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Asia-Pacific Transfer Pricing Handbook



Asia-Pacific Transfer Pricing Handbook

Robert Feinschreiber, Margaret Kent

ISBN: 978-1-118-35940-2 October 2012 224 Pages

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An overarching look at transfer pricing regimes in Asia-Pacific countries and what they mean for foreign businesses

A comprehensive guide for companies doing business globally, Asia-Pacific Transfer Pricing Handbook explains the policies and practices that Asia-Pacific countries employ with regards to taxing foreign businesses. The only book that analyzes and guides companies through the often complex transfer pricing rules in place in Asian-Pacific nations, the book explains how authorities in fifteen countries, including ASEAN, India, New Zealand, Japan, and South Korea, tax any company doing business within their borders.

Helping foreign companies to properly price their goods and services for global markets, providing defenses for transfer pricing audits, explaining standards for creating comparables that multijurisdictional tax administrations will accept, explaining documentation requirements and timing issues, and creating awareness about inadvertently becoming a permanent establishment, Asia-Pacific Transfer Pricing Handbook is an essential resource for doing business abroad.

  • Provides comprehensive, accessible information on transfer pricing in Asia-Pacific countries
  • Covers fifteen Asia-Pacific countries, including all ASEAN countries, giving readers unparalleled exposure to the different transfer pricing arrangements across the region
  • Explains how companies doing business abroad should price their goods and services for global markets to remain in accordance with the law

A complete and comprehensive guide to transfer pricing and its implications for firms and accountants operating in the Asia-Pacific region, Asia-Pacific Transfer Pricing Handbook explains everything foreign companies need to know about doing business abroad.

Preface xxi


Chapter 1 Introduction 3

Part One: Country-by-Country Analysis 3

Part Two: Advanced Applications 4

Chapter 2 Australia’s Risk Assessment Transfer Pricing Approach 7

Introductory Issues 8

Transfer Pricing Reviews 8

Documentation Requirements 10

Preparation of the Documentation File 11

Applying the Arm’s Length Principle 13

Simplified Approach to Doing a Benchmarking Study 13

Four Steps for Testing International Transfer Prices 14

Decision Tree 16

How the ATO Scores Risk 16

Scoring the Three Levels 17

Score Graph 18

Outcome of Transfer Pricing Review or Audit 19

Audits Taking Place in Low-Risk Situations 20

Transfer Pricing Review Process 20

Categorizing the Results of the Transfer Pricing Review 21

How the Australian Transfer Pricing Audit Procedure Works 22

Australia’s Four-Step Process for Businesses 22

Chapter 3 Profit Attribution for a Dependent

Agent’s Permanent Establishment in Australia 25

Permanent Establishment Concepts in Australia 26

Profit Attribution Concepts in Australia 26

The ATO’s Operational Approach 26

Determining Functional Analysis for a Permanent Establishment 27

Comparative Analysis for the Permanent Establishment 29

Application of the Resale Price Method 31

Application of the Cost Plus Method 31

Using a Transactional Net Margin Method 32

Using a Profit Split Method 32

Toll Manufacturers 34

Four Examples 35

Notes 47

Chapter 4 Australia’s Advance Pricing Arrangement Program 49

Pre-Formal APA Discussions 50

APA Processing Times 51

Unilateral and Bilateral APAs 52

The ATO’s APA Work in Process 52

APA Issues and Methods 52

Chapter 5 China Implements Transfer Pricing Procedures 55

Overview 55

Regulations 56

Chapter 1: General Principles 56

Chapter 2: Reporting and Filing of Related Party Transactions 59

Chapter 3: Administration of Contemporaneous Documentation 62

Chapter 4: Transfer Pricing Methods 66

Chapter 5: Transfer Pricing Audits and Adjustments 71

Chapter 6: Administrative Guidance Concerning Advance Pricing Arrangements 78

Chapter 7: Administrative Guidance Concerning Cost Sharing Agreements 87

Chapter 8: Administrative Guidelines Concerning Controlled Foreign Corporations 91

Chapter 9: Administrative Guidance Concerning Thin Capitalization 93

Chapter 10: Administrative Guidance Concerning General Anti-Avoidance 96

Chapter 11: Corresponding Adjustments and International Negotiations 98

Chapter 12: Legal Responsibility 99

Chapter 13: Supplementary Provisions 101

Notes 102

Chapter 6 Reporting Related Party Transactions in China 105

Form 1—Related Party Relationships 106

Form 2—Summary of Related Party Transactions 109

Form 3—Purchases and Sales 111

Form 4—Services Form 112

Form 5—Intangible Assets 113

Form 6—Fixed Assets 113

Form 7—Financing 114

Form 8—Outbound Investment 115

Form 9—Outbound Payments 118

Notes 119

Chapter 7 Hong Kong Advance Ruling Cases: Taxability of Profits 121

Advance Ruling Process 121

Advance Ruling Case No. 4 122

Advance Ruling Case No. 8 123

Advance Ruling Case No. 9 125

Advance Ruling Case No. 10 126

Advance Ruling Case No. 11 127

Advance Ruling Case No. 12 128

Advance Ruling Case No. 13 130

Advance Ruling Case No. 16 132

Advance Ruling Case No. 19 133

Advance Ruling Case No. 21 134

Advance Ruling Case No. 23 135

Advance Ruling Case No. 26 136

Advance Ruling Case No. 30 137

Advance Ruling Case No. 34 138

Advance Ruling Case No. 35 139

Advance Ruling Case No. 36 140

Advance Ruling Case No. 37 141

Chapter 8 Hong Kong Transfer Pricing Guidelines 143

Double Tax Agreements 143

Arm’s Length Principle 143

Associated Enterprises 145

Appropriate Adjustments 146

Inland Revenue Ordinance and Case Law 147

Permanent Establishment Considerations 150

Applying the Arm’s Length Principle 151

Four Steps 153

Functional Analysis 153

Comparability Analysis 154

Determining Comparability 155

Functions, Assets, and Risks 155

Contract Terms 157

Economic and Marketing Circumstances 158

Business Strategies 158

Global Price Lists 159

Establishing the Reliability of the Data 160

Transfer Pricing Methodologies 160

Sources of Profi ts and Income 162

Abusive Tax Schemes 163

Transfer Pricing Schemes 164

Transfer Pricing Documentation 166

Intragroup Services Arrangements 169

Deduction of Expenditures Paid for Intragroup Service 170

Determining the Amount of Intragroup Charges 171

Services Provided by a Permanent Establishment 173

Notes 174

Chapter 9 Hong Kong Challenges Abusive Tax Schemes 175

Macroeconomic Issues 176

Abusive Tax Schemes 177

Transfer Pricing Schemes 178

Lack of “Economically Significant Functions” 179

How the Hong Kong Government Combats Abusive Tax Schemes 179

Extreme Forms of Tax Abuse 180

Distinguishing Tax Avoidance from Tax Evasion 180

How the Reinvoicing Structure Operates 181

Shifting Intangible Property: The Tax Perspective 182

Notes 184

Chapter 10 Winning Hong Kong’s Landmark Transfer Pricing Case 185

Ngai Lik Litigation 185

Hong Kong’s Advance Ruling Determinations 186

Hong Kong Issues Transfer Pricing Guidelines 186

Statutory Provisions 187

Determination by the Court of Final Appeal 188

The Commissioner’s Determination 188

Determination by the Board of Review 189

Determination by the Court of First Instance 189

Determination by the Court of Appeal 190

The Case before the Court of Final Appeal 191

Deficiencies in the Scheme as to Additional Annual Bulk Discounts Received by Din Wai Electronics Limited 192

Deficiencies in the Scheme as to Manufacturing Profits 193

Deficiencies in the Scheme as to the Relevant Years of Assessment 196

Are the Scheme and the Tax Benefit Still Viable Bases for Section 61A Assessments? 196

Is There a “Tax Benefi t” within the Meaning of Section 61A? 197

The Narrower Scheme and the Narrower Tax Benefit 197

Dominant Purpose of the Narrower Scheme 198

Board of Review’s Approach 199

Ribeiro’s Dominant Purpose of the Narrower Scheme 200

Commissioner’s Assessment Power 202

Commissioner’s Exercise of the Section 61A(2) Power 202

Board’s Approach to the Exercise of the Section 61A(2) Power 203

Disposal of the Appeal 203

Notes 204

Chapter 11 Transfer Pricing Litigation in India 205

Background 205

Transfer Pricing Chronology and Administration 206

Related Parties 207

Transfer Pricing Method Selection in India 208

Contemporaneous Documentation in India 209

Audit Procedures 210

Penalties 211

Appellate Procedures 212

Transfer Pricing Litigation 213

Vodafone: Hutchison Essar Acquisition 215

Notes 215

Chapter 12 PE Issues Impact Indian Transfer Pricing 217

Background 218

Nexus, Effectively Connected Status, and Permanent Establishment 218

Four Fact-Based Permanent Establishment Inquiries 219

Impact of the Morgan Stanley Case 220

Permanent Establishment Transfer Pricing Litigation in India 220

Galileo 221

Hotel Scopevista 222

WorleyParsons 223

KnoWerx Education 223

ICICI Bank 224

Zimmer AG 225

Intergrafica 226

Ranbaxy Laboratories 226

Development Consultants 227

Perfitti 228

Data Software Research 229

SNC Lavalin /Acres Inc. 229

Airport Authority of India 230

Radha Rani Holdings 231

Mashreq Bank PSC 232

Mentor Graphics (Noida) Pvt. Ltd. 232

Millennium Infocom Technologies Ltd. 233

Van Oord ACZ India 233

Tokyo Marine & Fire Insurance Co. Ltd. 234

Western Union Money Transfer 235

Cargo Communities Network 235

Hyundai Heavy Industries 235

E. Gain Pvt. Ltd. 236

Infosys International Activities in New York State 236

Chapter 13 Taxation of Travel Services in India 239

Sabre 240

Galileo 243

Installed Hardwire 245

Notes 245

Chapter 14 Transfer Pricing in Indonesia 247

Historical Background 247

Transfer Pricing Considerations 248

Special Attachment 249

Chapter 15 Japan’s Directive on Transfer Pricing Operations 251

Background 251

Regulations and the Examples—How They Differ 252

Operation of the Japanese Transfer Pricing Administrative Guidelines 253

Chapter 1: Defi nitions and Basic Policies 253

Chapter 2: Examination 254

Chapter 3: Points to Note in Calculating Arm’s Length Prices 269

Chapter 4: Treatment of Foreign Transferred Income 272

Chapter 5: Advance Pricing Arrangements 274

Notes 288

Chapter 16 Selecting the Arm’s Length Price in Japan 289

Background 290

Demonstrating the Selection of Arm’s Length Price 290

Selection of the Method of Calculation of Arm’s Length Price 290

Case 1: Use of the Comparable Uncontrolled Price Method 291

Case 2: Use of the Resale Price Method 299

Case 3: Use of the Cost Plus Method 301

Case 4: Methods Consistent with the Comparable Uncontrolled Price Method 303

Case 5: Methods Consistent with the Cost Plus Method 307

Case 6: Transactional Net Margin Method 311

Case 7: Contribution Profi t Split Method 316

Case 8: Residual Profi t Split Method 320

Case 9: Adjustment for Differences 323

Notes 325

Chapter 17 Applying Japanese Intangible Transfer Pricing Methods 327

Case 10: Intangibles Created by R&D and Marketing Activities 328

Case 11: Distribution Channels and Quality Control Know-How 333

Case 12: Know-How Accumulation through Human Resource Business Activities 335

Case 13: Contributions to Create, Maintain, and Develop Intangible Properties 339

Case 14: A Company Bearing only the Cost of Creation of the Intangible Properties 341

Case 15: Intangible Properties for Employees on Loan 343

Chapter 18 Japanese Profi t Split Transfer Pricing Methods 345

Case 16: Applying the Profi t Split Method to a Series of Foreign-Related Transactions 346

Case 17: Excluding Transactions from the Profit Split Method 349Contents xiii

Case 18: Calculation of the Profi t to Be Split 352

Case 19: Differences in Labor Costs Impact the Residual Profit Split Method 358

Case 20: Treatment of Market Fluctuations 361

Case 21: Calculation of Basic Profi t 364

Case 22: Factors for Splitting the Residual Profit 367

Chapter 19 Japanese Guidelines Address Diverse Transfer Pricing Issues 373

Case 23: Determining Whether Services Provide Commercial Value 373

Case 24: Multiple-Year Considerations 377

Case 25: Establishing the Target Profit Margin 380

Case 26: Critical Assumptions 384

Chapter 20 Malaysia Advance Ruling Guidelines 387

General Facets of the Advance Ruling Procedure in Malaysia 388

Binding Nature of an Advance Ruling 388

Scope of the Advance Ruling Request 389

Circumstances in Which Malaysia Tax Authorities Will Not Issue an Advance Ruling 390

Circumstances in Which the DGIR Can Decline to Issue an Advance Ruling 391

Notice Requirements 392

Advance Ruling Application Procedure 392

Advance Ruling Application Form 393

Information Request Requirement 394

Issuance of the Advance Ruling 394

Advance Ruling Finality and Disclosure 395

The DGIR Can Withdraw the Advance Ruling 396

Situations in Which the Advance Ruling Ceases to Apply 396

Fee Structure 397

Internal Procedure 397

Notes 397

Chapter 21 Malaysia Transfer Pricing Guidelines 401

Introductory Provisions 401

Malaysian Transfer Pricing Procedure 402

Application of the Arm’s Length Principle 403

Malaysia’s Transfer Pricing Regime 403

Comparability and Transfer Pricing 404

Transfer Pricing Alternatives 407

Comparable Uncontrolled Price Transfer Pricing Method 407

Resale Price Transfer Pricing Method 409

Cost Plus Transfer Pricing Method 411

Additional Transfer Pricing Methods 413

Profit Split Transfer Pricing Method 414

Residual Analysis Example 415

Transactional Net Margin Method 418

Intangible Property 419

Transfer Pricing Services Regulations 420

Documentation 421

Malaysia Issues Advance Rulings Guidelines 423

General Facts about of the Advance Ruling Procedure in Malaysia 423

Binding Nature of an Advance Ruling 424

Scope of the Advance Ruling Request 425

Advance Ruling Application Procedure 427

Advance Ruling Application Form 428

Information Request Requirement 429

Issuance of the Advance Ruling 429

Advance Ruling Finality and Disclosure 431

The DGIR Can Withdraw the Advance Ruling 431

Situations in Which the Advance Ruling Ceases to Apply 432

Fee Structure 432

Internal Procedure 433

Notes 433

Chapter 22 New Zealand Transfer Pricing Developments 439

New Zealand Transfer Pricing Guidelines 440

Initial Developments 440

Arm’s Length Principle and the Pricing Methods 441

Basics of the Transfer of Intangible Property 442

Profit Split Method and the Joint Ownership of Intangible Property 443

Profit Split Method 444

Residual Profit Split Analysis 444

Transactional Net Margin Method 445

Market Penetration Techniques 445

Australia’s Four-Step Process to Ascertain the Arm’s Length Approach 446

Documentation 446

Documentation and the Burden of Proof Rule 447

Inland Revenue Seeks to Ascertain the Risks to the Revenue 447

Retention of Records 448

Transfer Pricing in Countries without a Double Tax Agreement 449

Intangible Property Audits 450

Trade Intangibles and Marketing Intangibles 450

Ascertaining the Arm’s Length Amount for Intangible Property 451

Ascertaining the Ownership of Intangible Property 451

Factors in Ascertaining the Nature of Intangible Property 452

Terms and Conditions of the Intangible Property Transfer 453

Valuing Intangible Property 454

Non-Owner’s Marketing Activities 454

Applying the Profi t Split Method to Intangible Property 455

Intangible Property Planning 456

Chapter 23 Philippine Transfer Pricing Regulations 457

Scope of the Philippine Provisions 458

Philippine-Specific Provisions 458

Chapter 24 Singapore Implements Advance

Pricing Arrangement Procedure 461

Objectives of the Supplementary Circular 462

What the Supplementary Circular Provides 462

Minimum Information Requirements 462

Considerations for Accepting the APA 463

Pre-Filing APA Process 464

Formal APA Submission Procedures 466

APA Review and Negotiations: Considerations and Requirements 467

APA Roll-Back 468

Discontinuation of the APA Process 469

Nonsubmission of the APA Application 469

Insuffi cient Level of Support during the APA Process 470

Absence of Communication 470

Effective Date 471

Notes 471

Chapter 25 Singapore Transfer Pricing Consultation Process 475

Background 475

Objectives of the Transfer Pricing Consultation 476

Issuance of the Transfer Pricing Questionnaire 476

Transfer Pricing Consultation 477

Transfer Pricing Questionnaire 478

Notes 480

Chapter 26 Singapore Transfer Pricing Guidelines 481

Key Concepts and Arm’s Length Principles 482

Three-Step Approach 483

Comparison of Economically Signifi cant Functions 483

Comparable Uncontrolled Price Method 484

Transfer Pricing Method Selection 484

Transfer Pricing Documentation 488

Mutual Agreement Procedures 490

Advance Pricing Agreements 491

Comments 491

Notes 491

Chapter 27 Singapore Transfer Pricing Guidelines for Related Party Loans and Services 493

Transfer Pricing Guidelines for Related Party Loans 494

Two Loan Categories 494

Facts and Circumstances to Determine Comparability Analysis 496

Transfer Pricing Guidelines for Related Party Services 497

Direct Charging versus Indirect Charging of Services 499

Ascertaining the Arm’s Length Fee 500

Routine Services and the 5% Markup 500

Cost Pooling Contracts 503

Strict Cost Pass-through 504

Documentation 505

Notes 506

Chapter 28 South Korea Transfer Pricing 507

Background 507

Related Party Transfer Pricing Relationships in Korea 508

Computation of Indirect Ownership 509

Economic Interest and Control 509

Transfer Pricing Method Alternatives 510

Information Requests and Documents 512

Transfer Pricing Audits 514

Permanent Establishment, Competent Authority, and Advance Pricing Agreements 515

Thin Capitalization and Tax Havens 515

Applying the “Most Reasonable Method” Standard to Determine Arm’s Length Price 516

Underpayments and Overpayments 517

Selecting Transfer Pricing Methods 517

Reporting Methods for Determining Arm’s Length Price 518

Advance Pricing Arrangements 518

Sanctions Imposed on Failure to Comply with the Data Request 520

Penalties 520

Thin Capitalization Rules 521

Debt under an Arm’s Length Situation 522

Anti–Tax Haven Rules 522

Scope of the “Tax Haven” Jurisdiction 523

Computation of the Reserved Income Distributed Amount 524

Gift Tax on Property Located Outside Korea 524

Mutual Agreement Procedure 525

International Tax Cooperation 525

Note 526

Chapter 29 Sri Lanka Transfer Pricing 527

Associated Undertakings 528

Arm’s Length Price 528

Documentation 529

Threshold for Applying Sri Lanka Transfer Pricing 529

Advance Pricing Agreements 530

Burden of Proof 530

Implementation 530

Annex 1: Test of Control—Associated Undertaking 530

Annex 2: Arm’s Length Pricing Methodologies 531

Annex 3: Appropriate Pricing Methodology—Factors to Consider 536

Annex 4: Comparability of an Uncontrolled Transaction—Factors to Consider 536

Annex 5: Prescribed Documentation 537

Suggested Supporting Documents 538

Chapter 30 Taiwan Transfer Pricing 539

Enactment of the Transfer Pricing Statute 539

Transfer Pricing Regulations 540

Chapter 31 Thailand Transfer Pricing 547

Transfer Pricing Booklet 548

Part 1: Tax Legislation Impacting Transfer Pricing 548

Revenue Department of Thailand Departmental Instruction Paw 113/2545 549

Part 2: Methodologies in Calculating Market Price 554

Part 3: Process in Establishing the Market Price 554

Process of Establishing the Market Price 556

Guidelines on the Determination of Market Price 557

Chapter 32 Vietnam Transfer Pricing 559

Expansive View of Related Party Ownership 560

Transfer Pricing Methods 560

Documentation Requirements 561

Compliance Considerations 561


Chapter 33 Services Transfer Pricing in Hong Kong and in Singapore 567

Services Transfer Pricing in Hong Kong and in Singapore: Basic Comparison 567

Hong Kong Services Transfer Pricing Methods 568

Shareholder Activity and Stewardship Functions 569

Financial Services Audit Example 570

Deduction of Expenditures Paid for Intragroup Services 570

“Objective Commercial Explanation” Standard 571

Determining the Amount of Intragroup Charges 572

Services Provided by a Permanent Establishment 573

Scope of Activities for Related Party Services in Singapore 574

Singapore Transfer Pricing Services Guidelines 575

Direct Charging versus Indirect Charging of Services 576

Ascertaining the Arm’s Length Fee 577

Routine Services and the 5% Markup in Singapore 577

Cost Pooling Contracts 580

Cost Pooling versus Pass-Through Allocation Alternatives 582

Documentation 583

Notes 583

Chapter 34 Permanent Establishment Parameters: Hong Kong versus India 585

General Permanent Establishment Considerations 586

Permanent Establishment Considerations in India 586

Permanent Establishment Considerations in Hong Kong 588

Chapter 35 Pacific Tax Administrators Coordinate Transfer Pricing Documentation 591

Background 591

PATA Provisions 593

Three Operative Principles 594

Specifi c Mandatory Documentation 596

Notes 603

Chapter 36 Shared Services and Cost Pooling Arrangements in the United States and Singapore 605

Historical Background 606

Explanation of the Shared Services Arrangement Provisions 606

Shared Services Arrangements 608

Services Cost Method Examples 611

Singapore Shared Services Arrangements 620

Notes 622

Chapter 37 South Korea–Japan Bilateral Investment Treaty 623

Background 623

U.S. Involvement in BITS 624

Arbitration 624

ICSID Arbitration 624

Treaty Shopping within the Bilateral Investment Treaty Context 625

Tax Provisions within the Korea–Japan Bilateral Investment Treaty 626

Chapter 38 China–Taiwan Trade 629

Taiwan and China: A History Lesson 629

Economic Considerations 630

One-China Policy 630

Economic Cooperation Framework Agreement 631

Tax Considerations 632

Choice of Transfer Pricing Method 633

Functional Analysis 634

Analysis of the Production Activities 634

Fact Pattern 635

Accounting and Tax Operations 635

Permanent Establishment 636

Taiwanese–Chinese Electronics Company 636

Transactional Profi t Split Method Criteria 637

Most Appropriate Transfer Pricing Method 637

Allocation Key System 637

Strong Correlation Standard 638

Selecting among Allocation Keys 638

APA Process 640

Notes 640

Chapter 39 Malaysia–Singapore Allocation Keys 643

Importance of Allocation Keys 643

Selection of the Real Estate Leasing Example 644

When the Transactional Profit Split Method Is the “Most Applicable” Transfer Pricing Method 644

Specialized Services 645

Applying the Transactional Profit Split Method 646

Four Allocation Keys Categories 647

Key Functions 647

Selecting Potential Allocation Keys 648

Residential Condominium Leasing Example 648

Residential Condominium Database 650

Selecting among Allocation Keys 650

“Strong Correlation” Standard 651

Allocation Keys 652

Transfer Pricing Strategies 656

Corporate Tax Strategy 657

Malaysia’s Tax Strategy 657

Notes 658

Chapter 40 Permanent Establishment Parameters 659

OECD’s Permanent Establishment Provisions 660

Consequences of Permanent Establishment Status 660

Consequences of a Permanent Establishment to Business 661

Transfer Pricing and Permanent Establishment 661

Overall Tax Considerations 662

Potential for the Imposition of Two Levels of Taxation 662

OECD Approach to Determine Permanent Establishment 663

Hong Kong Applies the OECD Permanent Establishment Provisions 663

How Hong Kong Applies the Permanent Establishment Provisions 664

Common Law Permanent Establishment Criteria 665

Direct Activities 665

Agency Relationships 666

Shareholder Activities in Subsidiaries’ Locations 667

Presence of Personnel Shifts among Entities 668

Entirety of the Operations 668

Declining Businesses 668

“Preparatory to” and “Auxiliary from” Exemptions 669

Time Spent 669

Will the OECD Approach Prevail? 669

Notes 670

About the Authors 671

Index 673