Effective January 1, 2025, the suspension will increase the withholding tax rate on dividends for Indian investors
In a significant development, Switzerland has announced the suspension of the Most Favoured Nation (MFN) clause in its Double Taxation Avoidance Agreement (DTAA) with India, effective January 1, 2025. This change will lead to an increase in the withholding tax rate on dividends paid to Indian tax residents from 5% to 10%, impacting numerous Indian investors with holdings in Swiss entities.
Understanding the MFN Clause
The MFN clause is a key provision in international treaties, including tax agreements, designed to ensure non-discriminatory treatment among signatory countries. It mandates that if a country offers favorable tax rates or conditions to one treaty partner, it must extend the same benefits to all other partners covered by the clause. This mechanism aims to maintain equitable treatment and prevent preferential advantages in international economic relations.
Background of the Suspension
The decision to suspend the MFN clause follows a landmark ruling by the Indian Supreme Court in October 2023. The ruling clarified the application of the MFN clause in tax treaties, particularly in a case involving Nestlé S.A., a Swiss multinational. Nestlé sought a refund of withholding tax on dividends, invoking the MFN clause under the India-Switzerland DTAA. The company argued that India had entered into subsequent tax treaties with countries like Slovenia, Lithuania, and Colombia, offering lower withholding tax rates on dividends. Nestlé contended that, per the MFN clause, these reduced rates should automatically apply to Swiss entities.
However, the Supreme Court ruled that the MFN clause does not automatically apply upon a country’s accession to the OECD. The Court emphasized that any modification to tax rates under the MFN clause requires formal notification under Section 90 of the Indian Income Tax Act, 1961. This decision nullified the automatic extension of lower tax rates to Swiss entities, prompting Swiss authorities to reassess their position.
Switzerland’s Response
In light of the Supreme Court’s ruling, Swiss authorities acknowledged the lack of reciprocity in the application of the MFN clause. Consequently, Switzerland decided to suspend the unilateral application of the MFN clause in its DTAA with India, effective January 1, 2025. This suspension means that dividends paid to Indian tax residents from Swiss sources will be subject to a 10% withholding tax, as originally stipulated in the DTAA, rather than the previously applied 5% rate under the MFN provision.
Implications for Indian Investors
The suspension of the MFN clause has significant implications for Indian investors receiving dividend income from Swiss investments:
- Increased Tax Liability: The withholding tax rate on dividends will double from 5% to 10%, leading to higher tax outflows for Indian investors.
- Impact on Investment Returns: The increased tax burden may reduce the net returns on investments in Swiss entities, potentially affecting investment decisions and portfolio allocations.
- Administrative Adjustments: Investors may need to revisit their tax planning strategies to accommodate the higher withholding tax rate and ensure compliance with the revised tax obligations.
Broader Context and Future Outlook
The suspension of the MFN clause by Switzerland reflects the complexities involved in the interpretation and application of such provisions in international tax treaties. The Indian Supreme Court’s ruling underscores the necessity for formal legislative action to implement changes under the MFN clause, rather than relying on automatic applicability.
This development may prompt other countries with similar MFN clauses in their DTAAs with India to reevaluate their positions, potentially leading to a broader reassessment of international tax agreements. For Indian investors, staying informed about such changes is crucial for effective tax planning and compliance.
Conclusion
Switzerland’s suspension of the MFN clause in its tax treaty with India marks a significant shift in the tax treatment of dividend income for Indian residents with Swiss investments. The increase in the withholding tax rate from 5% to 10%, effective January 1, 2025, necessitates careful consideration by investors to adapt to the new tax landscape. This development also highlights the importance of understanding the legal frameworks governing international tax treaties and the implications of judicial rulings on such agreements.