Libor is not a single price: Tax tribunal

BREATHER FOR DBS BANK

The ruling came in a transfer pricing dispute between DBS and the I-T dept

In a significant tax relief to Singapore-headquartered DBS Bank, the Mumbai bench of the Income Tax Appellate Tribunal has recently held that Libor is not a single price but an arithmetic mean of rates at which various banks borrow or lend interbank offers. Since it represented different comparable uncontrolled transactions, a taxpayer could take advantage of a margin of "plus or minus five per cent" in fixing the arms length pricing (ALP), the tribunal ruled.

ALP is the price at which two unrelated and non-desperate parties would agree to a transaction. Libor, or the London Interbank Offered Rate, is the average interest rate estimated by leading banks in London that they would be charged if borrowing from other banks.

The ruling came in a transfer pricing dispute between DBS and the income-tax department dating back to the assessment year of 2002-03. DBS in India entered into an international transaction of lending foreign currency funds to its branches and the Singapore head office.

It had earned interest income from such transactions at varying rates. It followed the comparable uncontrolled price method and benchmarked the rate of interest using Libor.

Since the difference between the rates actually charged and the Libor was less than five per cent, the taxpayer claimed the transactions were at ALP. However, the Transfer Pricing officer rejected the claim for benefit of plus/minus five per cent, as he considered Libor as a single price.

Consultants at Deloitte's tax practice said: "The decision seems to highlight an important fact that Libor is not a rate in itself at which a bank is willing to borrow or lend, but an average of rates at which various panel banks borrow or lend interbank offers. Hence it has to be considered as arithmetic mean of such prices."

"Since the relevant assessment year in the taxpayer's case was 2002-03, if there is more than one price determined by the most appropriate method, the ALP shall be considered by taking the cushion of plus/minus five per cent of the arithmetical mean of such prices. If, however, there is only one price determined by the most appropriate method, then this option of plus/minus five per cent is not available for determination of the ALP," according to Deloitte.

Following an amendment to the Finance Act in 2009, the benefit of five per cent margin is now available to even a single uncontrollable price.

The Tribunal also stated the benefit of plus/minus five per cent "shall extend not only to a situation where more than one price is determined as an ALP but also where only one price is determined as an ALP post amendment by Finance (No.2) Act, 2009".

LIBOR SINGLE RATE OR MEAN?
|DBS lent foreign currency loans to its head office and branches
|Interest rates were benchmarked to Libor
|Rates were within 5 per cent range of Libor

|Tax department considered Libor a single rate and issued adjustment order to the extent of difference
|Tribunal says Libor is an arithmetic mean and therefore margin of 5 per cent has to be allowed