Taxing Intellectual Property Assets on a Cross-Border Transaction : Application of Mobilia Sequuntur Personam and the Case of the India–Mauritius Tax Treaty

Intellectual Property (IP) assets enjoy a unique advantage in tax planning. Owing to their intangible nature and lack of physical substance, IP assets can be methodically parked to transfer income between tax jurisdictions. In 2016, the Delhi High Court was presented with a dispute in which IP assets registered in India were transferred between an Australian and an English company through their subsidiary holdings in Mauritius. The question before the court was which tax jurisdiction, India, Australia or Mauritius, would be entitled to tax the capital gains arising from the transaction. The court held that if a foreign corporation owns an IP asset, regardless of its registration and use in India, it would be taxed by the jurisdiction of the owner’s residence. Coming to its conclusion, the Indian court found a legislative vacuum in the Indian Income Tax Act, 1961, and relied on the doctrine of mobilia sequuntur personam to fill the lacuna. This article examines the relevance of the doctrine in line with precedential guidelines and the international treaty framework. The article reveals that, either inadvertently or by design, the Indo–Mauritian Double Taxation Avoidance Agreement (DTAA) creates an instance of double tax exemption of Mauritian-owned, Indian-registered IP assets