TOPICS
INTRODUCTION
II.
MATURING OF THE ARMS LENGTH PRINCIPLE IN JAPAN: A LESSON
FOR THE REST OF ASIA?
III. COMPETENT AUTHORITY AND TRANSFER PRICING: HOW IS IT
WORKING IN ASIA?
IV. CURRENT TRANSFER PRICING ISSUES IN FINANCIAL SERVICES
V.
TRANSFER PRICING CREDIT RISK ASPECTS
VI. CURRENT ISSUES BEING RAISED IN LITIGATION
VII. CUSTOMS AND TRANSFER PRICING: WHAT YOU SHOULD BE
AWARE OF
VIII. FUTURE OF TRANSFER PRICING IN ASIA
IX. QUESTIONS
I.
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I. INTRODUCTION
Introduction of Panelists
Overall Panel Topic: Growing Acceptance of the Arms Length Principle in
Asia
1.
2.
1)
2)
3.
4.
5.
6.
7.
8.
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1996)
Expansion of Focus Toward Japanese Firms Outbound Transactions (from 1996)
Impact of APA Program in Recent Years in Reducing Number of Audits
Continuing Aggressive Audit Activity
Impact of Introduction of Transfer Pricing Documentation Requirements in 2010
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(2003)
Introduction of Transactional Net Margin Method (TNMM) (2004)
Expansion of Coverage of Foreign Related Parties (2005)
Introduction of the Profit Methods (TNMM and PSM) in Presumptive Taxation
(2006)
Introduction of Tax Payment Suspension Regime Specifically for Transfer
Pricing Assessments in Competent Authority (2007)
Expansion of Exchange of Information Rules (2009)
Codification of Transfer Pricing Documentation Requirements (2010)
Introduction of Most Appropriate Method Rule (2011)
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interpretation
Failure of NTA to disclose identity of comparable product, comparable
transaction or comparable company secret comparables
Taxpayer was prevented from performing an effective comparability analysis.
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identify (from information on competitors) specific gross margins of specific competing products
which are similar to the Taxpayers products (and will be considered similar by the NTA on audit)
and make necessary adjustments for differences in functions or other matters in regard to such
specific transactions.
Requires use of secret comparables by tax authorities
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cases
Development of conceptual arguments for applying profit splits
Early criticism of one-sided approaches and concern for income creation
foreign profits
In past, NTA favored contribution profit split and use of two factors
indicating relative value added: depreciation expense and personnel
expense
Critics argue that Japanese Contribution Profit Split fails to take into account the value
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transactions.
But adoption occurred at same time as agreement to revise US/Japan
income tax treaty
TNMM was positioned as an other method with lesser priority than RPM
or other basic methods
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introduction in 2004
But from 2006 or so, NTA increasingly accepted TNMM in bilateral APAs
and unilateral APAs and later on in audits as well
TNMM was included as a presumptive taxation method in 2006.
It is expected that TNMM will be applied more extensively going forward,
although tax authorities views on comparables will likely be different
from those of taxpayers.
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Seeking Certainty:
Advance Pricing Arrangements Become More Prevalent
Advance Pricing Arrangements (APA) confirm that, once a tax authority
evaluates the transfer pricing methodology and its validity, and accepts them as
reasonable, as long as the firm conducts transactions according to the
contents under certain preconditions, there would be no taxation on transfer
prices.
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together the heads of the tax administrations from 43 countries under the auspices of the
OECD and concluded with a unified and strengthened commitment to combat offshore tax
abuse.
2. The tax administrators focused on the need to work smarter in times of shrinking budgets,
and how to strengthen their relationship with large corporations through efficient and effective
strategies that benefit both the taxpayer and taxing authority.
3. Although there have been some high-profile successes in the fight against offshore tax
abuse, resulting in significant additional tax revenues and real improvements in transparency
and exchange of information, it is far too soon to declare victory.
4. The tax administrations agreed that collaboration must now include coordinated actions by
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timely information that is relevant or required by law for purposes of the correct
determination of taxes to be assessed in connection with their operations and
conforming transfer pricing practices to the arms length principle. (Para 1)
2.Enterprises should treat tax governance and tax compliance as important elements of
their oversight and broader risk management systems. In particular, corporate boards
should adopt tax risk management strategies to ensure that the financial, regulatory and
reputational risks associated with taxation are fully identified and evaluated. (Para 2)
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oversee tax risk in a number of ways. For example, corporate boards should proactively
develop appropriate tax policy principles, as well as establish internal tax control systems so
that the actions of management are consistent with the views of the board with regard to tax
risk. (Para. 102)
4.Tax authorities may need information from outside their jurisdiction in order to be able to ..
determine the tax liability of the member of the MNE group in their jurisdiction. Again, the
information to be provided is limited to that which is relevant to or required by law for the
proposed evaluation of those economic relationships for the purpose of determining the
correct tax liability of the member of the MNE group. MNEs should co-operate in providing that
information. (Para. 103)
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minimises risks of double taxation. Its proper application requires multinational enterprises to
cooperate with tax authorities and to furnish all information that is relevant or required by law
regarding the selection of the transfer pricing method adopted for the international
transactions undertaken by them and their related party. (Para. 104)
6.The OECD Transfer Pricing Guidelines aim to help tax administrations (of both OECD
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2.
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* National tax authorities refers to regional taxation bureaus, which have jurisdiction over large
business taxpayers.
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1)
During the opportunity of a tax examination by Special Examiners in the Large Enterprise
Examination Department in each regional tax bureau, the national tax authorities will
confirm the status of the corporate governance concerning taxes by large business
taxpayers through a request to them to describe the current status of their corporate
governance including the involvement and direction by top management and the
maintenance of an organization and functions in the finance and audit departments, in a
Confirmation Sheet on Corporate Governance Concerning Taxes.
2)
Upon the closing of a tax examination, the top management of a large business taxpayer
and the top officials of a regional tax bureau will exchange views for the enhancement of
corporate governance concerning taxes (such as by introducing examples of effective
efforts).
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2.
Because transfer pricing issues involve huge risks and costs, it requires even more
voluntary and appropriate actions by the enterprises.
3.
The importance of improving tax compliance, including transfer pricing, has been
highlighted as an international trend.
4.
In foreign countries, the enforcement of transfer pricing rules has been strengthened,
and it is expected that transfer pricing assessments (double taxation) and the competent
authority negotiations resulting from the same will increase. Accordingly, there is an
increased need to consider measures, etc. for advance prevention of double taxation.
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Currently, the national tax authorities are moving ahead with efforts toward the
enhancement of corporate governance concerning taxes, and it is possible to characterize
the measures for transfer pricing as one part of such efforts.
6.
In addition, in the 2010 tax reforms, the scope of required transfer pricing documentation
was clarified, and the environment for the preparation of transfer pricing documentation
was improved.
7.
This means that the documents that are recognized to be necessary for the purpose of
computing arms length prices were clarified in the ministerial order that sets for the
presumptive taxation rules, which could be invoked if the tax administrations are not
able to obtain the taxpayers cooperation through providing such necessary documents.
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Based on the above, a Check Sheet to Confirm the Status of Efforts Concerning Transfer
Pricing should be prepared.
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Along with an explanation of the domestic and foreign trends in transfer pricing, the national tax
authorities will explain the importance for enterprises to themselves maintain and improve
their tax compliance in transfer pricing.
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1)
The national tax authorities will confirm the status of efforts on transfer pricing through a
request to fill in a Check Sheet to Confirm the Status of Efforts Concerning Transfer
Pricing.
2)
As the time of exchanges of views between the top management of the enterprises and the
tax bureaus with regard to corporate governance concerning taxes, the national tax
authorities will also exchange views concerning transfer pricing.
3)
Views will be exchanged between the enterprises and the tax officials in charge of transfer
pricing, based on the contents of the Check Sheet to Confirm the Status of Efforts
Concerning Transfer Pricing.
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III.
Panel Discussion
Gary Thomas, White & Case, Tokyo
Sam Sim, Standard Chartered Bank, Hong Kong
Clemens Thyme, S&P Capital IQ, Hong Kong
Michael Quigley, White & Case, Washington DC
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IV.
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IV.
Crisis, really?
European withdrawal vs Regionals Stepping up
Bank Finance to Capital Markets
Simpler Products vs Increasing Sophistication
Increased Regulations vs Internationalization
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IV.
B. More so in Asia
Intervention/influence of prudential regulators
Sophistication of tax authorities, advisors and taxpayers
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IV.
A. APA/MAPs
-Are they worth the trouble?
-First in class? Do you have the resources?
B. Reconciling Differences
-Different TP methods and mark-ups; Global consistency vs Local appropriate
-Tax/TP vs Accounting (Financial vs Management view)
E. TP Infrastructure
-Tax vs Finance: Roles & Responsibilities
-Outsourcing
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V.
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Example: Coca-Cola
around assessments
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Ratings
Method
Sector,
Size
Input
Output
Advantage
Limitation
Public and
Private Ratings
All
3 years
financials,
management
meeting
Rating
- Limited coverage
- No standalone
assessments of subs
- Costs of Individual
assessments
Credit
Scorecard
All
Current
Quantitative
and Qualitative
Data
- Comprehensive sector
coverage (Corp, FI, Ins)
Credit Model
rating score
Current
Quantitative
Data
-Limitation in sectors, as
some are hard to
quantitatively model and
size over USD c20m
Credit Model
SME
(US$1M
and
above)
Current
Quantitative
Data
Probability of
Default
- Requires comprehensive
empirical datasets including
local/regional default data,
which is hard to obtain
- PD
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Build fundamentals
driven comparables
Generate custom
comparable yield
curves
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Establishing a market
based comparable
requires:
Transparent
methodology
Appropriate
segmentation
(geography, industry,
credit rating, duration,
etc.)
Cover all risk factors
(sovereign risk, T&C)
Strong grounding on
empirical data
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royalty that PR would have paid if it had manufactured the product itself.
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intercompany sales of finished products in transactions with Irish and Puerto Rican
affiliates
The IRS used a CPM and concluded that a cost plus 13.9 percent markup (Puerto Rico) and a
cost plus 11 percent markup (Ireland) should be applied to labor and overhead
The IRS did not calculate a markup on other costs
Guidant claims that the IRS did not specify the portions of the adjustment attributable to the
individual affiliates
As in Medtronic, the IRS argued in the alternative that the transferred intangibles should
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arrangements between Guidant U.S. and its subsidiaries in Puerto Rico and
Ireland.
The case is currently pending in the Tax Court and is scheduled to be
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erroneous
IRS announced that it will continue to litigate cost sharing cases using
approaches to valuation that distinguish between make-sell rights (to preexisting intangibles) and platform rights (to technology developed in the
future)
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The IRS claimed that stock-based compensation should have been included in the cost-sharing
pool.
Xilinxs position was that uncontrolled parties engaging in comparable transactions would not
share the cost of the stock options.
Competing rules:
Cost-sharing rules provided that QCSA participants must share all costs
But the arms length standard is a general standard to be applied in every case
Xilinx I: held for IRS
Cost-sharing rules were specific rules that trumped general Section 482 rule
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(published in
Citing the Supreme Courts decision in Mayo, the IRS has said that its new
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The Australian Tax Office used the TNMM (with an operating profit of 1.7 percent) to adjust SNF
The Australian Tax Office challenged SNF Australias use of the CUP, arguing that the French sales were not
comparable.
The Court rejected the use of the TNMM, faulting it and other profits-based methods for inevitably
The Court accepted SNF Australias CUP analysis and its evidence demonstrating that the losses were caused
The Australian Tax Office appealed the decision to the Full Federal Court.
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pricing under the CUP method and concluded that, in light of the following factors, comparability had been
established:
characteristics of the property
the functions (activities of the companies conducting the comparable transactions)
the contractual terms and conditions in the comparable transactions
economic circumstances of the markets in which the transactions took place and
Business strategies of the respective parties
The Court concluded that there was a single global market, leading to its acceptance of comparable data
from different geographic markets.
In its Decision Impact Statement dated November 7, 2011, the ATO narrowly interpreted the impact
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$194 - $304 using prices paid by unrelated generic manufacturers for the same ingredient.
used the Zantac trademarks, must be considered in evaluating its transfer prices.
Glaxos position was that no third party could sell Zantac without the license agreement
The CRA argued that only the supply agreement should be considered in determining
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valuation must consider the license agreement and all other relevant circumstances.
The Tax Court of Canada largely upheld the assessments.
The Federal Court of Appeal upheld the use of the CUP but adjusted the pricing determination to
STATUS:
The Supreme Court granted the parties motions for leave to appeal and cross appeal and
purchased by Glaxo Canada was to be marketed and sold as Zantac, a branded product that
would yield a higher retail price than the generic product.
The Chief Justice asked about bundling and its relationship to transfer pricing if the price included
something other than the substance (IP), why was withholding tax not remitted?
A decision is not expected before the end of the year.
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The Queen v. General Electric Capital Canada Inc., [2010] FCA 344
SUMMARY:
On December 15, 2010, the Federal Court of Appeal upheld the Tax Court of
Canadas taxpayer-favorable decision in GE Capital Canada Inc. (GECCI).
Facts:
GECCI is a financial services company doing business in Canada. It financed much of its
business with debt guaranteed by its U.S. parent company. Beginning in 1995, GECCI
paid a guarantee fee of 1% of the principal amount of the debt outstanding during the
year to its U.S. parent.
GECCI deducted the guarantee fees in its 1996 through 2000 tax returns, totalling
approximately $136.4 million in deductions
The CRA disallowed the deductions, claiming that the 1% guarantee fee exceeded an
arms length price.
The Tax Court of Canada held for the taxpayer, finding that the U.S. parents implicit
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The Queen v. General Electric Capital Canada Inc., [2010] FCA 344
The Federal Court of Appeal upheld the Tax Courts decision:
Held that implicit support must be taken into account in evaluating transfer
prices because an arms length party standing in the shoes of the taxpayer
would consider it relevant.
STATUS:
The CRA is attempting to re-litigate the case after denying General Electric Canada
Company (GECC), successor by amalgamation to GECCI, a deduction for these
same fees paid to the U.S. parent corporation. (2010-3493(IT)G and 20103494(IT)G).
In December 2011, the Tax Court denied GECCs motion that res judicata prevented the
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Alberta Printed Circuits Ltd. v. The Queen, 2011 TCC 232 (June
2011)
SUMMARY:
APC manufactured custom circuit boards for customers in Canada and
the U.S., and for several years many of the design and setup services
were performed by a Barbados company controlled by a key employee
of APC. The founders of APC and the key employee had interests in
both APC and the Barbados company, but there was no common legal
control of the two entities.
STATUS:
However, the Tax Court held that the two companies did not factually
deal with one another at arms length and were thus subject to
Canadas transfer pricing rules.
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STATUS:
In January 2012, the Supreme Court reversed, holding that in the absence of a specific
look-through provision in Indias domestic law, a sale of shares by companies outside of
India cannot be taxed by India simply because the underlying assets are located in India.
The Supreme Court stated that allowing taxation under these circumstances would amount
to imposing capital punishment for capital investment since it lacks authority of law.
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has been stripped, a transfer pricing analysis would conclude that the fees allocated
to the stripped-risk affiliate are adequate to compensate it for its routine functions.
But the Court held that Roche Spain was not adequately compensated for all of the
functions it was performing for Roche Europe.
The Court concluded that product sales in Spain were taxable to Roche Europes PE
and Roche Spain should take into account a portion of European sales for this it had
assisted in promotion.
The Court held that. under Paragraph 34 of the OECD Commentary to Article 5, once
a PE is established, it exists to the extent that the agent acts for the principal, not
only to the extent of the agents contracts.
As a result, all of the economic activity conducted by Roche Spain on behalf of
Roche Europe is part of the PE.
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economics?
2. Can courts be expected to find the right answer?
3. What about the path forward after litigation?
C. Impact of Litigation Elsewhere on Transfer Pricing in Asia
1. Precedential value?
2. Highlighting issues for potential local enforcement?
3. Greater likelihood of litigation in the courts to resolve disputes?
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Customs Taxes: Valuation methods transfer pricing rules vs. customs valuation rules
Transfer pricing rules acknowledge modern transactions involving tangibles, intangibles and services, while
customs valuation rules are item-based and old school.
Transaction values supported by OECD arms length pricing study should be accepted as showing no related
party influence, so customs officials should accept arms length pricing adjustments or at least accept some
mechanism to consider same.
Customs reactions
Arms length price under OECD TP guidelines as acceptable transaction value method?
Resale price method vs. deductive value method
Cost-plus method vs. constructed value method
Specific challenge: Use of profits-based method (e.g., TNMM) that requires prospective or retroactive
pricing adjustments to reach profit targets. Acceptable for customs? What procedures?
Any convergence in transfer pricing and customs practices in Asia countries?
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IX. Q & A
Questions?
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