Income Tax Ordinance, 2001 — Section 104: Foreign losses

104. Foreign losses.— (1) Deductible expenditures incurred by a person in deriving foreign-source income chargeable to tax under a head of income shall be deductible only against that income.

(2)If the total deductible expenditures referred to in sub-section (1) exceed the total foreign source income for a tax year chargeable to tax under a head of income (hereinafter referred to as a “foreign loss”), the foreign loss shall be carried forward to the following tax year and set off against the foreign source income chargeable to tax under that head in that year, and so on, but no foreign loss shall be carried forward to more than six tax years immediately succeeding the tax year for which the loss was computed.

(3)Where a taxpayer has a foreign loss carried forward for more than one tax year, the loss for the earliest year shall be set off first.

(4)Section 67 shall apply for the purposes of this section on the basis that

(a)income from carrying on a speculation business is a separate head of income; and

(b)foreign source income chargeable under a head of income (including the head specified in clause (a)) shall be a separate head of income. 198 Chapter VII – International PART III TAXATION OF NON-RESIDENTS 105. Taxation of a permanent establishment in Pakistan of a non-resident person.— (1) The following principles shall apply in determining the income of a permanent establishment in Pakistan of a non-resident person chargeable to tax under the head “Income from Business”, namely:

(a)The profit of the permanent establishment shall be computed on the basis that it is a distinct and separate person engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the non-resident person of which it is a permanent establishment;

(b)subject to this Ordinance, there shall be allowed as deductions any expenses incurred for the purposes of the business activities of the permanent establishment including executive and administrative expenses so incurred, whether in Pakistan or elsewhere;

(c)no deduction shall be allowed for amounts paid or payable by the permanent establishment to its head office or to another permanent establishment of the non-resident person (other than towards reimbursement of actual expenses incurred by the non-resident person to third parties) by way of:

(i)royalties, fees or other similar payments for the use of any tangible or intangible asset by the permanent establishment;

(ii)compensation for any services including management services performed for the permanent establishment; or

(iii)profit on debt on moneys lent to the permanent establishment, except in connection with a banking business; and

(d)no account shall be taken in the determination of the income of a permanent establishment of amounts charged by the permanent establishment to the head office or to another permanent establishment of the non-resident person (other than towards reimbursement of actual expenses incurred by the permanent establishment to third parties) by way of:

(i)royalties, fees or other similar payments for the use of any tangible or intangible asset; 199 Chapter VII – International

(ii)compensation for any services including management services performed by the permanent establishment; or

(iii)profit on debt on moneys lent by the permanent establishment, except in connection with a banking business.

(2)No deduction shall be allowed in computing the income of a permanent establishment in Pakistan of a non-resident person chargeable to tax under the head “Income from Business” for a tax year for head office expenditure in excess of the amount as bears to the turnover of the permanent establishment in Pakistan the same proportion as the non-resident’s total head office expenditure bears to its worldwide turnover.

(3)In this section, “head office expenditure” means any executive or general administration expenditure incurred by the non-resident person outside Pakistan for the purposes of the business of the Pakistan permanent establishment of the person, including

(a)any rent, local rates and taxes excluding any foreign income tax, current repairs, or insurance against risks of damage or destruction outside Pakistan;

(b)any salary paid to an employee employed by the head office outside Pakistan;

(c)any travelling expenditures of such employee; and

(d)any other expenditures which may be prescribed.

(4)No deduction shall be allowed in computing the income of a permanent establishment in Pakistan of a non-resident person chargeable under the head “Income from Business” for

(a)any profit paid or payable by the non-resident person on debt to finance the operations of the permanent establishment; or

(b)any insurance premium paid or payable by the non-resident person in respect of such debt.