carbon credit ~ direct tax issues rsas august 2010

Carbon credit Direct tax issues

National Academy of Direct Taxes,Mumbai, 26 August 2010

CA Romesh S A Sankhe

CA Romesh S A Sankhe2

Contents

An introduction

Direct tax issues

Direct Taxes Code

Allied laws

Carbon credit ~ Direct tax issues_NADT_26 August 20 10


• ‘Intergovernmental Panel on Climate Change’ (IPCC) is a body establishedin 1988 by the United Nations, with an aim to evaluate the risk of climatechange caused by human activity

• IPCC’s first climate assessment report was completed in 1990 illustrating the country wise analysis of gas emission levels in the world

• ‘United Nations Framework Convention on Climate Change (UNFCCC)’ is an international environmental treaty which was introduced in Earth summit conducted by United Nations at Brazil in June 1992

• UNFCC’s objective is to stabilize greenhouse gasconcentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system

• As on July 2010, 194 parties are signatory to UNFCCC

3

Carbon credit - backdrop



• However, UNFCCC has no mandatory limits on greenhouse gas emissions for individual countries and no enforcement mechanisms

• In December 1997, ‘Kyoto Protocol’ to UNFCCC was first agreed in Japan under which ‘Annex I countries’ of UNFCCC (industrialized nations) was to provide a commitment towards reduction of gas emissions of following:• Four greenhouse gases (GHG) i.e. carbon dioxide, methane, nitrous oxide and

sulphur hexafluoride,• Two group of gases i.e. hydro fluorocarbons and per fluorocarbons,

• This protocol was effective from 16 February 2005; 190 parties have signed this protocol till July 2010 which accounts for about 64% of the gas emissions from Annex I countries in 1990• The notable exclusion is of United States Of America which was responsible for 36%

of the 1990 gas emission levels of Annex I countries

• The target agreed upon was an average reduction of 5.2% from 1990 levels by the year 2012 by Annex I countries, the defaulting country will have to make up for deficit plus an additional 30% and it will be suspended from making transfers under an emissions trading program

4




• Kyoto protocol provides for following three mechanics which can be used by Annex I countries to meet their emission reduction commitments:• International Emission Trading• Clean development mechanism • Joint implementation

• Clean Development Mechanism allows Annex I countries to invest in emission reductions wherever it is cheapest globally i.e. in developing nations

• Certified Emission Reductions (CERs) are positive difference between the standard emissions and actual emissions of the approved CDM projects under the prescribed rules of the Kyoto Protocol

• One CER is equivalent to one metric ton of carbon dioxide (CO2) emissions

5


Certified Emission Reductions (CERs) are popularly known as ‘carbon credits’



• Apart from CERs, carbon credits approved by European Commission under European Union scheme are also traded globally, this are known as European Union Allowance (EUA)

• European Climate Exchange (ECX) facilitates more than 80% of the global carbon credit sales and deals only in futures; CER’s all time high price is Euro 24 (2008) and all time low price is Euro 7.35 (2009)

• The prices of CERs and EUAs during the last 12 months were as under:

Source : http://www.ecx.eu/

6

Carbon credits - CER prices


13.2212.15

13.8

12.24

11.0111.57 11.73 11.58

14.3

12.5213.01

12.03

14.88

13.32

14.54

13.1512.26 12.68 12.83 12.67

15.7914.95 15.12

14.05

8

11

14

17

Aug-09 Sep-09 Oct-09 Nov-09 Dec-09 Jan-10 Feb-10 Mar-10 Apr-10 May-10 Jun-10 Jul-10

Euro

CER EUA


• Annex I countries primary have two ways to control the gas emission, either to develop the CDM projects or purchase the CERs from developing nations such as China, India, etc• Commitment period under the Kyoto protocol may end in 2012• However, Annex I countries are expected to extend their commitments till 2020

• Globally the carbon credit market (i.e. EUA, CER, etc.) grew at a compound annual growth rate (CAGR) of 89% during 2005 to 2009 which was• 2005 (USD11 billion), 2006 (USD31 billion), 2007 (USD63 billion), 2008 (USD126

billion), 2009 (USD138 billion) and it is expected to reach USD1200 billion in 2020• However, CER derived from CDM projects forms a small part of the this global

carbon credit market which was USD6.5 billion in 2008 and USD2.7 billion in 2009

• Till 2012 India is not under any commitment towards emission reduction, hence CERs does not have a significant market within India• However, post 2012 India may accept the voluntary commitment towards emission

reduction which may result into increased demand of CERs within India

7

Carbon credits - opportunity for Indian businesses



• As on 3 August 2010, total CDM projects registered with UNFCCC are 2311

• India’s CDM projects can be further illustrated as under:

Source : http://cdm.unfccc.int

• Till July 2010, total CER issuance to India is about 80 Million [total issuance by UNFCCC is 423 million ] and current unsold stock in India is about 10 Million

8

CDM projects - Indian scenario


Particulars Number Annual CER Capacity (Mn tons)

Approved 520 43.15

Under review 26 2.15

Rejected or withdrawn 58 -

0

200

400

600

800

1000

Brazil China India Malaysia Mexico Others

174

914

520

83 123

497


CDM projects - setup procedure In India


1• Preparation and submission of Project Concept Note (PCN)

and Project Design Document (PDD)

2• Approval from National CDM Authority (NCDMA), part of

Ministry of Environmental and Forest

3• Validation by Designated Operational Entity (DOE)

4• Registration by UNFCCC

5• Monitoring and review by DOE

6• Issuance of CER verification report by DOE

7• Issuance of CER Certificates by UNFCCC

One

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10

Direct tax issues



Characterization of income - various possibilities

• “Income” under section 2(24)• Even if a receipt does not fall within the ambit of any of the sub-clauses in

section 2(24), it may still be income if it partakes the nature of the income- CIT v. G.R. Karthikeyan [1993] 201 ITR 866 (SC)

• “Business” under section 2(13)• Based on the past judicial precedents following principles emerge:

• Any activity akin to business may be taken to be an adventure in thenature of trade

• A single transaction may also constitute an adventure in the nature oftrade, there need not be regularity or repetitiveness in the activity

• The activity alleged/claimed to be an adventure in the nature of tradeneed not be allied to the already existing activity of the assessee

• The activity or the transaction said to be an adventure in the nature oftrade must be with the object of earning profit

- Eclat Construction (P.) Ltd. v. CIT [1988] 172 ITR 84 (Pat.).




• “Capital asset” under section 2(14)• Property of any kind held ………….., but does not include any stock-in-

trade, consumable stores or raw materials held for the purposes of hisbusiness or profession ;

• “Income from other sources” under section 56• Income of every kind which is not to be excluded from the total income

under this Act shall be chargeable to income-tax under the head “Incomefrom other sources”, if it is not chargeable to income-tax under any of theheads specified in section 14,


Characterization assumes importance !!




Income from sale of CERs

Business income ?

- Taxed at normal rates

- Eligible for set off against the business losses

Capital gains ?

- Concessional rate of tax if held for more than 36 months

- Eligible for set off against the capital losses

Income from other sources ?

- Taxed at normal rates


Characterization of income - income tax precedents

• Business income vs. Other heads of incomeEven if an item of income is earned in the course of carrying on a business, it will not necessarily fall within the head ‘Profits and gains of business’. Income earned by an assessee carrying on business will in each case be broken up, and taxable income under the head ‘Profits and gains of business’ will be that amount alone which is earned in the business, and does not fall under any other specific head- CIT v. Chugandas & Co. [1965] 55 ITR 17 (SC)

• Carbon credit ~ business income ?• Section 28 (iv) - the value of any benefit or perquisite, whether convertible

into money or not, arising from business or the exercise of a profession• Section 28(va) - any sum, whether received or receivable, in cash or kind,

under an agreement for(a) not carrying out any activity in relation to any business



Characterization of income - income tax precedents

• Carbon credit ~ business income ?• Compensation received under Montreal Protocol is exempt under section

28(va)(ii),• However in Eagal Flask India Pvt. Ltd. v. JCIT [2009] 2009-TIOL-623 (Pune

ITAT) it was held as under:• Compensation, in cash or in kind, for not carrying out business activity from UNDP

under Montreal protocol for phasing out Ozone Depleting substance will not betaxed under section 28(va)(ii).This proviso has nothing to do with the non taxabilityof the amounts received from the Multilateral fund to meet increased operationscosts which a more ozone friendly technology may require’

• Carbon credit ~ investment income ?• CBDT also wishes to emphasise that it is possible for a taxpayer to have

two portfolios, i.e., an investment portfolio comprising of securities whichare to be treated as capital assets and a trading portfolio comprising ofstock-in-trade which are to be treated as trading assets. Where anassessee has two portfolios, the assessee may have income under bothheads, i.e., capital gains as well as business income- Circular No. 4/2007, dated 15 June 2007.



Characterization of income - accounting principles


• Currently no accounting standard or GAAP is existent in India orglobally in relation to treatment of CERs• Earlier the international Accounting Standards Board had issued an

interpretation to ‘International Financial Reporting InterpretationsCommittee (IFRIC) 3 – Emission rights’ in December 2004, however thesame was withdrawn in June 2005

• Guidance note on Accounting for Self-generated Certified EmissionReductions (CERs) issued by ICAI in June 2009, states as under• CERs should be recognised in the books when those are credited by

UNFCCC and are unconditionally available to the generating entity,• CERs are inventories of the generating entity as they are generated and

held for the purpose of sale in the ordinary course of business,• Even though CERs are intangible assets those should be accounted for as

per the AS 2 (Valuation of inventories) at a cost or market value whicheveris lower,

• “Cost of CER” may includes consultant’s fees, certification fees and cashpayments made to UNFCCC for obtaining the CER credits


Characterization of income - concluding views


• Self-generated CER’s• Business income, since the same could be used in own business (currently

own use is not feasible in India) as well as could be sold in the outsidemarket ,

• If the classified as investment by the taxpayer and held for substantialperiod then may be treated as capital gains

• CERS purchased for resale• Business income or investment income depending on the intention of the

taxpayer, holding period etc., reference may be made to CBDT circular no.4/2007

• CERs should be recognised in the books when those are credited byUNFCCC and are unconditionally available to the taxpayer,

• “Cost of CER” may includes consultant’s fees, certification fees andcash payments made to UNFCCC for obtaining the CER credits


Other issues - tax deduction

If treated as business income, whether CER gains will be eligible fordeduction under section 80IA, 80IAB and 80IB?

• View 1 - Not eligible• Section 80IA, 80IAB, 80IB have a common scheme which refers to profit “derived

from an industrial undertaking”, • As held by Supreme Court in Liberty India v. CIT [2009] 317 ITR 218 the word

“derived from” is narrow in scope and hence the tax holiday provisions would not apply to income such as duty drawback, DEPB, export entitlement etc.

• View 2 - Eligible• CERs generation is directly related to the operations of industrial undertaking and

hence may deem to be the income from source of first degree, as held in Liberty India v. CIT [2009] 317 ITR 218 (SC) “The words "derived from" is narrower in connotation as compared to the words "attributable to". In other words, by using the expression "derived from", Parliament intended to cover sources not beyond the first degree”,

• Further CERs are classified as inventory of an generating entity as per the accounting principles in India, hence deem to be “derived from an industrial undertaking” and eligible for tax benefits,



Other issues - tax deduction

If treated as business income, whether CER gains will be eligible fordeduction under section 80IC, 80ID, 80IE, 80JAA and10AA?

• Section 80IC, 80ID and 80IE of the Act extends the benefit to ‘gains derivedby an undertaking’ from the specified business• “derived by an undertaking” appears to be wider that “derived from an

undertaking”, hence the tax deduction benefit may be available

• Section 80JJA of the Act extends the benefit to ‘gains derived “from thespecified business”• “derived from the specified business” appears to be narrower that “derived from

an undertaking”, hence the tax deduction benefit may be subject to facts of thecase and process in which the CERs are generated

• Section 10AA of the Act extents the benefit to unit who begins manufacture orproduce articles or things in the Special Economic Zone• Since CERs may be classified as inventory of the generating entity, the gains

derived from the overseas sales of CERs may be eligible for the tax benefit



Direct Taxes Code - New era in Indian taxation

• Definitions in the draft Direct Taxes Code bill released in August 2009• Section 284(41) - “business asset” means (a) business trading asset or (b)

business capital asset• Section 284(42) - “business capital asset” means (a) any capital asset self-

generated in the course of the business• Section 284(151) - “investment asset” means any capital asset which is not

a business capital asset

• Self-generated CER’s may be treated as “business capital asset” andhence taxable as business income

• CERS purchased for resale may be treated as business asset orinvestment asset depending on the intention of the taxpayer

20 Carbon credit ~ Direct tax issues_NADT_26 August 2010


Allied laws

• In January 2010, Delhi Government vide its notification has stated that CERs are akin to intangible goods and hence Value Added Tax would be levied at transfer of CERs at the concessional rate of 4%,

• No clarification from any other state Governments or Union Government

21 Carbon credit ~ Direct tax issues_NADT_26 August 2010

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Open house ..


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The views expressed in this presentation are solely that of the speaker and do not constitute any kind of professional advice. These views or opinion expressed in this presentation should not be applied or used without a prior professional advice, as the review of the facts and existing judicial position is of utmost importance in the analysis of tax implications.

CA Romesh S A Sankhe(M) 9892 892504(E) [email protected]

carbon credit ~ direct tax issues rsas august 2010

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