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Indian Transfer Pricing

Indian Transfer Pricing. Vikram Vijayaraghavan, Advocate M/s Subbaraya Aiyar , Padmanabhan & Ramamani (S.A.P.R) Advocates http://www.saprlaw.com vvikram@saprlaw.com. Agenda. Part I : Introduction to Indian TP Part II : Indian TP Assessment & Litigation

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Indian Transfer Pricing

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  1. Indian Transfer Pricing VikramVijayaraghavan, Advocate M/s SubbarayaAiyar, Padmanabhan & Ramamani (S.A.P.R) Advocates http://www.saprlaw.com vvikram@saprlaw.com Transfer Pricing Country Systems and Practices Asia (India)

  2. Agenda Part I : Introduction to Indian TP Part II : Indian TP Assessment & Litigation Part III: Few Observations about Indian TP Part IV: TP Theory meets reality – A look at Indian TP in practice Part V : Indian Judiciary & TP

  3. Agenda Part VI : Current controversies in Indian TP Part VII : Recent Indian TP “earthquakes” Part VIII: Evolution of Indian TP Part IX : Streamlining Indian TP Provisions

  4. Part I IntroDuCtion to INDIAN TP

  5. Indian TP provisions • Indian TP provisions were introduced under “Chapter X : Special Provisions Relating to Avoidance of Tax” • Chapter X, Section 92 of the Income Tax Act (1961) and Rule 10A-D of the Income Tax Rules (1962) • TP regime was introduced via Finance Bill 2001 w.e.f April 1st 2001. • In other words, India is a relatively new entrant into the TP vortex! • Birds-eye, one-line overview of Indian TP: OECD-Lite

  6. Indian TP Provisions – Chapter X, Section 92

  7. Transfer Pricing Penal provisions

  8. Indian TP vs. OECD Guidelines

  9. Part II INDIAN TP ASSESSMENT & LITIGATION

  10. TP ASSESSMENT TIMELINE EXAMPLE 2011+ Supreme Court Indian TP Assessment & Litigation 2011+ High Court May 2011 Income Tax Appellate Tribunal (ITAT) Appeal against CIT(A) order Appeal against Final Asst. Order May 2010 Commissioner of Income Tax (Appeals) Dispute Resolution panel (DRP) Appeal against Asst. order Appeal against Draft Asst. order Set-aside / Remanded back to AO AO:Dec. 2009 TPO reference Transfer Pricing Officer (TPO) Assessing Officer (AO) TPO: Dec. 2008 TPO Order u/s 92CA(3) Form 3CEB Sept.2006 FY 2005-06

  11. TP audits in India

  12. Part III FEW OBSERVATIONS ABOUT INDIAN TP

  13. Few Observations about Indian TPAssociated Enterprise - AE • Section 92A of the Indian Income Tax Act defines the term ‘associated enterprise’ in two parts • Enterprises which are regarded as AE’s (S.92A(1)) • Enterprises which are deemed to be AE’s (S.92A(2)) • Furthermore, S.92F(iii) defines the word “enterprise” in a very broad manner • Bottomline: Indian TP has a very broad view (de jure & de facto) of AE relationship

  14. Few Observations about Indian TPAssociated Enterprise - Section 92A(1) • (a)  which participates, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise; or • (b)  in respect of which one or more persons who participate, directly or indirectly, or through one or more intermediaries, in its management or control or capital, are the same persons who participate, directly or indirectly, or through one or more intermediaries, in the management or control or capital of the other enterprise.

  15. Few Observations about Indian TPAssociated Enterprise - Section 92A(2) • Sec. 92A(2) deems two enterprise to be associated if there exists between them some kind of economic, executive, financial or business relationship or there is some kind of mutual interest. • Relationship between two AEs is of dependency – • Direct control of the capital or voting rights, or • De facto control ie indirect control such as common management or commercial relationship.

  16. Few Observations about Indian TPAssociated Enterprise - Section 92A(2) • Broad classification of 13 scenarios u/s. 92A(2) for deemed AE • Controlling interest – clause (a), (b) and (l) • Financial transactions –clause (c) and (d) • Management and executive decisions –clause (e) and (f) • Operating transactions –clause (g), (h) and (i) • Family control –clause (j) and (k)

  17. Few Observations about Indian TPInternational Transaction - Section 92B • A very wide definition of international transaction is provided in Section 92B(1) and 92B(2) • Wait, it gets worse! • There were differing interpretations (especially involving intangibles and financial transactions) and various pending disputes & litigation on the definition of international transaction • The Government thus introduced a wide-ranging Explanation clarifying scope of term "international transaction" vide retrospective amendment by Finance Act 2012 w.r.e.f 1-4-2002 !

  18. Few Observations about Indian TPTP Methods • Five (now six!) methods prescribed • CUP, Cost-Plus, RPM, TNMM and Profit-split are the FIVE usual suspects • Sixth “method” allowing “any other quantifiable method “was recently notified. Rule 10AB of the IT Rules was added • TNMM (and CUP) rules the roost in practice • Income Tax Rules (Rule 10B, Rule 10AB) prescribe the machinery of these methods • NO preferred method

  19. Few Observations about Indian TPTP Methods • ALP is calculated via arithmetic mean of comparable prices • Band of 3% (originally 5%) tolerance provided for ALP • Threshold limit of international transactions for reference to TPO reference is Rs.15 crores (Rs.150 million) • Prowess™ & CapitalLine™company databases are used for TP reports by all parties including Revenue Dept. • High volume of transfer pricing litigation today; most TP litigations have not reached High Courts/Apex Court • “Litigation loop” – many cases remanded back to AO/TPO

  20. Few Observations about Indian TPDocumentation under Indian TP • Maintenance of prescribed documentation to the extent contemporaneous (Section 92D r.w. Rule 10D) • Obtaining and filing of Accountant’s report (Form 3CEB) as prescribed under Section 92E read with Rule 10E is mandatory • Stringent penal provisions in case of failure to maintain documentation

  21. Few Observations about Indian TPDocumentation – Statutory Requirements

  22. Few Observations about Indian TPDocumentation – Statutory Requirements

  23. Few observations about Indian TPDocumentation – Section 92D r.w. Rule 10D • Threshold Limit: • If aggregate book value of international transaction < INR 10 million : NO need to maintain prescribed documentation • Period of maintenance of documentation • Prescribed info & documentation should be contemporaneous and must be in existence by specified date (November 30th of following financial year) • Documentation to be retained for 9 years Bottomline: The documentation requirements are onerous and burdensome for the Indian taxpayer

  24. Few Observations about Indian TPDocumentation - Section 92D r/w Rule 10D ENTITY RELATED PRICE RELATED TRANSACTION RELATED • Profile of Group • Profile of Indian entity • Profile of AE’s • Profile of Industry • Terms of Transactions • F.A.R analysis • (functions, assets & risks) • Economic analysis (comparable benchmarking, method selection) • Forecasts, budgets, estimates • Agreements • Bills, Invoices • Correspondence related to pricing (emails, documents, letters etc.)

  25. Part IV TP THEORY MEETS REALITY – A LoOK AT INDIAN TP iN PRACTICE

  26. Issue #1Comparables: Whither art thou? • There is a lack of comparables in many segments • Problem especially acute in developing countries where there are a number of ‘sunrise’ or emerging industries • Result of this data paucity is not merely a lack of comparablesbut the serious consequence of using incorrect comparablesin the TP assessment • International comparables data is nearly impossible to gather and many times are rejected by Revenue or by Courts • It often becomes a case of non-technical people trying to do technical work (classic example - choosing KPO software companies for comparison with BPO assessee, choosing comparables across different software verticals etc.) Bottomline: The whole comparability analysis exercise may at times become unsound and indefensible

  27. Issue #1Example 1 : Software development industry A.E. (USA network security software company) • Department rejected cost-plus and used TNMM with its set of comparables • Comparables in completely different software verticals – an apples to oranges comparison. • This is not only a problem with the TP assessment order but also a flaw in the underlying system • Comparable search in “software services” may yield these companies! X Cost-plus + 15% Assessee Indian subsidiary (Engaged in network security software development) • TPO: Adopt TNMM with third-party Indian software co’s taken as comparables • 1. A transport logistics software company • 2. A generic application outsourcing co. • 3. An ERP (SAP) software vendor • 4. Infosys™ - India’s a mega-IT major Bottomline: An apple and orange are both fruits – hence valid comparables under TP!

  28. Issue #2 Adjustments to comparables • TP provisions are vague! “(iii)  the net profit margin referred to in sub-clause (ii) arising in comparable uncontrolled transactions is adjusted to take into account the differences, if any, between the international transaction and the comparable uncontrolled transactions, or between the enterprises entering into such transactions, which could materially affect the amount of net profit margin in the open market” Rule 10B(e)(iii) on TNMM

  29. Issue #2 Adjustments to comparables • TP adjustments in practice is not the same as theory. In India following are observed: • Foreign AE’s are typically not accepted as tested party • Foreign comparables are almost always not accepted due to data paucity on adjustments • What are the adjustments which will be accepted? • No specific guidance or certainty on this • From practice, adjustments typically disputed by Revenue are: Idle capacity, depreciation, risk, differences in accounting policy etc.. • How to quantify any of these TP adjustments? • Quantification of adjustments are usually ad-hoc or supported using suitably tweaked formulae. • Department and taxpayer spar regularly on this issue in Courts Bottomline: Fundamental lack of clarity & guidance with respect to Transfer Pricing Adjustments

  30. Issue #2Adjustments to comparables (contd.) • Comparables are rejected using “filters” . Some popular filters used are: • Minimum employee cost of 25% over sales • Different year ending filter • Diminishing revenue filter • Related party filter • On-site revenue filter • Turnover filters • Super-profit (& loss-making) filters • Functional difference filters • These filters are neither prescribed in any provision or Rule nor is guidance provided for them.

  31. Issue #2Example 1: Adjustments to comparables • Internal CUP with company AE as tested party rejected by TPO • Typically foreign companies are not allowed as tested parties. • No good answers for India vs. Brazil, India vs. Mexico geographical market adjustments • TNMM chosen with “Auto ancillaries” • Only one proper comparable but no segmental data available • Other comparables are in “shock-absorbers”, “battery companies” • Moving from one incomplete puzzle (CUP) to an incorrect result (TNMM) is better? AE (USA) Axle raw material import Assessee (Indian automotive axles manufacturer) Mexico and Brazil axle manufacturers

  32. Issue #3Data sources – TPO data gathering powers • TPO has the “power to call for information” under Section 133(6) of the Act to obtain information from any firm • This power is used often in the TP assessment to gather data on comparables • Practically speaking, assessee may not be given a chance to analyze or provide rebuttal to the info • Also many companies supply information which are prone to wide interpretation • This is a common issue across the board in TP assessments in India AE (UK) Third party Indian co’s Tax return Assessee (India) AO/TPO TP study

  33. Issue #3Data sources – Using customs data • Taxpayer: Internal CUP with Indonesian AE as the tested party was submitted • TPO: • Rejects Internal CUP and uses External CUP • Uses customs dataof third-party transactions not in public domain • Cherry-picks data and chooses transactions without reference to gross-calorific value (quality) of coal, quantity etc. • Assessee requests competitors and obtains few invoices used by TPO which show even CIF vs. FOB difference ignored AE (Indonesia) Non-AE (anywhere) Customs Data AO/TPO Coal import Assessee (Indian co) Third-party Indian cos. Third-party coal importer (India) TP study: Internal CUP External CUP (using customs data)

  34. Issue #4Multiple year data Rule 10B(4) states “The data to be used in analysing the comparability of an uncontrolled transaction with an international transaction shall be the data relating to the financial year in which the international transaction has been entered into Provided that data relating to a period not being more than two years prior to such financial year may also be considered if such data reveals facts which could have an influence on the determination of transfer prices in relation to the transactions being compared.” • Not accepting multiple year data flies against the face of logic • What about business cycles, recessionary effects, gestation period etc. • Onus on assessee to prove usefulness of multi-year data…..

  35. Issue #5The Indian arm’s-length range controversy • ALP is computed with reference to arithmetic mean of comparables with a uniform tolerance of 5% around the transfer price (Proviso’s to Section 92C(1)) • Example: arithmetic mean of comparable PLI of operating profit/total cost is 10% would mean an arm’s-length range of 4.76% to 15.79% • It was further interpreted by taxpayers to mean that this +/-5% standard deduction was available to the taxpayer and not a binary band. • Example: In case of standard deduction, if net profit margin were 4.75% in the above scenario then only 0.01% is the adjustment and not entire 4.75% as in the case of a band where you are either in the band or out. • Number of cases in different Tribunals in favour of and against the assessee

  36. Issue #5The Indian arm’s-length range controversy • Amendment in Finance Act 2009 tried to rest controversy about arm’s-length range by saying the 5% tolerance is not a standard deduction (as well as changed base of determination of allowable band linking it to transaction price instead of arithmetic mean) • However post 2009 period also remained ambiguous due to conflicting judicial decisions • Retrospective amendment recently in Finance Act 2012w.e.f 1/4/2002clarifying the 5% is not a standard deduction (from 1/4/2013 to be 3%) Bottomline: Lots of litigation on simple issues due to lack of clarity

  37. Issue #6Practical TP oddities - Few nuggets from the field • TNMM Adjustments applied to all transactions of taxpayer enterprise: (Il Jin Electronics India Pvt. Ltd. –Delhi Tribunal) • Adjustments resulting in illogical results: Total amount of adjustment made, along with ALP already reported, exceeded total revenues earned by the taxpayer and its AE from dealing with third party clients! (Global VantEdge Pvt. Ltd – Delhi Tribunal) • Excess profits being disallowed under regular provisions AO held that excess profits (above ALP) would be disallowed u/s 10B for IT companies in SEZ (Tweezerman India, Chennai ITAT) • “Contemporaneous” dataused even if not available at specified date : TPO empowered to determine ALP by using public domain data even after “cut-off date” (Kodiak Networks India vs. ACIT –Bangalore Tribunal)

  38. Part V INDIAN JUDICIARY & TP

  39. Indian Judiciary – Active role • Indian judiciary has played a very active role in interpreting Indian TP provisions • More than 3,500 transfer pricing cases pending at various Indian authorities • Number of disputes have more than doubled since last year • Transfer pricing adjustments in excess of Rs.45,000 crores (US$7.5 billion) in disputes

  40. Part VI CURRENT CONTROVERSIES iN INDIAN TP

  41. Current Controversies in Indian TP Intangibles : BRAND VALUATION OF FOREIGN AE • The current hot-topic of TP discussion & litigation throughout Indiais about returns to the “brand” (marketing intangible) of the foreign AE due to advertising spend of its branded products by Indian subsidiary in India: • VERY common scenario is Indian subsidiary is established by big foreign brand for entering India; Indian subsidiary spends a lot on advertising , marketing & sales promotion (AMP) expenditure in India…. • Questions being asked by the Revenue Department • Does the foreign company’s brand get enhanced by the advertising & marketing spend (AMP) of its Indian subsidiary? • Shouldn’t the foreign AE therefore reimburse its Indian subsidiary with markup the excess AMP spend (or subsidize rates of products supplied to India or reduce Royalty rates)?

  42. Current Controversies in Indian TPIntangibles : The Indian Govt’s viewpoint • Reply in Chapter X to UN TP Manual spells Indian Govt’scurrent view clearly: • Position is that there should be reimbursement by the foreign AE of excess Advertising & Marketing expenditure (AMP) with a markup • Indian subsidiaries need to get additional returns in the form of reimbursement of AMP • “Bright-line test” for marketing intangibles may be used • Developer of marketing intangibles having economic ownership IS ENTITLED to ADDITIONAL RETURNS (i.e., the Indian company is entitled to additional returns!)

  43. Current Controversies in Indian TPIntangibles : Reading between the lines… • The Indian Government rationale seems to be as follows: • Indian subsidiaries sells millions of branded items but consistently shows losses in India. Thus, no immediate benefit (i.e., taxes paid) to India • Even though Indian companies claim they are low-risk, they don’t seem to get even fixed cost plus profits but make huge losses • Main expenditure items for Indian subsidiary seems to be advertising/marketing & sales promotion (AMP) spend

  44. Current Controversies in Indian TPIntangibles: Reading between the lines… • Indian Govt’s stand (continued)… • Economic owner (Indian subsidiary) spends all the money (creating marketing intangibles) but does not get returns • Legal owner (foreign AE) gets benefit of AMP spend • However such benefit is not being shared with Indian subsidiaries by the foreign AE • Only available & immediately taxable indicator of value accretion to marketing intangible is AMP spend – this AMP spend needs to be shared/reimbursed with Indian subsidiary by foreign AE

  45. Current Controversies in Indian TPIntangibles: OECD vs. India • Convergence in theory • All parties seem to basically agree that excess of advertising, marketing & promotional (AMP) expenditure may be reimbursed • OECD Revised Draft on Intangibles (specifically Examples #6, 7) similar to India’s stand • Divergence in practice • Indian Government stand on ownership for purpose of intangible returns may not be in line with OECD with Indian Govt. holding legal owner (foreign MNC) always benefits from brand promotion though the Indian subsidiary may be the economic owner • Effective control, ownership, risk are all bones of contention

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