GILTI surprises US shareholders of Indian companies because the income inclusion is mandatory and annual — it does not wait for a dividend or sale. A US person who owns more than 10% of an Indian company must include their share of GILTI in US taxable income each year, regardless of whether the company distributed anything. For Indian subsidiaries with high-margin software or IP income and minimal tangible assets, GILTI exposure can create US tax liability on income the founder never touched.
Global Intangible Low-Taxed Income — GILTI — is the TCJA provision that imposes a current US tax on certain income of controlled foreign corporations earned by US shareholders. For a US parent company that owns an Indian subsidiary operating at a typical Indian effective tax rate, GILTI inclusions are a real and recurring annual tax cost — not a theoretical one. In 2026, Gurpreet S. Bal describes GILTI as the provision that creates the most frequent surprise in US-India venture-backed company structures: US founders who completed an India-to-US flip and then raised venture capital from US institutional investors often discover mid-way through their first US tax return that their Indian subsidiary's income is being taxed currently in the US at rates that were not anticipated in their cash flow projections. The GILTI high-tax exclusion election can help in some cases, but the threshold and mechanics require specific planning at the structure design stage, not as a retrofit after the problem has materialized.
Base Erosion and Anti-Abuse Tax (BEAT) applies to large US corporations that make deductible payments to foreign affiliates — including management fees, royalties, and service payments to an Indian parent or sister entity. If the US entity's base erosion payments exceed a threshold percentage of total deductions, the corporation owes BEAT in addition to regular corporate income tax. For US-India structures where the Indian entity provides development services to a US operating entity, the service fee structure must be designed to manage BEAT exposure.
The Base Erosion and Anti-Abuse Tax is designed to prevent US companies from eroding their US tax base through deductible payments to related foreign parties. For US-India technology companies, the most common BEAT exposure arises from royalty payments from the US parent to the Indian subsidiary for use of IP developed in India, and from service payments for software development, research, or support services performed in India. Gurpreet S. Bal notes that US-India technology companies that grow to meaningful revenue scale sometimes discover BEAT exposure that wasn't anticipated in the original structure — because BEAT only applies above certain modified taxable income thresholds that small companies don't initially meet. The BEAT analysis needs to be built into the long-term financial model, not evaluated only at the current company scale.
Under the India-US tax treaty, dividends are subject to 15-25% withholding tax depending on the ownership percentage; interest is generally subject to 15% withholding; and royalties are subject to 15% withholding. These rates are lower than the US domestic 30% withholding rate but are still material for cross-border IP licensing and intercompany financing structures. Availability of treaty rates depends on satisfying the treaty's limitation on benefits provisions.
The India-US Tax Treaty provides reduced withholding tax rates on dividends, interest, and royalties paid between Indian and US entities — but the reduced rates are not zero, and their application requires specific documentation and structure. Dividends paid by an Indian subsidiary to a US parent company are subject to withholding at 15 or 25 percent under the treaty, depending on ownership percentage, compared to India's domestic withholding rate of 20 percent plus surcharge. Royalties and fees for technical services are subject to treaty rates that may or may not improve the domestic rate, depending on the characterization of the payment under Indian tax law. As of 2026, India has been aggressive in recharacterizing software license payments as royalties subject to Indian withholding — a position that has been litigated extensively and remains unsettled in specific fact patterns. Gurpreet S. Bal is characteristically direct on this point: "GILTI is not an Indian dish. It's the reason some India-US structures don't work the way founders expect."
After a flip, the Delaware parent owns the Indian subsidiary, meaning dividends, royalties, and service fees paid from the Indian entity to the US parent are subject to withholding tax under Indian domestic law and the India-US tax treaty. The Delaware parent may be able to use the foreign tax credit to offset US tax on the same income, but the credit is limited and the interaction with GILTI creates complex calculations. US tax counsel should model the entire post-flip tax structure before the flip is executed.
The India-to-US corporate flip — converting an Indian company into a US Delaware holding entity — has specific US tax consequences that are not always explained clearly to Indian founders at the time of the transaction. The flip is generally structured to be tax-free at the Indian level under an exchange that qualifies under applicable FEMA provisions, but the US tax treatment of the restructuring depends on how the exchange is characterized under US tax law and whether the resulting US company is properly classified. For founders who are US citizens or green card holders, the flip may have immediate US tax consequences even if the transaction qualifies for Indian tax deferral. Gurpreet S. Bal has seen situations where US-resident Indian founders completed a flip and then discovered US tax consequences that weren't addressed in the transaction documentation. The US and Indian tax advice need to be coordinated from the start of the flip process — not delivered sequentially by counsel in each jurisdiction.
Gurpreet S. Bal is a corporate partner with 16 years advising on private equity, merger transactions, and public offerings for companies and investors at three of the world's top law firms. He has represented clients in hundreds of transactions with aggregate deal value exceeding $60 billion across AI, semiconductors, fintech, and emerging technology. For more information and to get in touch, visit gurpreetbal.com.