Crushing Defeat Due to Wrong Comparables Selection: Tax Court Revokes PT SMS's IDR 42 Billion Affiliated Rent Correction

This Tax Court Decision provides a crucial affirmation regarding the application of the Arm's Length Principle (ALP), particularly in the context of a negative correction to Rental Expenses involving related entities. The dispute between PT SMS and the Director General of Taxes (DJP) centered on the redetermination of the fairness of related party transaction values based on Article 18 Paragraph (3) of the Income Tax Law (UU PPh). The DJP imposed a negative correction on Rental Expenses amounting to IDR 42,781,612,448.00, arguing that the expense claimed by PT SMS was below its fair market value, thereby potentially leading to an overstated Taxable Income.

The core conflict in this dispute lies in the validity of the comparable data. The DJP relied on the results of a valuation conducted by the Functional Tax Appraiser Team, which used market data, including rental offers and comparisons with other properties such as low-end trade centers. Conversely, PT SMS proved that the rental expense was already at arm's length, based on a Transfer Pricing (TP) analysis using the Transactional Net Margin Method (TNMM). PT SMS's operating profit was shown to be within the arm's length range. PT SMS also argued that the comparable data used by the DJP lacked adequate comparability, both in terms of property type, location, and the nature of the price (offering price vs. real transaction price). Furthermore, PT SMS emphasized that the rental reduction incentives were a universally applied policy to all tenants (both affiliated and independent) due to the force majeure condition of the COVID-19 Pandemic.

In its decision, the Tax Court adopted a critical stance. The Panel acknowledged the DJP's authority to redetermine transaction prices, even in the form of a negative expense correction (adding to the deductible expense), to ensure the application of the ALP. Nevertheless, the Panel ruled that the IDR 42,781,612,448.00 correction made by the DJP could not be sustained. The main consideration of the Panel was the DJP's failure to substantiate its correction with strong comparable data. The data used by the DJP was deemed not comparable functionally and commercially, and it failed to take into account specific economic factors (COVID-19) that genuinely impacted the pricing. Consequently, the Panel upheld the evidence presented by PT SMS.

The implications of this ruling for tax practice are significant. The PT SMS case underscores that in TP disputes, the quality of evidence is the primary determinant. Although the DJP has the right to make corrections to achieve fairness, these corrections must be supported by meticulous comparability analysis and truly comparable data (arm's length data). For Taxpayers, this decision serves as a reminder to prepare Transfer Pricing Documentation (TP Doc) that is not only robust on the profit side (TNMM) but also capable of presenting supporting evidence relevant to specific economic conditions and direct proof of transaction pricing. Taxpayers must be prepared to challenge the comparability of the data presented by the DJP before the Tax Court.

A Comprehensive Analysis and the Tax Court Decision on This Dispute Are Available Here