GlaxoSmithKline vs Canada: Transfer Pricing Case

Court: Supreme Court of Canada
Case No: 2012 SCC 52
Applicant: GlaxoSmithKline Inc. (Glaxo Canada)
Defendant: Her Majesty the Queen (Canada Revenue Agency)
Judgment Date: October 18, 2012

The GlaxoSmithKline (GSK) case was a landmark transfer pricing dispute between GSK’s Canadian subsidiary (Glaxo Canada) and the Canada Revenue Agency (CRA) that was ultimately decided by the Supreme Court of Canada in 2012. The case centered on the pricing of ranitidine, the active pharmaceutical ingredient in the anti-ulcer drug Zantac, which Glaxo Canada purchased from a related Swiss company, Adechsa S.A., between 1990-1993.

Key facts of the case include:

Glaxo Canada paid between $1,512 and $1,651 per kilogram for ranitidine from Adechsa during the period in question.
Generic pharmaceutical companies in Canada were able to purchase ranitidine from third-party suppliers for $194-$304 per kilogram during the same period.
Glaxo Canada had two key agreements in place:
1. A Supply Agreement with Adechsa for the purchase of ranitidine
2. A License Agreement with Glaxo Group Limited (UK parent) granting rights to intellectual property, trademarks, and other intangibles in exchange for a 6% royalty on net sales
The CRA reassessed Glaxo Canada’s 1990-1993 tax years, increasing its income by approximately $51 million based on the difference between the prices paid to Adechsa and the prices paid by generic companies.
The case went through the Tax Court of Canada, Federal Court of Appeal, and ultimately to the Supreme Court of Canada.

The core issue was whether the prices Glaxo Canada paid to Adechsa for ranitidine were reasonable and consistent with the arm’s length principle under Canadian transfer pricing rules (section 69(2) of the Income Tax Act at the time).

Key Arguments and Court Decisions

Tax Court of Canada

The Tax Court sided with the CRA, finding that:

The Comparable Uncontrolled Price (CUP) method using generic company purchases as comparables was appropriate.
The License Agreement should be considered separately from the Supply Agreement.
Glaxo Canada’s prices were not reasonable compared to arm’s length prices paid by generic companies.

Federal Court of Appeal

The Federal Court of Appeal overturned the Tax Court decision, ruling that:

The License Agreement was relevant in determining the reasonableness of the prices paid under the Supply Agreement.
The business realities and circumstances of Glaxo Canada needed to be considered.
The matter should be sent back to the Tax Court for redetermination considering these factors.

Supreme Court of Canada

The Supreme Court upheld the Federal Court of Appeal’s decision, providing important guidance:

Relevant circumstances beyond just the specific transaction must be considered in transfer pricing analyses.
The License and Supply Agreements should be considered together as they were linked.
Business realities and the structure of Glaxo’s worldwide operations were relevant factors.
The CUP method using generic comparables was not appropriate without adjustments.
The case was remitted back to the Tax Court for redetermination based on this guidance.

Importance of the Resale Price Method in the Case

While the Comparable Uncontrolled Price (CUP) method was the primary focus in the initial Tax Court decision, the Resale Price Method (RPM) played an important role in Glaxo Canada’s arguments and the ultimate resolution of the case. The importance of the RPM can be seen in several key aspects:

1. Glaxo Canada’s Transfer Pricing Approach

Glaxo Canada relied heavily on the RPM in its transfer pricing analysis and arguments. The company used what it referred to as a “resale-price method” to determine the transfer price of ranitidine. This approach involved:

Starting with the in-market price for the finished Zantac product
Agreeing that distributors (like Glaxo Canada) would retain a 60% gross margin
Setting the transfer price for ranitidine to achieve this target margin

For example, if Zantac was sold for $10 in a particular market, the transfer price for ranitidine would be set at $4, allowing the distributor to retain a 60% gross margin.This approach aligned closely with the principles of the Resale Price Method as outlined in the OECD Transfer Pricing Guidelines, which start with the resale price and work backwards to determine an appropriate transfer price.

2. Consideration of Glaxo Canada’s Business Model

The RPM was particularly relevant given Glaxo Canada’s business model as a secondary manufacturer and distributor. The company’s primary functions were:

Purchasing ranitidine from Adechsa
Performing secondary manufacturing to produce finished Zantac products
Marketing and distributing Zantac in Canada

This type of distribution-focused business model is often well-suited for application of the RPM, as it allows for a focus on the gross margin retained by the distributor.

3. Comparability with European Distributors

Glaxo Canada argued that its transfer pricing should be compared to that of independent European distributors of Zantac, rather than generic manufacturers. This argument aligns closely with the RPM approach, as it focuses on comparing gross profit margins of similar distributors.The company provided evidence that independent European distributors purchasing ranitidine from Glaxo Group companies were paying similar prices to those paid by Glaxo Canada. This supported the argument that the prices were consistent with the arm’s length principle when considering comparable distributors rather than generic manufacturers.

4. Addressing Functional Differences

One of the key issues in the case was the significant functional differences between Glaxo Canada and the generic manufacturers used as comparables by the CRA. The RPM provided a potential way to address these differences by focusing on gross margins rather than absolute prices.By comparing Glaxo Canada’s gross margin to those of other branded pharmaceutical distributors, the RPM could potentially account for:

The value of the Zantac trademark and associated marketing intangibles
The higher quality and regulatory standards of Glaxo-sourced ranitidine
The additional rights and benefits provided under the License Agreement

5. Supreme Court’s Guidance on Relevant Circumstances

While the Supreme Court did not explicitly endorse the RPM, its guidance on considering all relevant circumstances aligns well with the principles underlying the method. The Court emphasized that:

The business realities of Glaxo Canada must be considered
The License and Supply Agreements should be viewed together
The respective roles and functions of Glaxo Canada and Glaxo Group should be kept in mind

These factors all support a more holistic analysis of Glaxo Canada’s profitability and pricing structure, which is consistent with the RPM approach.

6. Potential for Redetermination

In remitting the case back to the Tax Court for redetermination, the Supreme Court opened the door for a more nuanced analysis that could potentially incorporate elements of the RPM. The Court’s guidance suggests that:

A reasonable range of prices may be acceptable
Adjustments to comparables may be necessary to account for differences
The Tax Court should exercise its “best informed judgment” in establishing a satisfactory arm’s length price

This flexibility could allow for greater consideration of the RPM or a hybrid approach incorporating elements of multiple methods.

Challenges and Limitations of the Resale Price Method in the Case

While the RPM offered potential advantages in analyzing Glaxo Canada’s transfer prices, there were also several challenges and limitations to its application in this case:

1. Data Availability and Reliability

The Tax Court found that Glaxo Canada’s evidence regarding the profitability of European distributors was insufficient to accurately measure their gross profit margins. This highlights a common challenge with the RPM – obtaining reliable, comparable data on gross margins for similar distributors.

2. Accounting Differences

Comparing gross margins across different jurisdictions and companies can be complicated by variations in accounting practices and financial reporting standards. This could make it difficult to ensure true comparability of gross margins between Glaxo Canada and potential comparables.

3. Product and Market Differences

The unique nature of the pharmaceutical market, with significant variations in pricing and regulations across countries, could make it challenging to find truly comparable distributors for the RPM analysis.

4. Bundled Transactions

The interplay between the Supply Agreement and License Agreement created a complex scenario where Glaxo Canada was effectively paying for both tangible goods (ranitidine) and intangible rights (trademarks, patents, etc.). This bundling of transactions can complicate the application of the RPM, which typically focuses on more straightforward distribution arrangements.

5. Profit Split Considerations

Given the significant value of the Zantac trademark and associated intangibles owned by Glaxo Group, there may be arguments that a profit split method would be more appropriate to determine the allocation of profits between Glaxo Canada and its parent company.

Broader Implications of the Case for the Resale Price Method

The GlaxoSmithKline case has several important implications for the application of the Resale Price Method in transfer pricing:

1. Holistic Analysis Required

The Supreme Court’s emphasis on considering all relevant circumstances reinforces the need for a holistic analysis in transfer pricing. This suggests that while the RPM can be a valuable tool, it should not be applied in isolation without considering other relevant factors and potential methods.

2. Importance of Comparability

The case highlights the critical importance of finding truly comparable transactions or companies when applying any transfer pricing method, including the RPM. Functional comparability is particularly crucial, as evidenced by the rejection of generic manufacturers as appropriate comparables for Glaxo Canada.

3. Consideration of Bundled Transactions

The GlaxoSmithKline case demonstrates the need to carefully consider how to address situations where tangible and intangible property are effectively bundled together in related party transactions. This may require modifications to the standard application of the RPM or the use of multiple methods to appropriately analyze different aspects of the arrangement.

4. Business Realities and Commercial Rationality

The Supreme Court’s focus on business realities and the structure of Glaxo’s worldwide operations suggests that transfer pricing analyses, including those using the RPM, should consider the commercial rationality of arrangements from the perspective of both the tested party and the broader corporate group.

5. Flexibility in Method Selection

While not explicitly stated, the Court’s approach implies that tax authorities and courts should be open to considering multiple transfer pricing methods or hybrid approaches that may better capture the economic realities of complex transactions.

Conclusion

The GlaxoSmithKline case represents a landmark decision in Canadian transfer pricing jurisprudence, with significant implications for the application of various transfer pricing methods, including the Resale Price Method. While the RPM was not ultimately the deciding factor in the Supreme Court’s ruling, it played an important role in Glaxo Canada’s arguments and highlighted several key considerations for its application in complex scenarios.

The case underscores the need for a nuanced, fact-specific approach to transfer pricing that considers all relevant circumstances and is not overly reliant on any single method or set of comparables. For the Resale Price Method specifically, the case demonstrates both its potential utility in analyzing distribution-focused operations and the challenges in its application, particularly in situations involving valuable intangibles or bundled transactions.

Moving forward, the GlaxoSmithKline decision provides important guidance for both taxpayers and tax authorities in approaching transfer pricing analyses. It emphasizes the importance of:

Considering the broader context and business realities of intercompany transactions
Carefully assessing the comparability of potential benchmarks
Being open to multiple methods or hybrid approaches when appropriate
Recognizing that transfer pricing is not an exact science and that a range of reasonable outcomes may exist

For the Resale Price Method, the case suggests that while it remains a valuable tool in the transfer pricing toolkit, its application should be thoughtful and consider potential limitations. Practitioners should be prepared to supplement RPM analyses with additional context, alternative methods, or adjustments to ensure a comprehensive and economically sound transfer pricing position.

Ultimately, the GlaxoSmithKline case reinforces the complex and often subjective nature of transfer pricing analyses, particularly in industries with significant intangible value. It serves as a reminder of the ongoing challenges in applying theoretical arm’s length principles to the practical realities of multinational business operations.