India: Tax Reality Of Real Estate Trusts

Last Updated: 5 October 2016
Article by Gagan Kumar and Amit Kaushik

When the new government took over and assumed the office, it was anticipated that many path breaking decisions would be taken. Keeping the optimistic sentiments alive, the Honourable Finance Minister, while presenting the budget for the fiscal year 2014 – 15 introduced a long-awaited concept of retail funding in the real estate sector by way of introducing Real Estate Investment Trust ("REIT") and Infrastructure Investment Trust ("Invit") (collectively referred to as Business Trust). Accordingly, Securities and Exchange Board of India ("SEBI") issued SEBI (Infrastructure Investment Trusts) Regulations, 2014 (" SEBI Regulations") relating to these two new categories of investment vehicles.

A REIT is a trust that pools the capital of many investors to purchase immovable property. REITs are required to distribute 90% of their income earned during the financial year. The REIT structure has been designed to provide a similar structure for investment in real estate as mutual funds provide for investment in stocks.

Similarly, Invit is a pooling vehicle formed for the purpose of investment in infrastructure sector. These Business Trusts are required to be registered under the Registration Act, 1908.

The salient feature of these investment schemes are as follows:

  • Participants: The Business Trust shall have parties such as Trustee, Sponsor, Manager and Unit holders i.e. Investor. Sponsor is settlor of the trust which is managed by the Manager. Trustee is entrusted with the responsibilities of holding the properties on behalf of the investors. As per the SEBI Regulations, Sponsors are required to hold certain percentage of units in the trust at all times.
  • Special Purpose Vehicles (SPVs):These business trusts can hold immovable properties either through SPVs or directly. The SPV can be a company or an LLP. Under the SEBI Regulations, SPV is defined to mean any company or LLP in which REIT holds or proposes to hold controlling interest which is not less than fifty percent of the equity share capital or interest. The SPV should hold at least 80% of the assets in properties and not invest in other SPV.
  • Listing: Units of Business Trusts are required to be listed on a recognised stock exchange.
  • Distribution: Under the SEBI regulations both the SPV and business trust are obligated to distribute 90% of their operating income to the investor.

Taxation Regime for the Business Trusts

Finance Act, 2014, has amended the Income Tax Act, 1961 ("the Act") to put in place a specific taxation regime for taxability of the income in the hands of the Trust, its Unit holders and Sponsors. Accordingly, amendment has been made in the Act by the introduction of new Chapter XII-FA, "Special Provisions relating to Business Trust". Further, clauses 23(FC) and 23(FD) have been introduced to section 10 of the Act to provide for various exemptions from income tax to the Business Trusts and its unit holders.

Section 2(13A) of the Act has been inserted to define the term Business Trust' to mean a Trust registered as an Invit or REIT, the units of which are required to be listed on a recognised stock exchange as per the SEBI regulations.

Further, some exemptions provided in the Act are available to these trusts only in respect of certain income when received through the SPVs.

The proposed amendments and their effect on each party to the trust are discussed below:

Taxation in the hands of unit holders

Capital Gain

The units of a Business Trust, when traded on a recognized stock exchange, would be subject to levy of Securities Transaction Tax ("STT") at the same rates as shares i.e.0.125%. In other words, units of the business trust are akin to the listed shares. Consequential amendments have been made in the section 10(38) and section 111A of the Act. Therefore, Long Term Capital Gains arising from trading of such units on a listed stock exchange , would be exempt from tax under section 10(38). Similarly, Short Term Capital Gains would be taxable @ 15% as per section 111A of the Act.

Distribution of Interest Income

Interest income received by the business trust from the Special Purpose Vehicle ("SPV") is also accorded a 'pass through' treatment i.e., there is no taxation of such interest income in the hands of the trust and no withholding tax at the level of SPV. In other words, any interest income distributed by the Trust shall be deemed to be income of the unit holders and will be chargeable to the tax in the hands of the unit holders. In other words, unit holders of the trust would be liable to pay tax on the any income distributed out of interest received by the trust from the SPVs. [Section 10(23FC) of the Act]

Further, Business Trusts are required to withhold tax at the rate of 10% when such interest income has to be distributed to resident unit holders. However, in the case of Non-resident unit holders, withholding is required to be made at a concessional rate of 5%. (Section 194LBA of the Act)

Distribution of Rental income arising from the assets held directly by REIT

In case of a business trust, being REITs, the income is predominantly in the nature of rental income. This rental income arises from the assets held directly by REIT or held by it through an SPV. The rental income received at the level of SPV gets passed through by way of interest or dividend to the REIT. Earlier the rental income directly received by the REIT is taxable at REIT level and does not get pass through benefit. However, Finance Act, 2015 provided that the distributed income or any part thereof, received by a unit holder from the REIT, which is in the nature of income byway of renting or leasing or letting out any real estate asset owned directly by such REIT, shall be deemed to be income of such unit holder and shall be charged to tax the REIT shall effect TDS on rental income allowed to be passed through. In case of resident unit holder, tax shall deducted @ 10%, and in case of distribution to non-resident unit holder, the tax shall be deducted at rate in force as applicable for deduction of tax on payment to the non-resident of any sum chargeable to tax.

Distribution of income other than interest & rental income arising from the assets held directly by REIT

All distributions out of income other than the interest income, received from the SPVs, made by the Business Trust to the Unit holders and rental income arising from the assets held directly by the Business Trust (i.e REIT) are exempt from the tax in the hands of unit holders, as per the provisions of section 10(23FD) of the Act.

Further, it may be noted that distribution of interest received from elsewhere i.e. not from SPVs is also exempt in the hands of the unit holders.

Taxation in the Hands of the Trust

Interest Income

Distribution of Interest income from the SPVs is accorded 'pass through' treatment. In other words, it is exempt in the hands of the Business Trusts but taxable in the hands of the Unit holders. However, no such exemption is provided in respect of interest received or receivable by the Business Trusts from the investments made by them directly.

Dividend Income

The dividend paid by the SPV to the Business Trust shall be subject to Dividend Distribution Tax ("DDT") as in the case of any other company. Therefore, dividend received by trust, if already charged to DDT, would be exempt in the hands of the Trust and its investors.

Further, Business Trusts are not liable to pay any DDT on its distribution of income to the Unit holders

Where the business trust either holds 100% of the share capital of the SPV or holds all of the share capital other than that which is required to be held by any other entity as part of any direction of any Government or specific requirement of any law to this effect or which is held by Government or Government bodies then in respect of assets held by the business trust through an SPV, if SPV is a company then the company shall be exempted from levy of DDT in respect of distributions made by SPV to the business trust and such dividend received by the business trust and its investor shall not be taxable in the hands of trust or investor.

Income from Capital Gains

The income by way of capital gains on disposal of assets by the trust (including the shares of SPVs itself) shall be taxable in the hands of the trust at the applicable rate. In other words, Capital gains shall be charged to tax at the rates which will differ with the nature of assets transferred i.e. Long Term or Short Term Capital Assets.

Taxability of Other Incomes

Any other income of the Business Trusts shall be charged to the tax at the maximum marginal rate.

Withholding of Taxes

Business Trusts are required to withhold tax at the rate of 10% when interest income received from SPVs has to be distributed to resident unit holders. However, in the case Non-resident unit holders withholding is required to be made at a concessional rate of 5%. (Section 194LBA of the Act)

Further, in case of External Commercial Borrowings by the Business Trust, the benefit of reduced rate of 5% tax on interest payments to non-resident lenders shall be available on similar condition and for such period as specified in the section 194LC of the Act.

In case of distribution of the rental income from the assets directly held by REIT to the investors, in case of resident unit holder, tax shall deducted @ 10%, and in case of distribution to non-resident unit holder, the tax shall be deducted at rate in force as applicable for deduction of tax on payment to the non-resident of any sum chargeable to tax.

Return of Income

It shall be mandatory for every Business Trust to file its return of income irrespective of fact that no taxable income is earned during an assessment year.

Taxability in the hands of the Sponsor

In case of capital gains arising to the sponsor at the time of exchange of shares in SPV, being the unlisted company through which income generating assets are held indirectly by the business trusts, with units of the business trust, the taxation of gains is deferred. The tax on such gains is to be levied at the time of disposal of units by the sponsor. Earlier, the preferential capital gains regime (consequential to levy of STT) available to other unit holders of business trust, was not available to the sponsor at the time it offloads units of business trust acquired in exchange of its shareholding in the SPV through Initial offer at the time of listing of business trust on stock exchange. However, Finance Act, 2015 extended the benefit of concessional tax regime of i.e tax @15 % on STCG and exemption on LTCG under section 10(38) of the Act to the sponsor on sale of units received in lieu of shares of SPV subject to levy of STT.

Our Analysis

Tax Regime in respect of Business Trusts as brought in by the Finance Act, 2014 and amended subsequently is not at par with similar regimes in the developed countries. In most of the countries, Business Trusts have been accorded with complete 'pass through' status. However, in India 'pass through' treatment has only been provided in respect of dividend income received from the SPVs. In respect of other incomes apart from rental income from the directly held assets, Business Trusts are subject to maximum marginal rate of tax.

It has been provided in section 115UA(1) of the Act that any income distributed by a Business Trust to its unit holders shall be deemed to be of same nature and in the same proportion as it had been to the Trust. However, there was no need for such vast wordings when all other distribution by Business Trusts to unit holders is exempt as per the section 10(23FD) of the Act hence the language to that extent is appearing superfluous.

It may also be noted that there is concession in the tax withholding rates in respect of payments to the non-residents. Further, benefit of concessional rate in section 194LC of the Act for ECBs has also been provided to the Business Trusts. It is looking purposeful to pool foreign investments in these trusts.

In the overall, these propositions may be called as a welcome step from the 'Ministry of Finance' as these will tend to provide certainty in the taxation in the hands of trust and unit holders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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