Deal structuring with the ‘startup tax’

The Finance Act 2012 brought in an amendment to tax the share premium which is above the fair value of investment by the resident angel investors and not proven satisfactorily to the tax assessing officer.  This amendment is effective 1 April 2013.

The fledgling Indian startup ecosystem has now started to thrive on the early stage investments by the angels, who invest based on startups creating value. Startup tax is anti entrepreneurship.

Many of you came back asking for possible structuring of investment deals for residents.  Before suggesting, here’s the relevant context (boring) but please read, and may be you can come up with some suggestions yourself.

The amendment to section 56 of the Income Tax Act, which is effective from 1 April 2013 provides for the following terms:

–       Consideration for issue of ‘shares’ in a ‘private limited company’ from a person being ‘resident’ in India.

–       Which exceeds face value, (the aggregate consideration received for such shares as exceeds the fair market value of the shares)

–       Fair market value means (i) “a value determined with such method as may be prescribed” or (ii) “as may be substantiated by the company to the satisfaction of the Assessing Officer, based on the value, on the date of issue of shares, of its assets, including intangible assets being goodwill, know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, whichever is high”

–       Amendment to section 68 of the Income Tax Act, requires explanation about the nature and source of money.

This now requires a substantiation of the valuation at which investors invest in the new and smart startups where the product, service, IP is to be proven with revenues. That is quite a task!

When we read the Direct Tax notification on “valuation of shares and securities

The fair market value of unquoted equity shares = (Assets-Liabilities) * (Paid up value of equity shares)/ (paid up equity capital)

Well, not that simple and each of the term has a norm to be followed for calculation.  But you get the idea…

However, the valuation rules for ‘securities other than equity’ is based on ‘price it would fetch if sold in open market’ supported by a valuation report from merchant banker or CA. (This was as per 2010 Direct Tax notification)

The updated Direct Tax notification refers to “the fair market value of the unquoted equity shares determined by a merchant banker or an accountant as per the Discounted Free Cash Flow method.” However, no clarity on valuation for securities other than equity shares is provided for.

Reading through the above requirements, then there are some possible structuring of investments that can be beneficial to the startup and the resident investors.

–       If the investment is from non-resident, NRE, FCNR account, then the startup tax is not applicable.

–       If the investment is from a VC, then the startup tax is not applicable.

–       We could ‘assume’ that if a resident angel investor, co-invests with a VC, then the valuation is somewhat proven. But sources of funds is still be explained to the Income tax authorities.

–       If the investment is in equity shares, then the valuation will be very low.  Then, proving to the satisfaction of the income tax officer will be hard.

–       Securities other than equity shares is valued at fair market value with valuation certificate by a merchant banker or a CA. Compulsorily convertible preference shares (CCPS) and compulsorily convertible debentures (CCD) are construed as ‘equity’ as per RBI norms, but the Direct Tax Circular refers to ‘equity shares’.  So, a possibility is to use CCPS and CCD as an instrument.  Other instruments that can be used are optionally convertible debentures, debentures, redeemable preference shares.

–       If the issuance is at a convertible debt, which converts to equity, then the conversion ratio and conversion price has to be carefully looked at.

–       One of the things to look at, in terms of control (voting), is to have a small number of equity shares (can be less than 10 numbers too) with differential voting rights.

We would love to hear your comments, leave them in the comments section.

DisclaimerThis is not a legal opinion and should not be considered as one.  Please check with your attorney before taking any actions.

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