The Administrative Court of Appeal of Paris gave its decision in Nestlé Entreprises v. Minister of Economy and Finances (No. 12PA00469) on 5 February 2013 concerning the use of secret comparables under the transfer pricing regulation, article 57 of the French Tax Code (FTC).

The French company plaintiff was a member of the Nestlé group, transferred the management function of an internal cash pool service to a Swiss affiliate company in October 2002. In 2004, based on a tax audit, the tax authorities considered this operation as an indirect transfer of profits under article 57 of the FTC, and thus required an arm’s length compensation. In order to calculate the compensation, the tax authorities used, as comparables, the cash pooling operations of three major groups listed on the French Stock Exchange (CAC 40) and concluded that the arm’s length compensation should have been 0.5% on the amount lent in the cash pool at the end of the previous three financial years.

Consequently, the tax authorities reassessed the tax base for corporate income tax and welfare tax for the fiscal year 2002 and imposed the corresponding adjustment for these taxes, plus related penalties and interest. The plaintiff’s appeal against the tax authorities’ assessment was dismissed by the Lower Court (Tribunal Administrative de Cergy-Ponoise) which, however, reduced the arm’s length compensation from 0.5% to 0.3325%. The plaintiff appealed against the Lower Court’s decision.

The Court of Appeal accepted the plaintiff’s claim because the tax authorities failed in their obligation to use a valid comparable. The Court of Appeal concluded that such secret comparables cannot be used in order to qualify the transaction as abnormally low under article 57 of the FTC. Thus, the tax authorities failed to demonstrate that this transaction was an indirect transfer of profit under article 57 of the FTC.