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Thursday, November 30, 2023

Pepsi loses ATO challenge on tax for Schweppes payments

 Before #CyprusConfidential, ICIJ’s #LuxLeaks showed how accounting giant PwC helped FedEx, Pepsi and others slash their global tax bills. #LuandaLeaks revealed how PwC enabled Angolan billionaire Isabel dos Santos to build her corrupt business empire.


Pepsi loses ATO challenge on tax for Schweppes payment


The Tax Office has won a challenge by PepsiCo over assessments that it owed royalty taxes for deals it orchestrated between Singapore and Australian subsidiaries for beverage concentrate and branding rights.


US-based Pepsi challenged an assessment by the Commissioner of Taxation that said the beverages giant owed millions in royalty withholding tax and diverted profits tax over its deals with then-named Schweppes Australia, which changed its named to Asahi Beverages, for the 2018 and 2019 financial years.
Schweppes Australia made around $240 million in payments during the 2018 and 2019 financial years to PepsiCo Beverage Singapore. AP
On Thursday afternoon, Justice Mark Moshinsky ruled in favour of the Australian Tax Office.
The court case focused on two exclusive bottling agreements. The first was between PepsiCo and Schweppes Australia, owned by Asahi. This deal was related to soft drinks such as Pepsi and Mountain Dew. The second deal was between Pepsi’s Stokely-Van Camp and Schweppes Australia and related to non-carbonated drinks such as Gatorade.
Singapore-based Concentrate Manufacturing, part of Pepsi, produced concentrate and supplied it to PepsiCo Beverage Singapore, an Australian-registered company that was also part of the Pepsi group.
Schweppes Australia was then nominated as the seller of the drinks under the bottling agreements with the parent companies.
Schweppes Australia made around $240 million in payments during the 2018 and 2019 financial years to PepsiCo Beverage Singapore, which then transferred nearly all of it to Singapore-based Concentrate Manufacturing, only taking a small margin.
According to the PepsiCo Beverage Singapore accounts, lodged with the Australian Securities and Investments Commission, it made $US55.9 million and $US66.4 million in revenue in those years, respectively.
The court found payments made by Schweppes Australia to PepsiCo Beverage Singapore, an Australian-registered company that was part of the Pepsi group, were royalties and are subject to the 5 per cent tax that applies.
Justice Moshinsky wrote a summary of his judgment, which was released on Thursday. The full judgment will remain confidential for another seven days as the parties review it. The amount of tax the ATO is seeking to claw back, and any penalties, are not included in the summary.
Justice Moshinsky, in ruling in favour of the ATO on the royalty tax matter, said it was unnecessary to consider the diverted profits tax. However, he did note that he would have ruled in the ATO’s favour.
“The commissioner’s diverted profits tax case is predicated on the royalty withholding tax provisions not applying,” he wrote.
He concluded that if royalty tax had not applied, the court would have ruled Pepsi and Stokely-Van Camp obtained a tax benefit because of the bottling agreements, and one of the principle reasons it did the deals was to reduce foreign tax,
Earlier this month, The Australian Financial Reviewrevealed that Pepsi rival The Coca-Cola Company is fighting more than $170 million in taxes imposed by the ATO, which alleges profits were diverted offshore via favourable deals with its local affiliate for branding, trademarks and formulas.
The ATO assessed The Coca-Cola Company (Coke) owes $173.8 million in diverted profits tax for the combined 2018 and 2019 years. It issued two penalty notices to the global company in August last year, for $85.2 million and $88.6 million respectively, which are now being challenged in the Federal Court of Australia.
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Max Mason covers insolvency, courts, regulation, financial crime, cybercrime and corporate wrongdoing. A Walkley Award winner, Max's journalism has also received awards from the National Press Club of Australia, the Kennedy Awards and Citibank. Connect with Max on Twitter. Email Max at max.mason@afr.com
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