Keysight Technologies v. Malaysia: Implications for Transfer Pricing and Tax Compliance

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Case Information

• Court: Court of Appeal
• Case No: W-01(A)-272-05/2021
• Applicant: Keysight Technologies Malaysia Sdn Bhd
• Defendant: Director General of Inland Revenue
• Judgment Date: June 12, 2024

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Judgment Summary

In the case of Keysight Technologies Malaysia Sdn. Bhd. v. Ketua Pengarah Hasil Dalam Negeri, the Court of Appeal of Malaysia dealt with complex issues surrounding the tax treatment of a substantial receipt from the sale of intellectual property (IP) rights. The appellant, Keysight Technologies, disputed an additional tax assessment issued by the respondent, the Director General of Inland Revenue, arguing that the receipt was capital in nature and not subject to income tax. The Court of Appeal ultimately ruled in favor of the appellant, addressing several key legal and factual disputes.

Key Points of the Judgment

Background

Keysight Technologies Malaysia Sdn. Bhd., a manufacturer of microwave devices and other high-tech products, underwent a significant business restructuring in 2008. This included the sale of its IP rights to Agilent Technologies International S.a.r.l (ATIS) and the subsequent transition to a contract manufacturing model. The sale generated RM 821,615,000, which Keysight reported as a non-taxable capital gain. The Inland Revenue Board, however, classified it as taxable income, resulting in a disputed additional tax assessment of RM 311,057,602.46.

Core Dispute

The core dispute centred on whether the proceeds from the transfer of technical know-how were capital in nature (and thus non-taxable) or revenue in nature (and thus taxable under Section 4(f) of the ITA 1967). Additionally, there was contention over whether interest should be awarded on the tax refund.

The primary issues were:

1. Whether the receipt from the sale of IP rights was capital or income in nature.
2. Was the assessment by the Inland Revenue time-barred?
3. The justification for imposing a 45% penalty on the appellant.

Court Findings

1. Nature of Proceeds: The Court of Appeal found that the proceeds from the technical know-how transfer were revenue. The court noted that KTM still used the technical know-how, indicating that the transfer was not an outright sale.
2. Time-Barred Assessment: The court ruled that the additional assessment was time-barred under Section 91(1) of the ITA 1967, as the Revenue did not prove negligence or fraud on the part of KTM.
3. Award of Interest: The court held that awarding interest on the tax refund was discretionary and inappropriate in this case. The ITA 1967 did not provide for interest on refunds arising from tax appeals.
4. Penalties: Given the findings on the first two issues, the court concluded that the penalties were unjustified and should be lifted.

Outcome

The Court of Appeal allowed the appeal, ordering the Inland Revenue to refund any sums paid by Keysight Technologies due to the additional assessment and negating the penalty.

TP Method Used

The valuation method for the IP rights was based on a “discounted cash flow” approach, which projects future cash flows and discounts them to present value.

Major Issues or Areas of Contention

• Nature of Receipt: Dispute over whether the RM 821,615,000 from the IP sale was a capital gain or income.
• Time-barred Assessment: The Inland Revenue’s issuance of an additional assessment beyond the statutory period.
• Negligence Allegations: Claims that Keysight was negligent in reporting the IP sale.

Expected or Controversial Decision?

This decision was significant but not entirely unexpected. The court’s reliance on established tests for distinguishing capital gains from income provided clarity in an area often marked by complexity and dispute. However, it was controversial in the sense that it challenged the Inland Revenue’s aggressive stance on what constitutes taxable income.

Significance for Multinationals and Revenue Services

This judgment underscores the importance for multinational companies to meticulously document and justify their tax positions, especially regarding complex transactions like the sale of IP rights. For revenue authorities, it highlights the necessity of clear guidelines and the risks of retroactive assessments.

Value of Transfer Pricing Expertise

Transfer pricing expertise is crucial in navigating complex tax disputes like this. Experts can provide valuable insights into the appropriate transfer pricing methods and ensure compliance with local and international regulations, potentially saving companies significant amounts in taxes and penalties.

Preventative Measures

To avoid or better manage similar disputes, companies should:

• Implement a robust tax risk management process.
• Establish a tax steering committee to oversee tax compliance and strategy.
• Maintain thorough documentation of all transactions, especially those involving intangibles.
• Regularly review and update transfer pricing policies to align with current regulations.