Experts check out whether the easing of rules will reduce transfer pricing litigation
Too many riders for low value adding services
The much awaited amendment to the Safe Harbour Rules (aprovision in a law or regulation that offers protection from liability or penalty under specific situations or if certain conditions are met) provides an avenue for taxpayers with lower thresholds of related party transactions pertaining to IT, ITeS, BPO/KPO/Contract R&D services, etc to pay taxes on a presumptive basis.
While there could still be issues around the classification of a particular service inaparticular basket, the safe harbour margins are more or less in line with the expectations of industry.The APA programme also offers margins in a similar range.
Therefore, from a dispute resolution stand point smaller tax payers can now go towards the safe harbour regime, rather than lining up in the APA programme. Further, low value adding services have also now been included in the safe harbour regime, which is an alignment towards the BEPS recommendations.
It would have been better if the safe harbour relating to low valueadding services received was prescribed without the many riders, considering the low markup (5 per cent) and low threshold (Rs 10 crore).
While the government has now enabled various platforms for dispute avoidance, the key will lie in implementing these programmes in a pragmatic and taxpayer friendly manner.
However, an important aspect the government needs to strongly reconsider is the law on secondary adjustments, as this is not in accordance with global standards and could cause practical challenges to taxpayers.
No respite for large multinationals
The government, as promised, has been consistently working towards creating a non-adversarial tax regime.In order to provide tax certainty and reduce litigation, the Central Board of Direct Taxes (CBDT) introduced Transfer Pricing Safe Harbour Rules in 2013.
These Rules provide safe harbours for certain transactions that have historically been subject to intense litigation —e. g.IT/ ITES, intragroup financing, R& D, etc.
The latest amendments clarify certain aspects of the applicability of safe harbours and align the eligibility margins to industry expectations.These amendments are expected to make Safe Harbours a more viable option for small and medium sized multinationals seeking transfer pricing certainty.
However, the upper thresholds on turnover, the employee cost ratio, and the value of international transactions would keep large multinationals from seeking cover under Safe Harbours.They will have to resort to Advance Pricing Agreements to gain transfer pricing certainty.
Alternatively, they could choose to defend their transfer pricing before tax officers during assessments. While Safe Harbours would help in providing certainty for the future, it could do little to resolve past disputes.
The reduced eligibility margins are only applicable for the assessment year 2017-18 onwards.It is expected that Safe Harbours may have some persuasive value to settle past disputes, but only in cases of taxpayers who opt for them.
In the past,ageneric reference to safe harbour provisions in litigation has been discouraged by courts.Though the Rules appear to have widened the coverage of transactions and provided relaxed margins; contrary to expectations, there is no respite from the burden of documentation and compliance toataxpayer opting for Safe Harbours.
It is also important to note that the old safe harbour margins were available for five years.However, the new regime restricts applicability to three years. A corporate taxpayer is thus encouraged to evaluate its options and, accordingly, determine transfer pricing positions.
Headroom for further simplification
The revised Safe Harbour Rules demonstrate the continued tax policy progress to a more predictable tax regime.The revised rules provide a margin reduction of 56 per cent on contract R&D transactions and 17 per cent on other service transactions.
However, the rules for service transactions cover companies with a turnover of up to Rs 200 crore and hence appear to be aimed largely at small and medium enterprises.
The introduction of low value adding intra group services is also a positive step. Overall, the revised safe harbour rules areawelcome move but leave headroom for simplification, including doing away with the requirement of maintaining transfer pricing documentation to lower the overall compliance costs.
There have been various changes in the recent past in the transfer pricing arena to reduce litigation, such as introducing the range concept and narrowing the scope of specified domestic transactions. There has been a significant reduction in the number of cases taken up for transfer pricing audit under the “risk based evaluation”, which, in turn, has reduced the time and resources spent by companies on audit and subsequent appeals.
One would hope that this trend towards a non-adversarial tax regime continues, with the government providing clarity on the contentious Transfer Pricing issues and recent changes like secondary adjustments.
The Advance Pricing Agreement regime, which has evolved to be a popular alternative for companies with high value transactions to seek certainty, should also be bolstered with shorter timelines to reaching agreement and a longer roll-back period.
Business Standard New Delhi, 12th June 2017
Too many riders for low value adding services
The much awaited amendment to the Safe Harbour Rules (aprovision in a law or regulation that offers protection from liability or penalty under specific situations or if certain conditions are met) provides an avenue for taxpayers with lower thresholds of related party transactions pertaining to IT, ITeS, BPO/KPO/Contract R&D services, etc to pay taxes on a presumptive basis.
While there could still be issues around the classification of a particular service inaparticular basket, the safe harbour margins are more or less in line with the expectations of industry.The APA programme also offers margins in a similar range.
Therefore, from a dispute resolution stand point smaller tax payers can now go towards the safe harbour regime, rather than lining up in the APA programme. Further, low value adding services have also now been included in the safe harbour regime, which is an alignment towards the BEPS recommendations.
It would have been better if the safe harbour relating to low valueadding services received was prescribed without the many riders, considering the low markup (5 per cent) and low threshold (Rs 10 crore).
While the government has now enabled various platforms for dispute avoidance, the key will lie in implementing these programmes in a pragmatic and taxpayer friendly manner.
However, an important aspect the government needs to strongly reconsider is the law on secondary adjustments, as this is not in accordance with global standards and could cause practical challenges to taxpayers.
No respite for large multinationals
The government, as promised, has been consistently working towards creating a non-adversarial tax regime.In order to provide tax certainty and reduce litigation, the Central Board of Direct Taxes (CBDT) introduced Transfer Pricing Safe Harbour Rules in 2013.
These Rules provide safe harbours for certain transactions that have historically been subject to intense litigation —e. g.IT/ ITES, intragroup financing, R& D, etc.
The latest amendments clarify certain aspects of the applicability of safe harbours and align the eligibility margins to industry expectations.These amendments are expected to make Safe Harbours a more viable option for small and medium sized multinationals seeking transfer pricing certainty.
However, the upper thresholds on turnover, the employee cost ratio, and the value of international transactions would keep large multinationals from seeking cover under Safe Harbours.They will have to resort to Advance Pricing Agreements to gain transfer pricing certainty.
Alternatively, they could choose to defend their transfer pricing before tax officers during assessments. While Safe Harbours would help in providing certainty for the future, it could do little to resolve past disputes.
The reduced eligibility margins are only applicable for the assessment year 2017-18 onwards.It is expected that Safe Harbours may have some persuasive value to settle past disputes, but only in cases of taxpayers who opt for them.
In the past,ageneric reference to safe harbour provisions in litigation has been discouraged by courts.Though the Rules appear to have widened the coverage of transactions and provided relaxed margins; contrary to expectations, there is no respite from the burden of documentation and compliance toataxpayer opting for Safe Harbours.
It is also important to note that the old safe harbour margins were available for five years.However, the new regime restricts applicability to three years. A corporate taxpayer is thus encouraged to evaluate its options and, accordingly, determine transfer pricing positions.
Headroom for further simplification
The revised Safe Harbour Rules demonstrate the continued tax policy progress to a more predictable tax regime.The revised rules provide a margin reduction of 56 per cent on contract R&D transactions and 17 per cent on other service transactions.
However, the rules for service transactions cover companies with a turnover of up to Rs 200 crore and hence appear to be aimed largely at small and medium enterprises.
The introduction of low value adding intra group services is also a positive step. Overall, the revised safe harbour rules areawelcome move but leave headroom for simplification, including doing away with the requirement of maintaining transfer pricing documentation to lower the overall compliance costs.
There have been various changes in the recent past in the transfer pricing arena to reduce litigation, such as introducing the range concept and narrowing the scope of specified domestic transactions. There has been a significant reduction in the number of cases taken up for transfer pricing audit under the “risk based evaluation”, which, in turn, has reduced the time and resources spent by companies on audit and subsequent appeals.
One would hope that this trend towards a non-adversarial tax regime continues, with the government providing clarity on the contentious Transfer Pricing issues and recent changes like secondary adjustments.
The Advance Pricing Agreement regime, which has evolved to be a popular alternative for companies with high value transactions to seek certainty, should also be bolstered with shorter timelines to reaching agreement and a longer roll-back period.
Business Standard New Delhi, 12th June 2017
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