Taxand have published an article – Payments For Leasing Bandwidth: Business Profit Or Royalties? – following a recent case in Indonesia. The case involved a payment from Indonesia to a UK company (Intelstat) for the use of satellite bandwidth, and quotes similar cases in India and Australia. The court found for the taxpayer, that the lease payments were business profits and not a payment of royalties.
The point at issue was the interpretation of the phrase “the use of, or the right to use, industrial, commercial or scientific equipment” in the UK/Indonesian tax treaty. This phrase appears in the royalties article of a number of older UK tax treaties and seems at odds with the more usually encountered definition of royalties in this context as relating to the direct use of intellectual property, rather than to the use of the product of intellectual property (the equipment).
ATO triumphs over IBM in $55m tax war – ZDnet – IBM were trying to extend the scope of a “private ruling”, which seems to be an advance pricing agreement of some sort on the transfer pricing of royalties. The agreement was reached for 2004 and IBM considered that it should continue to apply after 2004, and also tried to get a refund for tax paid from 1987-2002 on that basis that the agreement should have retrospective effect.
The Australian Tax Office disagreed, and the court has upheld the additional tax bill for 2005 onwards.