A.L.P. or B.L.T. for A.M.P.? Full Deductions for Advertising, Marketing, and Promotional Activity on Trial in India

Volume 12 No 6    /    Read Article

By Sanjay Sanghvi and Ujjval Gangwal (Guest Authors)

Several Indian transfer pricing cases regarding the treatment of marketing expenses are teed up for consideration by the Supreme Court of India. The cases challenge the assertion made by the Indian tax authorities (“I.T.A.”) that advertising, marketing, and promotion (“A.M.P.”) expenditures by Indian affiliates of foreign headquartered multinational groups typically reflect an embedded service that is provided for the benefit of the foreign headquarters company. Having made database searches focusing on the relationship of A.M.P. expenditures to sales of certain business classes, the I.T.A. asserts that local affiliates of foreign companies tend to spend significantly more on A.M.P. than comparable independently-owned Indian companies when A.M.P. is measured as a percentage of sales. The I.T.A. characterizes the excess expenditure as a brand-building service that benefits the foreign-based headquarters company. A fee should be charged for the performance of that service. The fee would be equal to the deemed excess amount plus an arm’s length mark-up. Sanjay Sanghvi, a senior partner in the Direct Tax Practice of the Mumbai office of Khaitan & Co., and Ujjval Gangwal, a principal associate in the Direct Tax Practice of the Mumbai office of Khaitan & Co., take a deep dive into the cases before the Supreme Court. They caution that a decision in favor or the I.T.A. likely will expose multinational groups based in the U.S. and other O.E.C.D. countries to international double taxation.  See more →