Taxation Ruling TR 1999/1 - Transfer Pricing Network 1999-1.pdf · Taxation Ruling TR 1999/1 ......

Taxation Ruling

TR 1999/1FOI status: may be released Page 1 of 37

AustralianTaxationOffice

Taxation RulingIncome tax: international transfer pricing forintra-group services

Preamble

The number, subject heading, Class of person/arrangement, Date ofeffect and Ruling parts of this document are a 'public ruling' for thepurposes of Part IVAAA of the Taxation Administration Act 1953 andare legally binding on the Commissioner. Taxation Rulings TR 92/1and TR 97/16 together explain when a Ruling is a public ruling andhow it is binding on the Commissioner.

What this Ruling is aboutClass of person or arrangement

1. This Ruling addresses the operation of Division 13 of Part III(‘Division 13’) of the Income Tax Assessment Act 1936 (‘the ITAA1936’) and the Associated Enterprises Article of Australia’s doubletaxation agreements (‘DTAs’) with respect to charging for serviceswithin a multinational enterprise group (‘MNE group’). Specifically,this Ruling addresses the circumstances in which section 136AD ofthe ITAA 19361 or the Associated Enterprises Article of a DTA willbe applied resulting in an arm’s length consideration being deemed forservices provided between separate legal entities.

2. The Ruling is designed to assist taxpayers and ATO officers todetermine whether the prices for services or dealings with associatedenterprises more generally in relation to services conform to the arm’slength principle. Throughout this Ruling, a reference to arm’s lengthprices or charges for services means amounts to be used for taxpurposes in order to comply with the arm’s length principle. In orderto reduce compliance costs, there are circumstances in which theCommissioner is prepared to accept certain specified transfer pricesused in tax returns as a reasonable approximation of arm’s lengthprices (see paragraph 75).

3. This Ruling follows the international consensus on the arm’slength principle and its application among OECD countries expressedin Transfer Pricing Guidelines for Multinational Enterprises and TaxAdministrations, published in July 1995 (‘the 1995 OECD Report’).This Ruling reflects how the principles in the 1995 OECD Report,especially Chapter VII: ‘Special Considerations for Intra-Group

1 All subsequent legislative references are to the Income Tax Assessment Act1936 unless otherwise indicated.

Contents Para

What this Ruling is about 1

Date of effect 7

Detailed contents list 8

Ruling and Explanations 9

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TR 1999/1Page 2 of 37 FOI status: may be released

Services’, are considered to apply in the context of the relevantprovisions of the Australian income tax law. In the 1995 OECDReport there is less emphasis on attempting to list specificcircumstances in which a profit mark-up would be expected to beincluded in the price for intra-group services than was evident in the1979 OECD Report ‘Transfer Pricing and Multinational Enterprises’and in the 1984 OECD Report ‘Transfer Pricing and MultinationalEnterprises: Three Taxation Issues’.

4. The separate members of a multinational group are in thisRuling referred to as ‘associated enterprises’. Although this Ruling isframed in terms of dealings between associated enterprises, the viewsexpressed are, in general, equally applicable to non-arm’s lengthdealings between unrelated parties where those dealings may beadjusted under Division 13 (see paragraphs 50 to 53 of TR 94/14).

5. This Ruling is limited to services in the nature of workperformed including administrative, management, technical, financial,marketing, sales or distribution, research and development, and likeservices. It does not deal, in particular, with the provision of financeor insurance, nor the supply of property or facilities for use orenjoyment (e.g., leasing of equipment), all of which fall within thedefinition of ‘services’ in subsection 136AA(1) (see paragraphs 230 to237 of TR 94/14). This Ruling does not deal with cost contributionarrangements (‘CCAs’) as described in Chapter VIII of the 1995OECD Report. However, if a service arrangement does not result inany property being produced, developed or acquired, the principles inthis Ruling for dealing with intra-group services apply to thatarrangement whether it is described as a CCA or not.

6. The Ruling deals with two broad categories of intra-groupactivities. It describes those activities (‘chargeable services’) that areto be taken into account in arriving at an arm’s length distribution ofprofits among associated enterprises and those that are not(‘non-chargeable activities’). The first category includes thoseservices that are integral to the core business activities of the group.However, the Ruling concentrates on the application of the arm’slength principle to those services that facilitate the business of thegroup and are typically undertaken by a parent company or specialpurpose subsidiary for the group as a whole or for particular groups ofsubsidiary companies.

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Date of effect

7. With the modifications noted below, this Ruling applies toyears commencing both before and after its date of issue. However,the Ruling does not apply to taxpayers to the extent that it conflictswith the terms of settlement of a dispute agreed to before the date ofissue of the Ruling (see paragraphs 21 and 22 of Taxation RulingTR 92/20). The modifications are:

(a) The changes between the 1979 and 1984 OECDReports and the 1995 OECD Report (as reflected in thisRuling) on the question of whether there should be amark-up applied to costs in determining the arm’slength price for services (see paragraph 69 below)should be taken into account by ATO officers whenexamining tax returns for the 1995-96 and earlierincome years. Where the 1979 and 1984 OECDReports suggested a mark-up was not required forcertain services, a mark-up should not be insisted uponfor the relevant services supplied by taxpayers in theyears covered by those returns.

(b) The administrative practices discussed at paragraphs 75to 102 may be taken into account by taxpayers in thepreparation of tax returns for the 1997-98 and lateryears of income. Earlier returns may not be amendedby taxpayers to take account of these practices.

Detailed contents list

8. Below is a detailed contents list for this Ruling:paragraph

What this Ruling is about 1

Class of person or arrangement 1

Date of effect 7

Detailed contents list 8

Ruling and Explanations 9

Provision of services or expense allocations? 11

Domestic deduction provisions and the arm'slength principle 14

Whether services have been supplied 16

Categorisation of activities 24

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(a) non-chargeable activities 25

(b) specific benefit activities 31

(c) centralised services 33

Determining the extent of chargeable activities in practice 39

Functional analysis 39

Australian service provider 41

Australian service recipient 47

Charging on a regional basis 49

Determining the amount of the charge 54

Methods of charging for services 54

Methods for ascertaining an arm's length chargefor services 58

Comparable uncontrolled price method 60

Cost plus method 62

Profit mark-ups 69

Apportionment charges 74

Administrative practices for services 75

Conditions for the application of the administrativepractice in relation to non-core services 78

De minimis cases 86

Application 88

Interaction with arm's length methodologies 94

Documentation 103

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Ruling and Explanations

9. Multinational enterprise groups usually have internalarrangements for the provision of a wide range of services for theconstituent parts of the group. The services may be rendered by aparent company or a special purpose subsidiary, such as a regionalholding company. The costs of providing intra-group services may berecovered or accounted for by the enterprise in a number of ways.

10. With respect to services, Division 13 and the DTAs areintended to counter non-arm’s length transfer pricing or internationalmisallocation of profits that involves either undercharging (includingby not charging at all) or overcharging for such services. In generalterms, the practical effect of Division 13 and the AssociatedEnterprises Articles of Australia's DTAs is to provide for the resultthat, for taxation purposes, profits related to the cross-border provisionof services will be allocated in accordance with the arm’s lengthprinciple. The application of the arm’s length principle by thetaxpayer or the ATO results in Australian tax reflecting charges forthe services that would have been, or would reasonably be expected tobe, levied between independent parties dealing at arm’s length forcomparable services under comparable circumstances.

Provision of services or expense allocations?

11. The fundamental issue in determining the appropriate taxationtreatment for intra-group services is whether expenses incurred by oneentity should be apportioned and allocated to other members of thegroup or whether a charge should be levied by the service providerthat reflects the value of the services supplied. More specifically, theissue is whether the costs incurred by an Australian resident serviceprovider or foreign service provider should be considered solely underdomestic deduction provisions or whether an arm’s lengthconsideration for the services should be included in the assessableincome of the service provider or allowed as a deduction for theservice recipient.

12. The ATO considers the issue of the allocation of profitbetween associated Australian and foreign enterprises to reflect theprovision of intra-group services or the performance of head officefunctions should be viewed as properly determined in accordance withthe arm’s length principle rather than as a matter to be resolved solelyunder domestic deduction provisions of the income tax law byapportioning expenses. Only by determining taxable profits on thebasis that arm’s length consideration is given and/or received is itpossible to arrive at the profit allocation that would eventuate in arm’slength dealings. This approach is consistent with the Commentary on

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the OECD Model Tax Convention on Income and Capital and the1995 OECD Report.

13. The problem with viewing intra-group services solely from theperspective of domestic deduction provisions is the deductions areunlikely to be consistent with the amount determined by application ofthe arm's length principle. The reason for the inconsistency is thatsubsection 51(1) of the ITAA 1936 and section 8-1 of the Income TaxAssessment Act 1997 (the ITAA 1997)2 and other deductionprovisions allow deductions for actual expenditure incurred or for anamount based on actual expenditure incurred (e.g., depreciation). Onthe other hand, the Associated Enterprises Articles and Division 13require, for tax purposes, an arm’s length consideration for activitiesconducted by one party for the benefit of another regardless of theamount of expenditure incurred in providing the service or the amountactually paid in respect of services.

Domestic deduction provisions and the arm’s length principle

14. Where services are supplied to foreign associated enterprisesfor no consideration, or for less than arm’s length consideration, andthe taxpayer has not used arm’s length prices in the preparation of itsreturns, the ATO would normally seek to apply Division 13 and/or theAssociated Enterprises articles to impute an arm’s lengthconsideration for the services provided in determining the assessableincome of the taxpayer. Then the deductibility of the expensesincurred in providing the services would be determined. Expenditureincurred in deriving that actual or imputed income would generally bedeductible except where it is of a capital nature. It would normally beexpected the actual or imputed service charge in this situation wouldbe Australian source income in which case section 79D would have noapplication.

15. Similarly, where an Australian company is charged for intra-group services, for example by its foreign parent, the deductibility ofthe charge would normally fall for consideration initially undersection 8-1 of the ITAA 1997. However, if the services are providedby a person resident in a country with which Australia has a DTA, theextent of the deduction allowable may also be determined under theAssociated Enterprises Article and also under Division 13. Where theservice provider is resident in a non-DTA country, the quantum of thededuction may be considered under Division 13. If the service chargewere found to be greater than the arm’s length consideration, theamount otherwise allowed as a deduction would normally be reducedpursuant to a determination under the Division. In either case, if a

2 Subsequent references to section 8-1 (of the ITAA 1997) are to be read asincluding a reference to subsection 51(1) (of the ITAA 1936).

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service charge isn’t levied on the Australian company, a deductionwould not be allowed to the Australian group member for a share ofthe costs incurred by the foreign associate in providing the service (inlieu of a deduction for a service charge).

Whether services have been supplied

16. Adherence to the arm’s length principle in relation to intra-group service arrangements would desirably be an integral part ofintra-group dealings of an MNE group and would be a focus ofinternal review or external audit of those dealings. In determiningwhether services are being or have been provided within an MNEgroup on an arm’s length basis, there are two main tasks to becompleted:

(a) identification of chargeable services (paragraphs 17 to47); and

(b) determination of the arm’s length consideration forchargeable services (paragraphs 58 to 74).

17. Whether a service will be supplied by the performance of anactivity depends upon whether the relevant activity is expected toconfer a benefit on an associated enterprise. Where a taxpayer isreviewing its international dealings for conformity with the arm’slength principle or those dealings are being audited, the relevantquestion is whether the activities of the taxpayer or its associate were,at the time they were undertaken, expected to provide a benefit for oneor more other members of the group. See paragraphs 22 and 23 forwhat to do if those expectations are not or were not realised.

18. In general terms, a benefit is something of economic orcommercial value that an independent entity might reasonably expectto pay for, or to obtain consideration for supplying. For example, abenefit is an economic or commercial advantage that would assist therecipient’s profitability or net worth by enhancing, assisting orimproving its income production, profit making or the quality of itsproducts. Alternatively, a benefit could result in a reduction of therecipient’s expenses or otherwise facilitate its operations. Theexpected benefit must be reasonably capable of being identified andvalued, and hence must be sufficiently direct and substantial so thatthe benefit is comparable to a benefit for which an independent entitywould be prepared to pay. See paragraphs 2.28 to 2.56 of TR 97/20for a discussion of factors affecting comparability. Sometimes, thiscondition may be satisfied only by considering a number of activitiestaken together. It is not possible to say that a service is not providedwhenever the cost of an activity is less than a threshold amount.

19. If an independent enterprise would, in similar circumstances,be expected to either perform the activity itself or engage an unrelated

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party to do so, it follows that some benefit is expected from theactivity, a benefit for which an independent enterprise would beprepared to pay some amount. The activity can be particularly for thebenefit of one foreign associate (e.g., the provision of taxation advice)or it can be an activity performed for the group as a whole (e.g., thedevelopment of an accounting policy for use by all companies in thegroup). It may well be the case that independent enterprises to notthemselves perform or use the same range of activities as areperformed in a multinational group. However, that is a matter ofcomparability that goes beyond determining whether an independentrecipient would value the activities sufficiently, either singly ortogether, to be prepared to pay for them.

20. Where some group members clearly have no need to anactivity and would not be willing to pay for it were they independententities, such an activity does not constitute the provision of a service(i.e., a benefit) to those group members. For example, themaintenance of the share register of the parent company of a group isnot an activity that benefits the other group members (except perhapsvery indirectly). An activity of the parent company that onlyduplicates an activity undertaken for another group member by a thirdparty would, in general, not be the supply of a service to that othergroup member. In deciding whether a member of a MNE group has aneed for a particular activity, consideration is to be given to thecircumstances at the time the activity is or was performed (seeparagraphs 22 and 23).

21. In some cases, it may be necessary to examine broad groups ofactivities and the benefits expected to be derived over several years.For example, it may be difficult to identify all of the individualbenefits that may be expected from the central co-ordination andcontrol functions typically undertaken by a parent company.Documentation of what is done and what associated enterprises arebeing charged for would assist in identifying the intended benefits.

22. A service is provided if, when the activities are performed,another party is reasonably expected or anticipated to derive a benefit,even if this benefit is not realised in practice. For example, a parentcompany, either in Australia or offshore, may undertake work on amarketing strategy for a product to be sold by a number of MNEgroup members, but for various reasons the strategy is neverimplemented, at least not by the other members. The performance ofresearch and development for other members is another case wherethe anticipated benefits may not be realised. Again, it is relevant toask whether a comparable independent entity would be prepared topay for the activity even though there is some chance the benefits maynot be fully realised. If so, compliance with the arm’s length principlewould require that a related party in a comparable situation pay for the

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work performed. This principle applies equally to Australian serviceproviders and service recipients.

23. There would normally be no question, however, of an entityreceiving a repayment of amounts already paid for work already doneby an independent enterprise just because the expected results werenot fully realised (except in the case of fraudulent behaviour or breachof contract). Of course, if there were a history of unfulfilledexpectations, an independent enterprise would seriously questionwhether it ought to pay for any further activities of the same nature.There should be no adjustment for tax purposes of otherwiselegitimate charges paid simply because with hindsight it appears thatthe benefits were not received, unless there is clear evidence that therewas no intention between the parties that they ever would be received.

Categorisation of activities

24. It is critical for arriving at the arm’s length profit allocationbetween associated enterprises to be able to distinguish non-chargeable activities from chargeable activities that can benefitindividual associated enterprises (‘specific benefit activities’) or thegroup as a whole (‘centralised services’).

(a) non-chargeable activities

25. Activities that do not constitute the rendering of services toforeign associated enterprises may be called ‘non-chargeableactivities’. Such activities do not constitute the provision of propertyunder Division 13 nor does the failure to charge for them indicate thatnon-arm's length conditions are operating between the associatedenterprises. Included are those functions undertaken by one memberof an MNE group exclusively for its own benefit. For example, aparent company may undertake tasks that relate solely to its ownbusiness activities, including those conducted in its capacity as ashareholder, or ultimate shareholder, of group companies(‘shareholder activities’). If the group members were independententities dealing at arm’s length with a service provider, they would notbe prepared to pay for these activities or contribute to meeting theircost. Shareholder activities are not necessarily restricted to groupparent companies. Similar functions may be performed by asubsidiary, for example a regional headquarters subsidiary, and wouldnot constitute services provided to other subsidiaries in the group.

26. Shareholder activities are distinguishable from ‘stewardship’activities, which refer to a broad range of activities undertaken toprotect and enhance the value of the group. However, it is recognisedthe distinction is not always an easy one to make and the decisionneeds to be tailored to the particular case. Paragraphs 7.9 and 7.10 of

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the 1995 OECD Report discuss this further and contain someexamples of shareholder activities.

27. Activities conducted in the capacity of a shareholder, asdistinct from the parent company’s role as a provider of centralisedservices, are non-chargeable activities. That is, the costs of suchactivities should be borne solely by the company that undertakesthem. For example, in a decentralised MNE group where the parentcompany’s involvement is limited to monitoring performance ofsubsidiaries, preparation of consolidated statutory accounts andattendance at annual general meetings of subsidiaries, there would beunlikely to be any identifiable activity that provides sufficient benefitto the subsidiaries to warrant a charge by the parent company. On theother hand, a parent company that actively participates in themanagement and/or operations of subsidiaries, e.g., centralisedco-ordination and control of financial management of the group,marketing and on-call services, cannot be viewed as a shareholderacting solely in its own interests.

28. Even though no charge should be levied by an Australiancompany on its foreign associated enterprises for non-chargeableactivities performed by it, non-capital costs incurred by the Australiancompany in undertaking those activities would generally be deductibleunder section 8-1 of the ITAA 1997 where they are necessarilyincurred in carrying on its business.

29. If, however, a charge has been levied for any of these activitiesand it is decided on review that no chargeable activities wereperformed, an adjustment to the Australian taxpayer’s tax return maybe necessary. Where the Australian entity is being charged for non-chargeable activities, any deduction allowed for the charge may bereduced to nil under section 8-1 of the ITAA 1997 and/or a DTA.Care needs to be taken, where a foreign company is performing amixture of chargeable and non-chargeable activities, that a charge forthe latter is not simply subsumed within a charge for the chargeableactivities. On the other hand, in this type of situation care is alsoneeded not to reduce arbitrarily what might be an arm’s length chargefor the services that are being provided.

30. If the Australian company was charging its foreign associatedenterprises but it was providing them with very little or no benefit, andanother country reduced the deduction for the charge or disallowed itcompletely for its tax purposes, relief from double taxation may beprovided in Australia in accordance with a DTA. That relief wouldprobably take the form of reducing the taxable income of theAustralian parent.

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(b) specific benefit activities

31. Services performed to meet the specific needs of an associateare referred to as specific benefit activities and a charge wouldnormally be levied if the associated enterprises were dealing at arm’slength. Some examples might be:

- the provision of assistance with a specific borrowingproposal of the associate;

- assistance with planning and the raising of funds for anacquisition by a particular group member;

- a subsidiary undertakes investment analysis forparticular sub-subsidiaries;

- the performance of certain accounting functions such ascompliance with tax laws by a subsidiary;

- the provision of guarantees for borrowings by particulargroup members; and

- training for employees of a particular associateprovided by another associated enterprise.

32. While an activity performed by the parent company of a groupfor the benefit of one or more particular associates would warrant anarm’s length charge to those associates, it may also provide minorbenefits to other group members. The ATO adopts the position onincidental benefits taken by the OECD in paragraphs 7.12 and 7.13 ofits 1995 Report. It is the difference in the degree of the benefitsreceived by the different group members that justifies some but notothers being charged for the same activity: see paragraph 18. AnAustralian company could justifiably be charged if the operations orstructure in Australia of a foreign owned group are being reorganisedbut probably not if the group’s European operations were beingrestructured.

(c) centralised services

33. Parent companies and regional headquarters companiestypically undertake activities that are intended to benefit the group (ora geographical section of it) as a whole. Such activities may not be asreadily identifiable with any particular associate as is the case with‘specific benefit activities’ because the activities are undertakenprimarily for the group as a whole or for particular groups ofsubsidiaries. The services that are centralised in a particular MNEgroup, and the extent of benefits conferred on members of the group,depend on factors such as the nature of its business, its organisationalstructure, and the degree of integration between its individualmembers. Typical of such activities are central co-ordination and

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control functions such as supervision of cash flows, management offoreign exchange and interest rate exposures and co-ordination ofgroup finances, production, marketing and distribution.

34. In general, most centralised activities that are not solely for thebenefit of the parent provide a sufficiently non-incidental benefit tothe other associated enterprises to justify charging for the services. Acharge would clearly be justified where the activity of the parentcompany benefits an associated enterprise and takes the place of anactivity the associate otherwise would have been required to undertakeitself or to have performed for it by a third party. However, there willoften be questions about the extent of the benefits and whether anindependent party would be prepared to pay for them (seeparagraph 18) and so the amount of any charge.

35. Some examples of what may be centralised activities are:

- administrative services such as planning, accounting,auditing, legal, and computer services;

- financial services such as management of cash flowsand solvency, managing working capital, deposits andliabilities, interest and currency exposures;

- assistance in the fields of production, buying,distribution and marketing;

- a worldwide advertising campaign;

- personnel services such as recruitment and training;

- administration of a share and option scheme forexecutives, including executives of subsidiaries;

- operation of employee share plans;

- preparation of an environmental policy for general useand supervision of its implementation;

- installation of new telecommunications equipment foruse throughout the group;

- special training (e.g., conferences) for seniormanagement of parent;

- analysis of markets for inputs and outputs;

- administration of intangibles; and

- research into and development of manufacturing,warehousing, distribution and marketing technologies.

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In particular circumstances, some of these may not be chargeable orthey may be specific benefit activities. It is not the name of theactivity or its characterisation as a centralised or specific benefitactivity that is determinative but whether benefits are expected to beprovided to other group members. See paragraph 7.14 of the 1995OECD Report.

36. A particular type of centralised service is that available to themembers of the group ‘on-call’ (e.g., legal/technical advice and groupguarantees). Paragraphs 7.16 and 7.17 of the 1995 OECD Reportcover the questions that need to be addressed to determine whetherthat availability itself constitutes a service.

37. If no charge is levied for centralised services or specific benefitactivities, or if a non-arm’s length amount is charged, and the taxpayerhasn’t used arm’s length prices for the services in its tax return, anadjustment by the Commissioner to use an arm’s length price, undereither a DTA or Division 13, would normally be in accordance withthe arm’s length principle.

38. If the Australian company were providing the service, an arm’slength amount would normally be imputed in Australia as income.This approach is to be adopted, rather than simply seeking to deny adeduction to the Australian company for some or all of the expensesincurred in providing the service. The deductibility of those expenseswould then be decided after the imputation of income referred toabove, when the full picture of assessable income is known. If thebenefits were being conferred on the Australian company by a foreignassociated enterprise, an adjustment would normally only be made inAustralia to reduce the amount of the deductible charge to the arm’slength amount. If an adjustment were made in either case by a foreignrevenue authority to increase the profits of its resident for its taxpurposes, relief from double taxation may be available under a DTAfor the Australian company.

Determining the extent of chargeable activities in practice

Functional analysis

39. Determination of the activities of a particular company, whichconstitute the provision of services to group members, and theirimportance within the group would be facilitated by following the foursteps outlined in Chapter 5 of Taxation Ruling TR 98/11. Step 1would begin with identifying the international dealings of the taxpayerwith foreign associated enterprises and developing an understandingof those dealings in the context of the group (paragraphs 5.21 to 5.44of TR 98/11). Undertaking a functional analysis of the MNE group toidentify the functions undertaken by the various group members, theassets, skills and expertise used in undertaking their activities and the

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sharing of risks would enable the taxpayer to ascertain which are themost economically important contributions, to the point wherejudgments could be made about the availability and reliability ofcomparables or about relative contributions where a profit split mightbe needed (paragraphs 5.45 to 5.54 of TR 98/11).

40. The extent of any analysis depends upon a number of factorsincluding the size and complexity of the group structure, the degree ofintra-group integration and the nature and extent of the intra-groupdealings. For example, where only minimal and uncomplicated intra-group services are provided between an Australian company and aforeign associate, a relatively straight-forward analysis would be allthat is necessary. Paragraph 78 discusses the degree of analysisrequired where the administrative practice for non-core services is tobe relied upon. On the other hand, where services are closely relatedwith a number of intra-group dealings, the dealings may need to beexamined on an aggregated basis and a more thorough functionalanalysis would be required to determine the services provided toassociated enterprises and their economic significance. The analysiscould be performed either in Australia or by a foreign parent andwould detail what activities are performed for the benefit of othermembers of the group and which are not, and what other supportfunctions are considered to be directly or indirectly related to thoseactivities.

Australian service provider

41. Where this process indicates the Australian company is aservice provider, it would be helpful to identify those activities thatare unquestionably non-chargeable activities at an early stage. Suchactivities would include shareholder activities (see paragraphs 25 to27 above) and other functions performed solely for the benefit of theAustralian company and any Australian resident associatedenterprises. Activities that relate exclusively to arm’s length dealingswith unrelated parties would also not be chargeable to groupmembers.

42. The next step is to identify those activities conducted by theAustralian company that clearly are/were expected to confer a benefiton non-resident associated enterprises. These types of activities aregenerally those described in this Ruling as specific benefit activitiesbut may also include centralised services.

43. Some activities do not themselves provide sufficient benefit toother group members to constitute chargeable activities but areundertaken to support other parts of the parent company(e.g., corporate services areas such as personnel). These activitiesmay be connected with the activities that are providing benefits toother group members and might have to be considered as an indirect

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cost when determining the charge for service activities (see paragraph64 below).

44. The first stages of the analysis will probably not give a definiteanswer to whether a number of residual activities are expected toprovide benefits to any other members of the group. These activitiesmight be referred to as 'potentially chargeable' activities. Exampleswould generally include the functions of senior management includingthe Board of Directors, the activities of a treasury department and theactivities of administrative and service personnel.

45. The nature of each activity or function of each department/unitthat has been classified as potentially chargeable should then be morethoroughly analysed. The activities should be classified as eitherchargeable or non-chargeable activities. Where chargeable and non-chargeable activities are carried out by the same people ordepartments, it is necessary to make a realistic assessment of howtheir activities should be categorised. The activities of non-executivedirectors, for example, would generally be non-chargeable exceptwhere they can be related to specific subsidiaries. On the other hand,the board activities of executive directors are more likely to be anextension of their executive/management duties and to benefit othermembers of the group and so may be chargeable to some extent.

46. A practical issue to be addressed in undertaking the aboveanalysis is the extent to which the activities of individual personnelneed to be accounted for. The ATO will accept reasonable efforts todetermine the extent of chargeable and non-chargeable activitieswithin the limitations of the taxpayer’s accounting system. Taxpayersare not expected to pursue greater accuracy at all costs but to basetheir analysis on what would normally be required in ‘a properapplication of the recognised principles of costing to the particularcircumstances’ (Kitto J in BP Refinery (Kwinana) Ltd v. FC of T(1960) 12 ATD 204 at 208; [1961] ALR 52 at 57). The moredisaggregated the taxpayer’s accounting system is, the more finelytuned the analysis could be. If information is only available on a verybroad divisional or departmental basis, the activities of morepersonnel may have to be considered.

Australian service recipient

47. Where Step 1 indicates the Australian company is the recipientof services, an examination of all charges by foreign associatedenterprises needs to be undertaken by the Australian group company.Fundamentally, any charges by foreign associated enterprises shouldbe set or reviewed having regard to the Australian company’swillingness, or that of other parties dealing with independent entitiesin similar circumstances, to pay an independent entity for the claimedservices (evidence of its need for the service and of the benefits or

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cost savings that are expected to result). For example, being providedwith necessary legal services saves the Australian company having toget them elsewhere. Similarly, paying a retainer fee for on-call ITservices saves it having similar arrangements with others or frombearing the costs of not having access to the services when needed(where it has a real expectation of needing such services).

48. The Australian company being charged for services shouldascertain what the charges are for (a simple label of 'managementservices' may not be sufficient to indicate whether benefits are/wereexpected to be received), the nature of the expected benefits (subjectto paragraphs 22 and 23, whether actually received or not) and thebasis for the charge (this issue is discussed later in the Ruling).

Charging on a regional basis

49. Rather than charge every individual member of a group, aparent company or group service centre may choose to charge onlyone associated enterprise as the representative of all group members ina particular region (e.g., charge an associated enterprise resident in theUSA for all associated enterprises in the Americas). The followingparagraphs discuss the acceptability of this practice from anAustralian tax perspective.

50. In the case of an Australian company charging other groupmembers, it may be said that it does not matter, from the perspectiveof the Australian revenue, which foreign companies are charged bythe Australian company nor is it necessary to determine thedistribution of benefits among the foreign associated enterprises.Provided the total amount charged out is appropriate, the distributionof charges may not matter if each charge is based on the benefitsexpected to accrue to the relevant enterprises (e.g., for all companiesin the Americas in the above example).

51. However, this practice could lead to other difficulties. Therecould be problems for the charged company being entitled to adeduction for the full amount (because the view may be taken that itdoes not get all the benefits for which it is being charged). This couldin turn produce problems for both the Australian taxpayer and theAustralian revenue if the amount chargeable to that company werereduced by the foreign tax authorities for their tax purposes. Therecould be relevant differences in the DTAs between Australia and therelevant countries in the region or there may be associated enterpriseswhere a DTA wouldn’t otherwise apply. These differences may affectsource country taxing rights, foreign tax credits that could be claimedin respect of the charge, entitlements to deductions or the availabilityof correlative relief under a DTA.

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52. Where an Australian company is being charged by a foreignassociated enterprise for benefits provided to a number of regionalassociated enterprises, a deduction may not be allowable for servicecharges borne on behalf of the other members and they in turn maynot be entitled to a deduction for amounts paid to the Australiancompany. We would accept the arrangement if the Australiancompany was adequately compensated by the other group membersfor charges paid on their behalf. Some of these concerns may not beas great where DTAs with other countries would be applicable,subject to the views of the other countries.

53. As a general rule, the practice of charging in this manner isacceptable for tax purposes where it is limited to same-countrymembers. That is, a single arm’s length charge by an Australiancompany on a foreign associated enterprise for services supplied to allits associated enterprises in the same country would be accepted. Inthe reverse situation, a single charge on one Australian groupcompany for services provided to all Australian associated enterprisesby a foreign associate would be acceptable (provided the total chargeconformed with the arm’s length principle when applied to all therelevant services) if the Australian company was adequatelycompensated by the other group members for charges paid on theirbehalf. The same-country limitation may be overcome in specificcases in consultation with the taxpayer and other relevant taxauthorities.

Determining the amount of the charge

Methods of charging for services

54. If an MNE charges associated enterprises for services, it maycharge individual group members directly for specific services orindirectly using an apportionment method, or by including an amountfor the services in the price of other property. Whether an MNE useseither a direct or indirect method of charging for services, to conformwith the arm’s length principle the charge used for tax purposesshould be the best possible approximation of the arm’s lengthconsideration for those services. See paragraphs 7.20 to 7.28 of the1995, hindsight should not be OECD Report for a description ofacceptable methods of charging.

55. Where an indirect method has to be used to calculate thebenefits for individual group members from service activities, someway of allocating the total chargeable amount to the individualassociated enterprises needs to be found. The basis of allocation mustbe practical enough to be administered yet sufficiently accurate toavoid arbitrary disparities between the benefits received and theamounts of intra-group charges. Taxpayers are not expected to useindicators for which data are not readily available. The main criterion

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to be satisfied by whatever indicator or ‘key’ (for example, turnover orprofits) is used as the basis of allocation of the charge for a particularservice is that the chargeable amount is allocated in the sameproportions as the expected benefits are estimated to be shared amongthe group members.

56. It is recognised by the ATO, however, that choosing anallocation method to estimate the shares of expected benefits is amatter of judgment. What is required of taxpayers is best endeavoursbe made to use an indicator that approximates the expected sharing ofbenefits in the particular circumstances faced at the time the service isprovided. Certainly, hindsight should not be used to determine, afterthe event, the actual shares of benefits (if that can be done accurately)and then to adjust the charges to reflect the actual outcome.

57. Whether the allocation key is appropriate probably depends onthe nature and usage of the service. Some keys may be suitable formore than one type of service and the total amounts to be allocated inrespect of several services may be able to be allocated with the onekey. Sometimes, a combination of indicators might be the bestapproach, for example, for a package of administrative services. Itmay be appropriate in some cases to use a single (combined) indicatorfor all services where that gives a reasonable estimate of the sharing ofexpected benefits of the services.

Methods for ascertaining an arm's length charge for services

58. Irrespective of whether a direct or indirect method of chargingis used, internationally accepted arm’s length methodologies may beused to determine the appropriate charge for services rendered withinan MNE group. An advisable approach to selecting the mostappropriate methodology is outlined in paragraphs 5.60 to 5.70 ofTR 98/11. The specific characteristics of the services and the extentand reliability of reasonably available data on uncontrolled dealingswill determine the most appropriate arm’s length methodology (seeparagraph 5.68 of TR 98/11 for a discussion in relation to animporter/distributor). The cost plus method may not be the mostappropriate in all circumstances. For example, a profit method maybe the most appropriate method where the expected value of theservice to the recipient far exceeds the cost of providing the service orwhere services are part of highly integrated dealings betweenassociated enterprises.

59. Paragraphs 2.6 to 2.12 of Taxation Ruling TR 97/20 discussthree related perspectives from which the dealings between associatedenterprises may be viewed to test them against the arm’s lengthprinciple, including whether the dealings result in a commerciallyrealistic outcome. For conformity with the arm’s length principle, theprice to be used or the amount charged should be considered from the

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perspective of both the service provider (is it sufficient?) and theservice recipient (is it too much?). The application of the individualarm’s length methodologies is discussed in Chapter 3 of TR 97/20 andin paragraphs 7.29 to 7.36 of the 1995 OECD Report. Step 3 of thefour steps in TR 98/11 (see paragraphs 5.72 to 5.84) canvasses the roleof a comparability analysis in applying the selected methodology andthe need to establish the reliability of the answers it gives.

Comparable uncontrolled price method

60. Where the arm’s length charge can be determined using acomparable uncontrolled price (‘a CUP’) based on a high level ofcomparability (see paragraphs 3.10 to 3.16 of TR 97/20), there is noneed to calculate the costs of the service provider nor to determinewhether a profit mark-up should be charged and if so how much.There is a possibility that the arm’s length charge will not result in aprofit for the provider but that amount must still be taken as the arm’slength charge (see paragraph 7.33 of the 1995 OECD Report). Thecharge should not be increased simply to ensure a profit for the serviceprovider. Similarly, where the arm's length price obtained using aCUP with a high degree of comparability results in a super profit forthe provider, the price should not be lowered simply to reduce theprofit to the service provider.

61. Too narrow a view of comparability, however, may lead to aninappropriate transfer price being selected as the arm’s lengthconsideration in the circumstances (see paragraphs 2.28 to 2.56 ofTR 97/20). As is pointed out in paragraph 2.17 of TR 97/20, anotheroption for the supplier or the purchaser of the services in thesecircumstances may be not to enter into the arrangement for the supplyof the services if it does not make commercial sense for the partiesinvolved. Paragraphs 445 to 449 of Taxation Ruling TR 94/14, 2.47of TR 97/20 and 8.4 of TR 98/11 contain some explanation of ‘start-up’ or ‘market penetration’ situations which are also relevant toproviding services.

Cost plus method

62. The cost plus method is often used to calculate an arm’s lengthcharge for services, particularly centralised service arrangements. Theapplication of the cost plus method is discussed in detail atparagraphs 3.31 to 3.51 of TR 97/20. The ATO acknowledges manytaxpayers may determine their charges for services by applying a fixedpercentage mark-up to the cost of the service activities. However,only if that mark-up is obtained from reliable comparables will thismethod result in an arm’s length price for the services. The use of afixed percentage mark-up not obtained from an analysis of

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comparable independent party dealings is not consistent with thearm’s length principle. More is said about the appropriate mark-up inparagraphs 69 to 73.

63. In applying a cost plus methodology, a principal concern is toobtain a reliable estimate of the cost of providing the service. Thecharge should usually reflect all relevant costs, both direct andindirect. What is important for comparability is that there isconsistency between the costs included in calculating the arm’s lengthprice for intra-group services and the costs used to calculate the arm’slength mark-up charged in comparable independent dealings. Forexample, where good comparable data are available to enable thecalculation of a mark-up on certain direct costs only, it would beappropriate to include only those direct costs in the calculation of thearm’s length charge for the intra-group service. The ATO’s views onmarginal costing are set out at paragraphs 3.41 to 3.47 of TR 97/20.

64. Without being exhaustive or prescriptive, examples of indirectcosts would include:

- light and power;

- rents, maintenance and repairs;

- rates and property taxes;

- insurance;

- telephone, facsimile and other telecommunicationscosts;

- postage and courier expenses;

- indirect labour costs, including (where relevant):

- leave payments (holiday, sick, long service, defenceforce reserves, jury duty, etc.);

- workers compensation;

- superannuation;

- payroll tax, other State taxes and FBT;

- depreciation on building, plant and equipment;

- entertainment expenses;

- contributions to other capital costs that are notdepreciable; and

- costs of supporting units/departments (e.g., personnel,accounts, information technology, staff facilities

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65. In summary, there are three broad steps that may befollowed in determining the total costs of performingchargeable activities.

Step 1: Ascertain which activities are chargeable and whicharen't:

- there would be few problems where individualactivities can be identified (e.g., mainly specificbenefit activities);

- some people’s/units’ activities may have to beapportioned between chargeable and non-chargeable activities on a reasonable basis(e.g., time).

Step 2: Determine the direct costs of chargeable intra-groupservice activities:

- the simplest cases will be where cost records arekept for particular activities;

- where all a person’s/unit’s activities arechargeable and costs are kept for theperson/unit, the cost of the activities will beknown;

- costs may have to be estimated (particularlylabour costs) for some activities/some people orunits;

- direct costs of other activities (including non-chargeable activities) should not be included.

Step 3: Determine the indirect costs associated with thechargeable activities including the costs of supportingdepartments or units:

- allocate individual indirect costs according tothe nature of the costs (e.g., using time, floorspace, plant and equipment used, or some otherparameters other than total direct costs);

OR

- allocate all indirect costs according to totaldirect costs of chargeable service activities andother activities (there is a need to know totaldirect costs of all activities over which indirectcosts are to be apportioned).

66. In many cases, the degree of analysis and recording needed toallocate costs among activities would involve an administrativeburden disproportionate to the charge that could be levied.Accordingly, a survey of the time spent by staff on activities for the

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benefit of other MNE group members (as distinct from non-chargeable activities) may in many cases constitute a reasonable basisfor allocating all relevant costs associated with performing thoseactivities. The information on which the allocation of costs is basedshould be updated when circumstances of the MNE group changesubstantially. There can be no categorical rules about how frequentlythat should occur.

67. The quality of the information obtained from such a survey isonly as good as the methodology adopted and the questions asked.For example, a questionnaire requesting staff to estimate their timespent on chargeable activities over a substantial period, withoutprevious records being kept, would not produce as reliable an estimatefor the cost of a company’s chargeable activities as where adequaterecords had been kept. Nevertheless, where records have not beenkept such a questionnaire could be useful.

68. An estimate of the percentage of the total time of all staff spenton a relevant class of activities (e.g., non-chargeable activities),obtained in an appropriate manner, would be an acceptable basis forallocation of some indirect costs (e.g., property costs and power) andwould be less burdensome than other more precise methods ofallocating such costs. In appropriate cases, even an estimate of theproportion of staff principally involved in particular activities wouldbe sufficient to allocate some costs to those activities.

Profit mark-ups

69. To achieve the correct profit allocations, the arm’s lengthcharge for services (including centralised services) determined byusing the cost plus method would normally include a mark-up on thecosts of performing the services. See paragraphs 3.48 to 3.50 ofTR 97/20 for a discussion of some general issues to be considered incalculating the appropriate mark-up.

70. Where the service provider has special expertise that is madeavailable to group members (e.g., engineering, legal or financialexpertise), and the value of that expertise is not fully reflected in thecost of providing services, one might often find in comparable arm’slength dealings a substantial mark-up being used. The size of themark-up would depend on the expected value to the recipient of thehigh-value services. On the other hand, a parent company may beproviding general administrative services to the group as a wholewhere it is difficult to determine the precise value to the recipients ofthe services. The nature of the services and the uncertainty as to theextent of the benefits for the recipients might suggest that a smallermark-up than in the preceding example would be appropriate.

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71. There may be cost savings to be made by a group incentralising some functions. When using the cost plus method todetermine the arm’s length price in this situation, the mark-up shouldnot be increased to capture the benefit of the cost savings if it therebybecomes greater than the arm’s length mark-up. If, however, areliable CUP is available to determine the arm’s length price, theservice provider may well be able to retain the benefit of the costsavings and earn additional profits.

72. While the application of the cost plus methodology to servicesshould be no different in principle to its application in determining thearm’s length price for goods, it is recognised that it may be moredifficult to obtain data on reliable comparables for services,particularly centralised services, than for goods or other property. Ifother accepted methods of determining the arm’s length charge cannotbe used, because of the lack of data or because they depend on evenless comparable transactions, use could be made of the best availablemark-up (i.e., that obtained from the best available comparable).

73. In cases where acceptable comparables for any of the arm’slength methodologies cannot be found for the services supplied by aparent company, a fixed percentage mark-up might be used by thetaxpayer or for the purposes of subsection 136AD(4). The percentagemark-up should be estimated to give a market return on the assetsused, the functions performed and the risks assumed. Where this typeof mark-up has to be used, it is imperative the costs of the service arecorrectly determined as discussed earlier. Paragraphs 3.88 to 3.99 ofTR 97/20 describe some other approaches that might be taken wherearm’s length methodologies cannot be used. Alternatively, thetaxpayer may be able to rely on either of the administrative practicesdiscussed at paragraphs 75 to 102.

Apportionment charges

74. If an indirect-charge method requiring apportionment of thechargeable amount among members of a MNE group is being used,the arm’s length principle requires that the amounts allocated to therespective members of the group should be in proportion to theindividual members’ benefits or expected benefits from the services.That is, the amount charged to the member would not be expected toexceed the value to it of the service, as is the case with directcharging. Of more practical importance, under arm’s length dealingthe amounts charged to the individual members would be in the sameratios as the expected benefits to the individual members. Thepossible methods of apportionment are discussed at paragraphs 55 to57 above.

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Administrative practices for services

75. Because of the difficulties frequently encountered indetermining arm’s length prices for intra-group services, other meansare needed to apply the fair sharing of taxes concept which underliesthe Associated Enterprises articles and Division 13. Additionally,Taxation Ruling TR 97/20 acknowledges it is often inappropriate tomake small or marginal adjustments in transfer pricing cases. In orderto reduce compliance costs, especially where they might otherwise bedisproportionately large, and provide greater certainty, but stillapproximate arm’s length pricing, the Commissioner will exercise thediscretion in Division 13 and the Associated Enterprises articles not tomake transfer pricing adjustments in the circumstances listed inparagraphs 78 to 86 below. The Commissioner will regard the use ofthe transfer prices specified below, in tax returns for the 1997-98 andlater income years, as giving rise to a realistic outcome in thesecircumstances.

76. This approach is a practical response to the difficulties referredto in paragraph 7.37 of the 1995 OECD Report and is consistent withthe practices of other revenue authorities. It has regard to theobjective of reducing the need for mutual agreement procedures underDTAs, because of the costs involved in those procedures, but allowsan adjustment to those prices where correlative relief is sought by ataxpayer under a DTA (see paragraph 100).

77. There are two separate instances in which the Commissionerwill not seek to adjust transfer prices for services to strictly accordwith arm’s length prices where an adjustment might otherwise beauthorised by the law (referred to in the rest of this Ruling as ‘theadministrative practices’ or ‘either administrative practice’).

(a) Non-core services. This administrative practice relatesto services supplied or acquired which are not integralto the profit-earning activities of the multinationalgroup (‘non-core’ services). This practice recognisesthe practical difficulties faced in determining arm’slength prices for such services and gives certainty totaxpayers while concentrating the application of thearm’s length principle on the more significant relatedparty dealings.

(b) De minimis cases. Where the costs of all intra-groupservices supplied or acquired are relatively small, theCommissioner will not adjust prices that are within aspecified range. In the de minimis case, theadjustments that may be forgone are not considered tobe material enough to warrant the extra complianceand/or administrative effort required to establish moreprecisely the arm's length price for the services.

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Conditions for the application of the administrative practice inrelation to non-core services

78. Non-core services refer to activities that are not integral to theprofit-earning or economically significant activities of the group (seeparagraphs 5.45 to 5.53 of Taxation Ruling TR 98/11). They includeactivities that are supportive of the group’s main business and aregenerally routine but are not similar to activities by which the groupderives its income. What constitutes non-core services depends on thefacts of each case and may be identified as a result of Step 1 of theanalysis described at paragraphs 39 to 47 above. For small andmedium-sized businesses, the analysis needed to determine which arenon-core services may be relatively straight forward.

79. In considering whether particular services are integral to theincome earning activities of the group or not, factors that couldemerge from the functional analysis as described in Chapter 5 ofTR 98/11 and which might be taken into account are the amount ofcapital investment required for the services, the risks involved, therelative costs of the services, the time devoted to the services and theregularity of their supply, and whether they are directly or indirectlyrelated to the income earning capabilities and activities of the group.Services whose value could reasonably be expected to substantiallyexceed the costs of their provision could not be categorised as non-core services because of the value they add to the group's business.

80. Non-core services may encompass administrative services,personnel services, management of remuneration schemes and otheroverhead activities. Assistance with production, buying, etc., andmarket analysis for a distributor or seller of goods or services wouldnot generally be a non-core service. Nor would ‘services’ supplied byan importer/distributor, as discussed in paragraph 5.68 of TR 98/11,be non-core activities. Financial services may be non-core activitiesfor enterprises other than banks and financial service companies.Where information technology is not part of a core business of agroup, information technology services (e.g., in relation to accounting)would qualify as non-core services. Research and developmentactivities are not to be included as non-core services.

Example 1

Services supplied by a special purpose subsidiary which isprincipally involved in providing centralised co-ordination andmanagement services to group members may still qualify asnon-core services because the services are, from the group'sperspective, non-core services, even though their supply is thesubsidiary's principal function.

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Example 2

A parent company which supplies routine centralisedmanagement services to group members (non-core services)together with sales, marketing and technical assistance (coreservices) would need to distinguish between the different typesof services supplied. The above-mentioned administrativepractice in relation to non-core services would apply only inrespect of the non-core services component.

81. To minimise the risk of substantial departures from arm’slength pricing, taxpayers need to be able to demonstrate to the ATOthat their non-core services fall within the principles in the precedingthree paragraphs, especially in the less obvious cases. As a generalrule, the greater the proportion of non-core services to total costs, themore care needs to be exercised in categorising activities as non-coreservices.

82 The administrative practice in relation to non-core servicesapplies separately to non-core services either supplied to or acquiredfrom foreign associated enterprises.

(i) The administrative practice may be used for non-coreservices acquired by Australian group companies (seeparagraph 90) from foreign associated enterprises onlywhere all of the following conditions are met:

(a) the amount charged for all non-core services suppliedto Australian group companies by their foreignassociated enterprises in a year is not more than 15 percent of the total accounting expenses of the Australiangroup companies in the year; and

(b) the transfer price used by the Australian companies intheir tax returns for these services is not more than therelevant costs incurred by the foreign associatedenterprise(s) plus 7.5% of those costs, or thealternatives described in paragraph 83, but is notgreater than the actual amount charged for the services;and

(c) adequate documentation is kept (see paragraph 88).

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(ii) The administrative practice may be used for non-coreservices supplied by Australian group companies (seeparagraph 90) to foreign associated enterprises only whereall of the following conditions are met:

(a) the amount charged in a year by the Australian groupcompanies for non-core services supplied to foreignassociated enterprises is not more than 15 per cent ofthe total accounting revenues of the Australian groupcompanies in the year; and

(b) the transfer price used by the Australian companies intheir tax returns for these services is not less than therelevant costs incurred by the Australian companiesplus 7.5% of those costs, or the alternatives describedin paragraph 84, but is not less than the actual amountcharged for the services; and

(c) adequate documentation is kept (see paragraph 88).

83. To accommodate the varying requirements of otherjurisdictions and lessen the possibility of double taxation, taxpayersmay use the following alternative prices for non-core services in thepreparation of their tax returns, if relying on the Commissioner’sapplication of the administrative practice. A transfer price of up tocost plus 10% of relevant costs would be accepted for non-coreservices supplied by associated enterprises resident in a particularforeign country where it is established by the taxpayer’s group that itis the practice of that country to require that price for the services forits tax purposes and to accept such prices (or mark-ups) for similarservices supplied by Australian companies to associated enterprisesresident in that country (i.e., that the other country does or would beexpected to accept symmetrical mark-ups for such services).Therefore, the Australian group may use different prices in respect ofservices acquired from associated enterprises in different countries,but none that exceed cost plus 10% of relevant costs.

84. Similarly, a transfer price not less than cost plus 5% of relevantcosts but less than cost plus 7.5% of relevant costs would be acceptedfor non-core services supplied to associated enterprises resident in aparticular foreign country where it is established by the taxpayer’sgroup that it is the practice of that country to require, for its taxpurposes, that the price for the services be no higher than the selectedprice and to accept such prices (or mark-ups) as an upper limit forsimilar services supplied by an associated enterprise in that country toAustralian companies (i.e., that the other country does or would beexpected to accept symmetrical mark-ups for such services). Again,the Australian company group might use different transfer prices forservices supplied to associated enterprises in different countries, butnone less than cost plus 5% of relevant costs.

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85. All companies in the group must use the same mark-up oncosts for services supplied to, or acquired from, associated enterprisesin the same country, if they are relying on the administrative practice.

De minimis cases

86. As mentioned in paragraph 77, the Commissioner will apply asimilar administrative practice in de minimis cases where the totaldirect and indirect costs of supplying services to Australian or foreignassociated enterprises, as appropriate, is not more than $500,000 in ayear. The practice applies to all intra-group services supplied oracquired where the relevant cost limit is not exceeded. Therefore, insome cases, it might be applicable to all intra-groups services bothsupplied and acquired. The transfer prices that must be used, and theconditions for their use, are the same as those specified inparagraphs 82 to 84. As for the practice in relation to non-coreservices, all taxpayers in a group must use the same mark-up, forincoming and outgoing services, in respect of each foreignjurisdiction, but the mark-up may vary from country to country, withinthe limits described above.

Example

An Australian subsidiary of a foreign based multinationalgroup receives marketing and technical assistance from aforeign associate. No other services are acquired by anyAustralian member of the group from its foreign associatedenterprises. The total direct and indirect costs of providing theservices to the Australian subsidiary for the year are $200,000.As long as the amount actually charged for the services is notmore than $215,000 (or $220,000 in the circumstances outlinedin paragraph 83), the Commissioner would not require thetaxpayer to establish an arm’s length price for the services.

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87. The following table summarises the main features of each of the administrative practices and the following paragraphs containfurther rules regarding their application.

Services acquired fromforeign associated enterprises

Services supplied toforeign associated enterprises

Administrative practicefor non-core services

Administrative practicein de minimis cases

Administrative practicefor non-core services

Administrative practicein de minimis cases

Applies to all services? No Yes No Yes

Principal restrictions on theapplication of theadministrative practices

The total amount charged forthe services is not more than15% of the total expenses ofthe Australian groupcompanies

Adequate documentation ismaintained by the taxpayer

The total direct and indirectcosts of providing theservices is not more than$500,000 in the year


The total amount charged forthe services is not more than15% of the total revenues ofthe Australian groupcompanies


The total direct and indirectcosts of providing theservices is not more than$500,000 in the year


Acceptable transfer prices Not more than the lesser of:

(a) the actual charge, and

(b) the cost of providing theservices plus a mark-up of7.5%

Not more than the lesser of:



Not less than the greater of:



Not less than the greater of:



Alternative mark-ups intransfer prices for particularcountries

Up to 10%, with additionaldocumentation

Up to 10%, with additionaldocumentation

Down to 5%, with additionaldocumentation

Down to 5%, with additionaldocumentation

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Application

88. The first consideration is to establish that a service (i.e., abenefit) has actually been supplied (see paragraphs 17 to 23). To relyon these administrative practices, the taxpayer (whether a supplier orrecipient of services) must maintain documentation to establish thenature and extent of services supplied/acquired and to address theissues (as far as is relevant) considered in calculating the relevant totalcosts as listed at paragraph 7.9 of TR 98/11. For example, thetaxpayer may need to document its reasons for categorising particularservices as non-core and its calculation of the ratio of non-coreservices to total revenues or expenses. As mentioned above, theextent of analysis and documentation needed will depend on thetaxpayer’s circumstances. If the taxpayer wishes to use a mark-upother than 7.5%, as indicated in paragraphs 83 and 84, documentationof other countries’ practices to support that choice should be kept.Further, a record of the relevant group companies should be retained.

89. The administrative practices may be applied to any servicescovered by this Ruling (see paragraph 5), as is appropriate for eachpractice. In particular, they may apply to services (e.g., the supply ofcommercial knowledge or information) payment for which is a royaltyin terms of subsection 6(1) or a DTA. Of course, the administrativepractices cannot be used to determine royalties that are not paymentsfor services as described in paragraph 5. Further, neither practice maybe applied to financial transactions (e.g., loans, guarantees, foreignexchange trading and derivatives), the provision ofinsurance/reinsurance by a group member (e.g., a captive insurer) orthe supply of equipment or other property for use/rent, even thoughthese may be regarded as the provision of services as defined inDivision 13. However, either practice may apply to the arrangementof external insurance or finance for the members of the group.

90. The cost limit for the de minimis administrative practice andthe ratio of non-core services to total expenses or revenues for thenon-core services administrative practice are to be applied separatelyto the flow of services in each direction between all members of anAustralian company group and its foreign associated enterprises. Thedefinition of a company group (of Australian resident companies only)that is used for this purpose is that in Division 1C of Part VI (companytax instalments). This concept of a company group is broader thanthat used for the transfer of tax losses between companies butnarrower than a group of associated or related enterprises. Accordingto this definition, two or more Australian companies with a commonforeign parent, but at least one of which is not wholly owned by theforeign parent, would constitute a group of Australian companies.

91. The Commissioner is not bound to apply the administrativepractice for de minimis cases where an Australian service supplier

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fails to exercise reasonable care to ensure that all allocableexpenditure is included in the total relevant costs of the intra-groupservices, for example, by omission of particular items of expenditureor by failing to return an amount of income for one or more services.Similarly, the Commissioner will not necessarily apply theadministrative practice for non-core services where the taxpayer’sgroup fails to exercise reasonable care in categorising intra-groupservices as non-core or in calculating the percentages of total revenuesor expenses as described in paragraph 82. If such an error is madedespite the taxpayer’s group taking reasonable care in establishing itsatisfies the conditions for the application of the administrativepractices, the Commissioner would seek to correct the error and thenapply the administrative practices if the conditions for theirapplication are satisfied.

92. The Commissioner will not seek to deny the application of theadministrative practices where there are only marginal departuresfrom the conditions for their application. In the case of the non-coreservices administrative practice, the Commissioner would expect tosee an appropriate functional analysis to support the taxpayer’scategorisation of services and the continued application of theadministrative practice.

93. Expenses that are paid by or reimbursed by another entity inthe group for or on behalf of an Australian service supplier need to beincluded in calculating the total relevant costs where the expensewould, if borne by the service provider, have been included in the costof providing the services. This is the case irrespective of whether thepayer is a domestic or foreign associate.

Example

An Australian subsidiary incurs total expenditure of $2 millionof which $650,000 is allocable to sales and distributionservices supplied to foreign associated enterprises. Thecompany is reimbursed to the extent of $1 million by itsforeign parent. The company's allocable direct and indirectcosts of providing the services (before reimbursement) exceedthe allowable limit of $500,000. The taxpayer does not qualifyas a de minimis case in relation to services it supplies to itsforeign associated enterprises.

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Interaction with arm's length methodologies

94. The administrative practices may apply even if the arm’slength consideration could be determined using one of the acceptedmethodologies. Where the $500,000 cost limit for services supplied ineither direction is not exceeded, the practice in relation to de minimiscases would apply to all types of services provided between therelated parties in that direction. That includes services for which itmight be expected their value substantially exceeds the cost ofproviding them. If, for example, the cost limit is not exceeded forservices supplied by the Australian company group to its foreignassociated enterprises but there is a reliable CUP available for one ormore of those services, the Commissioner will not make anyadjustments if the prices returned by the Australian taxpayers for allthose services are not less than cost plus the relevant mark-ups. Theadministrative practice in relation to non-core services will be appliedin a similar manner.

95. Taxpayers may still establish the arm’s length price forparticular services where reliable, comparable data are available.They may wish to do this for instance in start-up situations whereindependent parties might be prepared in the short term to foregocharging a mark-up on costs. Alternatively, a foreign parent may wishto or be required to charge a price in excess of cost plus 10% per cent(or the current upper limit for the mark-up) for a particular, high-valueservice. Where the Australian group may choose to rely on theadministrative practices because the relevant percentage inparagraph 82 or the $500,000 cost limit in paragraph 86 is notexceeded, a decision to use arm’s length prices for any of the relevantservices (e.g., non-core services) means that the group must use arm’slength prices for all similar services supplied or acquired by theAustralian group. A choice to use arm’s length prices in this situationwould be indicated by the use of a price outside the ranges stipulatedin paragraph 82 to 84 and/or by the use of an arm’s lengthmethodology to estimate prices.

96. The decision to rely on the administrative practices (or for theCommissioner to apply them) is to be made each year irrespective ofwhether they have been used in relation to the taxpayer’s group in thepast.

97. Questions willarise about the interaction of these practices withthe application of arm’s length methodologies to other dealings andthe avoidance of double counting. The general principle to be used toresolve these questions is that of the all or nothing choice described inthe preceding paragraph. In particular, if a MNE group uses a profitmethod at an aggregated level (e.g., the transaction net marginmethod) to reward several dealings with foreign associates, including

Taxation Ruling


the supply or receipt of core and non-core services, then it cannot useeither of the administrative practices.

98. As a further illustration, if an arm’s length method is used toreward a core service acquired by the taxpayer, where there is achoice of using arm’s length prices or relying on the de minimisadministrative practice, that administrative practice cannot be reliedupon for any services acquired or supplied by the taxpayer’s group.Arm’s length prices must be used by the taxpayer’s group for all coreservices supplied or acquired by the group. It may still be possible touse the administrative practice for non-core services supplied oracquired by the group. Similarly, if an arm’s length method is used toreward a non-core service acquired by the taxpayer, where there is achoice of using arm’s length prices or relying on the non-core servicesadministrative practice, the administrative practice cannot be reliedupon for any non-core services acquired or supplied by the taxpayer’sgroup.

99. Subject to paragraph 95, either practice may be able to be usedto determine acceptable prices for services that are needed as inputs inthe application of an arm’s length methodology to other dealings(e.g., using the cost plus method to determine the arm’s length pricefor goods supplied to an associated enterprise where repairs ofrelevant machinery by another associated enterprise is one of therelevant indirect costs). Also, where a basic return for services wassought as a step (that of determining the residual profit to be split) inapplying a residual profit split methodology to determine arm’s lengthprices for other dealings (not services), either practice could be used ifthe above conditions for its application were met. Clearly, thoseservices for which an acceptable price has been determined in relianceon either practice would not be taken into account in the determinationof how the residual profit should be split.

100. Where the taxpayer seeks correlative relief through a mutualagreement procedure under a DTA in response to an adjustment byanother country, for its tax purposes, of a transfer price that has beenaccepted in Australia under either administrative practice, the grant ofrelief will be determined in the normal manner on a case-by-casebasis. There would be no implications for the application of thesepractices to other services supplied or acquired by the taxpayer's groupthat are not covered by the mutual agreement procedure under theDTA. However, in the light of future experience with mutualagreement cases involving the administrative practices, the ATO maychange the acceptable mark-ups that may be used by taxpayers incertain circumstances.

101. The ATO may, where the conditions in subsection 136AD(4)and/or the parallel conditions in DTAs are satisfied, deem the arm’slength price for particular services to be the cost of supplying those

Taxation Ruling


services plus the mark-ups able to be used for either administrativepractice. In selecting the mark-up, the Commissioner would haveregard to what the other country might accept in the circumstances,where a DTA is involved. The use of the specified mark-ups in suchcases would be appropriate where to do so is consistent with theobjective of using subsection 136AD(4) to arrive at the closestpracticable estimate of the arm’s length result.

102. These administrative practices will be reviewed in the light ofdata collected and experience with their use including in mutualagreement cases as mentioned in paragraph 100. If the mark-up is tobe changed in the light of international practice or other relevantfactors, the new value will be published by the Commissioner togetherwith notice of its date of effect which will usually be the start of anincome year.

Documentation

103. This Ruling addresses specific aspects of documentation asthey relate to the provision or receipt of services. These commentscomplement the general discussion of documentation of transferpricing in international dealings (including the reasons for keepingadequate records) in TR 98/11. While this Ruling applies to yearsprior to and after its issue, paragraph 2.13 of TR 98/11 should befollowed when it comes to determining penalties to be appliedfollowing an adjustment to the transfer price used for services in a taxreturn, in the context of the modifications discussed in paragraph 7 ofthis Ruling. Where recipients of intra-group services do not haveadequate documentation to substantiate deductions claimed in prioryears, the ATO may request that some of the information and/ordocuments listed in paragraph 104 be obtained from associatedenterprises.

104. Without attempting to be exhaustive or prescriptive, thefollowing types of documentation will be of assistance in the case ofthe supply or acquisition of services between separate but relatedentities:

a) contracts or agreements for the provision of servicesbetween related parties, and appropriate variations tothese contracts or agreements where conditions of theprovision of services substantially alter. In this regard,to the extent that independent enterprises typically usewritten contracts to establish the nature and price ofservices to be rendered, even if they are rendered on acontinuing basis, associated enterprises would be welladvised to use similar contracts when they provideservices to one another;

Taxation Ruling


b) documents supporting the categorisation of activitiesand in particular the consideration and recognition ofany non-chargeable activities. This may includereasons why each particular type of activity isconsidered to be correctly categorised as not chargeableor as a chargeable service. Any documents outliningthe benefit expected to be conferred by an activitywould also be of assistance;

c) documents supporting the selection of a chargingmethod, for example direct or indirect methods ofcharging, including reasons why the selected methodwas considered to be the most appropriate for theparticular case;

d) documents supporting the calculation of cost-basedcharges, for example, direct costs plus a reasonableproportion of indirect costs, and adequate records topermit verification of such costs;

e) documents supporting the mechanism used todetermine the amounts to be apportioned amongassociated enterprises, for example, use of formulas,time surveys, etc. This may include detail of theapplication of this mechanism to the costs incurred inparticular years and documentation supporting anyreview of the applicability of the chosen mechanism;

f) documents supporting the selection of keys forapportionment among several associated enterprises,including reasons why particular keys were consideredthe most appropriate in the circumstances of the case;

g) documents supporting the selection of a pricingmethodology or methodologies and any documentationsupporting the consideration and rejection of othermethodologies;

h) where a cost plus methodology has been selected,documents outlining reasons for selection of aparticular mark-up and reasons why a mark-up on costsmay be inappropriate in the facts and circumstances ofthe case. This may include detail of any externalbenchmarking undertaken in arriving at the mark-up;and

i) documentation created in the undertaking of afunctional analysis of the various group membersproviding and receiving services to establish therelationship between the relevant services and themembers' activities and performance.

Taxation Ruling


105. What documents are maintained will depend on the facts andcircumstances of each case, including the complexity and importanceof the issue. Taxpayers would be well advised to consider the nature,type and extent of the documentation that it is prudent to maintainhaving regard to the size of the dealings and the facts andcircumstances of the case. Where the taxpayer is relying on theapplication of either of the administrative practices, the aboverequirements would need to be modified in the light of paragraph 88.

106. As a general rule, the ATO would suggest that the continuedrelevance and application of the documentation should be consideredannually. It is suggested substantial new documentation would onlyneed to be created where there has been an alteration of the taxpayer’scircumstances which would have a significant impact on the continuedapplication of the established pricing mechanism. Again, as a generalrule the ATO would not anticipate that such significant alterationswould occur on an annual basis.

Commissioner of Taxation

20 January 1999

Taxation Ruling


Previous draft: TR 95/D29

Related Rulings/Determinations:

TR 94/14; TR 97/20; TR 98/11

Subject references:

- administrative practices- apportionment methods- arm's length consideration- arm's length mark-up- arm's length methodologies- arm's length price- arm's length principle- associated enterprise article- centralised services- chargeable services- comparable uncontrolled price

(CUP) method- contemporaneous documentation- correlative relief- cost contribution arrangements

(CCAs)- cost plus method- direct costs- direct-charge method- documentation- double taxation agreements (DTAs)- functional analysis- independent enterprise- indirect costs- indirect-charge method

- intra-group services- management fees- mark-ups- multinational enterprise group

(MNE group)- mutual agreement procedures- non-chargeable activities- OECD- profit mark-ups- separate entities- services- shareholder activities- specific benefit activities- stewardship activities- transfer pricing

Legislative references:

- ITAA1997 8-1- ITAA1936 51(1)- ITAA1936 79D- ITAA1936 Pt. III Div 13- ITAA1936 136AA(1)- ITAA1936 136AD- ITAA1936 136AD(2)- ITAA1936 136AD(4)

Case references:

BP Refinery (Kwinana) Ltd v. FCT(1960) 12 ATD 204; [1961] ALR52

ATO References: NO 97/1687-4

95/8030-195/6419-5

BOFOI Number: I 1018170ISSN: 1039-0731Price: $3.70

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