Tax paid by co on employees behalf a non-monetary perquisite

Updated: Nov 27 2012, 08:34am hrs
Abhishek Rao

Paying income tax on salary is an obligation for an employee. Can an employer pay taxes on behalf of the employee Are there any restrictions on doing so

Well, the Indian Companies Act, 1956 (ICA), by means of Section 200 restricts companies registered under it from paying its employees tax-free salaries. The Indian Income Tax Act, 1961, as per Section 10(10CC) provides that the tax on non-monetary perquisite paid by the employer on behalf of the employee is exempt in the hands of the employee. This is despite the restriction under the ICA.

The ITA does not specifically clarify whether the tax can be paid by the employer on salary and monetary perquisites.

This issue has been a matter of active debate. In a recent ruling by the Uttarakhand High Court in the case of director of income tax vs Sedco Forex International Drilling Inc, the court examined the definition of perquisite, which is defined very widely to include any obligation of the employee met by the employer. The court held that since the taxes are paid by the employer, it would be a perquisite in the first place. As the taxes are paid directly to the revenue authorities by the employer, this would be a non-monetary perquisite. The court has distinguished between paying tax-free salary and paying salary as well as the taxes on such salary. As per the ruling, tax paid by the company on employees behalf could be considered as a non-monetary perquisite.

For example, an employees taxable income is R100 and tax rate is 30%. If the tax of R30 is paid by the employer without considering the above exemption, the total tax would be R43 (i.e., R30 [tax on salary] +R13 [additional taxes on R30, calculated multiple times]). As per the ruling, the total tax would now be R39 (i.e., R30 + R9 [tax on R30]). Hence, the employer may not be required to pay additional tax on the tax paid by him.

The above position does have a flip side, as the employer will have to forego the corporate tax deduction if it pays tax on behalf of the employee. This means the employer will have to weigh the benefits between personal tax saving and corporate tax dis allowance to decide which way to go. An interesting point to note is that the proposed Direct Taxes Code has eliminated Section 10(10CC) of Income Tax Act, 1961. In case of secondments to different countries, it is a common practice for employers (globally) to tax equalise or tax protect their employees from differential tax liabilities arising due to the tax laws of two countries (home and host).

Hence, greater clarity on the issue of tax payment in India will help companies develop or operate global policies while seconding employees to India.

The author is senior tax professional, Ernst & Young. Views expressed are personal