Author Name:   rajdeeplaw

The following article deals with the concept of Custom Valuation & Transfer Pricing in the global arena along with the appropriate application of it in the context of the Indian Scenario....

TRANSFER pricing, a term generally used in the Income Tax parlance, is a mechanism adopted by Multinational Enterprises (MNEs) for valuing the goods and services traded with their subsidiaries or Associate Companies situated in different tax jurisdictions, so as to lower their tax liabilities and maximize profit. When goods, intangibles and services are transferred across borders within the MNEs, transfer pricing becomes an important issue for both the MNEs as well as for the Income Tax and Customs Authorities. Revenue Administrations are naturally concerned about Transfer pricing as it influences both the direct and indirect taxes. Price of goods in a cross-border transaction is the starting point for assessing Customs duties and for determining profits that arise to each party. Transactions between related parties or Associate Enterprises are not always subject to the same market forces as transactions between independent parties. As a result, there is a potential for under or overpricing of the goods, thus influencing the determination of Customs duty and Income Tax.

For the Income Tax purposes, the Transfer Price determines the amount of income that each party earns and thus the amount of Income Tax that is due in both the country of export and the country of import. A high transfer-price reduces the Income Tax liability, while low Transfer Price lowers the Customs duty. Thus there lies an inherent conflict of interest between Customs and Income Tax Authorities. While the Income Tax authority may seek to stop diversion of profits to the exporting country by assessing lower transaction price on imports, the Customs authority may prefer to determine a higher transfer price on the same imports so as to enhance the Customs duty. Even within an MNE, the Customs specialist might want to declare the lowest possible import value, while the income tax manager might be interested in a higher transfer-price so that it can claim greater deductions. There could also be a case where the same assessee declares a lower import value to Customs to pay less Customs duty, while indicating a high transfer price for the same goods so as to minimize profit and pay less Income Tax.

Transfer pricing is no longer an issue for developed countries only. It is becoming important for the developing and emerging economies as well to manage transfer pricing well so that the Revenue Administrations may protect their tax base effectively, while at the same time avoiding double taxes. According to the UNCTAD World Investment Report, 1995 the transactions between MNEs account for 60% of the world trade. That report was in 1995, and one can imagine how much it has increased in last 12 years. Institutionally, all over the world barring a few countries like United Kingdom, Belgium, Denmark, Netherland and South Africa, two different Administrations value international transactions between related parties or associated enterprises. While both Customs Valuation and Transfer Pricing rules set standards for determining 'arms length' or 'fair' value of these transactions, the international rules and guidelines are different in the Customs and Income Tax domains. Customs addresses the transfer pricing through provisions on related party transactions, as mandated by the World Trade Organization (WTO) Agreement on Customs Valuation. The Income Tax authorities use 'arm's length' principle in terms of the international standard for transfer pricing, as set out in the Organization for Economic Cooperation and Development (OECD) Transfer Pricing Guidelines.

The Trade and Industry have voiced their concern about the difficulty they face in satisfying the different regulatory requirements of both Income Tax and Customs. Their basic concern is that different rules and standards, as applied by the two departments, and the absence of coordinated efforts could also lead to double taxation that might create barriers to trade and investment. In this background, the international trading community has been raising certain critical questions, some of which are as follows : To what extent is it acceptable to have different rules, merely because the policy objectives of Customs and Income Tax Departments are different? How can one accept different answers from two different authorities to the same question i.e. what is the 'arm's length' price? Should both sets of rules converge? And to what extent should they converge, and towards what standard? These are the challenging questions on the issue of Transfer Pricing for both the Income Tax and Customs Authorities as well as the Trading community all over the world.

The Scenario-
· Indian Context-
Increasing participation of multi-national groups in economic activities in India has given rise to new and complex issues emerging from transactions entered into between two or more enterprises belonging to the same group. Hence, there was a need to introduce an uniform and internationally accepted mechanism of determining reasonable, fair and equitable profits and tax in India in the case of such multinational enterprises. Accordingly, the Finance Act, 2001 introduced law of transfer pricing in India through the provisions of the Indian Income Tax Act, 1961 which guides computation of the transfer price and suggests detailed documentation procedures. The regulatory framework of Indian Transfer Pricing Regulations encompasses (i) Provisions of the Act viz. anti-avoidance provisions - Sections 92-92F; and penalty provisions – Sections 271(1)(c), 271AA, 271BA, 271G; (ii) Provisions contained in the Income-tax Rules, 1962 (‘the Rules’) – Rules 10A to 10D; and (iii) Administrative guidance by way of CBDT Circular No. 12/2001, dated 23 August 2001 and Instruction No. 3 of 2003, dated 20 May 2003.This article aims to provide a brief overview on the applicability of transfer pricing regulations in India, methods of determining the transfer price and the documentation procedures.

Transfer Pricing Regulations are applicable to the all enterprises that enter into an 'International Transaction' with an 'Associated Enterprise'. Therefore, generally it applies to all cross border transactions entered into between associated enterprises. It even applies to transactions involving a mere book entry having no apparent financial impact. The aim is to arrive at the comparable price as available to any unrelated party in open market conditions and is known as the Arm's Length Price.

· Global Context-
For multinational companies, dealing with either tax authorities or customs administrations can be a major headache. So how about serving two masters at the same time? Surely it would not be easy. In the cross-border business environment, it is not uncommon to see multinational companies struggling with the conflicting demands from tax authorities and customs administrations. Indeed, the conflict between transfer pricing and customs valuation is attracting attention from various stakeholders, including tax practitioners in the game. The solution to this conflict varies with countries.

In China, the transfer pricing issues are administered by the State Administration of Taxation (SAT) and its local branches, while the customs issues fall into the jurisdiction of the General Administration of Customs (GAC). The SAT and the GAC are two separate governmental agencies at the national level. China’s customs valuation rules and transfer pricing rules are similar on some basic principles, such as the arm’s length principle applicable to the transactions between two related entities. Nevertheless, there are some differences and conflicts between the two.

This article discusses the interaction of transfer pricing and customs valuation in China. The first part will explain a variety of potential conflicts between transfer pricing and customs valuation. To a certain extent, the conflicts are rooted in the divergent purposes of the SAT and the GAC. The second part is to explore possible reconciliation measures to resolve the conflicts. The documentation requirement in recent tax regulations could be helpful to customs valuation. The third part will provide a brief conclusion to the discussion.

1. Conflicts between Transfer Pricing and Customs Valuation
While it is the objective of both the SAT and the GAC to ensure that related parties are transacting with each other on an arm’s length basis, as in other countries, there is a natural tendency for the two different authorities to pursue potential adjustments in opposing directions. For example, when a Chinese company imports goods from an overseas company, the SAT would scrutinize whether the transaction value is so high that it could increase the cost of goods and reduce the taxable income from a corporate income tax perspective. Conversely, the GAC would examine whether the transaction value is too low and thereby would result in underpayment of customs duties. Setting prices that will satisfy the requirements of both the SAT and the GAC can pose a challenge for companies.

The conflicts between the two systems can materialize in the following main areas.

2. Target of Investigation and Valuation
Although the GAC has the right to investigate the valuation of prior transactions, it tends to focus more on transactions currently undergoing the customs declaration process. Normally the customs process does not focus on a preselected target company, but rather on a transaction-by-transaction approach. In practice, however, the GAC has developed a risk analysis system that it applies during the entry declaration review process by which it identifies goods and companies that present risks of noncompliance.

From a transfer pricing perspective, investigations generally will more often target historical transactions rather than ongoing transactions. The objective of a transfer pricing investigation is to review whether transactions of a selected target taxpayer in a certain past period are in accordance with the arm’s length principle and to make adjustment if the taxable amount in such a period is affected by a violation of the arm’s length principle. The SAT will consider the taxable income and profitability of an entity as a whole over a period of time, whereas the GAC focuses on examining the dutiable value of imported goods on a transaction-by-transaction basis. Unlike the customs valuation, the transfer pricing investigations do not commonly apply to general enterprises but to a particular target enterprise selected by the tax authorities.

3. Pricing Methods and Priority
The Chinese transfer pricing rules prescribe five main transfer pricing methods, including: (1) comparable uncontrolled price (CUP) method; (2) resale price method; (3) cost plus method; (4) transactional net margin method and (5) profit split method. There is no priority to these methods.

The Chinese customs valuation rules prescribe that four main methods can be used for valuation purposes. In preferred sequential order they are (1) transaction value of the identical goods method (similar to the CUP method); (2) transaction value of the similar goods method (similar to the CUP method); (3) deductive value method (similar to the resale price method) and (4) computed value method (similar to the cost plus method).

In comparison, the transfer pricing rules have more valuation methods (i.e., transactional net margin method and profit split method) than the customs. Further, no priority exists in transfer pricing methods, whereas customs valuation methods follow a sequential order. These differences may result in a company having difficulty structuring its pricing methodology to satisfy the requirements of both the tax authorities and the customs authorities. Accordingly, even if a company sets its transaction price in compliance with transfer pricing rules, it may still face a challenge and a price adjustment from the customs authorities employing a different pricing methodology, or vice versa.

4. Focus of Investigation
The main objective of customs valuation is to determine a reasonable dutiable value for each import transaction. The GAC normally focuses on the factors and details that may affect prices. However, the objective of transfer pricing investigations is to determine a reasonable distribution of profits earned in controlled transactions between related parties consistent with the arm’s length principle. Although the SAT also looks at the factors that may affect prices, it focuses more on the functions performed and the risks borne by related parties.

5. Price Comparable Selection
When the GAC applies the transaction value the identical goods method or transaction value the similar goods method, assuming multiple identical or similar transaction values, it shall select the lowest one as the basis for customs valuation under the relevant rules. Nevertheless, when the SAT applies the CUP method, multiple comparable uncontrolled prices will be considered in determining a reasonable price range. As long as the transfer price is within this reasonable price range, the SAT normally will not challenge it. If the profit level of the taxpayer is lower than the median, the SAT will make an adjustment by raising it to the median or higher.

6. Conflict on License Fees
Cross-border license fees are normally subject to Chinese withholding tax and business tax. Under current customs rules, however, certain license fees must be included in the customs value of the relevant goods and thus subject to customs duty. Due to a lack of necessary cooperation and information sharing, the decision made by the GAC may not necessarily be acceptable to the SAT. As such, the same license fees could be separately taxed by the SAT and the GAC, thus resulting in an issue of double taxation.

7. Conflict on Price Adjustments
Periodic price adjustments for transfer pricing purposes are common in China. In other words, related parties can adjust their transfer prices over a period of time to ensure transactions as a whole reflect the arm’s length principle. Nevertheless, the GAC normally does not accept periodic adjustments. Its focus is to compare the value of related party transactions to those of similar transactions between unrelated parties.

8. Reconciliation Measures
The SAT and the GAC generally focus on different aspects of related party transactions. When it comes to import/export pricing, however, they both require that all pricing information that parties submit must be objective, authentic and accurate. If both authorities were to coordinate their efforts and share information and experience, they should be able to operate more efficiently and reduce the rate of conflicting outcomes.

So far, there has been no Chinese law or regulation expressly addressing the reconciliation between transfer pricing and customs valuation. There is also no reporting of any joint audit case. Due to the lack of regulations that require the coordination and cooperation between these two government bodies, the SAT and the GAC do not have a formal system in place for cooperation and information sharing. A resulting problem is that the two authorities may make overlapping or duplicative information requests in connection with the same import or export transaction based on their respective focus. Subsequently, they could arrive at different conclusions regarding the responding company’s transfer pricing policy. As a result, taxpayers not only have to spend significant amounts of time and effort to prepare documentation based on the different requirements of the two authorities, but also need to deal with additional risks arising from the lack of cooperation between the two authorities, e.g., the conflict that arises when one authority’s final conclusion is not recognized by the other.

This may change soon, however, in connection with the SAT's issuance of the Administration Measures of Special Tax Adjustments (Trial), which included a long-awaited contemporaneous documentation requirement. Many expect the GAC to cooperate closely with the SAT moving forward as SAT implements these measures. In addition, GAC officials reportedly have been studying the OECD transfer pricing guidelines and may introduce some of the same principles into their valuation system.

The expectation is that there will be more information exchanges between the SAT and the GAC. For example, the new, related party disclosure forms in the transfer pricing rules may address the treatment of intangibles. Intangibles such as royalties for the use of trademarks are often dutiable for customs purposes, but importers often fail to declare them properly for valuation purposes. Going forward, the GAC will be likely to ask for a copy of these tax disclosure forms when conducting valuation audits. Companies should therefore ensure consistency in documentation exists in terms of what is presented to the SAT and the GAC.

9. Conclusion
In China, the interaction of transfer pricing and customs valuation remains to be an interesting subject for multinational companies and tax practitioners. The tax and customs authorities continue to maintain divergent purposes and interests. In many areas, the conflicts could cause significant financial and compliance burdens on multinational companies without any realistic relief. It is still largely unclear how the tax and customs authorities would work to solve potential conflicting positions on the same issue. The contemporaneous documentation required by the tax authorities could be a good starting point for the customs administrations to come up with some positive steps in the direction of reconciliation.

Bibligraphy
1. APA Training: TPMs (Excluding Cost Sharing, Financial Services) June 13, 2001, Russell Kwiat, APA Program
2. Transfer Pricing by MGEC 621 PROFESSOR WHITE AUTUMN 2008 / Q, Wharton University of Pennsylvania
3. TRANSFER PRICING ( DOCUMENTATION, CONSULTING AND ARMS-LENGTH PRICE DETERMINATION), Descosimo Global
4. LAW OF TRANSFER PRICING IN INDIA by Sunil Arora
5. TRANSFER PRICING (A beginner’s perspective) by Mayank K Agrawal
6. Skoda Auto India Private Limited vs. ACIT (ITAT Pune)
7. UCB India Private Limited vs. ACIT (ITAT Mumbai)

The  author can be reached at: rajdeep.law@legalserviceindia.com

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