Published on 01 Oct 18
by "THE TAX SPECIALIST" JOURNAL ARTICLE
In the absence of a specific legislative direction or guidance from the courts, there is much uncertainty with respect to the meaning of the words “form” and “substance” in Australia’s transfer pricing rules, as well as how the first and second exceptions in s 815-130 of the Income Tax Assessment Act 1997 (Cth) apply. As such, care and careful consideration are needed with respect to supporting transfer pricing positions. This article examines the meaning of the words “form” and “substance”, what is an inconsistency between “form” and “substance”, and the effect of disregarding some or all of the “form” of the commercial or financial relations. This article also examines if the inclusion of the word “substance” in s 815-130(3)(c) affects the meaning of the word “substance” in s 815-130(1)(b) and (2) and vice versa, and analyses “form” and “substance” against the OECD transfer pricing guidelines.
Damian Preshaw, CTA, is a transfer
pricing specialist with more than 25
years experience in both the private
sector and with the ATO, and consults
to accounting firms and law firms.
Prior to establishing Damian Preshaw
Consulting Pty Ltd in October 2015,
Damian was a director in KPMG’s
Transfer Pricing Services Group in
Melbourne for 12 years. In this capacity,
Damian advised a wide variety of
multinational clients on transfer pricing
and profit attribution issues with a
special focus on dispute resolution,
financial services, financial transactions
and business restructuring.
- Current at
25 June 2018