India tax lawyer
Cross-border tax matters between the United States and India involve the intersection of two distinct tax systems, each with its own residency rules, reporting obligations, and compliance frameworks. A US-India cross-border tax practice addresses the legal questions that arise when a person or business has connections to both countries — whether a US citizen holds assets in India, an Indian national earns income in the United States, or a multinational enterprise operates across both jurisdictions. The United States–India Double Taxation Avoidance Agreement (DTAA) provides the treaty framework for resolving many of these questions, but its application depends on the specific facts of each matter. Law Offices of SRIS, P.C., a US law firm practicing since 1997, provides information on the US-law dimensions of cross-border tax matters involving India.
What This Cross-Border Tax Practice Covers
Cross-border tax practice between the United States and India encompasses the US federal tax obligations that arise from cross-border income, assets, entities, and residency status. For US citizens and lawful permanent residents, the United States taxes worldwide income regardless of where the taxpayer resides. This means a US person living in India or holding Indian financial accounts generally must report that income and those assets to the Internal Revenue Service. The Report of Foreign Bank and Financial Accounts (FBAR, FinCEN Form 114) requires disclosure of foreign financial accounts when the aggregate value exceeds the statutory reporting threshold. Separately, the Foreign Account Tax Compliance Act (FATCA) imposes additional reporting through Form 8938 for specified foreign financial assets above applicable thresholds.
For Indian nationals who are not US citizens or permanent residents, US tax obligations generally arise only on US-source income or when the individual meets the substantial-presence test for US tax residency. The US-India DTAA contains tie-breaker provisions that determine which country has primary taxing rights when a person could be considered a resident of both countries under their respective domestic laws. Cross-border business structures — including US subsidiaries of Indian companies, Indian subsidiaries of US companies, and hybrid entities — raise additional questions about permanent establishment, transfer pricing, and the availability of foreign tax credits under Internal Revenue Code section 901.
How US-India Tax Matters Are Handled
US-India cross-border tax matters require coordination between a US-admitted attorney and an India-admitted legal professional, because each country’s tax law is administered by its own authorities and no single lawyer is licensed to practice in both jurisdictions. The US-law side of a cross-border tax matter — including IRS compliance, FBAR and FATCA reporting, tax-residency determinations under the substantial-presence test, and the application of the US-India DTAA from the US perspective — falls within the scope of a US-admitted attorney. The India-law side — including Indian income-tax return filing, the application of the DTAA from the Indian perspective, and proceedings before Indian tax authorities — requires an India-admitted lawyer.
At Law Offices of SRIS, P.C., the US-law aspects are handled by Mr. Sris, the firm’s founder, who is admitted to practice in Virginia, Maryland, the District of Columbia, New Jersey, and New York. For India-law matters, the firm works with Sowmya R, Of Counsel, who is admitted to practice law in India (Enrolled, State Bar Council of Madhya Pradesh, Enrollment No. MP2285/2014) and is not admitted in any US state bar. Her role is limited to India-law matters in collaboration with the US-admitted attorneys of the firm. This division of responsibility reflects the jurisdictional limits on each attorney’s license and the requirement that legal advice on a country’s tax law come from a lawyer admitted in that country.
About the Attorneys
Mr. Sris founded Law Offices of SRIS, P.C. in 1997. He is a former prosecutor and is admitted to practice law in Virginia, Maryland, the District of Columbia, New Jersey, and New York. His practice includes US federal tax matters with cross-border dimensions, including IRS compliance, FBAR and FATCA reporting, and the application of US tax treaties. Mr. Sris testified before the Virginia House Courts of Justice Committee in support of 2019 HB 635 (chief patron Del. David Bulova), the bill that became the 2019 revision to Va. Code § 20-107.3(g).
For India-law matters, the firm works with Sowmya R, Of Counsel, who is admitted to practice law in India (Enrolled, State Bar Council of Madhya Pradesh, Enrollment No. MP2285/2014) and is not admitted in any US state bar. Her role is limited to India-law matters in collaboration with the US-admitted attorneys of the firm. All US-law aspects of a cross-border tax matter are handled by Mr. Sris and the US-admitted attorneys of the firm.
Frequently Asked Questions
What does a US-India cross-border tax lawyer do?
A US-India cross-border tax practice addresses the US federal tax obligations that arise when a person or business has connections to both the United States and India. This includes determining US tax residency under the substantial-presence test or lawful-permanent-resident test, applying the tie-breaker provisions of the US-India Double Taxation Avoidance Agreement when dual residency is possible, and ensuring compliance with US reporting obligations such as the FBAR (FinCEN Form 114) and FATCA (Form 8938) for foreign financial accounts and assets. The practice also addresses the US tax treatment of Indian-source income — including interest, dividends, rental income, and capital gains — and the availability of foreign tax credits for Indian taxes paid on that income. For businesses, cross-border tax questions include permanent-establishment analysis, transfer-pricing documentation, and the US tax classification of Indian entities.
How does the US-India Double Taxation Avoidance Agreement work?
The United States–India Double Taxation Avoidance Agreement (DTAA) is a bilateral treaty that allocates taxing rights between the two countries to prevent the same income from being taxed twice. The treaty covers categories of income including business profits, dividends, interest, royalties, capital gains, and employment income, and it specifies which country has primary taxing authority for each category. It also contains a tie-breaker provision for individuals who could be considered tax residents of both countries under their respective domestic laws, examining factors such as permanent home, center of vital interests, and habitual abode. The treaty further provides for the exchange of information between the US and Indian tax authorities and establishes a mutual agreement procedure for resolving disputes. The current text of the treaty is published by the IRS.
Do I need both a US tax attorney and an India tax lawyer?
Yes — a cross-border tax matter involving both the United States and India generally requires a US-admitted attorney for the US-law aspects and an India-admitted lawyer for the India-law aspects, because no single lawyer is licensed to practice in both countries. The US-admitted attorney handles IRS compliance, FBAR and FATCA reporting, US tax-residency analysis, and the application of the US-India DTAA from the US perspective. The India-admitted lawyer handles Indian income-tax return obligations, proceedings before Indian tax authorities, and the application of the DTAA from the Indian perspective. The two lawyers collaborate as needed, but each is limited to the jurisdiction in which they are admitted. This division of responsibility is a function of each country’s licensure requirements and the prohibition on the unauthorized practice of law.
What are the FBAR and FATCA reporting requirements for US persons with Indian accounts?
US persons with Indian financial accounts may have obligations to file the FBAR (FinCEN Form 114) and FATCA Form 8938, depending on the aggregate value of the accounts and assets. The FBAR is required when a US person has a financial interest in or signature authority over foreign financial accounts — including Indian bank accounts, demat accounts, and certain Indian provident fund accounts — and the aggregate maximum value of those accounts exceeds the statutory threshold during the calendar year. FATCA Form 8938 is filed with the taxpayer’s US income tax return and applies to specified foreign financial assets above applicable thresholds, which vary by filing status and whether the taxpayer resides in the United States or abroad. The two reporting regimes are separate, with different thresholds, different filing deadlines, and different definitions of reportable assets. Failure to file can result in significant civil penalties.
How is tax residency determined between the US and India?
Tax residency between the United States and India is determined first under each country’s domestic law, and then — if dual residency results — under the tie-breaker provisions of the US-India DTAA. Under US domestic law, a person is a US tax resident if they are a US citizen, a lawful permanent resident (green card holder), or meet the substantial-presence test based on days of physical presence in the United States over a three-year lookback period. Under Indian domestic law, an individual is a resident of India if they are present in India for a specified number of days during the relevant tax year, with different thresholds for Indian citizens and non-citizens. When a person meets the residency test of both countries, the DTAA tie-breaker examines the person’s permanent home, center of vital interests, habitual abode, and nationality to assign residency to one country for treaty purposes.
Can a foreign marriage affect my US-India tax filing status?
A marriage validly contracted in India is presumptively recognized for US federal tax purposes under the doctrine of lex loci celebrationis, which generally treats a marriage as valid if it was valid under the law of the place where it was celebrated. This means that a US taxpayer married to an Indian national — whether the marriage took place in India or in another jurisdiction — may generally file a joint US federal income tax return if both spouses elect to do so, provided the nonresident spouse is treated as a US resident for tax purposes under the election available in the Internal Revenue Code. The marriage certificate from India may need to be authenticated for use before US authorities; because India is a contracting party to the 1961 Hague Apostille Convention (in force for India since 14 July 2005), an apostille from the competent Indian authority is the standard method of authentication rather than consular legalization. The specific tax consequences of the spousal election depend on the couple’s particular facts.