Glencore Australia (CMPL) sold copper concentrate produced in Australia to its Swiss parent, Glencore International AG (GIAG).
The tax administration found, that the price paid by Glencore International AG to Glencore Australia for the copper concentrate in the relevant years according to a price sharing agreement was less than the price that might reasonably be expected to have been paid in an arm’s length dealing between independent parties.
‘The amended assessments included in the taxpayer’s assessable income additional amounts of $49,156,382 (2007), $83,228,784 (2008) and $108,675,756 (2009) referable to the consideration which the Commissioner considered would constitute an arm’s length payment for the copper concentrate sold to Glencore International AG in each of the relevant years.
The Federal Court of Australia found in favor of Glencore.
“Accordingly I find that the taxpayer has established that the prices that CMPL was paid by GIAG for the copper concentrate it supplied to GIAG under the February 2007 Agreement were within an arm’s length range and accordingly the taxpayer has discharged the onus of proof on it.”
“In view of my conclusions, the objection decisions should be set aside and the amended assessments for the 2007, 2008 and 2009 income years set aside.“
The ruling of the Federal Court was appealed by the Australian tax authorities.
On 6 November 2020, a Full Federal Court in a 3-0 ruling dismissed the appeal.
Australia vs Glencore November 2020
My take on the economic considerations behind whether this 23% price sharing discount for smelting was reasonable or excessive:
https://mnetax.com/glencores-australia-transfer-pricing-litigation-the-economic-considerations-41653