{"query":"Can a Netherlands, France or Switzerland payee claim a lower royalty/FTS rate th","matches":[{"id":"auto_wht_france","question":"What is the India–France treaty withholding rate on royalties and fees for technical services?","answer":"Royalty: 10% of the gross amount — 13, India–France DTAA (as amended through 20 Aug 2026). Equipment-use royalties sit inside the royalty definition and take the same 10%. FTS: 10% — 13. Make-available (or the lower rate) was claimed only through the MFN protocol — DENIED without a s.159(1)/s.90(1) notification since Nestlé SA (2023 INSC 928). MFN CAUTION: Correct as at Aug 2026 but time-limited and requiring two corrections of emphasis. (1) The 10% Art 13(2) rate is MFN-derived but IS backed by a s.90(1) notification — S.O. 650(E) dated 10-7-2000 — so Nestle SA (2023 INSC 928) does NOT disturb the rate. The claim's confidence in 10% is right but for a reason it never states. (2) Protocol clause 7 is scheduled for DELETION by the 23-2-2026 Amending Protocol. On the date that protocol is notified, mfn.affected must flip to false and any pending MFN-based scope claim dies. Gate: the treaty rate applies only through s.393(2) Sl. No. 17 → s.2(90)(c) with the s.159(8) TRC + Form 10F gate met; domestic comparator 20% + surcharge/cess (s.207(2)). Notes: royalty-article-is-13-not-12; FTS-and-equipment-payments-combined-with-royalties-in-single-article-13; equipment-payments-are-a-separate-defined-category-but-same-10-percent-rate; protocol-clause-9-one-way-exemption-France-source-payments-not-taxable-in-France; make-available-only-via-MFN-import-now-contested-post-Nestle; treaty-renegotiated-recently: Amending Protocol signed 23-Feb-2026, pending entry into force — will delete MFN and put make-available FTS into treaty text; current-rate-10-originated-from-MFN-operation-not-original-signed-text (original 1992 rate was 20%).","pinpoint":"13, India–France DTAA","confidence":"verified","as_at":"14 Aug 2026","match_score":2,"treaty":"India–France"},{"id":"auto_wht_netherlands","question":"What is the India–Netherlands treaty withholding rate on royalties and fees for technical services?","answer":"Royalty: 10% of the gross amount — Article 12 (combined Royalties and Fees for Technical Services article), India–Netherlands DTAA (as amended through 20 Aug 2026). The equipment limb is NOT in this treaty's royalty definition, so payments for the use of equipment fall outside the royalty article altogether — they are business profits (PE required) or other income on the treaty's own terms, NOT taxable at the royalty rate. FTS: 10% — Article 12 (paragraphs 2 and 5). The FTS article carries a MAKE-AVAILABLE restriction in the treaty text itself — services must make technology available (enable independent application) before they are taxable as FTS. MFN CAUTION: Yes — clause IV(2) of the Protocol is a classic MFN clause covering Articles 10-12 (dividends, interest, royalties/FTS) vis-a-vis later Indian treaties with OECD members. Netherlands is one of the corridors squarely hit by AO v. Nestlé SA (SC, 19 Oct 2023): the SC held MFN benefits require a s.90(1) notification, killing the widely-claimed 5% dividend rate imported from Slovenia/Lithuania/Colombia. HOWEVER, for royalty/FTS specifically the MFN benefits (10% rate, make-available definition) WERE notified in 1999 (S.O. 693(E)), so the 10% rate and make-available restriction remain safe post-Nestlé. Flag exists because practitioners commonly claimed further un-notified MFN positions on this corridor. Gate: the treaty rate applies only through s.393(2) Sl. No. 17 → s.2(90)(c) with the s.159(8) TRC + Form 10F gate met; domestic comparator 20% + surcharge/cess (s.207(2)). Notes: FTS-inside-royalty-article (single combined Article 12); make-available-in-text-via-notified-MFN (not mere protocol reading — distinguish from France/Sweden); equipment-limb-deleted: ICS equipment payments are NOT royalties post-1998, taxed as business profits only with PE; MFN-protocol corridor flagged by Nestlé SC 2023 (dividends exposure; royalty/FTS position notified and safe); Dutch government consolidated text still displays pre-amendment 20% Article 12 — engines scraping wetten.overheid.nl will get the stale rate.","pinpoint":"Article 12 (combined Royalties and Fees for Technical Services article), India–Netherlands DTAA","confidence":"verified","as_at":"10 Jul 2026","match_score":2,"treaty":"India–Netherlands"},{"id":"auto_wht_switzerland","question":"What is the India–Switzerland treaty withholding rate on royalties and fees for technical services?","answer":"Royalty: 10% of the gross amount — Article 12 (combined 'Royalties and Fees for Technical Services'), India–Switzerland DTAA (as amended through 20 Aug 2026). Equipment-use royalties sit inside the royalty definition and take the same 10%. FTS: 10% — Article 12. MFN CAUTION: High-exposure MFN corridor — this is the treaty behind Nestle SA (AO Nos. incl. CA 1420/2023, SC 19 Oct 2023). Protocol para 5 (as replaced by Art 11 of the 30 Aug 2010 Amending Protocol) contains: (a) an anti-conduit rule for Arts 10/11/12/22; (b) an AUTOMATIC rate-MFN for dividends/interest/royalties/FTS, but only for treaties India signs with a state that IS an OECD member, signed AFTER 30 Aug 2010; (c) a negotiation-only scope-MFN for royalties/FTS. Commonly claimed corridors: 5% dividends via India–Lithuania/Colombia (rejected by SC — countries were not OECD members at signature and no s.90(1) notification exists) and make-available via Portugal (see fts.notes). Royalty/FTS RATE is unaffected in practice: India has signed no post-2010 OECD-member treaty below 10%, so 10% stands on the treaty's own text and needs no MFN. Retaliation: Switzerland suspended its unilateral MFN application from 1 Jan 2025 (ESTV statement, Dec 2024), so Swiss-source dividends to Indian residents revert to 10%. Gate: the treaty rate applies only through s.393(2) Sl. No. 17 → s.2(90)(c) with the s.159(8) TRC + Form 10F gate met; domestic comparator 20% + surcharge/cess (s.207(2)). Notes: Combined single Article 12 for royalties AND fees for technical services, one flat 10% rate — no equipment/general split; ICS-equipment use is inside the royalty definition at 10%; FTS definition has no make-available in treaty text; explicit carve-outs for teaching and Art 14/15 services (Art 12(5)) — unusual exclusion pair; Bifurcated MFN: automatic for rates (only post-30-Aug-2010 treaties with then-OECD members), negotiation-only for royalty/FTS scope — make-available import was never self-executing even pre-Nestle; Anti-conduit clause in protocol para 5 covering Arts 10, 11, 12 and 22 (other income) — pre-PPT treaty-shopping defence; Protocol to Art 5: service-PE income may, at the enterprise's request, be taxed at the Art 12(2) 10% gross rate instead of net Art 7 basis; Switzerland's unilateral MFN suspension from 1 Jan 2025 is asymmetric: it changes Swiss-source withholding only; India-source Art 12 flows were always 10% under the treaty text; No MLI synthesised text — treaty unmodified by MLI (no PPT); Indian domestic s.115A royalty/FTS rate is 20% plus surcharge/cess since FY 2023-24, so the 10% treaty rate (TRC + Form 10F) is the operative corridor rate.","pinpoint":"Article 12 (combined 'Royalties and Fees for Technical Services'), India–Switzerland DTAA","confidence":"verified","as_at":"14 Aug 2026","match_score":2,"treaty":"India–Switzerland"}],"engine":"deterministic","llm_in_path":false}