STAGE ONE OF AUSTRALIA’S TRANSFER PRICING CHANGES: PUBLIC SUBMISSIONS (RE)ACTION
By Diane Kraal and Ana Maria Lugo Marin
This paper concerns the 2011 Australian Government’s then proposed changes to the transfer pricing rules, referred to as the stage one amendments, and the consultation process to provide interested parties with an opportunity to comment. The paper covers the external submissions received, with a focus on the dominant issues raised in the submissions regarding the planned changes to the transfer pricing rules. Also examined is the extent to which the issues advanced by the interested parties were included in the Bill that was tabled in parliament for debate, and finally enacted in September 2012 as Tax Laws Amendment (Cross-Border Transfer Pricing) Act (No. 1) 2012 (Cth). Using the methodology of grounded theory, we analyse 37 public submissions from the stage one consultations to ground a theory and explain the submitters’ issues of concern. The key concerns about the proposed amendments are: opposition to any retrospective powers; requests protection for taxpayers from penalties arising from a transfer pricing amendment; resistance to assigning ‘separate taxing powers’ to Australian tax treaties; and a clear aversion to any ‘discrimination’ against foreign related parties that are resident of a country that has a tax treaty with Australia. Transfer pricing literature is used to validate the results. While there were consistent patterns of concern in the submissions from the interested parties, the adoption of their requests was low in the stage one amendments.