BUDGET 2018-19 AMFI PROPOSAL Securitisation Trust - MYREALITY.In, Real Estate, Share Market, Mutual Fund, Insurance
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Friday, January 26, 2018

BUDGET 2018-19 AMFI PROPOSAL Securitisation Trust


AMFI-  Association of Mutual Funds in India
BUDGET PROPOSAL FOR FY 2018-19

Securitisation Trust

Background

                     The Finance Act 2013 rolled out a special taxation regime to facilitate the securitization process, in respect of income of securitization entities set up as a “Trust” from the activity of securitization of assets. The income of these Special Purpose Vehicles (SPV) set up as trusts are exempted from taxation whose activities are regulated either by SEBI or RBI.
 • There have been several challenges as regards SPVs set up as “Trusts”. The Income Tax officers in certain cases have contended that a trust set up as a securitization Special Purpose Vehicle (SPV) was not a valid trust and constituted as Association of Persons (AOP) and cannot avail of ‘Pass Through’ status for taxation.

  • This is notwithstanding the fact that such trusts have been set up in compliance with the Guidelines of Securitization of Standard Assets issues by Reserve Bank of India.

  • In the current ongoing litigation, the Income Tax Department has challenged the structure of “Trust” and has contended this as an Association of Person (AOP) by citing procedural issues in the formation of the Trust. If this view is ultimately upheld, section 115 TCA of the Act is feared to not become applicable (which provides for the income accruing or arising to an investor of a securitisation trust out of investments made in the securitisation trust shall be taxable in the same manner as if it would be the income of the person had the investments made by the securitisation trust, been made directly. This is because, if the view expressed by the CIT(A), that the income from the originator is not income of the ‘securitisation trust’, but that of the ‘ AOP’ of the PTC holders’ then. Consequently, the taxation of the whole of the income (including income receivable by mutual funds) would be taxed at ‘full rates’. This would obviously not be in the interest of the mutual funds.

                     • As per the Explanation in Chapter XII-EA, CBDT was to prescribe the eligibility conditions for a trust to qualify as a Securitisation Trust. The requirement was originally introduced in the year 2013-14. However, CBDT is yet to prescribe the conditions. This leaves ambiguity about the tax treatment in respect of securitization trust already formed under RBI guidelines, and uncertainty in the event CBDT prescribes some conditions with retrospective effect


Proposal

It is proposed that the words ‘Securitisation Trust’ in Section 115TA of the Income-tax Act be replaced by ‘Securitisation Special Purpose Vehicle’, which is regarded as a securitization special purpose vehicle either under the guidelines on securitization brought out by the Reserve Bank of India or the Securities and Exchange Board of India.

It is also proposed that in the Explanation in Chapter XII-EA the words “which fulfills such conditions, as may be prescribed” may be deleted.

For clarity and removal of doubt and avoidance of litigation, conditions to be fulfilled by a securitization trust may 
please be prescribed.

Justification

The RBI guideline clause 5(ix) defines a SPV to mean a company, trust or other entity constituted for a specific purpose.

This clearly highlights and accepts other forms of SPV other than trusts.

Section 115TCA introduced by the Finance Act, 2016 specify the provisions on the taxation treatment of investors in a Securitization Trust to increase penetration in the securitization market. This cannot be achieved as the current tax provisions lack clarity on the eligibility of a securitisation trust.

As there has been avoidable litigation regarding the securitisation trust formed earlier, the conditions under section 115TC may be prescribed with prospective applicability.

BUDGET 2018-19 AMFI PROPOSAL Securitisation Trust Reviewed by S. Chitra on January 26, 2018 Rating: 5 AMFI-   Association of Mutual Funds in India BUDGET PROPOSAL FOR FY 2018-19 Securitisation Trust Background •              ...

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