International Taxation and Transfer Pricing Conference

February 17, 2007
Case Studies on Transfer Pricing
Samir Gandhi
February ‘2007
2
Global TP Enforcement
• First level
– Second level
• Third level
– Fourth level
1996 & prior 1997/ 1998 1999/ 2000 2001/ 2002 2003/2004








Italy
New Zealand
Mexico
Korea
France
Czech Republic
Spain
Australia
South Africa
USA



China
Slovakia
Brazil
Italy
New Zealand
Mexico
Korea
France
Czech Republic
Spain
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Germany
Kazakhstan
Russia
Denmark
Belgium
Venezuela
Argentina
Canada
UK
China
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Brazil
Italy
New Zealand
Mexico
Korea
France
Czech Republic
Spain
Australia
South Africa
USA


Thailand
Portugal
Poland
Peru
India
Netherlands
Germany
Kazakhstan
Russia
Denmark
Belgium
Venezuela
Argentina
Canada
UK
China
Slovakia
Brazil
Italy
New Zealand
Mexico
Korea
France
Czech Republic
Spain
Australia
South Africa
USA
Hungary
Colombia
Malaysia
Thailand
Portugal
Poland
Peru
India
Netherlands
Germany
Kazakhstan
Russia
Denmark
Belgium
Venezuela
Argentina
Canada
UK
China
Slovakia
Brazil
Italy
New Zealand
Mexico
Korea
France
Czech Republic
Spain
Australia
South Africa
USA
February ‘2007
3
Transfer Pricing Audit Process
Assessing Officer
( AO )
Transfer Pricing
Officer (TPO)
AO to refer TP cases to TPO – international transactions >
INR 5 Crores ( 15 Crores)
Copy of order sent to the AO and tax payer
AO to incorporate TPO’s order in the
Assessment Order
Send Notice to tax payer - Hearing /
Document Analysis /
No site visits / No interviews

February ‘2007
4
TP Administration Structure
DGIT International Taxation & Transfer Pricing)
Director of Income-tax,
(Transfer Pricing)
(Each location)
TPO I
TPO III
Additional
Commissioner of
Income-tax

Additional
Commissioner of
Income-tax

Support staff
TPO II
Additional
Commissioner of
Income-tax

February ‘2007
5
Experience from Initial Audits
• Major companies audited.
– 1,800 audits estimated.

• Only Selection Criteria.
– International Transactions above INR 5 Crores.

• Adjustments - INR 1,500 Crores.
– BPO/ITeS, Software, Banks, FMCG, Pharmaceuticals etc .

• TNMM method most commonly used by tax payers.

• Reliance on precedents of tax year(s) March 2002 & March 2003.

• Tax Board will develop case selection tools – more focused
examinations in future years.
February ‘2007
6



Case Study
February ‘2007
7
Background
• XYZ Inc., a fortune 500 Company is in the business of
manufacturing of automobiles
• XYZ India is a 100 % subsidiary and provides CAD designing
services.
• XYZ India is a captive service provider and is compensated on a C +
10 % mark up.
• XYZ India has applied the TNNM as the Most Appropriate Method
using comparables operating in ITeS industry. –
• PLI applied - Operating Margin / Operating Cost


February ‘2007
8
Analysis
Position of the TPO
• Rejection of Loss Making Companies
• Rejection of Companies having only
domestic transactions
• Rejection of Multiple year data
• Own set of Comparables provided
without any search process (cherry
picking)
• Proposed mark up of 30% -40%
Position of the Tax Payer
• Loss cannot be the sole criteria for
rejection (entrepreneurial risk)
• TNNM requires functional
comparability
• Financial results of comparables
exhibit high degree of variation
• Integrated Service Provider to be
excluded
• Companies having intangibles to be
excluded ( unique software, brand
name etc)
• Adjustment for :
• Working Capital
• Intangibles
• Risk ( captive service provider Vs.
entrepreneur)
February ‘2007
9
Audit Outcome
• Captive Service Provider (BPO/ITeS)
– Losses not acceptable
– Proposed cost plus markups range from 25% to 40%
– “One size fits all” approach
– Comparables proposed inappropriate (no consideration for intangibles,
differences in business models, etc.)
– Justifies markup saying “even after paying high markups, cost savings
will be substantial”
• Adjustment of risk vis-à-vis third party comparables disallowed
• Working capital adjustments of 2% allowed in some cases

February ‘2007
10
Audit Experience
February ‘2007
11
Major issues in Audit Outcomes - Services
• Consideration for service rendered by Indian Enterprises.
– R & D, Marketing, Technical Services etc.

• Composition of Costs.
– Direct and Significant Allocations of Indirect Costs !

• Denial of “Set–off”.

• Allocation of management fees ( Information Technology,
Marketing, Budgeting etc ) by AE.
– “Benefit Test” critical.
– Evidence of receipt of services.
– Determination of allocated amount.
February ‘2007
12
Major issues in Audit Outcomes – Intangibles
• Application of TNMM and Exchange Control Regulations not sufficient.

• Substantiation of receipt of know-how including updates.

• Evidence of negotiation.

• Concerns on losses by Indian enterprises.

• Details of Foreign Enterprise.
– owner of intangibles.

• “Controlled Transactions” - Base for determination of ALP.

• Payments for trademark.
– Economic v. Legal ownership.
– Marketing Intangibles.

February ‘2007
13
Major issues in Audit Outcomes - Manufacturers
• Aggregation of Transactions
– “ Single entity approach”
– Transactionwise analysis preferred.

• Preference for CUPs ( Internal and External )
– Material differences – volume, quality, terms of sale,
geographical differences etc. disregarded.

• Acceptance of TNMM with reluctance.
– Product vs. Functional comparability.
– Choice of profit level indicator.

• Disregarding Loss making companies from Comparables set.
February ‘2007
14
Major issues in Audit Outcomes - Distributors
• Enterprise with Losses – “Entrepreneur risk” not acceptable.

• Higher Gross Margin, but losses at Net level due to
significant marketing expenses.

• Resale Price Method Vs. TNMM.

• Reimbursement of marketing expenses by Foreign
Enterprise.
February ‘2007
15
Going Forward
• Rulings – Position of Revenue.
– Comparables, Methodology, Cost Sharing, Compliance -
Foreign Enterprises etc.

• Risk Assessment - Selection of Audits.

• Safe Harbors eg. Services.

• Manning of TP Cell & Appellate Authorities.

• Effective MAP Process and APA.
February ‘2007
16
Confessions to a Tax Auditor


10. Everybody does it!

9. It improves my bonus!

8. My country needs it more than you!
7. It’s part of the game!

6. Thought they wouldn’t notice!
February ‘2007
17
Confessions to a Tax Auditor (Contd…..)
1. My boss made me do it!
2. It makes good commercial sense!
3. We’ll shift some back here in later years!
4. We already have too much profit over here!
5. It’s really just an accounting adjustment!
February ‘2007
18




Inputs
February ‘2007
19
Thank You