EB5 Investors Magazine Volume 7, Issue 2 | Page 28

How to determine source of funds for Indian EB-5 investors EB-5 applicants from India need to consider many unique cultural aspects and local regulations when proving their source of funds, including the Indian Income Tax Act, Hindu Succession Act and the Foreign Exchange Management Act. By Ullas Shah D ocumentation of lawful source of funds in India presents multifaceted challenges that EB-5 applicants need to carefully assess, including implications from the Income Tax Act, Foreign Exchange Management Act, Stamp Duty and Hindu Succession Act. There are at least six aspects that needs to be weighed against the legal and practical framework which is highlighted in the chart. Let’s discuss what nuances one should keep in mind for each of these aspects. ENTITY EARNING INCOME The Indian Income Tax Act considers notional entities for tax purposes like a Hindu Undivided Family (Commonly 28 EB5 INVESTORS M AGAZINE referred to as an HUF). It is not enough just to be able to comprehend a notional entity and consider their taxes and income as a lawful source but also to understand the legality of it. Continuing with the same example, an HUF can be created by a male head of the family only by receiving a gift in the amount of initial corpus from their elders, barring a few exceptions. Thus, a comprehensive explanation of lawful source of funds would encompass a document trail of such initial corpus gift and then would go on to explain their taxed income which might be used to fund EB-5 investment for any of the constituent member of the HUF. There are similar provisions concerning a trust, co-operative society and so forth.