Transfer Pricing Obligations of Singapore Companies

Last updated on November 21, 2022

businessman reviewing financial documents.

With globalisation and the internationalisation of business, many companies might decide to bring their business activities overseas. This may be done by, for example, setting up subsidiary companies in different parts of the world while the main holding company is located in Singapore.

While such a move might help to optimise business and operational costs, companies also need to be aware of various mechanisms and regulations that countries have put in place to ensure such arrangements are not abused. One such mechanism is transfer pricing.

This article will outline what you need to know about transfer pricing, Singapore’s transfer pricing regulations and requirements, as well as the relevant obligations of companies in Singapore. It will cover:

What is Transfer Pricing?

Transfer pricing refers to the rules and methods for pricing transactions between related parties. Examples of such relevant transactions include:

The sale and purchase of goods
The provision of services
Borrowing or lending of money
The use or transfer of intangibles (such as intellectual property rights)

Parties are considered to be related if:

Either party controls the other party, whether directly or indirectly; or
Both parties are controlled by a common person, whether directly or indirectly.

Related parties include branches and head offices of the company. The diagram below illustrates how transfer pricing might occur in practice:

In this diagram, Manufacturer B manufactures widgets in Malaysia. Distributor C distributes the widgets from Hong Kong. Both B and C are entities that are 100% owned by Company A based in China. The three companies here are therefore considered to be related parties.

When the widgets are sold on the open market, Company A has no control over the price at which one unit of widgets is sold, as these are set by market forces (i.e. supply and demand). Hence, distributor C can sell the widgets on the open market (for example, to an external client) at the market price of US$5,000 for one unit of widgets. However, Company A is able to control the price of transactions between B and C as they are considered to be related parties.

The internal sale of widgets by B to C is therefore a controlled transaction, and the price charged for this transaction is known as the transfer price.

What is the Purpose of Transfer Pricing Rules?

Transfer pricing rules primarily help to regulate cross-border business transactions among related companies of larger, multinational enterprises and prevent the abuse of such intracompany transactions, e.g. through tax avoidance and by manipulating transfer prices. This is because when related parties transact with each other, there is a tendency for their pricing to not reflect market conditions as their commercial and financial interests are also related and lack independence.

Taking the example in the diagram above: the price at which one unit of widgets is sold by B to C would have an impact on their respective financial results. So, if B charges a high price, B makes more profit. On the other hand, if B charges a low price, C (the distributor) makes more profit. These differences in profit are significant from a tax perspective.

How so? B is taxed in Malaysia at a corporate tax rate of 24% while C is taxed in Hong Kong at a corporate tax rate of 16.5%. Company A would want to make as much profit as possible after tax deductions and as the shareholder of both B and C, it would have an interest in setting prices such that the profits are highest in the country where the tax rates are the lowest i.e. Hong Kong.

Suppose the cost of manufacturing one unit of widgets is US$1,000, and the market price of a unit of widgets is US$5,000. It is assumed that the average distributor in the open market (similar to C) realises a profit (before tax deductions) of US$3,000 for the sale of one unit of widgets.

Now, we have two different scenarios.

In Scenario 1, we see the profits (after tax) if the price that B charges to C for the supply of 1 unit of widgets is similar to the market price of US$4,000 as this ensures a profit of US$3,000 (similar to the profit in the open market):

in US$	B (Manufacturer)	C (Distributor)	Consolidated
Revenue	4,000	5,000
Cost	1,000	4,000
Profit before tax	3,000 (4,000 – 1,000)	1,000 (5,000 – 4,000)	4,000 (3,000 + 1,000)
Tax at prevailing rates	720 (24% of 3,000)	165 (16.5% of 1,000)	885 (720 + 165)
Profit (post-tax)	2280 (3,000 – 720)	835 (1,000 – 165)	3,115 (2,280 + 835)

In Scenario 1, most of the profit is made by B located in Malaysia. The profits here are taxed at a higher rate of 24%.

Scenario 2 illustrates the potential profit if B charges a non-market, lower price of US2,000 instead:

in US$	B (Manufacturer)	C (Distributor)	Consolidated
Revenue	2,000	5,000
Cost	1,000	2,000
Profit before tax	1,000 (2,000 – 1,000)	3,000 (5,000 – 2,000)	4,000 (1,000 + 3,000)
Tax at prevailing rates	240 (24% of 1,000)	495 (16.5% of 3,000)	735 (240 + 495)
Profit (post-tax)	760 (1,000 – 240)	2,505 (3,000 – 495)	3,265 (760 + 2,505)

In Scenario 2, most of the profit shifts to Distributor C (located in Hong Kong). There, the profits are taxed at a lower rate of 16.5%. This would be preferred by Company A as it can earn an extra profit, post-tax, for each unit of widgets sold.

Given the significant differences in tax rates between countries, companies (like A) would prefer to shift their profits from high-tax countries (like Malaysia) to lower-tax countries (like Hong Kong) as illustrated above. Transfer pricing rules, therefore, help to control such intracompany transactions and ensure that deals are done at “arm’s length” to ensure companies do not benefit from taxing their profits at so-called “tax havens”. This principle is explained in further detail below.

What is the Arm’s Length Principle and Its Purpose?

The arm’s length principle is an international standard to guide the pricing of transactions between related parties. Singapore’s tax authority, the Inland Revenue Authority of Singapore (IRAS), endorses the arm’s length principle, which is also legally prescribed in section 34D of the Income Tax Act.

Put simply, the arm’s length principle implies that transfer prices between related parties must be equal to prices that are paid by unrelated parties under the same or similar circumstances.

Taking the example above to illustrate how the arm’s length principle might apply:

The price for the sale of one unit of widgets between the related parties (i.e. B and C) should be similar to the price for a sale of one unit of widgets between C and an unrelated party (i.e. the external client).

What are the Types of Companies That have Transfer Pricing Obligations in Singapore?

If you are involved in the management of a group of companies, and one of these companies has a connection to Singapore, you are required to comply with Singapore’s transfer pricing obligations.

Taking the example above: suppose Company A has widget factories located across the globe (besides Malaysia). If one of the manufacturers is located in Singapore, then Company A would need to abide by the arm’s length principle. This is even if Company A is based in a different country (i.e. China, in the example above).

How Can a Company Apply the Arm’s Length Principle?

IRAS recommends adopting a 3-step approach to applying the arm’s length principle. Do note that this approach is a recommendation by IRAS. It is not mandatory or a legal requirement that must be adopted. The approach can be modified or adapted based on the company’s circumstances to better arrive at the arm’s length price.

The 3 steps are outlined as follows:

Step 1: Carry out a comparability analysis

A comparability analysis is undertaken to find similar uncontrolled (i.e. unrelated party) transactions to which the related party transaction can be benchmarked against and to estimate the arm’s-length price.

Some of the considerations used to undertake this comparability analysis and assist with deriving the arm’s length price include:

The contractual terms of the transaction: Where there is a contract or agreement between the related parties, these contracts/agreements should be the starting point for determining how the transaction is priced and how the responsibilities and risks should be divided between the related parties.
Characteristics of the goods, services or intangible properties: These characteristics would affect the value of the goods or services in the open market. For example, a product with better quality and more features would fetch a higher selling price.
Functional analysis of the parties (i.e. the functions performed, assets used, and risks assumed): This analysis aims to identify the economically significant activities and responsibilities undertaken, assets used or contributed, and risks assumed by the parties to the transactions. It focuses on what the parties do and the capabilities they provide. Such activities and capabilities will include decision-making (e.g., decisions about business strategy and risks). The analysis also considers the type of assets used (such as plant and equipment, financial assets, etc.) and the nature of the assets used (such as the age, market value, location, property right protections available, etc.)
Commercial and economic circumstances of the parties: This allows for meaningful comparisons to be made between related party transactions and independent party transactions. Examples of such circumstances include geographic location, market size, whether pricing controls exist etc.

Step 2: Identify the most appropriate transfer pricing method

There are currently 5 internationally recognised and accepted methods for evaluating transfer prices or margins against a benchmark. This benchmark is based on the prices or margins that have been adopted by independent (i.e. non-related parties) in similar transactions.

The 5 methods are summarised as follows:

Traditional transaction methods
1. Comparable Uncontrolled Price (CUP) method	This method compares: The price charged for goods or services transferred in a related party transaction; and The price charged for goods or services transferred in an independent party transaction in similar/comparable circumstances. A significant difference between the two prices would suggest that the related parties are not dealing at arm’s length.
2. Resale price method	This method is used when a product that has been purchased from a related party is resold to an independent party (i.e. the focus is on the reseller of the product). The resale price to the independent party is reduced by a comparable gross margin (the “resale price margin”) to arrive at the arm’s length price of the product transferred between the related parties.
3. Cost-plus method	Under this method, the first step is to determine the costs incurred by the supplier in a controlled or related party transaction. These costs may include direct costs (e.g. labour or manpower costs); indirect costs (e.g. repair and maintenance costs); and operating expenses (e.g. marketing and administrative expenses). Then, a market-based markup (“plus”) is added to that cost to account for an appropriate amount of profit. To determine a transfer price that follows the arm’s length principle, the markup is compared to the markups in comparable transactions made between unrelated parties.
Transactional profits methods
4. Transactional profit split method	This method “splits” the combined profits of a transaction between related parties in a similar way to how independent parties would split their profits under similar and/or comparable circumstances.
5. Transactional net margin method (TNMM)	This method compares the net profit relative to an appropriate base (such as costs, sales or assets) that is attained by the company (or companies) paying tax for the intracompany transactions (i.e. the tax-paying company) from a related party transaction to that of comparable independent parties. This ratio of net profit and the appropriate base is commonly known as the net profit indicator or profit level indicator.

Generally, traditional transaction methods compare the price of related party transactions with that of transactions between independent parties. Transactional profits methods compare the profit from related transactions with the profit generated in independent party transactions.

The transfer pricing method and tested party that produce the most reliable results should be identified for the arm’s length analysis.

Step 3: Determine the arm’s length results

Once the appropriate transfer pricing method has been identified, this step requires applying the most appropriate transfer pricing method to the data of comparable independent party transactions. In doing so, you will arrive at the arm’s length result.

The transfer pricing analysis would usually lead to a range of prices or margins. This may have been due to issues when undertaking the initial comparability analysis or other defects that cannot be identified and/or quantified in the comparability analysis. As a result, the interquartile range is usually applied to determine the arm’s length results.

These results will then be used to guide or justify transfer pricing for the company’s related party transactions.

For a more detailed explanation of the 3-step approach as well as the various transfer pricing methods outlined above, you can refer to section 5 of IRAS’ guide here.

What are the Transfer Pricing Documentation Requirements?

Transfer pricing documents are prepared to show that a company’s related-party transactions are in accordance with the arm’s length principle. This section will outline the various requirements that must be met when preparing transfer pricing documents.

Who is required to submit transfer pricing documentation?

Companies that perform relevant transactions with related parties are required to prepare certain transfer pricing documents. Taxpaying Singapore companies/entities are also required by law to prepare transfer pricing documents if:

Their gross revenue exceeds S$10 million for that financial year; or
They had been required to prepare transfer pricing documentation during the previous year of assessment.

What are the documents required?

The company/entity is required to retain and provide transfer pricing documents that contain the following information:

An overview of the business group, especially on entities dealing in Singapore
A description of the transactions with related parties alongside the transfer pricing analyses

More details on the requirements for transfer pricing documentation can be found in the Second Schedule of the Income Tax (Transfer Pricing Documentation) Rules 2018.

How must the documents be submitted and what are the deadlines?

You are not required to submit transfer pricing documents when filing your tax returns. However, if IRAS makes a request for these documents, you will need to submit them within 30 days of the request.

How long must the documents be kept?

Transfer pricing documents should be kept or retained for at least 5 years from the end of the financial year in which the transaction(s) took place.

Are there any exemptions to these requirements?

There are certain exemptions that apply to some of the requirements. For example, in the case of related party domestic transactions that are subject to the same tax rate, and related party transactions where the value of each transaction does not exceed certain thresholds.

Further details on the applicable exemptions can be found under section 4 of the Income Tax (Transfer Pricing Documentation) Rules 2018.

Are there any penalties for non-compliance?

A failure to comply with transfer pricing documentation requirements is an offence, and you may be liable to a fine of up to S$10,000 if you:

Fail to prepare transfer pricing documentation in accordance with the prescribed timing or content requirements;
Fail to submit transfer pricing documentation within 30 days of a request by IRAS;
Fail to retain transfer pricing documentation for at least 5 years; or
Provide any documentation that is false or misleading.

What Happens If a Company Fails to Comply with the Arm’s Length Principle?

If a company fails to comply with the arm’s length principle, this would result in an underdeclaration of its profit. IRAS will consider increasing or adjusting the company’s profit upwards to the arm’s length amount to ensure that the related parties pay their fair share of tax and are not able to derive any tax advantages by virtue of them being related.

IRAS will also impose a 5% surcharge on the amount of transfer pricing adjustment.

Further details on the transfer pricing adjustment and surcharge for non-compliance can be found in sections 8 and 9 of IRAS’ guide.

Are There Other Obligations That a Company Needs to Take Note of?

Apart from the transfer pricing requirements stated above, a company should also report related party transactions (RPT). This obligation would apply if the value of such transactions, as disclosed in their financial statements, exceeds S$15 million.

The reporting of RPT can be done using the Form for Reporting RPT, which is available as part of the Corporate Income Tax Return (Form C). All amounts in the RPT form must be declared in Singapore dollars, even if the company’s functional currency in its financial statements is in another currency. A guide to completing the relevant form for the report of RPT can be found here.

What Happens If Transfer Pricing Disputes Arise?

Should a transfer pricing dispute arise, there are various dispute resolution mechanisms that are available, as explained below:

Mutual Agreement Procedure (MAP)

The first dispute resolution mechanism is the Mutual Agreement Procedure (MAP).

MAP is a dispute resolution mechanism that seeks to assist tax-paying companies/entities in resolving cross-border tax disputes between countries that have an Avoidance of Double Taxation Agreement (DTA) with Singapore.

For example, suppose Singapore and Hong Kong have a DTA between them. A Hong Kong-based multinational company has a branch office located in Singapore and lodges a complaint with IRAS that it has been double-taxed for certain transactions, which goes against the provisions of the DTA. The relevant tax authority in Hong Kong (i.e. the equivalent of IRAS) would then engage in the MAP with IRAS to resolve the dispute on behalf of the branch office. In this example of the dispute between Singapore and Hong Kong, the relevant tax authorities of each country would consult with one another to resolve the dispute on behalf of the companies concerned. They would then attempt to reach an agreement to eliminate the instances of double taxation for the relevant transactions.

MAP is available to tax-paying companies or entities that are tax residents in Singapore, as well as those that are not tax residents in Singapore but have a branch here.

For more on MAP, you may refer to this overview by IRAS.

Arbitration

If the matter cannot be resolved through the MAP, then the parties might consider arbitration. Arbitration is an alternative method of dispute resolution where the parties do not bring their dispute to court, but appoint certain individuals (i.e. the arbitrators) to decide the outcome of the dispute for them.

For more information, you may refer to our article on the arbitration process in Singapore for business disputes.

How Might Transfer Pricing Disputes be Prevented?

IRAS has outlined two ways in which transfer pricing disputes can be prevented. These methods aim to ensure certainty and clarity in the transfer pricing process:

By preparing and maintaining transfer pricing documentation: This would serve as evidence that transactions were conducted at arm’s length and complied with the necessary regulatory requirements.
Through Advance Pricing Arrangements (APAs): This is a dispute prevention mechanism where IRAS and the tax-paying company/entity or relevant DTA partner agree in advance on a set of criteria. This set of criteria is then used to determine the pricing of the tax-paying company’s/entity’s related party transactions for a specific period of time.

More information about APAs is available here.

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It is important for a company to be aware of Singapore’s transfer pricing rules, and to comply with transfer pricing requirements and the arm’s length principle if it applies to its company’s transactions. This will ensure that your company performs its transactions lawfully and at arm’s length where required.

If you need assistance with developing your company’s transfer pricing strategy or in ensuring that you comply with your transfer pricing obligations, you can engage a corporate secretarial firm. An experienced corporate secretarial firm would be able to assist with, amongst other matters, preparing the relevant transfer pricing documentation and ensuring timely submission of them.

However, if you have been charged with a transfer pricing-related offence – for example, for non-compliance with transfer pricing documentation requirements – you should consult a criminal lawyer specialising in regulatory compliance and commercial offences for further advice.

You may get in touch with such specialised criminal lawyers in Singapore here.