Analyzing Indian Transfer Pricing Regulations: a Case Study

International Research Journal of Finance and Economics ISSN 1450-2887 Issue 40 (2010)  © EuroJournals Publishing, Inc. 2010 http://www. eurojournals. com/finance. htm Analyzing Indian Transfer Pricing Regulations: A Case Study Monica Singhania Associate Professor, Faculty of Management Studies (FMS), University of Delhi, India E-mail: [email  protected] du Abstract The Indian Transfer Pricing regulations have been enacted with a view to provide a statutory framework which can lead to computation of reasonable, fair and equitable profit and tax in India so that the profits chargeable to tax in India do not get diverted elsewhere by altering the prices charged and paid in intra-group transactions leading to erosion of Indian tax revenue. Any income arising from an international transaction shall be computed having regard to the arm’s length price (ALP). The ALP shall be determined by any of the prescribed methods, being the most appropriate method. The present paper illustrates the practical aspects of the law regarding transfer pricing as it exists presently in India with the help of a case study. The relevant rules envisage determination of ALP by applying margins of each comparable company to the appropriate base of the enterprise. The regulations further provide that, where more than one price is determined by the most appropriate method, the ALP shall be taken to be the arithmetical mean of such prices. An alternative practical approach to arrive at such ALP is to compute the arithmetic mean of margins of comparable companies and apply the same to the appropriate base of the tested party to determine the ALP. The analysis shows that the mean GP/Sales of comparable companies is 33. 71% while that of the PQR India (i. e. , the tested party) is 44. 20% during the year ended March 31, 2009 indicating that the prices of international transaction of PQR India conform to the arm’s length standard prescribed under the Indian regulations. Further, under Category B, costs recharged by PQR Group to PQR India are included. All these costs represent actual amounts paid by PQR Group to independent third parties and are recovered from PQR India, on a cost-to-cost basis. Applying the comparable uncontrolled price method, these recharges conform to the arm’s length standard prescribed under the Indian regulations. However, there are some practical problems arising out of the applications of transfer pricing egulations, which need to be addressed by the tax administrators as early as possible. These issues include absence of advance pricing agreements (APA) mechanism in India, data limitations, extremely wide definition of associated enterprises in India, stringent penalties, difficulties encountered while conducting economic analysis/benchmarking and many more. Keywords: Transfer Pricing, Tax laws, International transactions, Arms length price 1. Introduction The Indian Transfer Pricing regulations have been enacted with a view to provide a regulatory framework which is capable of computing reasonable, fair and equitable profit and tax in India so that the profits chargeable to tax in India do not get diverted elsewhere by altering the prices charged and 204 International Research Journal of Finance and Economics – Issue 40 (2010) paid in intra-group transactions leading to erosion of Indian tax revenue. Any income arising from an international transaction shall be computed having regard to the arm’s length price (ALP). The regulations on transfer pricing in India were clearly inevitable and long overdue. The regulations in their present form are a product of the findings of the Expert Group set up by the Government of India in November 1999 to study global transfer pricing practices and examine the need for such legislation in India. The Indian transfer pricing regulations applicable with effect from April 1, 2001 are largely based on the OECD guidelines. By manipulating a few book entries in the accounts books, multinational corporations are able to transfer huge profits with practically no actual change in the business process. For instance, X Ltd. manufactures ipods for $ 500 in China, but its US based subsidiary buys it for $ 599, and then sells it for $ 600. By doing this, the company’s taxable profit in the US is substantially decreased. At a 30 percent tax rate, the company’s tax liability in the US is only 30 cents (i. e. , 30% of $ 1) as compared to $30 (i. . , 30% of $ 100 which should have been the case). The large scale tax avoidance practices used by multinational corporations came into public notice when the drug giant MNE, GlaxoSmithKline, agreed to pay the US government $3. 4 billion to settle a long-running transfer pricing dispute over its tax dealings between the UK parent company and its American subsidiary. This was the largest settlement of a tax dispute in the US. Multinational corporations derive several benefits from transfer pricing. Since each country has different tax rates, they can increase their profits with the help of transfer pricing. By lowering prices in countries where tax rates are high and raising them in countries with a lower tax rate, such organizations can reduce their overall tax burden, thereby boosting their overall profits. Indeed one often finds that corporations located in high tax countries in fact pay very little corporate taxes. Transfer pricing features highly on the agenda of Indian tax authorities. The transfer pricing assessments relating to the first two years since the introduction of the Transfer Pricing regulations have seen incremental tax collections arising from transfer pricing adjustments in excess of US$ 800 million. The first round of transfer pricing audits in India of roughly 800 taxpayers resulted in 25% facing adjustments. The cumulative value of those adjustments aggregated US$ 300 million. In the following year, according to estimates, tax demands in excess of US$ 500 million were imposed as a result of upward adjustments. In this connection, the Indian tax authorities had initially set a very conservative threshold for audit INR 50 million (around USD 1 million) for the first four years. This threshold has been enhanced thrice with effect from the financial year 2005-06. The Indian tax authorities have also set up a specialized group for undertaking transfer pricing audits and have begun using confidential comparable data for audit purposes. Scrutiny of overall profitability as well as transactional level pricing during the course of transfer pricing audits is also frequently done. 2. Theoretical Framework The role of multinational enterprises (MNEs) in world trade has increased dramatically over the last 20 years. This reflects the increased integration of national economies and technological progress. Intercompany transactions across borders are growing rapidly and are becoming much more complex. Compliance with the different requirements of multiple overlapping tax jurisdictions is a complicated and time-consuming task. At the same time, tax authorities from each jurisdiction impose stricter penalties, new documentation requirements, increased information exchange and increased audit or inspection activity. With a view to provide a detailed statutory framework which can lead to computation of reasonable, fair and equitable profits and tax in India, in the case of such multinational enterprises, the Finance Act, 2001 substituted the then existing section 92 with sections 92A to 92F in the Income-tax Act, 1961, relating to computation of income from an international transaction having regard to the arm's length price, meaning of associated enterprise, meaning of information and documents by persons entering into international transactions and definitions of certain expressions occurring in the said section (see Appendix I for summary of Indian Transfer Pricing Regulations). The essential International Research Journal of Finance and Economics – Issue 40 (2010) 205 documentation which needs to be maintained for complying with these provisions as also the penalties for default in compliance are given in Appendix I. As per the Indian Regulations, the comparable data to be used in anal yzing the comparability of an uncontrolled transaction with an international transaction should be the data relating to the financial year in which the international transaction has been entered into. However, 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 the transfer price in relation to the transactions being compared. The Arm's length principle (ALP) aims at determining whether the parties to a transaction are independent and are on an equal footing. The OECD framework as per Article 9 of the OECD Model Tax Convention ensures that the transfer prices between companies of multinational enterprises are established on a market value basis, avoiding profits being systematically deviated to lowest tax countries. It provides the legal framework for governments to have their fair share of taxes, and for enterprises to avoid double taxation on their profits. The primary onus of proving the arm’s length character of a transaction lies with the taxpayer. If during assessment proceedings, the tax authorities, on the basis of material or information or documents in their possession, are of the opinion that the arm’s length price was not applied, or adequate and correct documents/ information/ data were not maintained/ produced, the total income may be recomputed accordingly after giving the taxpayer an opportunity of being heard. 3. Literature Review There are numerous studies relating to transfer pricing in transactions taking place in developed countries1. This is primarily due to, the detailed statistical information relating to intra-firm trade made available in most of the developed countries, stringent laws requiring greater transparency, etc. In comparison, the availability of intra-firm trade data in developing countries is highly inadequate2. In addition, there is no systematic attempt in developing countries, to collect and analyze relevant data in one information repository database leading to multiple uses of such or ganized information. This is the case even though such information may in many cases exist with different government organizations, legal and administrative authorities and private business organizations engaged in creation of such databases for commercial reasons. This disjointed effort to data collection leads to multiple problems in undertaking quality research studies. It also highlights complete lack of coordination between policies, procedures and their practical application. Also the lack of any government sponsored studies, like those in Colombo, Greece and Sri Lanka, may be the reason why not many transfer pricing studies are undertaken in such countries. In United Kingdom, the transfer pricing rules were formulated as early as in 1915 [(Payan and Wilkie (19933)]. However, there was little pressure on such rules until mid 1960s when the revival of international trade and investment following World War II began. As far as United States is concerned, even before the non-traditional methods of transfer pricing were added to section 482, Schindler and Henderson (1985)4 pointed out, â€Å"Inter-corporate transfer pricing under the scope of code section 482 is one of the most complex areas of international taxation. † The non-traditional methods further added to complexity. The OECD’s Transfer Pricing Guidelines (1995)5, based on guidelines first issued in 1979, 1. Lall S. 1973), â€Å"Transfer Pricing by Multinational Manufacturing Firms†, Oxford Bulletin of Economics & Statistics, Vol. 35(3), pp. 173-95. 2 Bhagwati J. N. (1974), â€Å"On the Under Invoicing of Imports, Fiscal Polices of the Faking of Foreign Trade De clarations of the Balance of Payments†, in Bhagwati (ed. ), Illegal Transactions in International Trade, North Holland Publishing Co. 3 Pagan, Jill C. and J. Scott Wilkie, (1993) â€Å"Transfer Pricing Strategy in a Global Economy†, Amsterdam: IBFD Publications. 4 Schindler, Geunter and David Henderson (1985),â€Å" Intercorporate Transfer Pricing: 1985 Survey of Section 482 Audits,† Tax Notes, Vol. 29, pp. 1171-77. 5 OECD (1995, as updated). Transfer Pricing Guidelines (Paris: OECD). 206 International Research Journal of Finance and Economics – Issue 40 (2010) largely influence international practice with regard to transfer pricing. The Indian transfer pricing regulations, introduced in 2001, are to an extent modeled on the OECD guidelines. Li (2003)6 describes the methods of transfer pricing by way of an international comparison involving six countries namely, China, Hong Kong, Japan, Canada, United States and Singapore. Ring (2000)7 explains the methodology of undertaking Advance Pricing mechanisms whereby both the tax payers as well as tax administrators agree in advance on the methodology to be used to determine transfer prices in order to avoid unnecessary litigation. Lall (1979)8 highlights the need of a laid back attitude towards transfer pricing in developing countries so as to remain an attractive investment destination in the form of foreign direct investment. R. Murray [1981]9 studied the mechanism by which international tax avoidance is achieved. These mechanisms include general manipulations as well as specific manipulations to items in the profit and loss account and balance sheet. Baistrocchi (2004)10 explains the administrative inexperience of developing countries in implementing transfer pricing rules. Mo (2003)11 gives instances of manipulation of transfer prices and steps taken to combat it in China, India, Brazil and Mexico. UN Survey (1999)12 reveals that in developing countries about 61 per cent respondents felt that the domestic multinational enterprises were engaged in income shifting and 84 per cent believed that foreign enterprises were doing so. In addition, 70 per cent and 87 per cent, respectively, of these countries thought the problem to be significant. Newlon (2000)13 notes the tendency of MNCs to over report income in jurisdictions that impose heavy penalties. Mitchell (2004)14 treats worldwide taxation as a form of tax harmonization. According to his view, tax harmonization is categorically undesirable because â€Å"taxpayers are unable to benefit from better tax policy in other nations and governments are insulated from market discipline†. 4. PQR India: Case Study Design and Analysis Global Tax Consultants Pvt. Ltd. ave been engaged by PQR India to review the transfer pricing arrangements for international transactions with its associated enterprises during the year ended March 31, 2009 on the terms set out in the engagement letter. The objective of this paper is to establish whether the international transactions between PQR India and its associated enterprises adhere to the arm’s length principle, embodied in the Indian Transfer Pricing Regulations of the Indian Income-Tax Act, 1961(see Appendix I) and in addition look to the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published by the Organization for Economic Cooperation and Development for further guidance in applying the arm’s length standard. 6 Li, Jinyan (2003), â€Å" International Taxation in the Age of Electronic Commerce†: A Comparative Study (Toronto: Canadian tax Foundation). 7 Ring, Diane M. (2000). â€Å"On the Frontier of Procedural Innovation: Advance Pricing Agreements and the Struggle to Allocate Income for Cross Border Taxation,† Michigan Journal of International Law, Vol. 21 (winter) pp. 143-234. 8 Lall, Sanjaya. (1979). â€Å"Transfer Pricing and Developing Countries: Some Problems of Investigation,† World Development, Vol. 7 Issue 1 (January), pp. 59-71. 9 Murray R. Editor (1981), â€Å"Multinationals Beyond the Market: Intra-firm Trade and the Control of Transfer Pricing†, London: Harvester Press Brighton, pp. 119-32. 10 Baistrocchi, Eduardo. (2004). The Arm's Length Standard in the 21st Century: A Proposal for both Developed and Developing Countries. † Tax Notes International, Vol. 36 No. 3 (October 18), pp. 241-255. 11 Mo, Phyllis Lai Lan. (2003); â€Å"Tax Avoidance an d Anti-avoidance Measures in Major Developing Economies† (Westport, Conn. : Praeger), pp. 207. 12 United Nations Conference on Trade and Development (1999), Transfer Pricing. (New York). 13 Newlon, T. Scott. (2000). â€Å"Transfer Pricing and Income Shifting in Integrating Economies,† in Sijbren Cnossen, editor, Taxing Capital Income in the European Union: Issues and Options for Reform (Oxford: Oxford University Press), pp. 214-42. 14 Mitchell, Daniel J. (2004). â€Å"The Economics of Tax Competition: Harmonization vs. Liberalization,† in 2004 Index of Economic Freedom, Marc Miles, et al. , editors, (Washington: Heritage Foundation), Chapter 2. International Research Journal of Finance and Economics – Issue 40 (2010) 4. 1. Company Profile 207 PQR Group, USA deals in design, manufacture and marketing of the state of the art photocopier machines. In addition, it also offers document management solutions, one-to-one marketing expertise and efficiency management services for various organizations in the United States and internationally. PQR India is a wholly-owned subsidiary of PQR Group, USA. PQR India commences business of import and resale of photocopier machines imported from PQR Group during the financial year 200809. The development of the arm's length price in this analysis recognizes that PQR India is a distributor of photocopier machines in India and is exposed to ordinary risk profile associated with such class of businesses. PQR India, leverages on all the valuable intellectual property rights (knowhow, copyrights etc. ) and other commercial or marketing related intangibles (brand names, trademarks etc. ) owned by PQR Group. Based on the functional analysis, PQR India has relatively less complicated operations and as such bears relatively lesser share of risks and is accordingly selected as the tested party for the purpose of carrying out the economic analysis as part of determination of transfer price on the basis of arms length principle. 4. 2. Industry Overview As per the Indian Regulations (see Appendix 1), every person who has entered into an international transaction shall keep and maintain interalia, the information and documents giving a broad description of the industry in which the assessee operates. The Indian Regulations also prescribe that the comparability of an international transaction with an uncontrolled transaction shall be judged with reference to the conditions prevailing in the markets in which the respective parties to the transactions operate. Hence, for the purposes of the transfer pricing analysis a comprehensive overview of the industry is essential. Industry overview essentially consists of industry background, evolution of industry, characteristics of marketing, emerging industry trends, key drivers, key inhibitors and future outlook for the industry. 4. 3. Functional Analysis As per the Indian Regulations, every person who has entered into an international transaction shall keep and maintain inter alia, a description of the functions performed, risks assumed and assets employed or to be employed by the assessee and by the associated enterprises involved in the international transaction. A functional analysis enables mapping of the economically relevant facts and characteristics of transactions between associated enterprises with regard to their functions, assets and risks. Hence a functional analysis facilitates characterization of the associated enterprises and assists in establishing a degree of comparability with similar transactions in uncontrolled conditions. 4. 3. 1. Functions performed by PQR Group PQR Group, USA deals in design, manufacture and marketing of the state of the art photocopier machines. In addition, it also offers document management solutions, one-to-one marketing expertise and efficiency management services for various organizations in the United States and internationally. In addition, it has a massive research and development center. 4. 3. 2. Functions performed by PQR India PQR India is engaged in the business of import and resale of photocopier machines imported from PQR Group. To understand the functions performed by PQR India, it is important to have an overview of the transactions taking place, which are depicted below: Transactions classified as Category A: Import of finished goods by PQR India and thereafter wholesale distribution by PQR India 208 International Research Journal of Finance and Economics – Issue 40 (2010) Transactions classified as Category B: Cos recharges are PQR Group from PQR India Functions performed by PQR India under Category A: PQR India, as a wholesale distributor performs a variety of functions including sales, marketing, after sales support, etc. Category B – Cost recharges: Under Category B transactions, cost-to-cost recharges on account of certain expenses incurred by PQR Group on behalf of PQR India are included. Assets employed: Any business requires assets (tangible or intangible) without which it cannot carry out its activities. Intangibles play a significant role in the functioning of a business and are accordingly more important. An understanding of the assets employed and owned by PQR India provides an insight into the resources deployed by PQR India and their contribution to the business processes/economic activities of PQR India. Tangibles owned by PQR India: It includes electrical installations, furniture and fixture, office equipments and computer hardware. Intangibles: PQR India being a relatively new company does not own any significant intangibles and does not undertake any significant research and development on its own account that leads to the development of non-routine intangibles. PQR India uses the trademarks, process, know-how, technical data, software, operating/quality standards etc. developed/owned by PQR Group. All companies of the group leverage from these intangibles for continued growth in revenues and profits. . 4. Overview of Inter-Company Transactions PQR India engages in the following inter-company transactions with its associated enterprises: Import of finished goods, import of spar e parts and consumables and cost recharges. The above transactions have been grouped together in two classes namely Category A and Category B which have been separately analyzed from a transfer pricing perspective. 4. 5. Selection of Tested Party The tested party is the participant in the controlled transaction whose profit attributable to the controlled transaction can be verified using the most reliable data and requiring the fewest and most reliable adjustments. In ost cases, the tested party is the least complex of the controlled taxpayers, that is, the taxpayer with the least amount of risk associated with its operations and without valuable intangibles or unique assets that may distinguish it from potential uncontrolled comparable companies. Based on the above, PQR India is clearly the tested party for purposes of this analysis. It does not own an interest in any of the valuable know-how, patents, brand names and trademarks owned by the PQR Group. PQR Group, on the other hand, may own valuable intellectual property rights including commercial and marketing intangibles. Therefore, the comparability adjustments that would be required if independent organizations were to be selected as tested parties, would be both substantial and unreliable. 4. 6. The Most Appropriate Method The ‘most appropriate method’ is that method which, under the facts and circumstances of the transaction under review, provides the most reliable measure of an arm’s length result. In determining the reliability of a method, the two most important factors that need to be taken into consideration are: (i) the degree of comparability between the controlled and uncontrolled transactions and (ii) the coverage and reliability of the available data. Because the selection of the â€Å"most appropriate method† involves a test of relative merit, a method that may not be perfect is not rejected unless some other method can be shown to be more reliable or clearly indicating to provide a better estimate of an arm's length result. International Research Journal of Finance and Economics – Issue 40 (2010) 209 Selection of the Most Appropriate Method Comparable Uncontrolled Price Method (CUP): In practice, there are two types of comparable uncontrolled transactions. The first, known as an â€Å"internal comparable,† is a transaction between one of the parties to the controlled transaction and an unrelated third party. The second, known as an â€Å"external comparable,† is a transaction between two unrelated third parties. There are no internal CUPs available for all products imported by PQR India to benchmark its transactions under Category A. PQR India is engaged in import of finished goods and spares consumables for resale in India under Category A (all related to photocopier machines). However, PQR India does not purchase same/similar products from entities other than associated enterprises. Further, during the year, until the commencement of commercial operations by PQR India, overseas gr oup entities sold some similar products to a third party in India. The third party was a Tier-II distributor of PQR Group whereas PQR India acts as a Tier-I distributor. In this way due to unavailability of adequate data to make suitable adjustments to account for the aforesaid differences, it was considered inappropriate to use the third party as an internal comparable in the present case. Therefore, CUP method was not considered for the purpose of ascertaining an arm’s length price for the international transactions of PQR India under Category A. As for external comparables, it may be highlighted that the arm's length price as far as uncontrolled enterprises are concerned, is substantially dependent upon factors such as volume, contractual terms, location differences, etc. It may not be possible to estimate with reasonable reliability and accuracy, the combined effect of such factors on per unit prices in case of external comparables. Further, abstract factors such as use of intangibles make the use of CUP method difficult for benchmarking purposes. In view of the above, there are no external comparables available, which may be considered sufficiently appropriate to warrant the use of the CUP method for Category A transactions of PQR India. However, in case of transactions in the nature of costs recharges by PQR Group to PQR India, included under Category B, the third party cost reimbursed is a CUP for the reimbursement. Keeping in view the nature of transaction and the degree of comparability, CUP was considered as the most appropriate method for this class of transactions. Consequently other methods were not considered. Cost Plus Method (CPM) PQR India is a distributor. It imports the finished products, spares and consumables from the Group companies (all related to photocopier machines) and resells them in the domestic market. In this way, in this case PQR India carries out the function of a pure reseller. Since RPM is most appropriate in cases involving the purchase and resale of tangible goods, this method was considered as the most appropriate method for deriving the arm’s length price of PQR India under Category A. The application of CPM is ordinarily appropriate in two situations, the provision of services to a related party and the manufacture of tangible goods that are sold to a related party. PQR India on the other hand, operates as a distributor under Category A. Accordingly, CPM was not considered as the most appropriate method for deriving the arm’s length price for Category A transactions of PQR India. Profit Split Method (PSM): PSM is typically applied where each party to the transaction under evaluation has significant intangible assets and/or the operations of the parties to the transaction are highly integrated and cannot be evaluated on a separate basis. Also, in general, the PSM relies primarily on the internal data and assumptions pertaining to each party to the controlled transaction instead of relying on comparable uncontrolled transactions as market benchmarks, thus making the use of the PSM ordinarily less reliable than the other methods. PQR India does not own any non-routine intangibles and further the operations of PQR India can be independently evaluated. Therefore, PSM was not considered as the most appropriate method for deriving the arm’s length price of PQR India’s international transactions under Category A. Transactional Net Margin Method (TNMM) Net profits may however, be influenced by some factors that either do not have an effect or have less substantial or direct effect on gross margins. Such factors in the case of PQR India include several 210 International Research Journal of Finance and Economics – Issue 40 (2010) extraneous factors which have been in the later write up. The losses made by the Company at the operating level, in the current financial year, is a result of these factors. The reasons for loss at operating level under Category A were: a) First year of operations and b) Acquisition of mailing business. These additional expenses incurred by the company during the year adversely impacted its profitability at the operating level. However, these expenses were necessary business expenses which had to be incurred in the first year of operations. Given the aforementioned state of affairs, in order to ensure fair comparison of the operating profitability of the company with comparable companies in the industry, one would need to make suitable economic adjustments to appropriately take into account the impact of the aforesaid acquisition of new business by the company. Conclusions of the Most Appropriate Method After reviewing all of the transfer pricing methods, we recommend given the fact and circumstances, the RPM provides the most reliable measure of an arm’s length result for Category A transactions of PQR India. CUP has been selected as the most appropriate method for the international transactions undertaken by PQR India under Category B. 4. 7. Search for Uncontrolled Comparables Databases: The two most popular and widely recognized corporate databases (i. e. , Powers & Capitaline) to identify potential uncontrolled comparables for PQR India transactions under Category A. The primarily focus was on Prowess and additional companies were considered Capitaline Plus, i. e. , companies for which data was not available in the Prowess database. Selection of time period: As per the Indian Regulations, the data to be used in analyzing 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. However, 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 the transfer price in relation to the transactions being compared. The present analysis involves data analysis of companies from both databases only if they had relevant financial data for at least two out of the three financial years ending during the period April 1, 2006 and March 31, 2009. This has been done in order to eliminate, to the maximum extent possible, any variance in results caused by short-term differences in business cycles, product life cycles or business strategies of individual companies. Search Process Our comparable search strategy identified Indian independent distributors whose functions, assets and risks were broadly comparable to those of PQR India under Category A. International Research Journal of Finance and Economics – Issue 40 (2010) Search from Prowess Criteria for selection Total number of companies whose information is available on Prowess as on March 31, 2009 Number of companies having positive sales and ratio of sales trading to sales of more than 40% over the relevant time period under consideration were selected so as to capture all possible traders available in Prowess Number of companies herein sales trading as a percentage of sales was higher than 75% were short listed, in order to eliminate companies that were primarily not engaged in trading activity Selection of only those companies with a positive net worth Qualitative Analysis, to eliminate companies operating in industries other than electronics, electrical machinery and miscellaneous distributors and to eliminate controlled/controlling companies 211 No. of Companies achieving the criterion 12,994 1,050 565 496 5 Search from Capitaline Plus Criteria for selection Total number of companies whose information is available on Capitaline Plus as on March 31, 2009 Identified additional companies with positive sales over the time period under consideration were selected i. e. companies for which information was primarily not available in Prowess database Selected companies classified in the ‘Electronics’, ‘Miscellaneous Manufactured Articles’, ‘Electrical machinery other than electronics’ and ‘Non-electrical machinery’ industries Selection of only those companies with a positive net worth Qualitative An alysis, to eliminate companies not engaged in trading activities in the same/ similar industry segment and to eliminate controlled/controlling companies. No. of companies achieving the criterion 8,160 1,650 228 86 2 Finally, at the end of the above described search process from both the databases, we were left with 7 comparable companies for benchmarking Category A transactions of PQR India. 4. 8. Choice of a Profit Level Indicator (PLI) The application of RPM requires the selection of an appropriate Profit Level Indicator (PLI). The PLI measures the relationship between (i) profits and (ii) either costs incurred, revenues earned, or assets employed. A variety of PLIs can be used. Factors relevant to the selection of the appropriate profit level indicator include the reliability of the available data and the extent to which the profit level indictor takes into account costs that would be considered by independent parties. Gross Profit Margin is the ratio of Gross Profit to Sales (GP/Sales) and was selected to reliably measure the income of PQR India that it would have earned had it dealt with uncontrolled parties at arm’s length under Category A. 4. 9. Determination of Arm’s Length Results The Indian Regulations require that the Arm’s Length Price (ALP) in relation to an international transaction shall be determined by any of the prescribed methods (CUP, RPM, CPM, TNMM and PSM), being the most appropriate method. All methods other than CUP are methods that enable determination of ALP on the basis of respective margins earned by comparable uncontrolled companies. The relevant rules envisage determination of ALP by applying margins of each comparable company to the appropriate base of the enterprise. The regulations further provide that, where more than one price is determined by the most 212 International Research Journal of Finance and Economics – Issue 40 (2010) ppropriate method, the ALP shall be taken to be the arithmetical mean of such prices. An alternative practical approach to arrive at such ALP could be to compute the arithmetic mean of margins of comparable companies and apply the same to the appropria te base of PQR India to determine the ALP. Arm’s Length Results S. No. 1 2 3 4. 5. 6. 7. 8. 9. 10. 11. Name of the Company X1 India Ltd. X2 India Ltd. X3 India Ltd. X4 India Ltd. X5 India Ltd. X6 India Ltd. X7 India Ltd. Mean Median Upper Quartile Lower Quartile Data Source Prowess Prowess Prowess Prowess Prowess Capitaline Plus Capitaline Plus GP/Sales (%) 30. 00 40. 00 35. 00 28. 00 22. 00 45. 0 36. 00 33. 71 35 38. 00 29. 00 The above analysis shows that the mean GP/Sales of comparable companies under Category A is 33. 71%. Hence, prices of international transactions of PQR India under Category A, that achieve GP/Sales of 33. 71% or more would conform to the arm’s length standard prescribed under the Indian regulations. The financial results of PQR India indicate that the company has GP/Sales of 44. 20% during the year ended March 31, 2009. For Category A transactions, GP/Sales of PQR India are higher than the mean GP/Sales of comparable companies. Further, under Ca tegory B, costs recharged by PQR Group to PQR India are included. All these costs represent actual amounts paid by PQR Group to independent third parties and are recovered from PQR India, on a cost-to-cost basis. Applying the CUP method, these recharges conform to the arm’s length standard prescribed under the Indian regulations. The above analysis provides evidence that both the pricing basis itself of international transactions of PQR India during the financial year 2008-09 and the outcome of the pricing i. e. , the profitability were in accordance with the ‘Arm’s Length’ standard prescribed under the Indian Transfer Pricing Regulations. 5. Summary and Recommendations The regulations on transfer pricing in India were indeed inevitable and long overdue. The case study of PQR India clearly demonstrates the computation procedure required to be followed for scientifically determining the arm’s length price as per the provisions of transfer pricing in India. The analysis shows that the mean GP/Sales of comparable companies is 33. 71% while that of the PQR India (i. e. , the tested party) is 44. 20% during the year ended March 31, 2009 indicating that the prices of international transaction of PQR India conform to the arm’s length standard prescribed under the Indian regulations. Further, under Category B, costs recharged by PQR Group to PQR India are included. All these costs represent actual amounts paid by PQR Group to independent third parties and are recovered from PQR India, on a cost-to-cost basis. Applying the comparable uncontrolled price method, these recharges conform to the arm’s length standard prescribed under the Indian regulations. However, there are some practical problems arising out of the applications of transfer pricing regulations, which need to be addressed by the tax administrators as early as possible. These issues include absence of advance pricing agreements (APA) mechanism in India, data limitations, extremely wide definition of associated enterprises in India, stringent penalties, difficulties encountered while conducting economic analysis/benchmarking and many more. International Research Journal of Finance and Economics – Issue 40 (2010) 213 References [1] Baistrocchi, Eduardo. (2004). The Arm's Length Standard in the 21st Century: A Proposal for both Developed and Developing Countries. † Tax Notes International, Vol. 36 No. 3 (October 18), pp. 241-255. Bhagwati J. N. (1974), â€Å"On the Under Invoicing of Imports, Fiscal Polices of the Faking of Foreign Trade Declarations of the Balance of Payments†, in Bhagwati (ed. ), Illegal Transactions in International Trade, North Holland Publishing Co. Lall S. (1973), â€Å"Transfer Pricing by Multinational Manufacturing Firms†, Oxford Bulletin of Economics & Statistics, Vol. 35(3) pp. 173-95. Lall, Sanjaya. (1979). â€Å"Transfer Pricing and Developing Countries: Some Problems of Investigation,† World Development, Vol. Issue 1 (January), pp. 59-71. Li, Jinyan (2003), â€Å"International Taxation in the Age of Electronic Commerce†: A Comparative Study, Toronto: Canadian tax Foundation. Mo, Phyllis Lai Lan. (2003), â€Å"Tax Avoidance and Anti-avoidance Measures in Major Developing Economies†, Westport, Conn. : Praeger, pp. 207. Mitchell, Daniel J. (2004), â€Å"The Economics of Tax Competition: Harmonization vs. Liberalization,† in 2004 Index of Economic Freedom, Marc Miles, et al. , editors, Washington: Heritage Foundation, Cha pter 2. Murray R. Editor (1981), â€Å"Multinationals Beyond the Market: Intra-firm Trade and the Control of Transfer Pricing†, London: Harvester Press Brighton, pp. 119-32. Newlon, T. Scott. (2000), â€Å"Transfer Pricing and Income Shifting in Integrating Economies,† in Sijbren Cnossen, editor, Taxing Capital Income in the European Union: Issues and Options for Reform (Oxford: Oxford University Press), pp. 214-42. OECD (1995, as updated). Transfer Pricing Guidelines (Paris: OECD). Pagan, Jill C. and J. Scott Wilkie (1993), â€Å"Transfer Pricing Strategy in a Global Economy†, Amsterdam: IBFD Publications. Ring, Diane M. (2000). â€Å"On the Frontier of Procedural Innovation: Advance Pricing Agreements and the struggle to allocate Income for Cross Border Taxation†, Michigan Journal of International Law, Vol. 21 (winter), pp. 143-234. Schindler, Geunter and David Henderson (1985), â€Å"Inter corporate Transfer Pricing: 1985 Survey of Section 482 Audits,† Tax Notes, Vol. 29, pp. 1171-77. United Nations Conference on Trade and Development (1999). Transfer Pricing (New York). [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] 214 International Research Journal of Finance and Economics – Issue 40 (2010) Appendix I Indian Transfer Pricing Regulations Legal Position: The Finance Act 2001 introduced with effect from assessment year 2002-2003, detailed Transfer Pricing regulations vide section 92 to 92F of the Income Tax Act, 1961. The Central Board of Direct Taxes (CBDT) has come out with Transfer Pricing Rules – Rule 10A to Rule 10E. Applicability: Transfer pricing provisions are applicable based on fulfillment of two conditions: Firstly, there must be an international transaction. Secondly, such an international transaction must be between two or more associated enterprises, either or both of whom are non-residents. Pricing Method permitted: Arm's Length Price is to be determined by adopting any one of the following methods, being the most appropriate method: Comparable Uncontrolled Price method, Resale Price Method, Cost Plus Method, Profit Split Method, Transaction Net Margin Method, or any other method prescribed by the Central Board of Direct Taxes (CBDT). Documentation/Return: 13 different types of documents are required to be maintained. These include – 1) Enterprise-wise documents:-Description of the enterprise, relationship with other associated enterprises, nature of business carried out. 2) Transaction-specific documents:-Information regarding each transaction, description of the functions performed, assets employed and risks assumed by each party to the transaction, Economic & Market Analysis etc. 3) Computation related documents:-Describe in details the method considered, actual working assumptions, policies etc. , adjustment made to transfer price, any other relevant information, data, documents relied for determination of arm's Length price etc. A report from a Chartered Accountant in the prescribed form giving details of transactions is required to be submitted within a specific time limit. Penalty: Penalty for concealment of income or furnishing inaccurate particulars thereof100% to 300% of the tax sought to be evaded. Penalty for failure to keep and maintain information and documents in respect of International transaction2% of the value of each international transaction Penalty for failure to furnish report under section 92E- Rs. 1,00,000. OECD Guideline: No reference to OECD guidelines under Indian Transfer Pricing regulations No provisions regarding Advance Pricing Agreements Advance Pricing Agreement: under Indian law as of now Government web-link: www. incometaxindia. gov. in Source: OECD Transfer Pricing Country Profilehttp://www. oecd. org/dataoecd/9/4/42236399. pdf