The Glencore Case: Transfer pricing and the world of possibilities

Abstract

The important and contentious Glencore Case breaks new ground in the application of Australia's transfer pricing rules to an integrated global business, particularly in framing how the rules take into account business and market risks impacting on such a business. In applying the "arm's length principle" the Court restricted the search for comparables to cases where independent parties had used the same type of pricing structure as was imposed by the Swiss parent, despite an alternative market-related pricing structure that was a more attractive commercially rational option. The Court also analysed the financial circumstances and risk exposure of the Australian miner in isolation from the integrated business and multinational group of which it was part. The taxpayer's rationale was that the new pricing structure removed the risk of volatility between treatment and refining costs and copper prices. For the reasons set out in the paper, it did not reduce the volatility risk exposure for the integrated business, and had no real world impact beyond its natural and probable consequences: the reduction of the taxable sales revenue of the Australian miner and a corresponding increase in the profits of the Swiss parent company. Should the Commissioner be unsuccessful on appeal, there are good public policy grounds for a law change given the scope for tax avoidance created by the decision.