Corporate Governance and Audit Committee Risks
Before, during and after the merger corporate board oversight will be essential. It is important that boards have a clear understanding of the roles, responsibilities, and fiduciary duties of each member, and that management understand their responsibilities for communicating and interacting with the board. The composition of the board is crucial, since, in general, a proportion of the members must be independent of the organization and must possess the appropriate level of experience and be prepared for key committee assignments, including the audit committee (accordingly).
The audit committee plays a vital role, in compliance with the rules of independence of auditors and the supervision of financial information, the CIIF and the external audit process. They significantly further the collective goal of providing high-quality, reliable financial information to investors and the securities markets.
Auditor Risks
The annual financial statements must be audited in accordance with the standards of the Public Company Accounting Oversight Board (“PCAOB”) by a registered public accounting firm that meets the independence requirements of the same and the SEC and under the standards of auditing and independence from the American Institute of Certified Public Accountants (“AICPA”). The firm should consider the need to change, increase, and include members with appropriate experience auditing SEC-registered entities under PCAOB standards.
An important aspect to consider in accepting or continuing an audit relationship is the independence of the auditor under SEC rules. Auditor independence is critical to the credibility of the financial statements and is a responsibility shared between audit committees, management and the auditor.
Independence, the auditor’s registration with the PCAOB, and other audit-related requirements should be assessed from the outset of the transaction, particularly as these considerations may result in the need to hire a new auditor or perform additional audit procedures on the financial statements. financials of the previous period.
At ECOVIS Mexico, we are aware that the quality of financial information and the quality of audits on financial statements provided to investors is crucial to protect investors regardless of the vehicle by which the company enters the public market.
Javier Villanueva Lara
Audit Manager
ECOVIS Mexico
Mexico
javier.villanueva@ecovis.mx
Canary Islands: The best Tax System in Europe
16.03.2023Various motives make the Canaries a destination not to be overlooked. Their constant mild temperatures all year round, astonishing nature, rich history and mixed culture, excellent infrastructures and frequent connections by air and sea to all the main international ports and a large number of international airports within Europe and Africa are only a few of the reasons which make the region a leading European tourist destination.
Moreover, the Canary Islands is not only well-known between Europeans but is especially familiar to Latin Americans. In fact, many Latin Americans countries have been closely connected to the Canaries for centuries. The constant migrations either way between Canary Islands and Latin America (e.g., Venezuela, Cuba, Dominican Republic etc.) for centuries shaped the cultural similarities to the point of sharing gastronomy, vocabulary, lifestyle traits and even linguistic similarities. This cultural siblinghood undoubtedly positions the Archipelago as the most welcoming bridge to Europe and Africa, with the icing on the cake being the beneficial tax regime the Canaries has to offer to investors.
The Canary Islands are known for having the best taxation regime in Europe, having a tax system of their own, approved by the EU to minimize its constraints caused by its remoteness, so as to encourage industrial activity and safeguard its competitiveness against outside products. As an example, the Canaries are not part of the European VAT but instead they have a local consumer tax with a standard rate of 7% (much lower than the minimum 15% rate set by EU to each of their member states), besides this, without a doubt, the principal attraction for investors is that the region has by far the lowest corporate rate of Europe (4%), which application is subject to various requirements and limitations.
How to benefit from a 4% corporate tax rate? For this, first step is to become a ZEC (Special Canary Economic Zone) member.
- Which companies can join ZEC? All those newly created companies that intend to carry out an industrial, commercial or service activity in the islands, and which are framed within a list of permitted activities, can join. The ZEC regime, however, is not valid for pure holding companies nor for companies which activity is carried out elsewhere (e.g., a company registered in the Canary Islands which business activity is to install solar panels only in Italy by Italian employees).Despite there being a list of permitted economic activities, our experience is that where the project has a real economic impact to the Canary Islands (e.g., relatively significant job creation and/or investment), there is a high likelihood to be approved by the ZEC Board.
- Do any other major benefits apply to ZEC companies apart from a low corporate tax? Dividends paid by ZEC subsidiaries to parent companies’ residing in another country (not considered a tax-heaven), are exempt from taxation.
- Which requirements must be met by the project in order to be approved by the ZEC Board?
- A registered address and effective management in the Canaries.
- At least one company Director effectively residing in the Canaries.
- Development of a listed permitted activity.
- Minimum investment of €100,000 (Gran Canaria and Tenerife) or €50,000 (remaining islands) in fixed assets related to the activity within 2 years following company registration. In some cases, companies can be exempt from this requirement (e.g., innovative startups and/or companies within the information and communication sector or cases where the employment rate or economic impact is significant), or benefit from a much reduced one (e.g., where the employment rate reaches certain figures).
- Job creation (and further preservation) within 6 months following company registration: a minimum of 5 job positions for the main islands (Gran Canaria and Tenerife) and 3 job positions for the remaining islands. These minimums increase to 6 and 4 respectively, in cases where the above-explained investment requirement does not apply.
- Filing of an extensive report justifying solvency, viability, and a positive contribution to the Canary economy.
- What limitations apply to the reduced tax rate (4%)? The reduced tax rate (4%) is limited to a tax base of € 1,800,000 for companies which only just meet the minimum job creation requirement. For companies with employment creation rates exceeding the min. but up to max 50, an additional € 500,000 applies per job position, the tax base being unlimited where the employment rate exceeds the figure of 50. Any excess of the beforementioned tax bases shall be taxable at the standard Spanish corporate tax rate (25%).
If you are interested in learning how your company can enter the European market from a strategic location within the Canary Islands to benefit from the best tax climate in Europe, the advisors at ECOVIS Legal Spain – Canary Islands will be pleased to respond all your questions and assist you throughout your investment operation.
Natalia Bonilla
ECOVIS Legal Spain
Canary Islands
natalia.bonilla@ecovis.es