Regulatory Framework

India takes foreign cues for black money law

The government seems to have been guided by laws operating in the US and the Organisation for Economic Cooperation and Development (OECD) countries while framing its law on black money, with both the prime minister’s office (PMO) and National Security Adviser (NSA) Ajit Doval reportedly obtaining inputs from several European countries and G20 member states to help finance minister Arun Jaitley draft the undisclosed foreign income and assets (imposition of tax) bill introduced in Parliament last Friday.

“We had to filter inputs from several countries before drafting a cabinet note on the draft bill against black money, especially lying in geographies abroad and that being generated in India,” said a top official who participated in the exercise.

Jaitley and his top officials are said to have received inputs from tax authorities on laws against shadow economy and cash economy prevailing in different countries before elaborating on the penalties and prison terms, and even in providing the short mercy window that allows individuals and firms to come clean before April 1, 2016.

The government is said to have studied the 140-page Little Hoover Commission report put together by the state of California (US) before finalising the draft bill. The report makes detailed analyses and recommendations to curb black money in California, estimated at $10 billion annually. The commission also looked at tax evasion on incomes of individuals and firms across the US estimated at almost $400 billion.

Team Jaitely also reportedly delved into Australian tax laws against cash deals and tax evasion, besides discussing the issue of black money with officials from the OECD think tank financial action task force, before proposing tax liability of 90 per cent on the value of undisclosed income and assets abroad or three times the tax evaded.

The team is said to have finalised the provision for 30 per cent flat tax rate on all foreign income after considering similar tax slabs varying between 24 per cent and 37 per cent prevailing in several large developing economies, particularly the Brics nations. The 30 per cent flat impost without exemption, set off, deduction or carry forward of losses otherwise allowed under the Income-Tax Act was borrowed from Latin American nations.

Further, inputs were sourced from the United Nation’s Office on Drugs & Crime (UNODC) to frame provisions on criminal culpability and prison terms ranging from three to 10 years. Jaitley discussed the black money issue with UNODC executive director Yury Fedotov on December 2, and subsequently told reporters that the UN body would help India coordinate with financial intelligence units abroad “in our bid” to bring back black money.

“The penalties proposed are severe enough to deter such practices. The government has also indicated its intention to curb domestic black money and has especially tightened cash transactions in the real estate sector. These measures represent a sea change in how business is conducted in India and is in line with global trends and efforts in combating money laundering” said Vidya Rajarao, partner for forensic services at Grant Thornton.

Going forward, the government will also rely heavily on the India-US agreement to identify shady bank accounts in both the countries. Indian banks and financial institutions would also put in place a comprehensive framework in tandem with the US Foreign Account Tax Compliance Act to deal with accounts that deal in funds following tax evasion, ensure compliance of various tax laws and monitor ongoing activity in suspect accounts.