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Piercing of Corporate Veil in Taxation Matters (India and International Transactions) with Reference to Direct Tax Codes


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1 Hidayatullah National Law University, Raipur (C.G), India
     

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In the ultimate analysis, some human beings are the real beneficiaries of the corporate advantages, for while, by fiction of law, a corporation is a distinct entity yet in reality, it is an association of persons who are in fact the beneficiaries of the corporate property. Therefore, it may happen that the corporate personality of the company is used to commit frauds or improper or illegal acts like tax evasion. Thus, the concept of piercing or lifting the corporate veil holds significance. A corporate veil may be pierced either through statutory provisions or by judicial interpretation. Piercing the corporate veil in taxation matters is an outcome of judicial decisions. This Article firstly deals with the pros and cons of the concept of tax evasion and piercing the corporate veil. It pertains to situations in which piercing of corporate veil in taxation matters is considered valid and convincing. Then it goes on to emphasizing the notion, construction and legality of lifting the veil in India, United States and United Kingdom. It also stresses on the Direct Tax Codes and the scope of piercing the veil. It is analytical and descriptive in nature and doctrinal in approach.

Keywords

Corporate Veil, Direct Tax, Tax Evasion, Corporate Entity, Piercing
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  • [1895-99] All ER Rep 33 : 66 LJ Ch 35.
  • Ibid
  • http://www.legalserviceindia.com/articles/corporate.htm, accessed on 3rd September, 2011 at 10:17 A.M.
  • For instance, the Court of Appeal in Adams v. IndustriesPlc [[1990] 2 W.L.R. 786, HL.], refused to lift the veil as against the defendant company on the ground that the right to use a corporate structure can be denied only in case of illegality and not immorality.
  • See, PALMER, ‘Company Law’, 2223 (1992). See also, C.I.T, Madras v. Meenakshi Mills Ltd., (1967) 63 ITR 609 (SC).
  • See, WILLIAM W. PARK, ‘Fiscal Jurisdiction and Accrual Basis Taxation: Lifting the Corporate Veil to Tax Foreign Company Profits’, 78 COLUM. L. REV. 1609 (1978).
  • Gallaghar v. Germania Brewing Company, [1893] 53 MINN. 214.
  • A.K. MAJUMDAR & DR. G.K. KAPOOR, ‘Taxmann’s Company Law and Practice’, Taxmann Publications (P.) Ltd., 16th ed., (July, 2011), p. 19.
  • See, ROBERT W. HAMILTON & JONATHAN R. MACEY, ‘Cases and Materials on Corporations Including Partnerships and Limited Liability Companies’, 9th ed., (2005), p. 261.
  • See, GOWER & DAVIS, ‘Principles of Mordern Company Law’, Sweet & Maxwell, 17th ed., p. 187.
  • See, Union of India v. Playworld Electronics, (1989) 3 SCC 181.
  • See, Young v. David Payne & Co., Ltd [1904] 2 Ch. D. 608.
  • See, Barber-Greene Americans Inc. v. Commissioner of Internal Revenue, (1960) 35 TC 365.
  • See, McDowell v. CTO, AIR 1986 SC 649.
  • See, C. H. TAN, ‘Piercing the Separate Personality of the Company: A Matter of Policy?’ [1999] Singapore Journal of Legal Studies 531 at 536.
  • [2005] HKCA 316 at [95].
  • See, C H TAN SC, ‘Walter Woon on Company Law’, Sweet and Maxwell Asia, Singapore, 3rd ed, (2005), pp 55ff.
  • [1995] HKCA 604.
  • [1935] All ER 259 (H.L.).
  • See, W. T. Ramsay v. Inland Revenue Commissioners [[1982] AC 300] was a significant departure from the Westminster principle. In the instant case, the House of Lords considered a tax avoidance scheme which consisted of a series or a combination of transactions each of which was individually genuine but all of which as a whole resulted in tax avoidance. The House laid the principle that the fiscal consequences of a preordained series of transactions, intended to operate as such, are generally to be ascertained by considering the result of the series as a whole. It is not to be ascertained by dissecting the scheme and considering each individual transaction separately.
  • See, CIT v. A. Raman & Co. [(1986) 67 ITR 11] the Supreme Court held that the avoidance of tax liability is not prohibited. Legislative injunction in taxation statutes may not, except on peril of penalty, be violated, but it may lawfully be circumvented.
  • See, Bank of Chettinad Ltd v. CIT, [ (1940) 8 ITR 522 PC]
  • (2003) 263 ITR 707 (SC).
  • (1985) 62 ALR 545; (1985) HCA 83 (Three Doctors Case).
  • See, Hollylock v. Federal Commissioner of Taxation, (1971) HCA 43; (1971 125 CLR 647, at p 657).
  • See, ROBERT B. THOMSON, ‘Piercing the corporate veil: an empirical study’, 76 cornel L. Rev. 1036 (1991)
  • (1958) UKPCHCA 1; (1958) 98 CLR 1, at p 8.
  • See, AULT, HUGH J., ‘Corporate Intergration Tax Treaties and Dividsion and the International Tax Base: Principles & Practice’, (1992) 47 Tax Law Review 565.
  • See, Commissioner of Taxation v. Consolidated Press Holdings, (2001) 207 CLR 235.
  • http://www.businessstandard. com/india/storypage.php?autono=299844, accessed on 4th September, 2011 at 10:55 A.M.
  • Juggilal v. CIT, (1969) 2 SCC 376 : AIR 1970 SC 529.
  • (2003) 114 Comp. Cas. 82 Del
  • AIR 1927 Bom 371
  • AIR 1967 SC 819.
  • AIR 1955 SC 74 : (1955) 1 SCR 876.
  • AIR 1963 Cal 629.
  • E.B.M. Co. Ltd. v. Dominion Bank, [1937] 3 All ER 555 PC.
  • See O. Kahn Freund, Company Law Reform, 9 Mod LR 235.
  • (G.R. No. 167560, September 17, 2008)
  • 1991 36 ITD 369 Del.
  • IT Appeal No. 3225 (Delhi) of 1987 dated 27-9-1988.
  • Vodafone International Holdings B v. Union of India and Anr., (2010) 329 ITR 126 (Bom).
  • [2011] 199 TAXMAN 70 (Kar).
  • http://indiacorplaw.blogspot.com/2011/04/lifting-corporate-veilfor- tax-purposes.html, accessed on 6th September, 2011 at 2:56 P.M.
  • Income Tax Act, 1961
  • (1986) 59 Comp.Cas. 548: 1986 (1) ComLJ 91: AIR 1986 SC 1370
  • 1969 (2) ComLJ 188: AIR 1969 SC 932
  • [1989] 65 Comp. Cas. 196 (Del)
  • 2002 (82) ECC 288, 2002 (145) ELT 526 Tri Del
  • Commissioner of Central Excise, New Delhi v. Modi Alkalies & Chemicals Ltd, (18th August, 2004).
  • http://www.business-standard.com/india/news/m-j-antony- %60liftingcorporate-veil%60/160711/, accessed on 6th September, 2011 at 1:36 P.M.
  • In Re. Young v. David Payne & Co. Ltd., [1904] 2 Ch. D. 608
  • (1899) 4 TC 41.
  • 1957] 1 W.L.R. 464
  • http://en.wikipedia.org/wiki/Piercing_the_corporate_veil, accessed on 5th Sptember, 2011 at 4:55 P.M.
  • (1977) 7 A.T.R. 519.
  • [1976] 1 W.L.R. 852.
  • [1955] 1 W.L.R. 352
  • (1984) 9 A.C.L.R. 102
  • GOWER, ‘Principles of Modern Company Law’ (3rd ed., 1969), p. 216.
  • Ibid. at p. 860.
  • [1982] Q.B. 84
  • (1986) A.T.C. 4145.
  • [1983] F.S.R. 54.
  • (1985) A.T.C. 4765.
  • (1977) 140 C.L.R. 314.
  • PETER ZIEGLER & LYNN GALLAGHER, ‘Lifting the corporate veil in the pursuit of justice. Journal of Business Law’, 1990.
  • WT Ramsay Ltd v. Inland Revenue Commissioners, [1982] A.C. 300 (HL)
  • Furniss v Dawson, (1984) 55 TC 324.
  • (1984) 55 TC 324 at 331.
  • Jones v Lipman [1962] 1 WLR 832.
  • IRC v. Burmah Oil Co Ltd., (1981) 54 TC 200.
  • Ibid at p. 215.
  • MALCOLM GAMMIE, ‘Sham and reality: the taxation of composite transactions’, British Tax Review, 2006.
  • 293 U.S. 465 (1935).
  • Nelson v. Commissioner, 281 F.2d 1 (1960).
  • See, Discussion Paper on Direct Tax Code, August 2010, Chapter-II, A-9
  • “Control and management signifies contolling and directive power, the head and brain as it is sometimes called and also means de facto control and management”;, See, DR. GIRISH AHUJA AND DR. RAVI GUPTA, ‘Direct Taxes and Practices’, Bharat Law House Pvt. Ltd., New Delhi, p. 45 , 2011; Also see, CIT v. Nandlal Gandalal, (1960) 40 ITR 1 SC
  • See, ARNOLD BRIAN J., ‘Tax Treaties & Tax avoidance’, (2004) 58 BIFD 244.

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  • Piercing of Corporate Veil in Taxation Matters (India and International Transactions) with Reference to Direct Tax Codes

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Authors

Apoorva Neral
Hidayatullah National Law University, Raipur (C.G), India

Abstract


In the ultimate analysis, some human beings are the real beneficiaries of the corporate advantages, for while, by fiction of law, a corporation is a distinct entity yet in reality, it is an association of persons who are in fact the beneficiaries of the corporate property. Therefore, it may happen that the corporate personality of the company is used to commit frauds or improper or illegal acts like tax evasion. Thus, the concept of piercing or lifting the corporate veil holds significance. A corporate veil may be pierced either through statutory provisions or by judicial interpretation. Piercing the corporate veil in taxation matters is an outcome of judicial decisions. This Article firstly deals with the pros and cons of the concept of tax evasion and piercing the corporate veil. It pertains to situations in which piercing of corporate veil in taxation matters is considered valid and convincing. Then it goes on to emphasizing the notion, construction and legality of lifting the veil in India, United States and United Kingdom. It also stresses on the Direct Tax Codes and the scope of piercing the veil. It is analytical and descriptive in nature and doctrinal in approach.

Keywords


Corporate Veil, Direct Tax, Tax Evasion, Corporate Entity, Piercing

References