Practical aspects - Documentation, Benchmarking and Transfer Pricing Analysis IT/ITES, KPO and Engineering. Vaishali Mane Mumbai

Transcription

1 Practical aspects - Documentation, Benchmarking and Transfer Pricing Analysis IT/ITES, KPO and Engineering Vaishali Mane Mumbai

2 Agenda Transfer Pricing A quick background Operation Challenges Litigation Issues Latest updates Case Studies & Judicial Precedents 2

3 Transfer Pricing A quick background 3

4 Import aspect of Transfer Pricing Maintenance of Transfer pricing documentation Functional, financial and economic analysis Determine arms-length range Document past transactions Support proposed transactions Transfer pricing risk assessment review Review functional and risk profile Review price setting policy Determine arm s-length range Identify transfer pricing exposure (if appropriate) Quantify transfer pricing exposure Safe Harbour provisions for IT/ITES, Engineering and KPO Advance Pricing Arrangement (APA) 4

5 Function, Assets and Risk (FAR) Analysis What is FAR? FAR analysis - exercise to determine and document significant economic activities performed by the enterprise and its AEs in an International Transaction The allocation of these activities between those entities involved in the transaction so each entity can be fully characterised Price charged in any transaction reflects the functions performed (taking into account the risks assumed and assets used) FAR analysis essential to determine comparability Functional analysis identifies and compares Economically significant activities Assets used Risks assumed Functions Risks Assets 5

6 Function, Assets and Risk (FAR) Analysis Purpose of FAR Gathering and organizing facts needed to analyze intercompany prices To identify an appropriate level of profit that related parties should earn with respect to intercompany transactions under review To identify effects of functions, risks and assets on its profitability To determine the economic characterization of the entities in the international transaction To determine the most appropriate method for benchmarking the international transaction To identify any uncontrolled transaction involving one of the controlled parties 6

7 Function, Assets and Risk (FAR) Analysis Why do a functional analysis? The arm s length principle is based on comparability: [When] conditions are made or imposed between two [associated] enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly. * *Paragraph 1 of Article 9 of the OECD Model Tax Convention 7

8 What goes into a Functional Analysis? Transactions Functions Risks Entities Assets Products Markets / Competition Business Processes FAR Analysis Forecasts / Business Plans Organisation / Staff Agreements / Terms Financial Results 8

9 What comes out of Functional Analysis? Internal Comparables Understanding of the Business Basis to search for external comparables FAR Analysis Documentation Characterization of entities Determination of the MAP Method Risk and opportunity assessment 9

10 Importance of FAR Analysis Contract IT/ITE Services Contract Manufacturer Sales Agent Low Function & Low Risk Full fledged service provider Manufacturer/ Developer Marketing/ Distribution High Function & High Risk Comprehensive FAR leads to in-depth understanding of the business and related commercial considerations Allows correct characterization of the business Helps setting up of an appropriate pricing model for inter company transactions Robust FAR analysis - foundation of a sound economic analysis 10

11 Most Appropriate Method Most appropriate method is method best suited to facts and circumstances, providing most reliable measure of ALP Most appropriate method to be selected having regard to the following factors: - Nature and class of international transaction - Functions performed, assets utilized, risks assumed - Availability and reliability of data - Degree of comparability between controlled and uncontrolled transactions - Possibility to make reliable and accurate adjustments - Nature, extent and reliability of assumptions required Typically, Transactional Net Margin Method is selected as the Most Appropriate Method to benchmark IT and ITES transactions 11

12 Operational Challenges 12

13 Challenges Functional Challenges Operational Challenges Risk and working capital adjustment Comparability Challenges 13

14 Functional Challenges Extensive Functional Analysis: Risk-Function Matrix Unavailability of adequate data for conducting robust analysis TP Reports of two AE's would have conflicting conclusion Detailed FAR analysis for tested party and comparable companies is crucial Some international transactions are so unique that can not be compared Corporates and Group Companies hesitant to disclose information of developed IP, etc. 14

15 Comparability Challenges Dearth of comparables Due to emerging economies Use of new technologies, products & services Consolidation &Vertical Integration Non availability of data Cherry picking of comparables Rejection of low mark-up companies selected in Transfer Pricing Study Report Need to fulfill independence filter Use of secret comparables Overall process complexity 15

16 Risk and Working Capital Adjustments 1 Allowable only to comparables and not tested party but obtaining adequate data on comparables is difficult in segment scenario 2 Adjustments such as idle capacity, differences for accounting policy, depreciation etc., are not easily accepted by TPOs 3 Rejects any approximations, estimations and assumptions Adjustments being accepted -Working capital adjustment for IT / ITES sets; 16

17 Transfer Pricing Litigation issues 17

18 Transfer pricing audits Key issues Characterisation of income from resale of software, Determination of Royalty rate Adopting unfavourable stand for the assessee, considering forex as operating or non operating Bench cost adjustment (capacity utilization) allowed in comparability analysis Reduction in size of comparable companies due to losses, non availability of financial info and business close down Use of data not available in the public domain, Officer gathers information gathered U/S 133(6) Skews arithmetic mean as high-margin companies are retained resolved with range Inclusion of super normal mark-up companies Rejection of Turnover criteria Risk Adjustments to be allowed to be adjusted to comparables margins Tax authorities re-doing comparable search Rejection of loss making companies selected in the Report 18

19 Transfer Pricing Latest updates 19

20 Transfer Pricing Latest Updates Updates from Finance Bill 2016 Introduction of Country-by-Country (CBC) Report, effective from FY (AY ) Reduction in time limit for completion of assessment limit for concluding tax assessment reduced from 36 months to 33 months Eliminated Assessing Officer's power to appeal against DRP s Direction New guidelines issued by CBDT stating criteria for selection of cases for specialized transfer pricing scrutiny. Provides guidance for maintenance of the tax authorities database of transfer pricing case referrals. 20

21 Country-by-Country Report Require to file CBC Report from AY (FY ) Threshold to file CBC Report is in line with BEPS [The international consensus is for a threshold of 750 million (i.e. around Rs 5,395 million)] Overview of allocation of income, taxes and business activities by tax jurisdiction and details of all the Constituent Entities of the MNE group included in each aggregation per tax jurisdiction need to be disclosed in the CBC Report Graded structure of penalty prescribed ranging from INR 5,000 to 50,000 per day for non-furnishing, non-maintaining, furnishing inaccurate information, etc. 21

22 Key assessment related provisions Currently, the cases have been selected for TP assessment based on the value of international transactions After completion of almost ten audit cycles, CBDT issued Instruction no. 15 of 2015, (October 2015) in which focus shifted to risk based TP assessments with AO's continuing to being empowered to perform TP assessments, in certain situations. Instruction no 3/2016 replaces Instruction no. 15 of 2015 In 2016, CBDT come out with a new instruction clarifying that the AO is not empowered to conduct TP Assessments. 22

23 Key assessment related provisions 23

24 Dispute Resolution Panel Section 144C Eligible assessee means: o Any person in whose transfer pricing adjustment is proposed and is prejudicial to interest of such assessee as a consequence of order passed under section 92CA(3) o Foreign company Section 2 (23A) Assessing Officer mandated to pass draft order by time limit in case of eligible assessee Finance Bill 2016 provides reduction in time limit for completion of assessment limit for concluding tax assessment reduced from 36 months to 33 months Eligible assessee must within 30 days either file objections before the Dispute Resolution Panel ( DRP ) or accept the variations On acceptance of variation, assessee will receive final order and he has option of filing further appeal before Commissioner (Appeals), as an alternative. Assessing Officer must pass final order within 1 month from receipt of acceptance / expiry of period provided for acceptance. The DRP after enquiry and examination must pass an order within 9 months from end of the month in which draft order was issued either confirming, reducing or enhancing the variation but cannot set aside any matter. The Assessing Officer is bound to follow directions of DRP. Assessee can file further appeal before Income-tax Appellate Authority. Finance Bill 2016 eliminated Assessing Officer's power to appeal against DRP s Direction 24

25 Alternate dispute resolution mechanisms 1 Safe Harbour ( SH ) Rules effective from the FY and available for a period of five years. safe harbours available for IT, ITES, KPO, corporate guarantee, loan, auto manufacturing, etc. safe harbours for specified domestic transactions Government company engaged in business of generation, transmission or distribution of electricity. 2 Advance Pricing Agreement ( APA ) the detailed scheme is effective from 30 August 2012 and from FY is an arrangement between the taxpayer and the Revenue to mutually agree on the transfer pricing method/price to be applied and its application for a period upto five years The Finance Bill, 2014 has introduced roll back provisions for a maximum of 4 years subject to certain conditions 25

26 Transfer Pricing Latest Updates Updates from Finance Bill 2016 Introduction of Country-by-Country (CBC) Report, effective from FY (AY ) Reduction in time limit for completion of assessment limit for concluding tax assessment reduced from 36 months to 33 months Eliminated Assessing Officer's power to appeal against DRP s Direction New guidelines issued by CBDT stating criteria for selection of cases for specialized transfer pricing scrutiny. Provides guidance for maintenance of the tax authorities database of transfer pricing case referrals. 26

27 Transfer Pricing Latest Updates The cases can be referred to the Transfer Pricing Officers when: - Selection of cases under Transfer Pricing risk parameters for International Transactions or SDT or both - Taxpayer has not filed an accountant s report or failed to disclose an international transaction or SDT - There is a transfer pricing adjustment of INR 10 crore or more in earlier years, and the adjustment was upheld by judicial authorities or is pending an appeal - There is a search and seizure or survey operation, and transfer pricing findings have been recorded - Some new guidelines set forth mentioning the role of the Transfer Pricing Officer, the role of Assessing Officers after the determination of the arm s length price, and other rules - Notified role of AO after determination of ALP by the TPO 27

28 Evolving Developments Advanced Pricing Agreement Dispute Resolution Panel (DRP) Specified Domestic Transactions DTC Key lies in implementation Safe Harbor Rules Penalty on Non-reporting transactions Revised OECD Guidelines Scope of International Transactions 28

29 Safe Harbour Rules for IT/ITES, KPO and Engineering Services Eligible international transaction Provision of software development services Provision of information technology enabled services Provision of knowledge process outsourcing services Provision of specified contract R&D services wholly or partly relating to software development with insignificant risks Threshold limit Prescribed (aggregate value of international transaction) Up to INR 500 crore Above INR 500 crore Up to INR 500 crore Above INR 500 crore No limit No limit Safe harbor margin 20% or more on total operating costs 22% or more on total operating costs 20% or more on total operating costs 22% or more on total operating costs 25% or more on total operating costs 30% or more on total operating costs 29

30 Safe Harbour Rules for IT/ITES, KPO and Engineering Services International transaction Provision of software development services Mean i. business application software and information system development using known methods and existing software tools; ii. support for existing systems; iii. converting or translating computer languages; iv. adding user functionality to application programmes; v. debugging of systems; vi. adaptation of existing software; or vii. preparation of user documentation, but does not include any research and development services whether or not in the nature of contract research and development services. 30

31 Safe Harbour Rules for IT/ITES, KPO and Engineering Services International transaction Provision of information technology enabled services Mean i. back office operations; ii. call centres or contact centre services; iii. data processing and data mining; iv. insurance claim processing; v. legal databases; vi. creation and maintenance of medical transcription excluding medical advice; vii. translation services; viii. payroll; ix. remote maintenance; x. revenue accounting; xi. support centres; xii. website services; xiii. data search integration and analysis; xiv. remote education excluding education content development; or xv. clinical database management services excluding clinical trials, but does not include any research and development services whether or not in the nature of contract research and development services; 31

32 Safe Harbour Rules for IT/ITES, KPO and Engineering Services International transaction Provision of knowledge process outsourcing services Mean The following business process outsourcing services provided mainly with the assistance or use of information technology requiring application of knowledge and advanced analytical and technical skills, namely: i. geographic information system; ii. human resources services; iii. engineering and design services; iv. animation or content development and management; v. business analytics; vi. financial analytics; or vii. market research, but does not include any research and development services whether or not in the nature of contract research and development services; 32

33 Safe Harbour Rules for IT/ITES, KPO and Engineering Services International transaction Provision of specified contract R&D services wholly or partly relating to software development with insignificant risks Mean "contract research and development services wholly or partly relating to software development" means the following, namely: i. research and development producing new theorems and algorithms in the field of theoretical computer science; ii. development of information technology at the level of operating systems, programming languages, data management, communications software and software development tools; iii. iv. development of Internet technology; research into methods of designing, developing, deploying or maintaining software; v. software development that produces advances in generic approaches for capturing, transmitting, storing, retrieving, manipulating or displaying information; vi. vii. viii. experimental development aimed at filling technology knowledge gaps as necessary to develop a software programme or system; research and development on software tools or technologies in specialised areas of computing (image processing, geographic data presentation, character recognition, artificial intelligence and such other areas);or upgradation of existing products where source code has been made available by the principal; 33

34 Landmark Judicial Precedent 34

35 Maersk Global - Background Mumbai Special Bench Ruling on classification of ITES into KPO / BPO and exclusion of high profit making comparables Maersk Global for AY

36 Maersk Global - Background Constitution of special bench Due to divert views of the tribunals on the issue of ITeS sector's classification into KPO / BPO, and exclusion of high profit -making comparables, a special bench (SB) of the Mumbai Tribunal was constituted in the case of Maersk Global for AY (Reported in [2014 ] 43 Taxman.com 100 (Mumbai Trib) (SB)). M/s Omniglobe Information Technologies India Pvt. Ltd. and M/s CRM Services India Ltd. joined as interveners in this matters. Interveners An individual who is not already a part to an existing lawsuit but who makes himself or herself a party either by joining with the plaintiff or uniting with the defendant in resistance of the plaintiff's claim. 36

37 Questions raised before the Special Bench Questions raised before the Special Bench 1. Whether for the purpose of determining arm s length price of international transactions of the assesse-company, providing back office support services to their overseas associated enterprises, companies performing KPO functions should be considered as comparable? 2. In the facts of the assessee s case, whether companies earning abnormally high profit margin should be included in the list of comparable cases for the purpose of determining the arm s length price for an international transaction? 37

38 1. Classification of ITeS as KPO/BPO Facts of the case The Taxpayer is engaged in the business of shared service center and renders services such as transaction processing, data entry, reconciliation of statements, audit of shipping documents and other similar support services. The Taxpayer also rendered I.T. services such as process support, process optimisation and technical support services. The Dispute Resolution Panel ( DRP ) held that the assessee could neither be considered as a lowend service provider nor high-end KPO. Hence, it is considered a mix selection of comparables of I.T. enabled service sector. 38

39 1. Classification of ITeS as KPO/BPO Arguments by the taxpayer The taxpayer is a back office service provider or low-end service provider. A KPO industry is significantly higher on the value chain and involves processes that demand advanced information analysis as well as some judgment and decision-making. Taxpayer in turn is a captive entity, which does not have authority to make any decisions and operates as per the directions and instructions provided by its AE. There is a clear distinction between KPO services and BPO services. Reliance was placed on notification no. SO 2810 (E) dated 18 September, 2013 issued by the CBDT in relation to safe harbour rules wherein the Knowledge Process Outsourcing Services have been defined in distinction to the Information Technology Enabled Services services covering various BPO services. Broad characterisation of BPO and KPO services as ITES, based on the ground of larger size of sample, is not in accordance with the TP regulations. 39

40 1. Classification of ITeS as KPO/BPO Arguments by the intervener The intervener further relied upon the report prepared by the National Skill Development Corporation (NSDC) on Human Resource and Skill Requirements in the IT and ITES Industry Sector and an article KPO- An emerging opportunity for the Chartered Accountants published in July, 2006 issue of Journal The Chartered Accountants to bring out the difference between BPO and KPO. Arguments by Departmental Representatives (DR) The Taxpayer cannot be considered either as BPO or KPO but it lies somewhere in between as the services rendered by it are in the nature of BPO as well as KPO. Even the taxpayer has taken KPOs as comparables. As per Rule 10-TD, safe harbour rules are applicable to the Taxpayer who exercises a valid option for application of safe harbour rules and cannot be used for the purpose of Rule 10B. There is thus no need to make any distinction between BPO and KPO for TNMM and the broad category of ITES can be taken for the purpose of comparability analysis. 40

41 1. Classification of ITeS as KPO/BPO Ruling of Special Bench ITES services cannot be further bifurcated or classified as BPO and KPO services for the purpose of comparability analysis since Classification of ITES sector either as low-end BPO or high-end KPO is not always possible and there might be a third category of entities falling in between BPO and KPO. Determining exact portion of BPO and KPO services may also not be possible in the absence of relevant data maintained by the entity. 41

42 2. Exclusion of high profit making comparables Arguments by the taxpayer The arithmetic mean as referred in section 92C of the Act, envisages existence of arithmetic progression meaning thereby it expects the comparable figures in a specific range. Hence, anything beyond that range should not be taken into consideration. Relied on Para of the Circular No. 14 of 2001 to argue that expectation of the legislature was that there would not be any significant diversion between various Arm s Length Price (ALM) if there are different sets of comparables data. Relied on several cases decided by the different benches of the Tribunal in support of the argument. 42

43 2. Exclusion of high profit making comparables Arguments by the intervener The intervener further argued that if the high margin is earned due to efficiency, these entities cannot be excluded merely on the ground of high margin. However, if such high margin is due to any exterior factor, the concerned entities should be excluded from the list of comparables. Consistency of high margin is also required to be seen to find out as to whether the high margin is a normal situation or abnormal 43

44 2. Exclusion of high profit making comparables Arguments by Departmental Representatives (DR) Arithmetic mean is the most commonly used measure of central tendency. It is defined as a sum of the values of all observations divided by number of observations. By adopting the arithmetic mean to work out the average profit margin of the comparables, Indian law has recognized the extreme values also for comparability. Indian TP Rules specifically deviate from OECD guidelines in this aspect and specify the arithmetic mean for determining the ALP as against the quartile method suggested in the OECD guidelines which excludes the companies that fall in the extreme quartiles for comparability. There is no bar in the relevant Rule 10B(2) to consider the companies earning abnormal profits as comparables to tested party as long as they are functionally comparables. The entity showing extreme results, however, can be excluded for comparability if it is found there are specific or special reasons for such extreme results. 44

45 2. Exclusion of high profit making comparables Ruling of Special Bench Indian TP regulations specify the Arithmetic Mean for determining the ALP which is in deviation with the OECD guidelines suggesting quartile method which excludes the companies that fall in the extreme quartiles for comparability. Even otherwise, OECD guidelines in para 2.63 suggest that where one or more of potential comparables have extreme results consisting loss or unusual high profits, further examination would be needed to understand the reasons for extreme results. In light of the above, potential comparables cannot be excluded merely on the ground that their profit is abnormally high. However, in such cases further investigation should be undertaken to ascertain the reasons for unusual high profit and in order to establish whether entities with such high profit can be taken as comparables. In these cases, Functional assets & Risk analysis (FAR) may be reviewed to ensure that the potential comparables earning high profit satisfies the comparability conditions. If it does not satisfy the comparability analysis or the high profit margin does not reflect the normal business condition, then the high profit margin making entity should not be included in the list of comparables for the purpose of determining the ALM of an international transaction 45

46 Questions and Answers 46

47 Thank you 47