Full Federal Court Dismisses Commissioner of Taxation’s Appeal in Commissioner of Taxation v. Glencore and Finds Prices for Copper Concentrate Were Arm’s Length

Abstract

In Commissioner of Taxation v. Glencore Investment Pty Ltd, the Full Federal Court has comprehensively reviewed Australia’s transfer pricing rules and dismissed the Commissioner’s appeal against the decision at first instance – where Davies J held that prices charged by the taxpayer to its Swiss parent, for the sale of copper concentrate, were “arm’s length”. The Full Court’s judgments include (i) a detailed discussion of the difficulties involved in predicting how independent parties, dealing at arm’s length, would price wholly controlled transactions; (ii) an acknowledgement of the practical issues facing taxpayers and the Commissioner alike, in demonstrating whether prices are, or are not, arm’s length; and (iii) a welcome endorsement of the need to use common sense in assessing transfer pricing outcomes.