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Overview of the 2010 Conference:
Prepared by PricewaterhouseCoopers, India
December 2010
Introduction
The Foundation for International Taxation hosted its 16th Annual International Taxation Conference in
Mumbai on December 2-4, 2010. The theme of the Conference was to discuss and deliberate on
resolution of international tax disputes with special sessions on treaty and transfer pricing disputes
and their prevention. Other topics included international tax structuring for investing abroad in
selected countries, and recent international tax and tax treaty developments. The conference also had
a lively discussion on the proposed Direct Taxes Code (DTC) with comments from members of the
DTC Tax Force set up by CBDT in India. The conference also brought together world experts on
international taxation to provide a better understanding of global international tax practices,
developments and trends. It attracted more than 500 delegates from over 25 countries, and included
senior officials from both Indian and foreign tax administrations.
The Conference came at a time when the subject of international taxation is gaining in importance in
India, both among revenue officials and taxpayers. Moreover, in June 2010, a Revised Discussion
Paper on proposed DTC was issued for public comments where eleven major issues raised by
various stakeholders were addressed. Subsequently, in August 2010, the DTC Bill was introduced in
the Parliament. It has generated tremendous interest not only amongst domestic taxpayers and
professional fraternity but also globally.
The Conference was organised around a number of technical sessions. Each session was chaired by
an eminent personality in the field of international taxation and included presentations on relevant
topics followed by serious debate and discussion.
Highlights of Day One
[ Proposed Direct Tax Code In India | International Tax Structuring for Investing abroad ]
Highlights of Day Two
[ Tax Dispute Resolution | Country Experience ]
Highlights of Day Three
[ Transfer Pricing | Recent Developments in Model Treaties and International Tax Developments | Transfer Pricing Issues ]
Highlights of Final Session
[ Final Session | Comments ]
HIGHLIGHTS OF DAY ONE
Proposed Direct Tax Code in India
An update on the proposed DTC in India marked the beginning of the Conference. It was chaired by
Mr. Dinesh Kanabar, Deputy CEO and Chairman, Tax, KPMG, India. The speakers were assigned
specific topics for their comments. In addition Mr Sunil Gupta and Ashutosh Dikshit of the DTC Task
Force were present to give their views and answer comments. The Chairman gave a brief background
of the DTC journey so far and highlighted some of the key concern areas. After introducing the
speakers, he invited Sunil Gupta and Ashutosh Dikshit to discuss in general the Government
perspective and policy framework. This was followed by a presentation by each speaker with
government response to various issues raised by them and a concluding question and answer
Mr. Gupta & Mr. Dikshit shared the Government perspective and policy framework for DTC. They
touched upon the issues which primarily affected domestic taxpayers but were also relevant for
international tax payers.
Mr. K R Sekar summarised some interpretational issues on key treaty related issues including Treaty
Override, General Anti Avoidance Rules (GAAR), Controlled Foreign Company (“CFC”) Rules, Branch
Profit Tax (“BPT”), and residential status based on place of effective management (“POEM”).
Mr. Rahul Garg spoke on impact on taxation of foreign companies. He mentioned the possibility of
them becoming liable for Dividend Distribution Tax (“DDT”) if they became resident in India under the
DTC. He further highlighted some practical concerns relating to Branch Profit Tax. For example,
should the taxation be restricted to only a “branch” under the company law or should it also be applied
to a “permanent establishment” under a treaty? In case of foreign companies that are taxed on a
deemed profit basis or at deemed rate of tax (e.g. companies in certain industries such as oil and gas,
power etc.), would the presumptive tax computed also includes BPT?
Mr. Gautam Doshi spoke on the anti-avoidance rules under the DTC. He mentioned that the concept
of GAAR was not new to India since India already had a judicial anti-avoidance rule, like some other
jurisdictions. The DTC proposes to bring this concept into statute. Concerns were expressed over the
subjectivity of the criteria and the lack of clarity as regards the circumstances in which the GAAR
provisions would apply.
Mr. Mukesh Butani mentioned likely transfer pricing issues and their resolution. In his view the
introduction of Advanced Pricing Agreement (“APA”) was among the most important changes in the
tax law today. However, DTC only provides for unilateral APA. He recommended the introduction of
bilateral or multilateral APA at least in case of countries which have substantial transactions with
India. With respect to transfer pricing disputes, he also covered certain practical recommendations for
fast track dispute resolution, including granting Dispute Resolution Panel (“DRP”) powers for
negotiated settlements, and a stronger Mutual Agreement Procedure (“MAP”) process to reduce
transfer pricing disputes.
Mr. S. Mahalingam gave an Indian multinational corporation (“MNC”) perspective on the DTC
proposals. He mentioned that the concerns of Indian multinationals should be considered while
formulating the new legislation. He made some observations with respect to certain key proposals
affecting the Indian MNC. For example, whether holding one board meeting of the overseas entity in
India could result in the satisfaction of the Place of Effective Management (“POEM”) criteria? CFC
was another issue which will have significant implications on Indian companies acquiring or setting up
an overseas company.
The session closed with a concluding question and answer session.
International Tax Structuring For Investing Abroad
This session saw experts from investment destinations of Latin America (Brazil. Chile and Colombia),
CIS countries and India make presentation on key features of their tax systems and various
structuring considerations that need to be borne in mind when investing there.
Mr. Battendieri began the session with a presentation on ‘Investing in Brazil – Tax Overview’. He
commenced the presentation by discussing certain key factors of the Brazilian economy and
mentioned that it has a stable economy. He presented an overview of the Brazilian tax system. The
taxation laws in Brazil are well developed. Brazil has entered into 29 double tax treaties that include
several Asian countries including India. Some features of the Brazilian Tax system are the exemption
granted by Brazil on dividends; and the rate of 15% withholding tax applicable to interest, royalties,
technical services, technical assistance and capital gains, except in cases where the beneficial
owners are domiciled in tax havens. In the latter case, a withholding tax rate at 25% is applied. The
corporate income tax rate is approximately 25% plus a social contribution tax on profits of 9%. The
two methods of Corporate Income Taxes (“CITs”) were explained. They are (a) Presumed Income
Method (Lucro Presumido) and (b) Actual Income Method (Lucro Real). Mr. Battendieri concluded his
presentation with a case study on how an Indian business process outsourcing (BPO) company can
invest in Brazil tax efficiently.
Jorge Espinosa from Chile made a presentation on ‘Holding Companies Developments in Chile’.
Recently, Chile became OECD’s 31st member (and the first in South America) with the accession
agreement signed on January 11th, 2010. He mentioned that Chile has become a preferred holding
company jurisdiction due to unique features of the Chilean economy and its tax regime. Chile
provides an attractive “investment platform” for foreign investors that allows foreign investors in Chile
to administer investments in third countries without having to pay Chilean income tax on earnings
from these investments. Mr. Espinosa highlighted that the holding company will not be taxed on the
dividends received from non-resident affiliates and on gains realized on the sale of the shares of nonresident
affiliates.
Mr. Benjamin Cubides Pinto gave a detailed presentation on taxation in Colombia. His talk described
the different forms of business organizations (corporate and non-corporate) permitted in Colombia
and an overview of the Colombian Tax System. The general Colombian tax system applies to
corporations, whereas the simplified system is applicable to individuals who run small businesses.
The reforms in the Colombia's tax structure provide several tax advantages, making Colombia a
promising investment destination. For example, no general anti-avoidance rules, tax neutral mergers
and spin-offs, no controlled foreign corporation rules and tax-free capital returns were some of the
features of the Colombian tax laws. Summarizing the applicable tax rates, he mentioned that the
withholding tax rate in Colombia for dividends is nil if taxed at corporate level. The royalties and
technical assistance are taxed at 33%, while the tax rate on technical and consulting services is 10%
(whether provided in Colombia or abroad). To conclude his presentation, Mr. Pinto presented a case
study of an Indian business process outsourcing company investing in Colombia.
Mr. Vladimir Gidirim made a presentation on ‘Investing in CIS Countries’ with special focus on Russia.
He mentioned that, the Russian economy has remained stable and progressed well to recover from
the global financial downturn in 2008. He outlined the key features of the tax regime in Russia. For
example, the Russian system is well-designed to welcome foreign investments and provides many
opportunities for inbound investments. Further, the tax system is still evolving with new concepts and
issues emerging in international taxation. The presentation also focussed on the general tax
considerations for inbound investments, outbound investments and taxation on income repatriation.
The final presentation of the session was by Mr. Sudhir Kapadia. He discussed the potential impact of
the proposed DTC provisions on outbound investments from India. He emphasized that the
modifications of the tax residence rule and the introduction of CFC were the key proposals impacting
outbound transactions. However, the term Place of Effective Management (POEM) does not consider
the “degree of permanence” as an essential criterion. It was necessary to emphasize and differentiate
regular “commercial” decisions from “strategic” management decisions. The concept of residence rule
under POEM and CFC and his concerns were further explained with the help of case studies. To
conclude, Mr Kapadia mentioned that they require further clarity. Further, the proposed CFC rules
may deny foreign investments to lawfully avoid overseas (e.g. non-Indian) taxation or to set up
holding companies for non-fiscal reasons, such as technology protection, acquisition or transfer, or
acquiring market share or for financial structuring.
The proceedings for Day One concluded with the sponsored session. It covered the following
presentations: (i) Jersey Finance on ‘Funds and Listing Vehicles’; (ii) Madeira-SDM/Dixcart on the
‘Use of Madeira Companies for Investing in the European Union’, and (iii) Isle of Man Department of
Economic Development on “IOM as a Low-tax European Jurisdiction”.
HIGHLIGHTS OF DAY TWO
Tax Dispute Resolution
The Conference began with remarks on trends in Tax Dispute Resolution by the session Chairman
Mr. Sohrab Dastur, Senior Advocate in India. This session featured presentations by Jerome Libin,
Partner, Sutherland Asbill & Brennan, United States, Professor Kees van Raad from International Tax
Center, Leiden (The Netherlands), and Dave Hartnett, Head of Tax, H. M. Revenue & Customs,
(“HMRC”), United Kingdom on current global scenario in Tax Dispute Resolution.
Mr. Libin, the “Klaus Vogel” (keynote) speaker for this year’s FIT conference, presented insights on
various alternatives to resolve tax dispute resolution. Given the substantial increase in litigation on
account of cross-border trade and ever-increasing complex transactions, he discussed the possibility
of exploring alternative dispute resolution mechanisms, such as APAs for transfer pricing disputes,
and speedy and effective conclusion of mutual agreement procedures (MAP). He concluded that the
way forward could be to make settlement by negotiation at relatively early stages of the dispute based
on the ‘hazards of litigation’ principle, as presently done in US. His presentation drew upon important
international examples of effective dispute resolution mechanisms.
Professor Raad, in his presentation, dealt with the specific aspects of arbitration under tax treaties. He
laid out the fundamental aspects of the “arbitration framework” under the Organisation for Economic
Co-operation and Development (“OECD”) Model Update 2008 and considered it to be a step in the
right direction. He was of the view that countries should proactively consider including arbitration in
their tax treaties to enable international businesses to achieve tax certainties. However, he noted that
legal and administrative complexities of the arbitration system may deter developing countries from
adopting this approach.
In the final presentation of the session, Mr. Hartnett provided his perspective of the key objectives that
should form part of any tax administration’s policy, e.g. enhancement of revenues, reduction in
collection costs and increase in customer (i.e. taxpayer) satisfaction. He reflected on the nonconfrontational
and collaborative approach adopted by the HMRC in the United Kingdom to achieve
tax settlements that could serve as an example for other tax administrations. The exchange of legal
opinions between taxpayers and tax administration and resolution of disputes by mutual agreement
were some of the points made by the speaker.
The session closed with a brief question and answer session and Chairman’s comments on the need
to learn and implement international dispute resolution mechanisms by various jurisdictions.
Country Experience
In the afternoon session, dispute resolution mechanisms in selected countries were discussed by
eminent speakers. With the increase in tax disputes worldwide and unreasonable amounts of time,
effort and money being spent on such litigation, alternative forms of dispute resolution were
necessary to foster cross-border trade and to attract foreign investment.
The session was chaired by Mr. Jairaj Purandare, Executive Director and Leader – Markets and
Industries, PwC in India. The session featured presentations by Mr. R. A. Easwar, President, Income
Tax Appellate Tribunal, India and Mr. Porus Kaka, Senior Advocate, India on Indian experiences in
tax litigation. Foreign speakers were Ms. Carmel Peters, Policy Advice Division, Inland Revenue, New
Zealand and Mr. Marc Levey, Partner, Baker & MacKenzie, United States. They shared experiences
of their respective countries on the subject.
Mr. Easwar’s presentation described the Indian judicial system affecting taxation and how it facilitates
tax dispute resolution. He described the hierarchical system of the Indian judiciary, and the rules of
consistency and alternatives available to the taxpayer for dispute resolution. In the context of crossborder
transactions, he mentioned that the Indian courts have increasingly placed emphasis on
international tax commentaries, protocols and memoranda of tax treaties and foreign court decisions
while delivering their decisions. His presentation gave an insight of the Indian judiciary approach on
the dispute resolution process.
Carmel Peters shared the dispute resolution mechanisms employed by the Inland Revenue in her
country. It provided an option that could be employed in the Indian context, namely “the Formal
Dispute Process” which was mandatory in New Zealand (unlike the DRP in India). The session also
stressed the need to migrate from the regime of unilateral APAs advocated by the DTC to a regime of
bilateral APAs.
Mark Levey described the dispute resolution process in the United States that could be considered by
India. He mentioned that as an alternative dispute resolution mechanism the “fast track appeal
process” was very popular in the United States; hence, only on rare occasions taxpayers access
traditional judicial forums. As regards results, there was no material difference in the dispute
resolution that they achieved vis-à-vis the traditional court system. It also instils taxpayer confidence
in alternative forums and avoids protracted and expensive litigation. Mark suggested India should
consider the adoption of similar tax conflict methodologies to achieve timely resolution.
Mr Porus Kaka took a critical view towards the current Indian dispute resolution system which he said
was time-consuming and costly. Hence, it required significant reform. He observed that Indian tax
administration was now more knowledgeable on international taxation aspects. This knowledge
should help achieve greater understanding of the practical difficulties faced by both the taxpayers and
tax administrators on tax issues affecting global transactions. It should also help in more efficient tax
dispute resolution in India.
The proceedings of Day Two concluded with a lively panel discussion led by Marc Levey. The other
panellists were Dave Harnett, Mary Bennett and Anita Kapur. The views on some of the new
approaches towards Treaty Dispute Resolution and how to make them more effective were sought
from the panellists. It was generally felt by foreign panellists that mandatory arbitration, if implemented
constructively, could be an effective tool to minimise time spent on the MAP process to resolve tax
disputes, despite several practical problems (e.g. taxpayer’s right in such process, fairness of the
outcome, availability of neutral arbitrators, etc.). This view was disputed by Anita Kapur, who felt that
mandatory arbitration was not workable in developing countries.
HIGHLIGHTS OF DAY THREE
Transfer Pricing
Day Three began with a high level panel discussion session on transfer pricing dispute resolution
mechanisms with tax experts from India and the United States. It was led by Mr. Mukesh Butani from
India. The other panel members were Mr. Jerome Libin and Mr Marc Levey (eminent lawyers from
the United States), Mr. Vijay Mathur (ex Competent Authority in India) and Mr. R.N. Dash (Director
General of International Taxation, India). The discussion covered recent transfer pricing disputes and
resolution mechanisms in Indian transfer pricing audits and the international experience of foreign
panellists. (For details see Report)
The Conference concluded with a panel discussion on “Recent International Taxation Developments
in India” by selected speakers and delegates. It was chaired by Mr T P Ostwal and moderated by Mr
Arun Anandgiri of Bloomberg UTV for subsequent broadcast on their TV channel. The discussion
covered the following developments: (i) The Vodafone Case (ii) Taxation of Packaged Software, (iii)
Withdrawal of CBDT Circular 23/1969, and (iv) ITAT Mumbai decision on the Linklater Case. Mr
Moorthy pointed out a new development. There was now a certain level of certainty at least from the
tax administrator's perspective. The exploitation of an asset in India was a crucial factor affecting
taxability of non-residents in India.
To cater to a wider audience, concurrent sessions were then held on (a) Recent Developments in
Model Treaties and International Tax Developments, and (b) Transfer Pricing Issues.
Recent Developments in Model Treaties and International Tax Develpments
The morning session featured presentations by Ms Mary Bennett, Head of Division, Tax Treaty,
Transfer Pricing & Financial Transactions Division, OECD, Paris and Mr Dick Molenaar, Partner, All
Arts Tax Advisors, The Netherlands. The session was chaired by Pranav Sayta, Partner, Ernst &
Young, India.
Mary Bennett gave her expert views on the new OECD rules for profit attribution to permanent
establishments (‘PE’) under Article 7 of the OECD Model Treaty. With increasing litigation amongst
states to allocate and tax profits of PE, she stated that the new ‘distinct and separate’ enterprise
approach suggested by OECD should provide significant guidance to taxpayers. Other aspects
regarding profit attribution to dependant agent PE, purchasing function, etc. were also highlighted by
her.
With his significant experience on the subject, Dick Molenaar provided his expert views on taxation of
artistes and sportsmen. He mentioned the landmark international tax rulings and laws in different
countries (e.g. Netherlands, India, etc). He also highlighted various aspects that the current OECD
Commentary under Article 17 needs to consider for providing technical depth and relevant guidance
on this subject.
The afternoon session chaired by T.P. Ostwal, Senior Partner, T.P. Ostwal and Associates, India,
featured presentations by various panellists on recent International tax developments in US, Europe,
Asia and India, as follows:
Mr. Alan Granwell, former International Tax Counsel and Director, Office of International Tax Affairs at
the US Department, provided his expert comments regarding current developments in US tax
legislation pertaining to the doctrine of economic substance and taxation of guarantee fees. He also
referred to the recently introduced legislation, the Foreign Account Tax Compliance Act (FATCA).
This Act requires foreign financial institutions to provide tax-related information about US residents.
Given these recent US tax developments, he advised that caution should be exercised by taxpayers
in structuring transactions relating to the US.
Prof. dr. Frans Vanistendael, Academic Director IBFD, The Netherlands, provided an overview of the
recent tax developments at the European Union (EU) level as well in the Member States. He
highlighted the issues faced by the European Union and the way forward. He then briefly discussed
some recent decisions passed by the European Court of Justice and tax reforms undertaken by the
Member States. He concluded by saying that the taxpayers need to keep themselves abreast of the
developments in the EU tax legislation and tax rulings when doing business with Member States.
Pieter de Ridder, tax partner at Loyens & Loeff’s office in Singapore, made a presentation on tax antiavoidance
rules in Asia (excluding India) at the conference. He highlighted the tax measures recently
introduced by China and Indonesia. He concluded by suggesting that the taxpayers may have to
reorganize their business and make future decisions based on the changed tax and regulatory
environment in these jurisdictions.
Mr. Hitesh Gajaria, Executive Director, KPMG India, spoke on the recent international tax
developments in India. He discussed some of the recent judicial pronouncements impacting
multinationals conducting business in India. Further, he discussed the withdrawal of certain
benevolent circulars by Indian income-tax authorities and India’s continuing policy of signing
exchange of information agreements with international financial jurisdictions. He suggested that it
would be in the interest of both the Government and taxpayers to bring clarity in the tax laws to
reduce litigation and associated costs.
Transfer Pricing Issues
A full day was devoted to the discussion and presentations on Transfer Pricing Issues as a parallel
session on Day Three.
Ms. Caroline Silberztein, Head of Transfer Pricing Unit in the OECD Centre for Tax Policy and
Administration, provided her views on the numerous transfer pricing disputes worldwide and the most
common reasons for such disputes. She pointed out that the statistics from the OECD, European
Union, USA, Canada, etc. show an increasing trend of MAP cases. These cases very often dealt with
disputes on transfer pricing or attribution of profits to a permanent establishment. While the proportion
of disputes varied from country to country, India has set a record with more than forty tax decisions in
2010 on transfer pricing cases alone. In other countries, the litigation was resolved mostly at the
administrative appeal level. Ms. Silberztein pointed out the disputes, with examples, that can arise in
relation to the selection of the most appropriate transfer pricing method.
According to Ms. Silberztein, many disputes arise from (i) the use of secret comparables by tax
administrations, (ii) the aggregation or segmentation of transactions, (iii) functions, assets and risk
(“FAR”) analysis during a business restructuring, (iv) valuation of intangibles, and (v) provision of
intra-group services. While pointing out that transfer pricing disputes were increasing in number,
complexity and monetary amounts, she believed that the lack of clear guidance on transfer pricing
and the differences in interpretation of the existing guidance by the taxpayer and the tax authorities
were the most significant causes of transfer pricing disputes. She suggested that the situation can be
improved by more efficient and principled administrative mechanisms.
Mr. Al Meghji, partner, Osler. Hoskins Harcourt LLP, Canada provided a brief perspective on the
options available to the taxpayer for resolving transfer pricing disputes. While stating that the arm’s
length standard is considered to be the backbone of any transfer pricing analysis he mentioned that it
was also the bone of contention in transfer pricing disputes, Mr. Meghji pointed out that taxpayers as
well as the tax authorities tend to interpret the arm’s length standard within the parameters provided in
the OECD Transfer Pricing Guidelines. However, the interpretation of that standard varies from
jurisdiction to jurisdiction depending upon how it is construed by the judiciary of a particular
jurisdiction.
Mr. Meghji pointed out that in the transfer pricing context, the tax authorities generally review
particular transactions in isolation, without appreciating the underlying commercial and economic
reasons while the courts tend to follow an opposite approach. The courts, in interpreting the arm’s
length standard, do seek the guidance from the OECD Guidelines but in concluding on a particular
case, do not substantively rely on them. The application of arm’s length standard is often subject to
different interpretations as between the taxpayer and tax authorities, and may therefore lead to
litigation. The avenues available to the taxpayer are either to seek relief through the court process or
resort to MAP.
While the taxpayer’s attitude towards them tends to be the same, the two approaches may vary
significantly. Consequently, even though the MAP may save time and may not be as complex as
litigation, it is less transparent and more administrative in nature and would not offer the more
substantive result like the court process. Mr. Meghji concluded by saying that the taxpayer has to
weigh the two alternatives based on the facts of the case and it cannot be generalized as to which
approach is more appropriate.
The next presentation was made by Vispi T. Patel from India. He pointed out that the approach of the
Indian revenue authorities and the growth in transfer pricing adjustments made by them has made
India a leader in transfer pricing issues. He stated that after six rounds of transfer pricing audits
completed so far some of the important issues faced by the taxpayers were found to be (i) payment of
license fees for the use of intangibles, (ii) payment of management fees, (iii) charges and cost
allocation, (iv) mark-up on services rendered and (v) the use of Transactional Net Margin Method
where direct methods were applicable. He then summarized a few recent judicial pronouncements.
Mr. Patel concluded by saying that the Indian revenue authorities were becoming more stringent in
protecting their tax base and thus multinational enterprises should factor this approach while evolving
India-specific business strategies. He mentioned that a mechanical approach to transfer pricing with
emphasis only on mere quantification may not be sufficient to protect the taxpayer from transfer
pricing disputes and adjustments.
Continuing the focus on the arm’s length standard, Anuradha Bhatia, Director of Income-tax (Transfer
Pricing), Indian Revenue Services, provided her thoughts on the fact-intensive nature of transfer
pricing, APAs and the yet to be introduced safe harbour rules from an Indian Revenue perspective.
She discussed some of the important issues that were faced by them during transfer pricing audits
and which could be mitigated by proper co-operation by the taxpayer. She emphasized that the arm’s
length standard was the essence of transfer pricing legislation and it required judgment on the part of
the tax authorities. She also stressed the importance of the taxpayer providing robust documentation.
It should comprise of detailed function, asset and risk analysis as well as a scientific benchmarking
analysis. An open and honest discussion with the tax authorities would also enable the tax officer in
carrying out a proper analysis. Further, the choice of method, the selection of tested party, the
selection of comparables and the computation of Profit Level Indicators (PLIs) were enumerated by
her as being some of the points of dispute. Dispute prevention mechanisms such as safe harbour and
APAs have been proposed to alleviate the burden of such disputes. Ms. Bhatia felt that APAs and the
proposed safe harbour rules would go a long way in restoring taxpayer’s confidence if implemented in
the right spirit.
Ms. Melissa Tatton, Deputy Director, Business International at HMRC, presented the UK approach to
addressing transfer pricing risks. She informed that HMRC has developed a customer-centric
approach, by appointing Customer Relationship Managers to manage the relationship with large
taxpayers and also conduct audits with inputs from transfer pricing specialists. HMRC has put in place
a governance structure that recognizes the complexity and challenges of transfer pricing issues and is
aimed at consistency of approach and speedy resolution. Ms. Tatton also pointed out how disputes
can be minimized by dialogue with businesses, the recruitment of industry experts, the use of
independent experts and joint modeling to help determine the arm’s length price. She also felt that
while bilateral and multilateral APAs would bring about certainty in an uncertain environment, HMRC
had also looked at alternative avenues to tackle transfer pricing issues. One of the possible
approaches is the ‘joint audit’ approach wherein a joint team made up of the different tax
administrations jointly identifies issues on the basis of the same facts. Ms. Tatton concluded by
stating that HMRC, by following the above approach, has been able to resolve issues faster and more
effectively and also provide both certainties to the taxpayer and a conducive environment to do
business in the UK.
The transfer pricing session concluded with a panel discussion on prevention of transfer pricing
disputes. It was chaired by Shyamal Mukherjee, Executive Director and Joint Tax Leader, PwC in
India. The panel members discussed their experiences in the administration and implementation of
APAs and safe harbour rules. They also discussed some of the issues faced by taxpayers in
jurisdictions like USA and Germany, and shared country specific developments and the approach of
their tax authorities.
HIGHLIGHTS OF THE FINAL SESSION
Final Session
The final session comprised two panel discussions, in which Mr SSN Moorthy, Chairman, Central
Board of Direct Taxes, India presided. The first discussion was structured as a question and answer
session with the Transfer Pricing Directorate of Government of India. It was coordinated by Ms.
Anuradha Bhatia, Director of Income-tax (Transfer Pricing), and chaired by Mr. R.N. Dash, Director
General of Income-tax (International), India. The panel included senior officials from the Directorate,
who shared their perspective on key current transfer pricing issues. They provided their views on a
wide range of topics ranging from the effectiveness of the Dispute Resolution Panel to the use of a
standard set of comparables and contemporaneous data for benchmarking transactions. Mr. Moorthy,
Chairman – CBDT, concluded by saying that India was fast gaining a significant position
internationally and that many of the transfer pricing issues raised by the Indian transfer pricing officers
were today respected globally.
Comments
The Conference brought together a number of high-level speakers and delegates from various
countries and diverse backgrounds and provided a very useful forum for an exchange of viewpoints
and experiences. The result was a series of brilliant presentations, lively discussions and a brisk
exchange of ideas. Now in its 16th year, the Conference is firmly established as one of the leading
international tax conferences in Asia and perhaps the world.
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