Conglomerates and Group corporations are in trouble with indirect goods and services tax (GST) for letting their subsidiaries, branches, and other related entities use the same brand name and logo for free. The tax department wants conglomerates to charge fees and collect royalties from the subsidiary companies and subsequently pay 18% GST on that.
Concerning, confusing but not new.
Mahindra & Mahindra (M&M) recently received a GST notice over the use of the ‘Mahindra’ brand name by various group companies. The show-cause notice asks M&M why it should not pay GST on the services it provides to its subsidiaries by allowing them to use the flagship brand and logo. The notice is for 2017-2023 period. As per the latest reports, GST authorities have demanded about Rs 130 crore as tax dues from M&M for use of its brand name by group companies.
Last year, Tata Consultancy Services (TCS) in fact paid Rs 200 crore to Tata Sons as a ‘brand subscription fee’.
This practice, though not universal among Indian conglomerates, is grounded in the rationale that brand names and logos, like any intangible asset, have calculable fair value. In 2019, several banks received similar GST notices including ICICI, HSBC, and Citi.
It is to be noted that the 18% GST levy likely result in thousands of crores in taxation for companies and banks.
While equitable taxation is the goal, experts tell Storyboard18 that the practical challenges and unintended consequences of this ‘brand tax’ require clear guidelines and careful consideration of the broader economic impact.
Apart from legal implications, such a move has the potential to also impact corporate branding strategies possibly hindering innovation and growth and leading to higher costs for consumers and shifts in market dynamics, notes Manmeet Kaur, Partner, Karanjawala & Co.
If the logos and brands are used for free, it’s because they are subsidiaries, sub brands or SBUs of the same parent, says Brand Guru, Jagdeep Kapoor, Founder Chairman and MD, Samsika Marketing Consultants.
A rule like this puts corporates in a position where they would be scared to use their corporate or mother brands on any of the subsidiary brands’ products or services, even if they are providing them for free. “Britannia would be scared to put its name on Good Day packaging since the biscuits subsidiary could get a notice for not paying GST for the use of Britannia’s name,” Kapoor remarks.
While the government’s intent to widen the tax net is understandable, angel investor Somdutta Singh, Founder and CEO, Assiduus, adds that targeting intangible assets like brands seems counterproductive. This move risks stifling innovation, discouraging investment, and potentially harming India’s reputation as a business-friendly destination.
Brands and logos are intellectual property, and their value is derived from years of investment, research, and marketing. Treating them as taxable goods is fundamentally flawed. “Arbitrary valuations can lead to disputes, litigation, and a diversion of resources from core business activities. Moreover, it can distort competition, as smaller businesses may find it disproportionately difficult to comply with these regulations,” he points out.
The issue of charging GST on brands and logos used by subsidiaries is complex, with valid arguments on both sides, explains Prateek Bedi, Assistant Professor at International Management Institute.
From the perspective of business groups, GST should not apply since there’s typically no monetary consideration exchanged and no clear value addition. GST is designed to be levied on the value added at each stage, and determining the value addition of brand usage is subjective and challenging. Moreover, those incorporating the parent’s name into their registered titles would need to change their names to avoid GST.
On the other hand, tax authorities may see this as a service provided by the parent to its subsidiaries, justifying the application of GST. Not charging for this service could raise concerns about arm’s length principles. Like other intangible assets, a fair value for brand usage can be determined, perhaps based on revenue or profits, to ensure consistency, he highlights.
Thus, the tax department may be within its rights to collect GST on the “deemed” value of these transactions.
Brand Tax: what does the law say?
The issue of whether right to use a brand name or logo has been investigated by the GST authorities for some time now.
However, experts say the current approach lacks clarity and creates an uneven playing field.
Harsh Shah, Partner, Economic Laws Practice, explains that under the service tax regime, no tax was payable in absence of consideration. In terms of Schedule I to the CGST Act, the supply of services even when made without consideration is subject to GST. Thus, the absence of consideration will not be a determinative factor for GST applicability or otherwise; the core question here for examination is whether such a transaction qualifies as a supply under GST.
If a transaction qualifies as a supply, then in terms of Schedule I of the CGST Act, for transactions between related persons, GST may be payable even if the same is without consideration.
It is to be noted that the use of brand names and logos by subsidiaries constitutes a service provided by the parent entity, which cannot be rendered without consideration, according to Bedi. Subsidiaries may treat royalty payments to the parent company for brand usage as revenue expenditure, while the parent records it as a ‘management fee’.
For Indian corporates, the issue carries significant tax implications. The ambiguity surrounding tax authority stances and potential retrospective tax mandates on royalty fees for brand usage complicates decision-making.
“Businesses may face substantial cash outflows if required to pay back taxes on account of a retrospective implementation. Legal battles between corporates and tax authorities are anticipated before any resolution,” he remarks.
Regulations in other countries: similar but better
Many countries have similar tax laws regarding the use of brands and logos within corporate groups, requiring companies to charge fair market value for such usage and pay taxes accordingly.
In the United States, the IRS mandates that companies charge fair market value for intangible assets like trademarks between related parties, with royalties subject to income tax.
Kaur shares that the United Kingdom’s HMRC also expects an arm’s length royalty for brand usage, with transfer pricing adjustments and tax penalties for non-compliance. In Australia, the ATO requires related parties to transact at market value, taxing royalties for brand usage and imposing penalties for non-compliance.
China’s tax authorities actively scrutinise related party transactions involving intangibles, subjecting intercompany royalties to a 6% VAT and corporate income tax.
While specifics vary, the principle of taxing brand and logo usage within corporate groups is common across many jurisdictions.
India’s move to apply GST to these transactions aligns with international practices, according to Kaur, though the retrospective application and unclear valuation guidelines present challenges for implementation.
Singh concludes, India should consider benchmarking its policies against global best practices. This would not only ensure fairness but also attract foreign investments and promote India as a preferred business destination.
