Constructive Sales – Is it a Tax Haven?

(This is probably the most anachronistic post I could ever make, but still…)

If you are one of those who holds a low basis stock - e.g., you are some one who had shareholdings in a private company, which later got listed and still trading at a premium or you bought into some shares and they are now trading (still) at a substantial premium (eg. Educomp Solutions) – and want to exit those positions, you would have to encounter capital gains tax at 10% + the surcharges. (N.B.: Capital gains tax for shares traded through the exchanges is levied only if profits are booked within one year). There is a way out to defer these taxes and probably end up not paying any tax ‘legally’ (as Indian Capital Gains taxation window is just one year) if you enter into some form of ‘constructive sales’.

Constructive sales is just that for whatever profitable positions you hold, the realization of which might entail capital gains tax, you can enter into an offsetting position like shorting its future, or direct shorting of the stock (if allowed, at present it is not allowed). The day you enter into such a transaction, you have virtually locked in your profits; you are more or less insulated from future price movements, at the same time you are technically not liquidated your position which means you have eliminated your risk, essentially booked your profits but do not have to pay the capital gains tax. Let’s see how the second leg of the ‘short sales’ work. After one year of your initial share purchase, you can sell your initial shareholdings in the market which attracts zero capital gains tax and also close your short position simultaneously (or sometime later).

Let’s see a hypothetical example. I bought 10 shares of Educomp Solutions on June 1, 2008 @ INR 1000/share. On July 1, 2008, Educomp solutions had reached INR 1900 per share and I decide to close out the position and book profit. If I do a direct sale of the share, I would have booked a short term gain of INR 9000 (900x10), for which I need to pay tax of at least INR 900 (10% of INR 9000). The constructive sales alternative: On July 1 2008, I enter into a short position in the far month futures contract of Educomp, say at INR 1950. On expiry of this futures contract, I roll it over with the far month contract available then. I keep doing this till June 2009. In July 2009, I decide on closing out the short position in futures. If in July 2009, the futures contract of Educomp is trading at INR 2500, I will incur a short term loss of INR 550 (2500 minus 1950) in FY 2009-10 which can be set off against any short term gains and a long term gain of INR 1500 (2500 minus 1000) which attracts zero tax. Effectively, my net gain from the entire set of transaction is INR 950 (1500 minus 550), but I do not end up paying any tax even though I eliminated any risk after just one month of entering into the deal (June 2008 to July 2008).
The above is called constructive sales and the same is disallowed in US. But I am unsure about the same in India and so as long as it is not disallowed, we can make some amount of tax avoidance (and not tax evasion ;) ) All of the above has an assumption, the individual has enough liquidity for the futures contract margins and the transaction costs are not very high (I assume the latter is true in case of an HNI with adequate investible amount and transactions).