Transfer Pricing Disputes (LAWS90263)

Transfer pricing litigation is a growing area of tax disputes, with both an Australian and OECD-level focus on addressing international profit shifting translating into action by the Commissioner.

This subject will heavily focus on the practical aspects of transfer pricing disputes. In this subject, students will step through the life cycle of a transfer pricing dispute from early advice to the client, to engaging with the Commissioner, and ultimately preparing the case for trial and potentially appeal. The specific challenges which may arise throughout the dispute will be addressed and their strategic implications considered, such as preparation of defence materials ahead of the transaction, the conduct of an audit including responding to notices in the transfer pricing context, developing the arguments and case theory, and preparing lay and expert evidence.

The subject will be presented with guest speakers, such as leading tax practitioners from private practice and government, and with insight from the corporate sector. This diversity presents a unique opportunity to benefit from various insights, perspectives and experiences.

Principal topics will include:

• Brief overview of the Australian transfer pricing regime and its context within the international BEPS project
• Early considerations in advising on transactions with a view to avoiding or preparing for future disputes
• The Commissioner’s audit process with a particular focus on information gathering powers in the transfer pricing context
• Evidence gathering – challenges for the Commissioner and for the taxpayer
• Preparing and responding to position papers
• The Mutual Agreement Procedure vs. Part IVC objection and appeal
• The role of expert economic advice and the ATO Economist Practice in transfer pricing disputes
• The approach of the courts to ‘reconstructing’ the subject transaction
• Interaction with integrity measures such as Part IVA and DPT.