Skip to content
Got a notice? Emergency response

Residential Status

Running a foreign company from India: the POEM risk

Manage the real decisions from India and your foreign company can become an Indian tax resident. A turnover threshold saves most.

You are an NRI who owns or runs a company set up abroad, and you make its key decisions from India, or you are thinking of moving back and continuing to run it. You want to know whether that pulls the company into Indian tax. There is a real rule here, called place of effective management, that can make a foreign company Indian-resident and taxable on its worldwide income. But there is also a threshold that keeps most smaller companies out of it. Here is how POEM works for an NRI-run foreign company.
Request a free CA call
Last reviewed: 26 July 20266 min readReviewed by Preetesh Maloo, CA

The short answer

A foreign company is treated as resident in India, and taxed on its global income, if its place of effective management is in India for the year. Place of effective management means the place where the key management and commercial decisions for the business as a whole are, in substance, made, so if you sit in India and that is where the real decisions are taken, the company can be caught, whatever its registered address. Two things soften this a lot. First, tax authority guidelines give an active-business-outside-India test, under which a company that genuinely operates abroad, with most of its income, assets, employees and payroll outside India and most of its board meetings held abroad, is presumed to have its management outside India. Second, and most importantly for a smaller business, the rules do not apply at all to a company whose turnover is ₹50 crore or less in a year. So most small NRI-owned foreign companies sit outside POEM, but an NRI running a larger company's decisions from India needs to be careful.

Is this your situation? Get a senior CA on it.

Free 15-minute call. We tell you what applies to you and what it costs, then you decide. You stay abroad.

Senior CA who specialises in NRI tax · we deal with the tax officer, you don't

Chat with a CA on WhatsApp

Related situations

What place of effective management means, and when it makes a company Indian resident

A company's tax residence is not just about where it is registered. Under Section 6, a foreign company is resident in India for a year if its place of effective management is in India that year, and a resident company is taxed on its worldwide income. Place of effective management, usually shortened to POEM, is defined as the place where the key management and commercial decisions necessary for the conduct of the business as a whole are, in substance, made. The emphasis is on substance: not where the paperwork says the company is based, but where the real decisions actually get taken.

For an NRI this is the live risk. If you own a company incorporated in a low-tax jurisdiction but you sit in India and it is from India that you make the genuine strategic and commercial decisions, the company can be treated as having its place of effective management in India, and so become an Indian tax resident exposed to Indian tax on its global profits. It is a substance test, so simply keeping a foreign registered office or a nominal local director does not settle the question if the real control is in India.

The two things that protect most companies

The rule is softened considerably by tax-authority guidelines, and there are two protections worth knowing. The first is the active-business-outside-India test. A company that genuinely runs its business abroad is presumed to have its management outside India, and it qualifies if its passive income is low and the majority of its income, its assets, its employees and its payroll are outside India, and the majority of its board meetings are held outside India. Meet that, and POEM is presumed to be abroad, though the tax officer can still look behind it if the real decisions are being made in India.

The second protection matters most for a smaller business: the guidelines do not apply at all to a company whose turnover or gross receipts are ₹50 crore or less in a financial year. So a typical small NRI-owned foreign company, well under that figure, is outside the POEM net regardless of where its decisions are made. The point at which to worry is a larger company, above that threshold, whose real management sits in India. These thresholds and tests come from tax-authority guidance rather than the bare section, so their exact application is worth checking, and it is sensible to keep board meetings and real decision-making documented and abroad where the company is meant to be foreign. A practising CA assesses whether your company is at POEM risk and helps structure its management so a genuinely foreign company stays foreign for tax.

What's involved

What the CA actually does

  1. 1

    We test your POEM risk

    We assess whether your foreign company's real decisions are made from India and whether POEM could make it Indian-resident.

  2. 2

    We apply the threshold

    We confirm whether the ₹50 crore turnover carve-out keeps your company outside POEM entirely.

  3. 3

    We structure the management

    We help keep board meetings and genuine decision-making documented and abroad where the company is meant to be foreign.

  4. 4

    We handle the consequence

    If the company is caught, we work out its Indian tax on global income and the compliance that follows.

What to have ready

Documents you'll typically need

  • Your foreign company's structure and where it is registered
  • Where its board meets and where decisions are actually made
  • Its turnover and where its income, assets and staff are
  • Your own residency and role in the company

Your destination country can change the details

Requirements differ from one consulate, university and visa route to the next, how recent the figures must be, how long funds must have been held, and which certificates are mandatory. We assemble the documents around the exact checklist you're applying under. To see how India's tax treaty with your country of residence affects related filings, set your country below or compare all 46 countries.

References on this page

  • A foreign company whose place of effective management is in India is resident in India and taxed on its global income (Section 6(3))
  • POEM is where the key management and commercial decisions for the business as a whole are, in substance, made
  • An active-business-outside-India test presumes management is abroad where income, assets, staff, payroll and board meetings are mostly outside India
  • POEM does not apply to a company with turnover of ₹50 crore or less in a year, so most small NRI-owned foreign companies are outside it

Frequently asked questions

Common questions

It can be. If your foreign company's place of effective management, where the real key decisions are made, is in India, it becomes an Indian tax resident and is taxed on its global income. It is a substance test, not about the registered address.

Yes. The place-of-effective-management rules do not apply to a company with turnover or gross receipts of ₹50 crore or less in a year. So most small NRI-owned foreign companies are outside the net, whatever they decide from where.

By meeting the active-business-outside-India test, keeping most income, assets, employees and payroll abroad, and holding board meetings and making real decisions outside India, documented. The more the genuine control sits abroad, the safer the company's foreign residence.

This is where the planning usually falls down, because the common advice is to hold board meetings outside India and most people stop there. The guidelines say close to the opposite. If the board has in practice handed its authority to someone else, or does nothing beyond routinely ratifying decisions already taken elsewhere, the place the board met is set aside and the officer looks at where the decisions were really made. A foreign venue and an attendance sheet prove very little on their own. What carries weight is minutes that show the decision being taken in the room: the options considered, the questions asked, the figures argued over, the resolution reached. Alongside that sit facts you cannot stage at a meeting, mainly where the company's main activity is actually carried out and where its accounting records are kept, and the guidelines add that where technology lets decision-makers sit anywhere, the place those people usually live starts to matter. The uncomfortable practical test: if your email trail shows a decision settled in India and the foreign minutes recording it a fortnight later, those minutes are evidence against you rather than for you.

It is treated as resident in India and taxed on its worldwide income, not just its Indian income, with Indian compliance obligations following. That is a significant step up in exposure, which is why the management structure is worth getting right in advance.

Related

If this matched your situation, these go further

Working remotely from India for a foreign employerHow your days in India are counted, and the 120-day ruleYou moved back to India. Your company's foreign-investment status doesn't automatically move with youNRI ITR filing (we file for you)DTAA TDS recoveryRepatriation unblock (15CA / 15CB)DTAA rate lookupForm 10F generator

Running a company abroad from India?

Tell us where its decisions are made. A practising CA will assess the POEM risk and help keep it genuinely foreign, no obligation.

Request a free CA call

No card, no obligation. All certification and filing work is handled by ICAI-registered practising Chartered Accountants.