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The smoke and mirrors around the "stage one" transfer pricing reforms

Published on 01 Jun 12 by "THE TAX SPECIALIST" JOURNAL ARTICLE

Despite vocal and significant criticisms from the tax community, the government is proceeding with the introduction of new, retrospective (going back to 1 July 2004) “treaty equivalent transfer pricing rules”. If the rules are enacted, taxpayers could face transfer pricing adjustments in respect of the last eight years, despite having complied with the law as it existed at the time the tax returns for those years were prepared. While the government claims that this is “clarification” of parliament’s previously expressed intention, taxpayers and the broader tax community strongly disagree.

This article covers the background to the new rules, both sides of the two key issues — “clarification” and the existence of “parliament’s intention” — and provides a view on whether the retrospective operation of the new rules is justified. The article concludes with the authors’ prediction on what is likely to happen next.

Author profiles

Peter Collins FTI
Peter Collins, FTI, is a Partner at PwC with 25 years experience as a specialist in global tax, assisting foreign investors structuring their Australian investments and Australian corporates expanding offshore. He works with the firm’s global tax network to develop solutions for clients and is a member of the International Tax executive, which allows him to provide a unique global perspective. He is a consultant to Treasury in relation to tax reform in the areas of international tax and transfer pricing, including the MAAL/DPT and a member of the Treasury’s BEPS Tax Advisory Group. Peter was heavily involved in the rewrite of the Australian transfer pricing rules; he appeared before the Senate Estimates Committee to object to the retrospective application of those rules to US companies. He represented PwC before the Senate inquiry in relation to corporate tax avoidance by multinational companies. - Current at 01 November 2018
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Lyndon James ATI
Lyndon is a Partner at PricewaterhouseCoopers. - Current at 01 July 2012
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Piotr Klank CTA
Piotr is a commercial barrister specialising in revenue law. He graduated from the University of Queensland with a Bachelor of Commerce and a Bachelor of Laws (Hons) in 2005, and obtained a Master of Laws from the University of Melbourne in 2009. Prior to joining the Bar he was a solicitor with Clayton Utz, MinterEllison and PwC. Piotr has presented and published widely on tax matters for The Tax Institute, the International Fiscal Association, the IBFD and Bloomberg, among others. He is on the Taxation Committee of the Law Council of Australia, an honorary fellow at the University of Melbourne and a member of several tax discussion groups. He appreciates the opportunity to look at issues where there are no clear or simple answers. - Current at 27 October 2020
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