TRANSFER PRICING Navigating the Indian & Singapore waters!

1. TRANSFER PRICING Navigating the Indian & Singapore waters! Narayan Mehta Partner, Sudit K. Parekh & Co. 25th May 2005

2. An Overview of Indian Transfer Pricing Regulations

3. Transfer Pricing- an Introduction • Denotes price charged by one related party to another for goods, services, etc. Objective: To check the erosion of tax base and plug the leakage of revenue

4. An Illustration- Outsourcing Contract for software development Singapore Parent Singapore Client Singapore tax rate= 20% Consideration @ S $ 35 per hour 100% Equity Outsourcing Arrangement Consideration?? Transfer pricing issues Indian Subsidiary Offshore software development Indian tax rate -Nil Need for balancing the Indian and Singapore TP/ Tax regulations!!

5. Importance of Compliance • Any related party transaction undertaken from 1st April 2001 onwards covered • Currently 60% of world’s cross-border trade is between related parties- Indian tax authority is also going to be vigilant! • UK – for every £1 spent investigating transfer pricing cases, £120 was recovered in extra taxes • Japan –transfer pricing has been a major revenue churner- individual cases exceeds $100 m! • US – transfer pricing remains the topmost priority of IRS’s agenda on international tax • India - FY 01-02 assessments complete - Press has reported incremental tax revenues in excess of INR 50 million based on the first year of TP audit adjustments

6. Importance of Compliance • No exemption from compliance • Transactions exceeding INR 50 million to attract compulsory transfer pricing audit • Onus of proof- tax payer primarily liable • S.10A / 10B units- thin margin for error • No deduction under section 10A / 10B on enhanced income! • More than ordinary profits taxable & not tax exempt! • Adverse tax incidence for the Singapore parent outsourcing BPO operations to Indian entity • Double taxation for the Group in respect of enhanced income

7. Addition to Income Failure to maintain documentation Failure to furnish documentation Failure to furnish Accountant’s Report 100% to 300% of tax on addition 2% of value of transaction 2% of value of transaction Rs. 100,000 Importance of Compliance Penalties are high ! Penalties are not tax deductible!

8. Importance of Compliance • An effective tax planning tool to establish the appropriateness of transfer prices

9. Transfer Pricing- The Indian Perspective • Income arising to “AssociatedEnterprises” from “InternationalTransactions” shall be computed having regard to the “Arm’s Length Price” • Indian regulations largely modeled on OECD guidelines

10. Legislative Framework Associated Enterprise International transaction Legislative Framework Income needs to be computed on an arm’s length basis

11. Associated Enterprise • Means direct or indirect participation in management, control or capital • by one enterprise into another enterprise; or • by the same person in both the enterprises • Either or both of Associated Enterprises should be non-residents

12. Associated Enterprise • “Deemed Associated Enterprises” include: • Holding of 26% of voting power • by one enterprise into another enterprise; or • by the same person in both the enterprises • Dependence on intangible assets • Sale of goods • influence on price and conditions of supply by buyer • Control by individual or his relative • Loan transaction • 51% or more of book value of total assets of the borrowing enterprise

13. Associated Enterprise • Term of wide import - following parties also covered: • VC investors with 26% stake • FI’s advancing loans exceeding 51% stake of assets of borrowing enterprise • Franchisers, licensees, technical collaborators, etc. • Term of wide import- is your company covered?

14. International Transaction • Means “transaction” between 2 or more Associated Enterprises: • For sale of products / other properties OR • Affecting profits, losses, income, assets or liability of the enterprise

15. Arm’s Length Price • Denotes price which is applied or proposed to be applied in a • comparable transaction between • unrelated independent parties in • uncontrolled conditions • Corresponds to the open market price

16. Computing Arm’s Length Price • Arm’s Length Price to be computed as per “Most Appropriate Method”, to be selected out of: • Price based method • Comparable Uncontrolled Price Method (CUP) • Margin based method • Resale Price Method (RPM) • Cost Plus Method (CPM) • Profit Split Method • Transactional Net Margin Method (TNMM)

17. Comparable Uncontrolled Price Method or CUP • Compare price charged in a controlled transaction with uncontrolled transaction • Adjustment for differences materially affecting the price is permissible

18. Comparable Uncontrolled Price Method or CUP 3P-India AE - Singapore $ 60 (internal comparable) TP $ 60 (external comparable) AE-India $ 60 (internal comparable) 3P - Singapore 3P - Singapore Price charged by AE–India to AE–Singapore should be as per open market price $ 60 represents the open market price - Internal comparable preferable to external comparable

19. Resale Price Method (RPM) • Reduce arm’s length Gross Profit Margin and procurement expenses from resale price of goods / services resold to an unrelated party • Certain adjustments permissible

20. Resale Price Method $ 100 $ 100 – 20% AE-India AE -Singapore 3P - Singapore 3P-India 3P-Singapore 3P-Singapore 20% GP Margin on sales $ 100 = The price at which sales made by AE-Singapore to 3P- Singapore 20% = Gross Profit Margin identified from gross profit margin earned by Italian distributors on similar / comparable uncontrolled transactions

21. Cost Plus Method • Add an arm’s length gross profit margin to the production cost of supplier providing goods / services to related purchaser • Certain adjustments permissible

22. Cost Plus Method $ 100 – 15% AE-India AE - Singapore 3P - Singapore 3P-India 3P - Singapore 3P - Singapore 15% GP Margin on sales • Production Costs of AE-India = 100 • 15% = Gross Profit Margin on production costs earned by 3P-India on comparable sales made by other Indian software manufacturers

23. Profit Split Method • Splitting the combined net profit of associated enterprises arising from international transaction between respective entities based on their relative contribution to the net profits • Rarely used in practice

24. Transactional Net Margin Method (TNMM) • Comparing net profit margin of Associated Enterprise arising from international transaction with adjusted net profit margin for similar transaction with unrelated parties in comparable circumstances • Similar to RPM / CPM

25. How methods are chosen in practice? Most Appropriate Method ??? ??? ? Cost Plus Profit Split TNMM Resale Price Method Comparable uncontrolled price Other Yet to be prescribed

26. Computing Arm’s Length Price- summary • Selection of the most appropriate method – relevant factors: • Business model and organizational structure • Functional and risk profiling of related parties • Contractual terms • Nature of products and services

27. Powers of Indian Tax Authorities • Powers to: • Call for information • Determine Arm’s Length Price • Determine total income having regard to Arm’s Length Price • 5% difference allowed • No deduction under section 10A / 10B / 80HHC on enhanced income! • Corresponding adjustments not permitted ! • Permitted under certain Indian Treaties! • No adjustment to withholding tax! • Compulsory scrutiny for transactions exceeding INR 50 million

28. Transfer Pricing Assessment TPO will review compliance by the tax payer with the arm’s length principle TPO will make further enquiries ? ? Does the TPO agree with the views of the tax payer No Yes Taxpayer given an opportunity to respond to TPO’s position TPO would pass a favourable order in relation to the international transaction examined TP Adjustment Has the taxpayer responded with sufficiently detailed facts & arguments to enable a re-evaluation of TPO position ? ? No Yes TPO re-evaluates his position Does the TPO now agree with the taxpayer’s position ? No Yes ?

29. Documentation- why necessary? • To be better prepared for transfer pricing audit • To support your arm’s length price in future • Especially important in loss situations • The tax authorities will never understand your business as well as you, therefore… • Effective communication of your TP policy is critical!

30. Documentation- fixing the jigsaw puzzle! Accountant’s Report Documentation Agreements Functional Analysis Benchmarking Industry Analysis

31. Primary Documentation required under Indian Regulations • Associated Enterprise related documents • Transaction related documents • Description of functions performed, risks assumed and assets utilised • ALP computation related documents • Record of transactions considered for determining price of international transactions • Analysis performed to evaluate comparability • Description of all methods considered and reasons for selection of the most appropriate method • Record of actual working for determining arm’s length price • Details of comparable data used in applying most appropriate method

32. Secondary Documentation required under Indian Regulations • Government publications, reports, studies, databases • Market research studies and technical publications of recognized national or international institutions • Price publications including stock exchange and commodity market quotations Relevant agreements and contracts entered into with associated enterprises or with unrelated enterprises Letters and correspondence documenting terms negotiated with the associated enterprise

33. Indian Documentation • No need for fresh documentation every year • Requirement for filing of CA’s report • 31st Oct/31st July

34. Summing Up Indian Income-tax Act, 1961 Transfer Pricing Regulations Arm’s length price Documentation Accountant’s Report

35. Beginning of tax year End of tax year Deadline for maintaining documentation Filing tax return Filing Accountant’s Report Limitation for initiation of assessment Limitation for completion of assessment Date till which docn. is required to be maintained Compliance and Certification Timeline

36. Thank You • Contact Narayan Mehta • Tel: +91 22 22821141 • Fax: +91 22 22024193 • Mobile: +91 9820544495 • E-Mail: narayan.mehta@skparekh.com ? • Queries