Commissioner of Taxation v Glencore Investment Pty Ltd [2020] FCAFC 187

Appeal from: Glencore Investment Pty Ltd v Commissioner of Taxation [2019] FCA 1432

TAXATION – transfer pricing – appeal from judgment of Federal Court of Australia setting aside objection decisions in respect of amended assessments issued for years of income ended 31 December 2007 to 2009 – where Australian resident subsidiary of taxpayer sold copper concentrate to its ultimate Swiss resident parent in 2007 to 2009 years pursuant to amended terms agreed in February 2007 – where Commissioner issued amended assessments to taxpayer for 2007 to 2009 years after making determinations under Div. 13 of Income Tax Assessment Act 1936 (Cth.) and Subdiv. 815-A of Income Tax Assessment Act 1997 (Cth.) – whether learned primary judge erred in concluding amended assessments wholly excessive – appeal court role in transfer pricing case – capacity to reconstruct transaction under Div. 13 and Subdiv. 815-A – personality of parties to hypothetical contract under Div. 13 and Subdiv. 815-A – role of comparable agreements in transfer pricing case – whether adoption of price sharing formula represented an arm’s length outcome – whether price sharing rate used was an arm’s length rate – whether arm’s length seller might be expected to have required discount for quotational period optionality back pricing term – whether freight allowance for 2009 year represented an arm’s length allowance

Full decision here