Latest Blogs from SBS and Company LLP

    As per Financial Action Task Force (FATF), Money laundering is the processing of the criminal proceeds to disguise their illegal origin. This process is of critical importance, as it enables the criminal to enjoy these profits without jeopardising their source.

     

    As per US Department of Treasury, Financial Crimes Enforcement Network (FinCEN) 2, Money Laundering is the process of making illegally-gained proceeds (i.e. "dirty money") appear legal (i.e. "clean").

     

    Money laundering can facilitate crimes such as Illegal arms sales, smuggling, and the activities of organised crime, including for example drug trafficking and prostitution rings, can generate huge amounts of proceeds. Embezzlement, insider trading, bribery and computer fraud schemes can also produce large profits and create the incentive to “legitimise” the ill-gotten gains through money laundering.

     

    When a criminal activity generates substantial profits, the individual or group involved must find a way to control the funds without attracting attention to the underlying activity or the persons involved. Criminals do this by disguising the sources, changing the form, or moving the funds to a place where they are less likely to attract attention.

     

    Typically, Money Laundering involves three steps: placement, layering and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the "dirty money" appears "clean".

     

    Many countries as part of their efforts to address the menace of Money Laundering have formed various groups of countries and they have been listed here for ready reference3

     

    1. Financial Action Task Force (FATF)
    2. Asia/Pacific Group on Money Laundering (APG)
    3. Caribbean Financial Action Task Force (CFATF)
    4. Eurasian Group (EAG)
    5. Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG)

     

    1. Groupe d’Action contre le blanchiment d’Argent en Afrique Centrale (GABAC) - The Task Force on Money Laundering in Central Africa
    2. Financial Action Task Force of Latin America (GAFILAT)

     

     

     

     

    1

    http://www.fatf-gafi.org/faq/moneylaundering/#d.en.11223

    2

    https://www.fincen.gov/history-anti-money-laundering-laws

    3

    http://www.fatf-gafi.org/countries/

     

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    1. Inter Governmental Action Group against Money Laundering in West Africa (GIABA)
    2. Middle East and North Africa Financial Action Task Force (MENAFATF)

     

    1. The Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL)

    FATF

     

    In response to mounting concern over money laundering, the Financial Action Task Force on money laundering (FATF) was established by the G-7 Summit in Paris in 1989 to develop a co-ordinated international response. One of the first tasks of the FATF was to develop Recommendations, 40 in all, which set out the measures national governments should take to implement effective anti-money laundering programmes.

     

    FATF in February 2012 as part of Anti Money Laundering (AML) and countering the financing of terrorism (CFT) standards has published “International Standards On Combating Money Laundering And The Financing Of Terrorism & Proliferation” and also later published many other relevant publications/ standards.

     

    Virtual Currencies and Block Chain Technology

     

    Virtual currency4  is a digital representation (1) a medium of exchange; and/or (2) a unit of account; and/or

     

    • a store of value, but does not have legal tender status (i.e., when tendered to a creditor, is a valid and legal offer of payment) in any jurisdiction. It is not issued nor guaranteed by any jurisdiction, and fulfils the above functions only by agreement within the community of users of the virtual currency. Virtual currency is distinguished from fiat currency (a.k.a. “real currency,” “real money,” or “national currency”), which is the coin and paper money of a country that is designated as its legal tender; circulates; and is customarily used and accepted as a medium of exchange in the issuing country. It is distinct from e-money, which is a digital representation of fiat currency used to electronically transfer value denominated in fiat currency. E-money is a digital transfer mechanism for fiat currency – i.e., it electronically transfers value that has legal tender status.

     

    Bitcoin is a worldwide cryptocurrency and digital payment system invented by an unknown programmer, or a group of programmers, under the name Satoshi Nakamoto. It was released as open-source software in 2009.

     

    The system is peer-to-peer, and transactions take place between users directly, without an intermediary. These transactions are verified by network nodes and recorded in a public distributed ledger called a blockchain. Since the system works without a central repository or single administrator, bitcoin is called the first decentralized digital currency.

     

    Besides being created as a reward for mining, bitcoin can be exchanged for other currencies,products, and services in legal or black markets.

     

    As of February 2015, over 100,000 merchants and vendors accepted bitcoin as payment.

     

     

    4http://www.fatf-gafi.org/media/fatf/documents/reports/Virtual-currency-key-definitions-and-potential-aml-cft-risks.pdf

     

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    Virtual Currencies- Challenges to Anti Money Laundering Laws

     

     

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    According to research produced by Cambridge University in 20175 , there are 2.9 to 5.8 million unique users using a cryptocurrency wallet, most of them using bitcoin.As per the said report the total cryptocurrency market capitalisation has increased more than 3x since early 2016, reaching nearly $25 billion in March 2017

     

    Apart from Bitcoin (BTC) there are largest cryptocurrencies viz., ETHEREUM (ETH), DASH, MONERO (XMR), RIPPLE (XRP), LITECOIN (LTC)

     

    The FinCEN guidance states that a user who obtains virtual currency and uses it to purchase real or virtual goods or services is not a Money Services Business (MSB). Importantly, the FinCEN guidance states that an administrator or exchange that 1) accepts and transmits a virtual currency or 2) buys or sells virtual currency for any reason is a money transmitter (an MSB) under FinCEN’s regulations and would be subject to the Banking Secrecy Act (BSA) monitoring and reporting requirements unless a limitation to or exemption from the definition applies to the person

     

    As per the said report 24% of incorporated wallets have a formal license from a regulatory authority, and all of them are wallet providers that offer national-to-cryptocurrency exchange services. 25% of wallets providing centralised national-to- cryptocurrency exchange services do not have a government license

     

    In order to keep more focus on the impact of cryptocurrencies on AML, for getting more details about Bitcoin the reader is requested to refer the paper presented by our team member which is available for download at http://sbsandco.com/wp-content/uploads/2017/06/June-2017-e-Journal-Digest.pdf

     

    In order to give a Birds eye view some of the recent issues pertaining to illegal activities carried on by using virtual currencies are dwelled at length herein below:

     

    Silk Road case

     

    There was one significant case example cited to IRS6 that involved Ross Ulbricht, the creator and operator of the “Silk Road” website. Criminal Investigation participated in an investigation along with several other Federal Government agencies. According to court documents, Ulbricht created the Silk Road in January 2011 and owned and operated the underground website until it was shut down by law enforcement authorities in October 2013. The Silk Road served as a sophisticated and extensive criminal marketplace on the Internet where unlawful goods and services, including illegal drugs of virtually all varieties, were bought and sold regularly by the site’s users. While in operation, the Silk Road was used by thousands of drug dealers and other unlawful vendors to distribute hundreds of kilograms of illegal drugs and other unlawful goods and services to more than 100,000 buyers, and to launder hundreds of millions of dollars deriving from these unlawful transactions. Ulbricht sought to anonymize transactions on the Silk Road by operating it on a special network of computers on the Internet designed to conceal the identities of the networks’ users. Ulbricht also designed the Silk Road to include a bitcoin-based payment system that concealed the identities and locations of the users transmitting and receiving funds through the site.

     

     

     

    5Global Cryptocurrency Benchmarking Study by Dr Garrick Hileman & Michel Rauchs

     

    • https://www.treasury.gov/tigta/auditreports/2016reports/201630083fr.pdfand http://www.fatf-gafi.org/media/fatf/documents/reports/Virtual-currency-key-definitions-and-potential-aml-cft-risks.pdf

     

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    Virtual Currencies- Challenges to Anti Money Laundering Laws

     

     

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    The Silk Road case is an example of a successful collaborative Federal investigation, but it is also a reminder that the anonymity feature of some virtual currencies is what attracts unscrupulous individuals to their use. The IRS should prepare a comprehensive virtual currency strategy that will assist taxpayers lawfully engaged with virtual currencies to voluntarily comply with the tax laws while seeking to identify individuals unlawfully engaged in their use.

     

    Liberty Reserve Case7

     

    In what is to date the largest online money-laundering case in history, in May 2013, the US Department of Justice charged Liberty Reserve, a Costa Rica-based money transmitter, and seven of its principals and employees with operating an unregistered money transmitter business and money laundering for facilitating the movement of more than 6 billion USD in illicit proceeds. In a coordinated action, the Department of the Treasury identified Liberty Reserve as a financial institution of primary money laundering concern under Section 311 of the USA PATRIOT Act, effectively cutting it off from the US financial system.

     

    Established in 2006, Liberty Reserve was designed to avoid regulatory and law enforcement scrutiny and help criminals distribute, store, and launder the proceeds of credit card fraud, identity theft, investment fraud, computer hacking, narcotics trafficking, and child pornography by enabling them to conduct anonymous and untraceable financial transactions. Operating on an enormous scale, it had more than a million users worldwide, including more than 200 000 in the United States, and handled approximately 55 million transactions, almost all of which were illegal. It had its own virtual currency, Liberty Dollars (LR), but at each end, transfers were denominated and stored in fiat currency (US Dollars)

     

    To use LR currency, a user opened an account through the Liberty Reserve website. While Liberty Reserve ostensibly required basic identifying information, it did not validate identities. Users routinely established accounts under false names, including blatantly criminal names (“Russia Hackers,” “Hacker Account,” “Joe Bogus”) and blatantly false addresses (“123 Fake Main Street, Completely Made Up City, New York”). To add a further layer of anonymity, Liberty Reserve required users to make deposits and withdrawals through recommended third-party exchangers— generally, unlicensed money transmitting businesses operating in Russia, and in several countries without significant governmental money laundering oversight or regulation at that time, such as Malaysia, Nigeria, and Vietnam. By avoiding direct deposits and withdrawals from users, Liberty Reserve evaded collecting information about them through banking transactions or other activity that would create a central paper trail. Once an account was established, a user could conduct transactions with other Liberty Reserve users by transferring LR from his or her account to other users including transferring funds, making the transfers completely untraceable. After learning it was being investigated by US law enforcement, Liberty Reserve pretended to shut down in Costa Rica but continued to operate through a set of shell companies, moving millions through their accounts in Australia, Cyprus, China, Hong Kong, Morocco, Russia, Spain and elsewhere

     

     

     

     

     

     

     

    7http://www.fatf-gafi.org/media/fatf/documents/reports/Virtual-currency-key-definitions-and-potential-aml-cft-risks.pdf

     

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    Virtual Currencies- Challenges to Anti Money Laundering Laws

     

     

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    Bitcoin related Ponzi Scheme8

     

    The U. S. Attorney for the Southern District of New York, Preet Bharara, has issued several recent statements signaling a steady pursuit of criminal conduct related to bitcoin. First, on Thursday, November 6, 2014, Trendon Shavers was arrested and charged with one count of securities fraud and one count of wire fraud in connection with what Mr. Bharara describes as the “first federal criminal securities fraud case involving a bitcoin-related Ponzi scheme.” Notably, this criminal case follows a civil action against Mr. Shavers that was filed by the SEC in July 2013, and allowed to proceed in Texas federal court in August 2013. According to the criminal complaint filed in New York federal court, Mr. Shavers who runs a company called Bitcoin Savings and Trust – allegedly raised more than 764,000 bitcoin from investors between September 2011 and September 2012. Mr. Shavers allegedly told investors that he would engage in a bitcoin market arbitrage strategy (i.e., lending bitcoin to others for a fixed period of time, trading bitcoin via online exchanges, and selling bitcoin locally via private off-market transactions). In return for the investors’ bitcoin, Mr. Shavers promised up to one percent per day. According to the U.S. Attorney, however, Mr. Shavers failed to execute the claimed market arbitrage strategy, failed to honor investors’ redemption requests, and failed to deliver the agreed upon rates of interest.

     

    Apart from the above cases, the recent Wanna Cry ransom ware has primarily used the Bitcoin to extract the money from the people, whose systems have been effected with the virus, to claim the data back.

     

    Virtual Currencies and AML from India perspective

     

    India is a member of FATF, APG and EAG. India has passed legislation for Anti Money-Laundering in the year 2002 called as Prevention of Money Laundering Act, 2002 (Act No. 15/2003) (PMLA 2002) and also framed Rules thereunder

     

    The PMLA 2002 has approximately total 78 sections and one Schedule prescribing list of various offences considered to be Money Laundering activities.

     

    RBI has issued two Press Releases dated 24th December, 2013 and 01st February, 2017 stating that it cautions Virtual Currencies (VCs), including Bitcoins, about the potential financial, operational, legal, customer protection and security related risks that they are exposing the users, holders and traders of themselves

     

    The RBI advises that it has not given any licence / authorisation to any entity / company to operate such schemes or deal with Bitcoin or any virtual currency. As such, any user, holder, investor, trader, etc. dealing with Virtual Currencies will be doing so at their own risk.

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    In the era of digitized information, online advertising has grown leaps and bounds over the decade. In this regard, Google has introduced revolutionary technology called ‘Google AdSense’. The said technology can be broadly classified in two types. One is ‘AdSense for Search’, where the said technology is designed to enable website publishers who want to display targeted text, video or image advertisements on their website pages and earn money when site visitors view or click the ads. The other type is ‘AdSense for Content’ where ads are placed on content shared in Google online platforms like Blogger and You Tube and Google share a portion of revenue with the owners of the content. In this article, the GST implications on AdSense revenue shared by Google to website publishers or the content owners as the case may be are discussed.

     

    WHETHER THE REVENUE SHARE TO WEBSITE OWNERS OR CONTENT SUPPLIERS AMOUNTS TO SUPPLY?

     

    Before, we analyse the tax implications, let us understand the manner in which online advertising is undertaken through this AdSense technology. In the transactions relating to online advertising through AdSense, there are three players involved. One is the customer who wants to place their ads in various websites. The second player is Google who would be approached by customer to place their ads. The third player is the web publishers (website owners) who publish information in their websites which will be accessed by netizens .In case of Google Online Platforms like Blogger and YouTube, the content owners who maintain blogs or upload videos as the case may be will replace the role of website publishers. Google places ads on the websites or their online platforms in order to reach the netizens. The customers who desires to place ads in websites pays money to Google and a portion of same is shared to website owners.

     

    With this understanding of the business model, let us proceed to understand the GST implications. The placing of ads by Google for customers amounts to supply of the nature of sale of space for online advertising. GST is applicable on this transaction. The next important question for consideration is whether the website publishers or content owners are said to have supplied any service to Google in order to attract GST.

     

    One prevalent conception in this regard is that Google is sharing revenue on the basis of clicks/views and there is no service undertaken by these website publishers or content owners. In this context, Let us examine the word ‘Supply’ as defined under Section 7 of CGST Act, 2017 which is reproduced as follows;

     

    • For the purposes of this Act, the expression “supply” includes––

     

    • all forms of supply of goods or services or both such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made for a consideration by a person in the course or furtherance of business;

     

    • import of services for a consideration whether or not in the course or furtherance of business;

     

    • the activities specified in Schedule I, made or agreed to be made without a consideration; and

     

    • the activities to be treated as supply of goods or supply of services as referred to in Schedule II.


     

     

     

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    In view of the above definition of ‘Supply’, the term ‘supply’ is defined in an inclusive manner which includes all kinds of supply of goods or services undertaken for a consideration by a person in the course or furtherance of business. Therefore, any activity undertaken for consideration in the course or furtherance of business would become supply. In this context, let us understand that whether the website publishers or content owners are carrying out any activity in order to conclude that there is a supply of service by them to Google.

     

    Google will place ads only on those websites or on the content shared by content owners who have opened AdSense account by satisfying the conditions and accepting the pre-determined terms of Google. Thus by creating AdSense account, the website publishers or content owners gives right or permission to Google to monetize their websites/content by placing ads. This by itself constitutes a supply of service in the course or furtherance of business without which Google’s activity of placing ads in others websites or content may not be lawful.

     

    Temporary transfer or permanent transfer or permitting to use the intellectual property right in respect of goods other information technology software is subject to GST at 12%. The website publishers or the content owners does not extend any copyright being intellectual property relating to their content but it merely extends to Google, a right towards commercial exploitation of their website or content by placing ads. Thus the right extended is a mere intangible right other than intellectual property right. In view of this reason, the service undertaken by website publishers or the content owners would be covered under the residuary category i.e. services not elsewhere specified and subject to GST at 18%.

     

    WHETHER THE SAID SERVICES QUALIFY AS EXPORT?

     

    Google accepts the terms and conditions with the website publishers and content owners globally with any one of the following entities as contracting party depending on the location of the website publishers or content owners;

     

    1. Google Inc.
    2. Google Ireland
    3. Google Advertising (Shanghai) Company Limited
    4. Google Asia Pacific Pte. Ltd

     

    With respect to website publishers or content owners situated in India, the contract party of Google is Google Asia Pacific Pte. Ltd which is located in Singapore. Thus the recipient of service in case of AdSense Revenue is situated outside India and the services are cross border. In such case, the governing Legislation to determine the tax implicationsis Integrated Goods and Services Tax Act, 2017 (herein after referred to IGST Act).

     

    Section 5 of the IGST Actprovides for levy of IGST which provides that IGST shall be levied on all inter-state supplies of goods or services. Whether a particular supply becomes an Inter-State supply or not shall be determined in accordance with the provisions of Section 7.Sub-section (5) of the said section talks about the situations where supplies taking place between a supplier located in India and the recipient of supply located outside India. The said sub-section is reproduced as under;

     

     

     

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    GST Implications on AdSense Revenue

     

     

     

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    “(5) Supply of goods or services or both,––

    • when the supplier is located in India and the place of supply is outside India;
    • to or by a Special Economic Zone developer or a Special Economic Zone unit; or

     

    • in the taxable territory, not being an intra-State supply and not covered elsewhere in this section, shall be treated to be a supply of goods or services or both in the course of inter-State trade or commerce.

     

    In view of the above provision, a supply of goods or service will become inter-state supply if the supplier is located in India and place of supply is outside India. In the instant case, website publishers or content owners are located in India. Therefore, the service involved can be considered as an inter-state transaction only when the place of supply of the said service is said to be outside India.

     

    To determine, place of supply in case of cross border services, section 13 of the IGST Act, 2017 is relevant. Sub-section(2) of said section provides that in case of cross border services, place of supply in general is the location of the recipient of service unless the situation or instance is expressly covered under other sub-sections of said section. On perusal of section 13, the service involved in the present case is not covered by any specific instance or situation of the other sub-sections of the said section. Therefore, the place of supply of the present service shall be determined in terms of sub-section (2). Accordingly, location of recipient of supply is the place of supply which is outside India in the present case. Therefore, the service involved in the present case, can be considered as an inter-state supply which comes within the ambit of levy under section 5 of the IGST Act, 2017.

     

    However, it is worth to examine Section 16 of the IGST Act, 2017 which provides that certain supply of goods or services are to be treated as Zero-rated supplies (no need to pay any GST). The said section is reproduced as under—

     

    “16. (1) “zero rated supply” means any of the following supplies of goods or servicesor both, namely:––

     

    (a) export of goods or services or both; or

     

    (b) supply of goods or services or both to a Special Economic Zone developer or a Special Eco n o m i c Zone unit.

     

    • Subject to the provisions of sub-section (5) of section 17 of the Central Goods and Services Tax Act, credit of input tax may be availed for making zero-rated supplies, notwithstanding that such supply may be an exempt supply.

     

    • A registered person making zero rated supply shall be eligible to claim refund under either of the

     

    following options, namely:––

     

    • he may supply goods or services or both under bond or Letter of Undertaking, subject to such conditions, safeguards and procedure as may be prescribed, without payment of integrated tax a n d claim refund of unutilised input tax credit; or

     

    (b) he may supply goods or services or both, subject to such conditions, safeguards and procedure a s may be prescribed, on payment of integrated tax and claim refund of such tax paid on goods or services or both supplied, in accordance with the provisions of section 54 of the Central Goods and Services Tax Act or the rules made thereunder.”

     

     

     

     

     

     

     

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    GST Implications on AdSense Revenue

     

     

     

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    In terms of sub-section (1) of the said section, exports of goods or services are treated as zero-rated. The term ‘Export of Service’ is defined under section 2(6) of the IGST Act, 2017 which is reproduced as under—

     

    “export of services” means the supply of any service when––

    • the supplier of service is located in India;
    • the recipient of service is located outside India;
    • the place of supply of service is outside India;

     

    • the payment for such service has been received by the supplier of service in convertible foreign exchange; and

     

    • the supplier of service and the recipient of service are not merely establishments of a distinct person in accordance with Explanation 1 in section 8”

     

    In terms of the above definition, a service is said to be exported if the supplier of service is located in India and recipient is located outside India and payment has been received in convertible foreign exchange. In the instant case, the recipient of service Google Asia Pacific Pte Ltd, is located in Singapore and therefore, the service qualifies as an export of service. Accordingly, the supply of services by website publishers or the content owners will be considered as zero-rated supplies and no GST is required to be paid.

     

    CONCLUSION:

     

    In view of the foregoing discussions, AdSense revenue shared by Google to website publishers or content owners will be a supply of service that attracts GST at the rate 18%. However, as the contracting party of Google i.e. Google Asia Pacific Pte Ltd is located in Singapore and the website publishers or content owners are located in India are paid in convertible foreign exchange, the services qualifies as an export and are zero-rated supplies. Thus in the opinion of the paper writers, no GST is required to be paid on share of AdSense revenue by Google.

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    In order to eliminate certain legacy issues and setbacks under the erstwhile indirect taxation regime, the goods and services tax (GST) was implemented in our country with effective from 01st July, 17. The GST laws have tried to remove certain legacy issues but have introduced new issues which will take years of litigation to obtain clarity on such aspects. The drafting of the law was not up to the mark in certain areas which will make sure the tax payers approach the judiciary to get the appropriate relief. In this article, we tried to address certain issues which are prominent from the day of the inception but not being answered by the authorities.

     

    The area of such confusion is the concept of composite supply and mixed supply. By this time, the reader knows that the term ‘supply’is the backbone of the entire GST legislation. Section 7 of Central Goods & Services Tax Act, 2017 (CGST Act) details the term ‘supply’ and please note that there would be a tax under GST only if there was a ‘supply’ as detailed in Section 7 ibid. But in a transaction, there would be multiple supplies and in such a situation, the taxation of transaction is guided by Section 8 of CGST Act, which deals with the determination of tax liability of composite and mixed supplies.

     

    If there is a composite supply comprising of two or more supplies, one of which is a principal supply, then such a composite supply shall be treated as transaction of principal supply and the tax treatment applicable for principal supply shall be applicable for the entire transaction consisting two or more supplies.

     

    However, if there is a mixed supply comprising two or more supplies, then the transaction shall be treated as that supply which is attracting the highest rate of tax.

     

    To put it in simple words, if the transaction is treated as composite supply, the tax treatment of principal supply shall be applicable to the entire transaction and if the transaction is treated as mixed supply, then the supply with the highest rate shall be applicable for the entire transaction. Let us take few examples (as provided in the GST laws) to understand the concept of composite supply and mixed supply before we proceed to analyse the issues relating to these concepts.

     

    The example provided for composite supply under the GST laws is as under:

     

    Illustration: Where goods are packed and transported with insurance, the supply of goods, packing materials, transport and insurance is a composite supply and supply of goods is a principal supply.

     

    That is to say, if the goods are subjected to 12% rate of tax and transportation is subjected to 5% rate of tax and insurance is subjected to 18% rate of tax, since the supply of goods is the principal supply, then the entire transaction would be subjected to rate of tax at 12% and not 5% or 18%.

     

     

     

     

     

     

     

     

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    The example provided for mixed supply under the GST laws is as under:

     

    Illustration: A supply of a package consisting of canned foods, sweets, chocolates, cakes, dry fruits, aerated drinks and fruit juices when supplied for a single price is a mixed supply. Each of these items can be supplied separately and is not dependent on any other. It shall not be a mixed supply if these items are supplied separately.

     

    Hence, the entire transaction shall be subjected at the rate of tax which is highest among all the products. Suppose if aerated drinks are subject to tax @ 40%, the entire transaction shall be subject to 40% irrespective of the fact, there are products which are chargeable to rate of tax lower than 40% in the transaction.

     

    Hence, it is very important to categorise a transaction as to whether it becomes a composite supply or mixed supply as the taxation is completely different. Now, the challenge before the tax payer is how to decide whether a transaction is a composite supply or mixed supply.

     

    The phrase ‘composite supply’ has been defined vide Section 2(30) of CGST Act as ‘means a supply made by a taxable person to a recipient consisting of two or more taxable supplies of goods or services or both, or any combination thereof, which are naturally bundled and supplied in conjunction with each other in the ordinary course of business, one of which is a principal supply’.

     

    The phrase ‘principal supply’ is defined under section 2(90) of CGST Act, 2017 as— ‘means the supply of goods or services which constitutes the predominant element of a composite supply and to which any other supply forming part of that composite supply is ancillary’.

     

    The phrase ‘mixed supply’ has been defined vide Section 2(74) of CGST Act as ‘means two or more individual supplies of goods or services, or any combination thereof, made in conjunction with each other by a taxable person for a single price where such supply does not constitute a composite supply’.

     

    From the above, it is evident that a transaction shall become a mixed supply only if it is not a composite supply in the first place. Hence, we have to examine whether a transaction becomes a composite supply and if not, then we have to conclude such transaction is mixed supply. Let us take certain issues now and proceed to analyse them.

     

    Issue 1:

     

    A Hotel has entered contract with a customer for provision of accommodation services. The declared tariff of such accommodation is Rs 9,500/-. The Hotel has agreed to give such room along with complimentary meal and pick and drop to airport for a single price of Rs 8,500/-. The rate of tax applicable for accommodation, complimentary meal and transport facility is 28%, 18% and 5%. In such a case, what rate of tax should the hotel charge the customer for the entire Rs 8,500/-?

     

    Will the answer change, if the accommodation is given for Rs 7,000/-, meal is given for Rs 1,000/- and transport facility is given for Rs 500/- and separately disclosed and charged from the customer, instead of single price?

     

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    Composite vs Mixed Supply - Certain Issues

     

     

     

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    Response:

     

    The question before the hotel is whether the transaction of supply of accommodation services, complimentary meal and transport facility is a composite supply or not. If it is a composite supply, then the tax rate of principal supply shall be applicable to the entire transaction.

     

    Here, the principal supply is the accommodation services because it is the predominant element of the composite supply and hence, the rate applicable for accommodation that is 28%, has to be charged on the amount of Rs 8,500/-.

     

    Now, the question is can the hotel charge 28% on Rs 7,000/- (Rs 1,960), 18% on Rs 1,000/- (Rs 180) and 5% on Rs 500/- (Rs 25), or is it mandatory to charge 28% on entire Rs 8,500/- (Rs 2,380). The tax impact would be Rs 215/- (2,380 – 1,960 – 180 – 25) between both the methods.

     

    We are of the opinion that when the hotel discloses and offers the prices of supplies independently to the customer, then there cannot be any determination of tax liability under Section 8 of CGST Act. Since, the definition of ‘composite supply’ envisages that from the inception of the transaction there are two or more taxable supplies flowing with the main supply.

     

    However, in the instant case, the accommodation services are provided at initial instance and the meal service and transportation service were given at a separate instance at the request of the customer. In such a scenario, the department cannot say that the transaction is a composite supply and the entire amount has to be subjected to 28% rate of tax. At the same time, the hotel cannot split the transactions into different supplies when offered for a single price to gain the tax advantage.

     

    Hence, an important take away from the above issue is, when there are two or more supplies, we have to see whether each supply is an independent in nature or an ancillary to the main supply. Now, the challenge is how to determine whether each service is an independent or ancillary to the main supply. What we understand is, a service shall be in ancillary if it does not constitute for the buyer an aim in itself, but a means of better enjoying the principal/main service supplied 1.

     

    Now let us look at the example laid out in CGST Act for the ‘composite supply’ to understand the intention of legislature. In the example, there are 3 supplies, namely supply of goods, supply of transportation services and supply of insurance services. Now, the question is whether the supply of transportation and insurance services constitute an independent supply or ancillary to the main supply that is supply of goods.

     

    In order to answer the above, we have to apply the test as laid above, whether the transportation and insurance services are constituting an aim in themselves for the recipient or whether such services are provided for a better enjoyment of the main service that is supply of goods. It is very clear that the buyer is not interested in the transportation and insurance services per se and hence we can conclude such services are ancillary to the main supply and hence the tax treatment of the main/principal supply shall be applicable to the entire transaction.

     

     

    1Customs and Excise Commissioners v. Madgett and Baldwin (trading as Howden Court Hotel) (Joined Cases C-308/96 and 94/97) [1998] STC 1189, 1206, para 24." (p 627.)

     

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    Accordingly, when the hotel provides accommodation services and after the guest walks in and orders for a meal and transportation to airport, the meal and transportation services constitute an aim in themselves and does not in any way can be called as for better enjoyment of accommodation services. However, if the hotel offers all the three services as a single supply for a single price, then there is no option left for the hotel except to charge the tax rate applicable for the accommodation to the entire transaction.

     

    Issue 2:

     

    A school is engaged in provision of educational services which are exempt from GST. Along with such educational services, the school is also selling the uniforms and other essentials. Now, whether the school is required to pay GST on such sale of uniforms and other essentials?

     

    Response:

     

    On application of the theory of ‘composite supply’, the above issue becomes clear. Here, there are two or more supplies and undoubtedly, the supply of educational services are the principal supply and tax treatment applicable to the principal supply shall become applicable to the entire transaction, since the supplies are ancillary to the main supply.

     

    However, the issue here is, when applying the concept of ‘composite supply’ under the GST laws, it is necessary that the two or more supplies should be taxable supplies since the definition of ‘composite supply’ as laid down under Section 2(30) uses the phrase ‘consisting of two or more taxable supplies of goods or services…….’or can there be one supply which is taxable and other supply which is exempted as stated in the issue.

     

    The educational services are exempted and supply of uniform is taxable, hence, can we use the concept of composite supply in such an instance and not pay tax on supply of uniform because of the tax treatment to the educational services? or should we say that since the definition of ‘composite supply’ deals only with taxable supplies and since the supply of educational services is not a taxable supply, accordingly the concept of ‘composite supply’ shall not be applicable and hence the supply of uniforms becomes taxable? Hence, in order to resolve the issue, one has to look into the definition of ‘taxable supply’, which is being used in the definition of ‘composite supply’. As per Section 2(108) of CGST Act, ‘taxable supply’‘means a supply of goods or services or both which is leviable to tax under this act’. The phrase ‘leviable’ assumes significance in this context.

     

    ‘Levy’ means ‘to impose or assess (a fine or tax) by legal authority’ as per Black’s Legal Dictionary. In order to exempt a supply from tax, firstly the same has to be subjected to tax. Without a supply being subjected to tax, there is no question of exemption. The same has been upheld by the Supreme Court in the case of CCE v Smithkline Beecham Consumer Health Care Limited [2003] 151 ELT 5.

     

     

     

     

     

     

     

     

     

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    Hence, applying the above rationale, the phrase ‘leviable’ covers not only taxable supplies but also exempted supplies in its ambit. Accordingly, the taxable supplies would mean supplies which are both taxable and exempted. Further, the release issued by Central Board of Excise and Customs on 13th July, 17 regarding the ‘Press Release on Lodging in Hostels’ clarifying that the annual subscription/fee collected by educational institutions as lodging/boarding charges shall not attract GST, also clarifies that concept of ‘composite supply’ can be used even when there is a taxable and exempted supply.

     

    In this article, we have tried to address certain issues in the areas of composite and mixed supply, going forward this is going to be a huge area of litigation if the circulars do not come in time.

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    KEY DIFFERENCES BETWEEN THE BRIBERY ACT AND THE FCPA

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Foreign Corrupt Practices Act (FCPA) and the U.K Bribery Act enforcement actions have increased the pressure on companies to be more proactive to deter fraud and misconduct

     

    The UK Bribery Act (the Bribery Act) was passed on 8 April 2010 and comes into force on 1 July 2011. Until recently, international anti-corruption enforcement has been largely dominated by the US Foreign Corrupt Practices Act 1977 (the FCPA). The Bribery Act has been cause of some considerable controversy, in particular , given the implication which breadth of some of its provisions may have for British companies operating abroad.

     

    The Bribery Act, however, represents part of a broader international trend and has an even wider application than the FCPA. While organisations may consider that their anti-corruption procedures are sufficiently robust for the purposes of the FCPA, this may not be the case where the Bribery Act is concerned. It is therefore important for organisations operating on a global basis to be aware of the differences between the FCPA and the Bribery Act and to be prepared for the implications of the Bribery Act coming into force.

     

    The main differences between the Bribery Act and the FCPA

     

    Bribery of foreign (public) officials

     

    Both the Bribery Act and the FCPA make it an offence to bribe foreign (public) officials. Under the Bribery Act a “foreign public official” is defined more narrowly than under the FCPA but still includes (i) anyone who holds a foreign legislative or judicial position; (ii) individuals who exercise a public function for a foreign country, territory, public agency or public enterprise; or (iii) any official or agent of a public organisation.

     

     

     

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    Private-to-private bribery

     

    The FCPA does not cover bribery on a private level, unlike the Bribery Act, although such conduct can be caught under other US legislation.

     

    Active and passive bribery

     

    The FCPA only covers active bribery, that is to say the giving of a bribe. In contrast, the Bribery Act prohibits both active and passive bribery i.e. the taking of a bribe.

     

    Failure to prevent bribery

     

    The Bribery Act creates a strict liability corporate offence for failure to prevent bribery (as opposed to vicarious liability) subject to being able to establish that a company has “adequate procedures”. Under the FCPA, however, a company subject to US jurisdiction can be held vicariously liable for acts of its employees and agents. The UK offence extends to acts of “associated persons” which means anyone who performs services for or on behalf of the commercial organisation.

     

    Intent

     

    Under the FCPA it must be proved that the person offering the bribe did so with a “corrupt” intent. The Bribery Act makes no requirement for a “corrupt” or “improper” intent in relation to the bribery of a foreign public official, although the requirement remains for the general bribery offence.

     

    Facilitation payments

     

    The FCPA creates an exemption for facilitation payments whereas the Bribery Act makes no such exception. The Ministry of Justice guidance, however, confirms that prosecutors will exercise discretion in determining whether to prosecute. In addition, informal guidance received from the SFO indicates that where it is considering action, it will be guided by the following six principles:

     

    ØWhether the company has a clear and issued policy.

     

    ØWhether the company has written guidance available to employees as to the procedures they must follow where a facilitation payment is requested or expected.

     

    ØWhether such procedures are really being followed (monitoring).

    ØEvidence that gifts are being recorded at the company.

     

    ØProper action, collective or otherwise, to inform the appropriate authorities in countries when a breach of the policy occurs.

     

    ØThecompany is taking what practical steps it can to curtail such payments.

     

    Promotional expenses

     

    The FCPA provides for a “defence” to promotional expenses in so far as it can be demonstrated that they were a reasonable and bona fide expenditure. There is no such defence concerning promotional expenses under the Bribery Act, in relation to foreign public officials, although the Ministry of Justice has provided some comfort on this aspect in its guidance.

     

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    Penalties

     

    An individual found to have committed an offence under the Bribery Act is liable to imprisonment of up to ten years and/or to an unlimited fine. A company found guilty is subject to an unlimited fine.

     

    For offences committed under the FCPA an individual can be fined up to US$250,000 per violation and may also be given up to five years imprisonment. A company guilty under the FCPA is liable for a fine of up to US$2,000,000 per violation.

     

    Key considerations for FCPA compliant organisations

     

    • Business-to-business or commercial bribery must be taken as seriously as bribery of public officials.

     

    • Companies should review gift, hospitality and promotional expense guidelines.

     

    • Companies should reconsider policies that allow facilitation payments and develop strategies to reduce such payments.

     

    • Companies should formalize or revise risk assessment processes.

     

    • Companies should expand the scope of their anti-corruption programmes to include all “associated persons” and review third party due diligence, contractual protection and monitoring.

     

    • Companies should ensure they have adequate procedures in place; they are a complete defence for companies under the Bribery Act and represent significant protection and/or “sentence mitigation” elsewhere.

     

    The Bribery Act has a significantly wider scope than the FCPA and so FCPA-compliance programs are unlikely to be sufficient to ensure compliance with the Bribery Act. While the FCPA applies only to the bribery of foreign public officials, the Bribery Act covers bribery in both the public and private sectors. In addition, the Bribery Act, unlike the FCPA, does not have exclusion for facilitation payments and so such payments will constitute bribery offences if they fulfill the other criteria. The Bribery Act also creates a new strict liability offence of failure by a commercial organisation to prevent bribery. As the only defence available to such an offence is that adequate procedures to prevent bribery were in place, commercial organisations will need to ensure that their anti-bribery policies are adequate in light of the extensive scope of the Bribery Act.

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