United States Trade Representative (USTR) Proposes Retaliatory Trade Actions Against India, Other Countries

The United States Trade Representative (USTR) has proposed retaliatory trade actions against India and certain other countries that have imposed or are considering equalisation levy/digital services tax on e-commerce companies. It has issued notices seeking public comments on proposed trade actions against six countries, including India. The USTR, in a statement, said it “is proceeding with the public notice and comment process on possible trade actions to preserve procedural options before the conclusion of the statutory one-year time period for completing the investigations.”

According to a USTR document pertaining to India, it has requested “written comments regarding a potential trade action in connection with the Section 301 investigation of India’s Digital Services Tax.” On this, sources in the government on Saturday said India will examine the proposed action with the stakeholders concerned and would take suitable measures, keeping in mind the trade and commercial interest of the country and overall interest of its people.

In June 2020, the US initiated an investigation under Section 301 of the US Trade Act, 1974 against the taxation on digital services adopted or under consideration by India, Italy, Turkey, UK, Spain and Austria. The report of this investigation in January this year concluded that India’s equalisation levy, by its structure and operation, discriminates against US digital companies. It was strongly opposed by India.

The US had requested for bilateral consultations in this matter, and India had submitted its comments to the USTR on July 15, 2020. It had also participated in a bilateral consultation held on November 5, 2020. “Consequent to the determination and findings, now USTR has proposed a retaliatory action under Section 301 against India”s equalisation levy, along with other countries,” a source said.

USTR Katherine Tai has stated that the US is committed to working with its trading partners to resolve its concerns with digital services taxes and address broader issues of international taxation. “The US remains committed to reaching an international consensus through the OECD process on international tax issues. However, until such a consensus is reached, we will maintain our options under the Section 301 process, including, if necessary, the imposition of tariffs,” Tai has said.

According to the USTR document, the proposed action includes imposition of additional ad valorem tariffs on certain products from India, such as sea food, bamboo products, semi-precious and precious stones, furniture, cork, and cigarette papers.

“In particular, USTR proposes to impose additional tariffs of up to 25 per cent ad valorem on an aggregate level of trade that would collect duties on goods of India in the range of the amount of DST (digital services tax) that India is expected to collect from US companies,” it said.

Initial estimates indicate that the value of the DST payable by US-based company groups to India will be up to about USD 55 million per year, it added. India has earlier stated that the equalisation levy is not discriminatory and only seeks to ensure a level-playing field with respect to e-commerce activities undertaken by entities with permanent establishment in India.

It was also clarified by India to the US that the levy was applied only prospectively, and has no extra-territorial application, since it is based on sales occurring in the territory of India through digital means.