Taxability on Non-Resident Sportsperson

Taxability of Non Resident Sportsperson/Entertainer/Sports Association

Taxability of any Non-Resident in India is governed by the provisions of Income Tax Act and Provisions of DTAA, whichever is more beneficial.

In case of taxability of Non Resident Sportsperson/Entertainer/Sports Association, inter-play of following provisions are analysed herein.

1. Section 9 – Income Tax Act

2. Section 115BBA – Income Tax Act

3. Article 17 – UN Model Double Taxation Convention, (UN Model)

4. Article 14 – UN Model

5. Article 15 – UN Model

Income Tax Provisions

Section 115BBA provides special basic rate of 20% (plus applicable surcharge & EC) on prescribed income accruing to Non Resident Sportsman/Entertainer/Sports Association. No deduction for any expenditure and allowance is allowed to such assessee u/s 115BBA. The Provision of section 115BBA is explained as under:-

Critical Observations:

1. The words sportsman & Entertainer are neither defined in section 115BBA nor in other sections of Income Tax Act.

2. The question for consideration is whether taxability of team members like Coach, Manager, musicians etc., are covered by provisions of section 115BBA. It appears that team members are not covered by provisions of section 115BBA and their income in India, in connection with performance by sportsman or entertainer in India, will be governed by Normal Provisions of Income Tax Act.

3. The wordings of section 115BBA are similar to one used in Article 17 of UN model convention, which is also on same lines as adopted in OECD model Double taxation convention. As per treatise on double taxation convention by Professor Klaus Vogel, The words “Sportsman (including athlete)” should be interpreted broadly and it should cover the sportswomen also. Thus on similar analogy, conclusion can be drawn that the words “Sportsman (including athlete)” should cover sportswomen also u/s 115BBA.

4. Section 115BBA does not cover winnings from games specified in section 115BB viz. winnings from lotteries, crossword puzzles, horse races, card games, gambling or betting.

Section 9(1)(ii), Salary shall be deemed to accrue in India, if it is earned in India i.e employment is exercised in India.

DTAA Provisions –As per UN Model

DTAA provisions allocate the taxability right of various types of Income among the contracting states involved and then their taxability is left to the respective state

Article 17 which, deals with Income of Sportsman & Entertainer, grant both contracting states (Contracting state of which sportsman/entertainer is resident (hereinafter referred to foreign state) and Other contracting state where they perform) (hereinafter referred to as India) right to tax income of sportsman/entertainer. The salient feature of Article 17 is as under:

1. This Article overrides the provisions of Article 14 (Independent Personal Service) & Article 15 (Dependent Personal Services)

2. The Income covered is those which are derived directly or indirectly from performance in India by resident of foreign state.

3. Where on performance in India, the income accrues not to the sportsperson or entertainer, but to other person (organisation/association), India too gets a right tax such income, overriding the provisions of Article 7 i.e irrespective of whether such organisation or association is having PE in India or not.

Critical Observations

1. Article 14 governs distribution of taxability right of income, when resident of Foreign state performs professional services or other activities of independent character in India. India gets taxability rights only when either of following two conditions are met:-

a. Resident of Foreign state has fixed base available to him in India for performing his activities;

b. Stay of resident of Foreign state in India exceed the prescribed period.

Gist- For India to get taxability right on income of nature specified in Article 14, Fixed base or stay for prescribed period in India is essential.

2. Article 15 govern the distribution of taxability right of salaries, wages & other remuneration, when an employee being resident of Foreign state, exercise employment in India. India does not get right to tax remuneration from employment of resident of Foreign state if following conditions are met :-

a. The recipient (resident of Foreign state) is not present in India for prescribed period and

b. The employer is not resident of India and

c. The remuneration is not borne by PE or fixed based, which has employer in India.

Gist – For India to get taxability right on salary or remuneration of resident of foreign state for employment exercise in India, Stay in India for prescribed period by employee of foreign state is one of the essential conditions.

3. Article 17 overrides Article 14 & 15. Following consequences prevails:

a. Irrespective of resident of foreign state having Fixed base or prescribed stay in India, by, India gets taxability right on income accrues to such resident due to performance in India in independent character.

b. Where sportsperson or entertainer is an employee of an organisation and income from their performance in India accrue to an organisation, then irrespective of  performer Stay in India,  salary due to such performer for the period during  which performance was carried in India, India get right to tax such proportionate salary.

Article 17 of UN model convention is similar to corresponding Article in OECD model Convention. Thus OECD commentary on said Article is equally applicable to Article 17 of UN model Convention.

Article 17 deals with Income derive by resident either directly from performance in Other contracting state. As per OECD commentary, Article 17 will also apply to Advertisement or sponsorship income which is related directly to performance in other contracting state.

As a corollary, following income will not be governed by Article 17, which will be dealt by either Article 7, 14 or 12.

a. Advertisement income, which is not linked to performance on other contracting state

b. Journalism income (Contribution of an article in newspaper etc.), which is not linked to performance in other contracting state

c. Royalty income from exploitation of Intellectual right of performance in India

Income of team members-  As per OCED commentary on OECD model double taxation convention, Article 17 does not extend to support staff (e.g cameramen for a film, producers, film directors, choreographers, technical staff, road crew for a pop group etc).

Taxability of Non-resident and not being citizen of India sportsman/entertainer in India

A sportsman/entertainment can earn income in the following modes:-

a. By performing in independent capacity

b. As an employee of an association.

c. Other means- Advertisement, Journalism, royalty.

Performance in India in independent capacity

By visiting India, an entertainer can earn income from various activities;-

a. Direct performance

b. By advertisement, (either linked or not linked to performance in India)

c. By Contribution of an article in Newspaper etc.,( hereinafter referred to as Journalism) (linked or not linked to performance in India).

d. By Royalty on use by other person of copyright over the performance in India.

The taxability based on interplay of Section 115BBA and Article 17 of DTAA is explained as under:-

Performance in India in as an employee.

1. Section 9(1)(iii) provides for an accrual of salary income in India, in case of non-resident for service rendered in India

2. Article 15 of DTAA, India get taxability rights only when Non-resident in present in India for prescribed period

3. Article 17 over-rides Article 15, thereby for service rendered in India, India get taxability right irrespective of period of Stay India.

4. Thus sportsman/entertainer performing in India as an employee, his proportionate salary for the period corresponding to performance in India, shall be taxable in India. Since section 115BBA is separate section providing for special rates for sportsman/entertainer, their salary will be taxable in India @ 20%.

Taxability of Non-resident and being citizen of india, sportsman/entertainer in India

In this case, when India get taxability right under Article 17, the tax rates will be normal as applicable to non-resident, other than specified in section 115BBA.