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SABMiller in $39.5m Indian tax fight

SABMiller has become the latest London-listed company to clash with Indian regulators after New Delhi demanded payment of $39.5m in tax on the brewery group’s 2006 acquisition of Indian assets from Foster’s, the Australian brewer.

The company this month received a demand for payment of tax on the $120m deal. The move echoes the bitter $2.5bn dispute between India’s tax department and Vodafone, the UK telecoms company, over its 2007 purchase of Hong Kong-listed Hutchison’s assets in India.

The escalation of the SABMiller dispute comes as Vedanta Resources and Cairn Energy, two London-listed companies, are struggling to win regulatory approval for a $9.6bn purchase by Vedanta of oilfields in Rajasthan.

India is one of the few emerging markets seeking retrospective tax on deals done outside of the country by foreign companies. New Delhi’s vigorous pursuit of revenues on cross-border investments is viewed by some analysts as a deterrent to foreign investment in one of the world’s most promising emerging markets.

SABMiller’s acquisition of a brewery in Maharashtra and the Foster’s brand in India helped it become the second-largest brewer in the country, after the powerful United Breweries. Global brewers Anheuser-Busch InBev and Carlsberg have since followed the London-listed company into the Indian beer market.

The tax demand last week forced Foster’s to declare the potential liability to its shareholders, as SABMiller had agreed a tax indemnity with the Australian company at the time of the deal. The dispute has raged for two years and is before the Mumbai High Court. SABMiller has argued that tax is not liable on a transaction between two non-resident parties.

SABMiller said on Tuesday the company faced no liability from India’s tax authorities but that responsibility for any claims lay with Foster’s. “The Indians have sent us a final demand for payment. We’ve been very open about it,” he said.

SABMiller said: “The notice of demand issued to SABMiller by the Director of Income Tax in India for unpaid tax and interest … is subject to an indemnity granted by Foster’s to SABMiller in connection with the acquisition of Foster’s Indian operations in 2006.”

Foster’s said it was “confident of the positions that were taken in relation to Indian tax. Those positions will be defended vigorously in the Indian Courts.”

While SABMiller’s tax bill is small by comparison with the liability faced by Vodafone, a second example of a multinational being slapped with a tax demand a long time after the original transaction is likely to alarm investors, who fear one of the cases could set a precedent for the tax treatment of other deals.

"The tax revenue departments in India and China are on an overdrive when it comes to cross-border transactions. They are being viewed with a microscope," said Aseem Chawla, partner at legal firm Amarchand & Mangaldas & Suresh A Shroff.

“The Income Tax department is … especially aggressive in these tax deduction at source (TDS) cases,” said Sachit Jolly, a senior associate at law firm Vaish Associates Advocates.

“After Vodafone, they have been after many companies sending notices to almost all companies who transact with non-resident companies. These companies are all under scrutiny.”

SABMiller has struggled with what some of its executives describe as “enormous tax obstacles” in India. It also suffered a setback in the southern state of Andhra Pradesh last year, when regulatory measures imposed by the state government cut its market share to 30 per cent of the beer market from a previous 60 per cent.

13 Apr. 2011

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