US–India tax treaty: A guide for US companies investing in India (2026)

Short answer: The US–India tax treaty cuts India's withholding on payments to a US company to 15% on dividends (where the US company owns at least 10% of the voting stock), royalties and "included" technical services, and to 10% on equipment royalties and bank interest, against domestic rates of 20.8%–21.84%. Service fees that do not "make available" know-how can escape Indian tax altogether. India still taxes the sale of an Indian subsidiary (13.0%–13.65% on unlisted shares held more than 24 months, up to 38.22% if held less), and in the US the dividend withholding is usually a final cost, while the exit tax is creditable in practice only with an s.865(h) election. There is no principal purpose test; the gatekeeper is a limitation-on-benefits article plus India's GAAR, so a US entity owned from outside the US must confirm it qualifies.

Who this is for: CFOs, tax directors and general counsel of US groups (or UK and European groups investing through a US entity) planning an Indian subsidiary, GCC or acquisition. Individuals should use the IRS India treaty page instead [28].

What the India–USA DTAA does, and what it does not

The 1989 Convention applies in India to income from 1 April 1991 [1]. The US never signed the OECD Multilateral Instrument, so there is no principal purpose test. From 1 April 2026 India applies treaties through s.159 of the Income-tax Act 2025: the more beneficial of treaty and domestic law applies, but GAAR overrides both [3][4]. Four features catch investors:

• Limitation on benefits (Article 24) and beneficial ownership condition every reduced rate.
• No tie-breaker for dual-resident companies (Article 4(3)). A US company whose place of effective management is in India is Indian-resident under s.6(10), taxable in India on worldwide income and "outside the scope of this Convention" [1][34]. The Act sets no turnover floor; the INR 50 crore carve-out comes from CBDT Circular 8/2017.
• Branch tax gap. India may tax a US company's branch at up to 15 points more than an Indian company (Article 14(2)) [1].
• US state taxes are not covered (Article 2) [1].

US–India tax treaty withholding rates: what actually applies in 2026

Since India raised domestic royalty and technical-fee withholding to 20% in April 2023, the treaty matters again. Treaty rates carry no surcharge or cess; a lower domestic rate prevails [4][5].

Sources: [1][5][6][7][15]. Surcharge is 2% or 5% depending on the US company's Indian income. *Qualifying foreign-currency loans and bonds made before 1 July 2023 keep a legacy domestic rate of 5% plus surcharge and cess, below the treaty rate (s.393(2), serial 2–3) [5][35].

Fees for included services: the "make available" test

Under Article 12(4), a service fee is taxed at 15% only if it is ancillary to a royalty, or if it "make[s] available technical knowledge, experience, skill, know-how, or processes" [1]. The treaty's Memorandum of Understanding says this means the recipient can apply the technology independently; its Example 7, a marketing consultancy, is not an included service [2]. In 2026 the tribunals held consultancy and support fees (Bain & Company, Delhi ITAT, 18 February) and US sub-contractor payments (Sasken, Bangalore ITAT) outside Article 12, but taxed Cloudera's professional-services receipts while exempting its subscriptions [12][13].

Management, finance, HR and marketing support can usually stay outside Article 12 if contract and evidence show no know-how transfer; training, process transfer, software customisation and technical design are included services. Without documented treaty entitlement, the payer withholds 20.8% or more.

Service PE and secondments under the US treaty

Owning an Indian subsidiary is not itself a permanent establishment (PE) (Article 5(6); Progress Rail, Supreme Court SLP dismissed 21 November 2025) [1][26]. Two rules need attention:

• Service PE (Article 5(2)(l)). Services other than included services, furnished through personnel in India, create a PE after more than 90 days in any 12-month period, or with no day threshold for a related enterprise. Included services are carved out because they bear 15% gross instead.
• Force of attraction (Article 7(1)). Once a PE exists, India may also tax profits from similar sales and activities in India [1].

Secondments are the usual trigger, and the law is unsettled. Ernst & Young U.S. LLP (Delhi HC, 18 June 2026) taxed reimbursements for secondees with a lien on US employment as included services, following Centrica; Boeing India (Delhi HC 2023, SLP dismissed 2024) and Flipkart Internet (Karnataka HC, 12 February 2025) went the other way [14]. Also budget 18% reverse-charge GST on the secondment charge (Northern Operating Systems, SC 2022), usually creditable [29], and dual social-security cost, as there is no US–India totalisation agreement [30]. See Permanent establishment in India (employees, EOR, agents).

Limitation on benefits: is your US entity a "US company" for India?

Article 24 grants benefits if any one of four tests is met [1]:

1. Ownership and base erosion. More than 50% of each class of shares is owned, directly or indirectly, by individuals resident in the US or India, US citizens or either government; and the income is not used in substantial part to pay interest, royalties or other liabilities to persons resident outside both countries.
2. Active business. The Indian income is connected with, or incidental to, an active trade or business carried on in the US.
3. Listed company. The company's principal class of shares is substantially and regularly traded on a recognised exchange.
4. Competent authority relief.

Companies are not qualifying owners, so a US subsidiary of a UK or European group usually fails test 1 (especially if it pays royalties to its parent) and must rely on test 2 or 4. Test 3 covers the listed company itself; its subsidiaries should document test 2. A US holding vehicle without operations also faces GAAR and Tiger Global substance scrutiny (Supreme Court, 15 January 2026) [25].

Capital gains and exit: India taxes, and the US credit depends on an election

India taxes gains on unlisted Indian shares at 12.5% plus surcharge and cess (13.0%–13.65%) if held more than 24 months, and at 35% plus surcharge and cess (36.4%–38.22%) otherwise; non-residents get no indexation or currency adjustment, and the buyer withholds [7][9][35]. Selling a holding company instead does not avoid this: s.9(10) taxes gains on foreign shares deriving at least 50% of their value from Indian assets worth over INR 10 crore, excluding a seller that held 5% or less, without management or control, through the preceding 12 months [31]. Article 13 leaves both to Indian law.

In the US, the gain is US-source unless the seller elects under IRC s.865(h) to apply Article 25(3), with the original return for the year of sale. Without it, the Indian tax is creditable in principle, but the credit limitation (US tax on foreign-source income) usually makes it unusable. PLRs 202611004 and 202613004 (March 2026) allowed late elections, but they bind only their applicants and there is no general IRS guidance [16][17].

Is there US–India double taxation? The US side

Confirm these points with your US tax adviser. ATB does not advise on US federal tax.

• Dividends. A 10% US corporate shareholder generally gets a 100% dividends-received deduction under s.245A, but s.245A(d) makes the 15% Indian withholding non-creditable [18].
• NCTI (ex-GILTI). India's 25.168% headline rate exceeds the 18.9% high-tax-exception threshold, so the election is usually available, subject to the tested-unit effective rate [19][20][36].
• Royalties and included services. Article 25(3) sources these to India; credit for gross-basis withholding rests on Notice 2023-80 relief and/or the treaty coordination rule [22].
• Check-the-box. An Indian private limited company can elect disregarded status, making Indian tax directly creditable but taxing it like a branch [21].
• Disputes and disclosure. Mutual agreement cases must be presented within three years (Article 27); treaty positions go on Form 8833 [1].

For the full US-side analysis (NCTI, the check-the-box election and foreign tax credits, worked through), see The US tax side of an India subsidiary.

Direct US holding or a UAE, Singapore or Netherlands hub?

Exit rows assume the hub sells the Indian shares; if the US parent sells the hub, s.9(10) applies and the US treaty gives no shelter. A hub saves five points of dividend withholding but adds substance cost and US controlled foreign corporation (CFC) modelling; for an operating GCC, direct holding is usually the baseline. See Invest in India: choosing a holding company jurisdiction (hub).

Worked example: a US parent with a GCC in India (illustrative)

Assumptions: Acme Inc (itself NASDAQ-listed, so Article 24(3) is met) owns Acme India Pvt Ltd, a 400-person GCC in India. Tax year 2026-27; FX: INR 127 = GBP 1, INR 96 = USD 1, INR 107 = EUR 1 (FBIL reference rates, 12 October 2026, rounded) [38]. Acme's Indian income exceeds INR 10 crore, so domestic rates carry the 5% surcharge (below INR 1 crore the comparator is 20.8%).

1. Profit and dividend. Cost base INR 100 crore at a 15.5% cost-plus margin, the IT-services safe-harbour rate in the Income-tax Rules 2026 (notified 20 March 2026; rules 89 and 91, Form 49; optional, for up to INR 2,000 crore of eligible revenue, elected for five-year blocks) [27]:

• Profit is INR 15.5 crore. Indian tax at 25.168% is INR 3.90 crore, leaving INR 11.60 crore.
• Dividend withholding at 15% is INR 1.74 crore, against INR 2.53 crore at 21.84%: the treaty saves INR 0.79 crore (about USD 82,000).
• Total Indian tax is 3.90 + 1.74 = INR 5.64 crore, or 36.4% of profit; the INR 1.74 crore is not creditable in the US.

2. Fees. On INR 5 crore of management fees:

• Drafted and run as non-"make available" support, with no PE: nil.
• Treated as included services: 15% = INR 0.75 crore.
• Without treaty documentation: 21.84% = INR 1.09 crore.

3. Exit in year 6. Gain of INR 300 crore (sale price 400, cost 100), in INR crore:

The election is worth INR 40.95 crore (about USD 4.27 million). Sold in year 2, India would take 38.22% (INR 114.66 crore), exceeding the US tax, so even with the election the excess is a cost.

How a US company claims treaty relief in India (Form 10F is now Form 41)

1. Obtain IRS Form 6166 via Form 8802 (USD 230 for entities for applications postmarked on or after 1 October 2026; USD 185 before) at least 45 days ahead; India's April–March year may need two calendar-year certificates [11][32].
2. File Form 41 (formerly Form 10F) online under s.159(8), uploading the Form 6166. It is required for every treaty claim; no PAN is needed [10]. See Form 10F (now Form 41) and tax residency certificate.
3. Give the payer a beneficial-ownership and no-PE declaration, plus Rule 217 particulars if you have no PAN, to avoid the 20% higher rate [23].
4. The payer files Form 145 with a Form 146 accountant's certificate before remitting. If the payer will not apply the treaty, apply for a lower-withholding certificate on Form 128 (s.395) [37]. See India withholding tax rates 2026 and how to repatriate profits.

Risks and common mistakes, ranked

1. No Form 6166 or Form 41, so India withholds 20.8%–21.84%.
2. Selling within 24 months, or selling a hub, and modelling 13.65% when 38.22% or indirect-transfer tax applies.
3. Services contracts or secondments that "make available" know-how or create a related-enterprise service PE from day one.
4. No s.865(h) election on the original return.
5. LOB failure by a US entity owned or funded from outside the US.
6. Modelling dividend withholding as creditable when s.245A(d) makes it a cost.
7. Dual residence if management moves to India.

Checklist to forward internally

• Confirm which LOB test the US holding entity meets, and where it is managed.
• Map every intercompany flow to a rate in the table above.
• Draft services agreements to the "make available" line, with matching evidence.
• Structure secondments with local employment and no lien; budget GST and social security.
• Diarise Form 8802 so Form 6166 covers the Indian tax year; file Form 41.
• Have your US adviser model s.245A(d), NCTI and s.865(h), and file the election with the original return.
• Model exit timing (24 months) and direct versus indirect sale.
• Consider a safe harbour or bilateral APA (219 APAs signed in FY 2025-26) [24].

How ATB Corporate can help

ATB Corporate advises companies and investors on entering, structuring and operating in India and the UAE: choosing the entry route and holding structure, tax and exchange-control planning, regulatory compliance, and setting up and running the local business. To discuss your plans, contact ATB Corporate.

FAQ

What is India's dividend withholding tax for a US parent company?

India's dividend withholding tax for a US parent company is 15% under the US–India tax treaty, provided the parent holds at least 10% of the voting stock and proves treaty entitlement. Otherwise India applies its domestic rate of 20.8%–21.84%, including surcharge and cess. For a US corporate parent claiming the s.245A deduction, the 15% Indian withholding is generally not creditable in the US, so it should be modelled as a final cost.

Does the India–USA DTAA cover management or technical service fees?

Yes, the India–USA DTAA covers service fees, but India can tax them at 15% only if they "make available" technical knowledge, skill or know-how, or are ancillary to a royalty (Article 12(4)). Management, finance, HR and marketing support can usually stay outside Article 12 if the contract and evidence show no know-how transfer; such fees are then business profits, taxable in India only if the US company has a permanent establishment there. Without documented treaty entitlement, the Indian payer withholds 20.8% or more.

Is there US–India double taxation on an Indian subsidiary's profits?

There is not usually US–India double taxation on an Indian subsidiary's profits for a US corporate parent, because a 10% US corporate shareholder generally gets a 100% dividends-received deduction under s.245A. The exception is India's 15% dividend withholding: s.245A(d) makes it non-creditable in the US, so it is generally a final cost. NCTI and the high-tax exception should be modelled with your US tax adviser.

Does the US–India tax treaty have a principal purpose test?

No, the US–India tax treaty has no principal purpose test, because the US never signed the OECD Multilateral Instrument. Instead, every reduced rate depends on the limitation-on-benefits article (Article 24) and on beneficial ownership, and India's GAAR overrides both the treaty and domestic law. A US entity owned or funded from outside the US should therefore confirm which limitation-on-benefits test it meets before claiming treaty rates.

Can India tax a US company that has no entity in India?

Yes, India can tax a US company with no Indian entity if that company has a permanent establishment (PE) in India. Non-technical services furnished through personnel in India for a related enterprise create a service PE with no minimum period; otherwise the threshold is more than 90 days in any 12-month period. A fixed place of business or a dependent agent are other routes, and once a PE exists, India may also tax profits from similar sales and activities.

Does India tax the sale of an Indian subsidiary by a US company?

Yes, India taxes a US company's sale of an Indian subsidiary at 13.0%–13.65% on unlisted shares held more than 24 months, and at up to 38.22% if they are held for 24 months or less. Selling an offshore holding company that derives its value from India does not avoid this, because of the indirect-transfer rule in s.9(10). In the US, a credit for the Indian tax generally requires an s.865(h) election on the original return.

How does a US company claim the treaty rate: Form 10F or a TRC?

A US company claims the US–India treaty rate by obtaining a tax residency certificate (IRS Form 6166, applied for on Form 8802) and filing Form 41, which replaced Form 10F, with the Form 6166 uploaded. It then gives the Indian payer a beneficial-ownership and no-PE declaration, and the payer files Form 145 with a Form 146 accountant's certificate before remitting. For wider questions on doing business in India, see our India business set-up page.

Related reading

• India corporate tax rate for foreign companies: subsidiary vs branch vs PE
• UK–India double tax treaty: guide for UK companies
• India market entry for US investors and growth companies
• India GCC tax structuring
• Transfer pricing, tax and employment for an India GCC
• India–UAE business structuring
• India–US trade deal (2026): status, tariffs and what is legally in force (ATB Legal)

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Disclaimer: This article is general information, not legal or tax advice. It reflects our understanding of Indian law and the treaty position at 12 October 2026. US federal tax points are summarised for context only and must be confirmed with a US tax adviser. Verify against current law before acting.