The objective of action 10 in the OECD’s BEPS Action Plan is to develop rules to prevent abusive transactions which would not, or would only very rarely, occur between unrelated parties. We provide commentary and links to content on action 10.
7 April 2016
Outstanding projects are progressing and there is work under way on ‘regularising’ the transfer pricing guidelines but work on officially updating them...
has been hindered by the need to change some of the fundamentals in chapter 1 and conforming changes in chapter 9.
The OECD may have an interim solution for countries that require a version of finalised guidelines prior to the end of year due to domestic legislation. A fully compliant version available later on this year might only be in online form initially.
There is likely to be another update in 2018, after the profit split (PS) update and chapter on financial transactions (FT) has been done. The technical work on profit attribution; implementation on hard-to-value intangibles (HTVI) and low value adding services (LVAS) is expected to be completed in 2017, although the OECD recognizes initial estimates were over-ambitious.
28 January 2016
Tax authorities already are interpreting and applying the new draft TP Guidelines as part of their current thinking with...
varying levels of impact, but generally have prompted taxpayers to carefully review their operations in order to consider changes to the substance, conduct, risk assumption and financial wherewithal of their operational structure, as we note in our Tax Policy Bulletin of 28 January 2016.
10 December 2015
There is a degree of uncertainty about the potential for countries to retrospectively apply new draft TP Guidelines recommended by BEPS...
In this regard it is worth noting that the Guidelines will not become formally updated until Summer 2016. Some speakers at the OECD have indicated that they expect that countries will adopt an ambulatory/ dynamic approach to the TP Guidelines so that unless there is a clear conflict between the new and the old Guidelines the new Guidelines will apply to existing arrangements. Countries incorporate these Guidelines and potentially therefore any intended updates into their law and practices in different ways, which may affect the analysis.
16 October 2015
The OECD work in the context of Actions 8 to 10 of the Final Report includes guidance on several key transfer pricing areas, including…
future work to be completed on the transactional profit split method; commodity transactions; and “low-value adding intra-group services” transactions.
On the transactional profit split method the Final Report correctly recognises that often using inexact comparables will be more reliable than inappropriately using the transactional profit split method, compared to situations in which there is significant integration of a business (e.g., distinguishing between sequential integration where parties perform different activities in a value chain and parallel integration where parties perform similar activities in the same revenue stream). So further guidance is needed on:
On commodity transactions, the OECD’s guidance takes the form of additions to the section on the Comparable Uncontrolled Price (CUP) method in Chapter II of OECD Guidelines, but without the accompanying (and detailed) commentary provided in the Discussion Draft. The principles of the guidance and the underlying messages remained largely unchanged and focus on:
On low value-adding services, there are four areas in which the OECD has provided additional guidance:
5 October 2015
The TP output of the BEPS project is significant by any measure with separate workstreams and reports on the fundamentals of the arm's length principle including…
commodity transactions; profit splits; and low value-adding intra-group services (as well as general work on the delineation of transactions, risk and capital, intangibles, and Cost Contribution Arrangements, covered in the sections on Action 8 and Action 9):
7 July 2015
The OECD’s public consultation on a cluster of transfer pricing matters on 6-7 July has indicated …
that some of the more radical proposals will not be taken forward or will be delayed for further consideration beyond the September deliverable that will include the bulk of the BEPS transfer pricing package. The lack of consensus among states, industry feedback and the speed with which some decisions needs to be made are contributory factors.
The core elements of the transfer pricing package will then include TP documentation including country-by-country reporting (CBCR) to tax administrations, intangibles, low value services and commodities.
Some areas in which consideration will take place in 2016 and 2017 include the financial transaction work and profit attribution to PE work.
This will have quite a significant impact in terms of what will need to be done by most organisations from a policy, documentation and implementation perspective.
We understand the US is now also on board with the overall transfer pricing package.
11 February 2015
Our response of 6 February is one of 82 comment letters published by the OECD on the 19 December BEPS discussion draft on Risk, recharacterisation and special measures (see also our comments on Action 8). The OECD has also published comments it received on:
6 February 2015
In our response to the discussion draft on commodity transactions we point out the value of…
using taxpayers’ internal comparable data, industry standards, existing guidance and the practical experience gained by taxpayers and tax authorities that have applied the so-called sixth method over the years. We provide comments on a number of detailed areas.
Our recommendations focus on the following aspects:
The language of some of the suggestions in the Draft in the areas listed above may require further clarification; but, once this is addressed, we believe the revised paper will assist taxpayers in ensuring their transfer pricing remains arm’s length and will address concerns tax authorities have raised about the potential for the erosion of their tax base in this area.
6 February 2015
In our response to the discussion draft on profit splits[PG2] we point out that to a certain extent, the Discussion Draft seems to use concepts such as “integration” and “global value chains” to …
make it easier for tax administrations to apply the profit split method rather than to improve the guidance on choosing the most reliable transfer pricing method. The profit split method has previously been described as a “method of last resort”; the Discussion Draft contains elements that may in certain situations permit taxing authorities to, in effect, apply it as a default method.
The Discussion Draft recommends the use of transactional profit split methods in a number of scenarios and as a corroborative method. We would like to point out that in many situations, one-sided analyses are appropriate and reliable. In scenarios where one-sided methods are appropriate and reliable based on a thorough functional analysis, we feel corroborative profit split methods may be a precursor to formulary apportionment, as they may improperly suggest higher returns to entities performing routine functions that can be reliably benchmarked. To this end, we would like to emphasize that a value chain analysis and a profit split are not, and should not be considered to be, synonymous.
PwC recommends the revisions to the Discussion Draft focus on providing objective advice to MNEs. We believe the Discussion Draft includes many subjective terms that may be pejorative and therefore interpreted differently by rational decision makers.
PwC recommends that the OECD view the revisions to the Discussion Draft in the context of the BEPS action plan as a whole. Other Action items may alleviate some of the concerns surrounding transfer pricing issues. The work to address base erosion and profit shifting should be viewed holistically, and other workstreams may address transfer pricing issues sufficiently enough that the arm’s length principle and the guidance on use of profit split methods does not need to be radically altered.
Overall, PwC recommends that the OECD devote sufficient time for deliberation and consideration in considering any change to the guidance on use of profit split methods. To this end, we emphasize that the Transfer Pricing Guidelines already address profit split analyses and the selection of the most appropriate method. Lastly, any changes in guidance on profit splits should reflect the principle that functional analyses are critical to transfer pricing analysis.
21 January 2015
Our response on the low value-adding services discussion draft is part of a consolidated document covering all 65 responses which is now…
published on the OECD website:
The input will be discussed during a public consultation at the OECD Conference Centre on 19-20 March 2015 at which we intend to be represented. It is expected that this meeting will be broadcast live on the internet - no advanced registration is required for this internet access.
9 January 2015
Insofar recharacterisation is envisaged wjhere substantive analysis of the parties’ economic behavior in the context of the multinational’s entire value chain dictates…
tax authorities could change or replace a contract’s terms to reflect risks and functions the authorities believe are actually being assumed and performed, viewed in light of risk allocation measures the parties in a similar commercial or financial relationship might take.
In establishing criteria for non-recognition, the OECD replaces the ‘commercial rationality’ test in the existing Transfer Pricing Guidelines with the ‘fundamental economic attributes’ concept. The draft says it is difficult to know what independent enterprises behaving in a commercially rational manner would have done. The new test requires the arrangement to afford both parties an opportunity “to enhance or protect their commercial or financial positions,” evaluated in light of potential alternative arrangements.
The OECD concedes that related parties may legitimately engage in transactions that unrelated parties may not, and that those transactions should be recognized and priced for tax purposes. However, the draft also states that non-recognition may be appropriate when related party transactions do not have the ‘arm’s length attributes’ or ‘fundamental commercial attributes’ of unrelated-party transactions.
The draft invites comments addressing to what extent “imputed moral hazard and contractual incentives play [a role] with respect to determining the allocation of risks and other conditions between associated enterprises.” The OECD suggests that parties acting at arm’s length would take steps to mitigate any moral hazard created by a lack of incentive to guard against risk where a party is protected from the consequences. The presumption is that related parties have less incentive to bargain for their own interests or to proportionately allocate risk based on which parties are the most exposed to the consequences of the risk.
The questions include ways to deal with value creation that are either within or beyond the arm’s length principle.
All of the options for special measures raise concerns regarding consistency with the arm’s length principle (including many existing income tax treaties) and the separate-entity concept on which the international tax rules have been historically based.
5 January 2015
On the commodity transactions discussion draft, many commodity-dependent developing countries are not OECD members and may not adopt all aspects of the Transfer Pricing Guidelines, so...
if the final recommendations do not encourage consistency on a global basis, new countries might introduce different variations of the Sixth Method as an application of the CUP method.
Comparability adjustments to quoted prices would be particularly important in applying the CUP method to account for physical differences, different specifications, freight, etc.
The OECD and World Bank intend to provide practical tools to help developing economies make maximum use of quoted prices for commodities, beginning with minerals.
The draft directs taxpayers using the CUP method to document it in writing, detailing the application of market data, including formulas used. Such details (especially formulas) typically vary between commodities and markets, and are often highly confidential. Practitioners may need to reconcile those formulas with formulas their competitors have previously communicated to tax authorities. Taxpayers may welcome further OECD guidance on implementation.
Tax authorities in developing countries may have limited expertise and resources for verifying pricing dates in commodities contracts. This applies particularly where the contracts allow optionality in fixing the pricing date and reliable evidence is lacking for the date actually agreed.
The OECD suggests tax authorities impute a date where they believe that related parties’ behavior is inconsistent with an agreed pricing date. The imputed date should be consistent with facts of the case and industry practices. Absent such evidence, the shipment date could be deemed the pricing date (subject to appropriate comparability adjustments).
In general, commodities industry pricing is complex, with many variations, so setting a single rule for pricing dates may be challenging. It may not be possible to price certain commodities at delivery. Other activities, such as pricing of optionality around delivery dates, may need to be accounted for be means other than pricing dates (e.g., by comparability adjustments).
23 December 2014
The broad scope of options put forward on profit splits may inhibit the OECD’s ability to modify the Transfer Pricing Guidelines in…
a flexible manner that considers the variety of situations taxpayers face.
The draft follows closely the conceptual paradigm in the Action 1 report on the the digital economy, which seems to muddle the distinction between an origin-based income tax and a destination-based VAT.
The OECD views a business’ success as depending on ‘integration’ of related parties, with various entities carrying out ‘interdependent’ functions and strategic risks being jointly managed and controlled by multiple entities, leading to ‘synergies’.
The OECD also sees many multinationals as having ‘fragmentation’ or splitting functions within a value chain, with certain entities undertaking only specific, limited functions for which it may be difficult to identify comparables with similarly limited functions.
The OECD seems to mix economic concepts with long-established tax principles by treating a multinational as a single firm operating in a coordinated fashion to maximize opportunities in a global economy. This approach makes corporate legal structures and individual legal entities less important in transfer pricing analysis.
‘Integration’ and ‘fragmentation’ are used in a way that casts doubt on the viability of proposed comparable transactions and one-sided methods.
The discussion draft’s concept of a ‘global value chain’ raises questions in the context of transfer pricing. It is not clear how this approach would contribute to the transfer pricing analysis for most related-party transactions, except as a part of formulary apportionment. This sort of analysis is consistent with the new ‘master file’ documentation requirement, which provides tax authorities with information on the entire group.
In general, the notion of superseding separate entity accounting in transfer pricing for multinationals raises questions with regard to Article 9 of the OECD Model Tax Treaty. That provision respects separate entity accounting and is the foundation for the Transfer Pricing Guidelines.
The draft asks how to develop objectivity in profit split factors and whether there are particular factors that are likely to reflect value creation for particular industries or sectors.
The draft also asks what aspects may be particularly relevant for transactions involving hard-to-value intangibles.
It also questions how the transactional profit split method can be applied to deal with unanticipated results and whether it may be appropriate to split losses differently from how profits are shared.
20 December 2014
On 19 December, the OECD released a transfer pricing discussion draft within Actions 8-10 covering risk and situations calling for recharacterisaton or ‘special measures’…
The draft’s basic theme is that contractual risk allocations are a starting point, but there is still a need for substantive analysis of the parties’ economic behavior in the context of the multinational’s entire value chain. The basic criterion is that a transaction would be disregarded if it does not have the “fundamental economic attributes of arrangements between unrelated parties.”
It sets forth potential options for some special measures with regard to certain situations that are difficult to value. The options include:
17 December 2014
On 16 December, the OECD released two BEPS transfer pricing discussion drafts under Action 10, addressing the following topics…
4 November 2014
Proposed modifications to Chapter VII of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations for management fees and other low value-adding services…
do not yet represent a consensus view and are intended to provide stakeholders with substantive proposals for analysis and comment.
The Working Party seems to have taken a step in the right direction to achieve a balance between appropriate charges and protecting the tax base, but the draft fails to substantially address how the additional guidance will be impacted by the other BEPS work.
These proposals mainly consist of an elective, simplified alternative approach to the usual TP exercise.
There is a definition of what constitutes the low value-adding services that would be covered and a number of examples of things which the OECD doesn’t think would qualify.
The single mark-up to be utilised for all these services would function as a safe-harbour and thus not require to be supported by a benchmarking study and would be between 2% and 5% of the relevant cost base.
The OECD has asked for comments to be submitted by interested parties no later than 14 January 2015 and intends to hold a public consultation on this discussion draft and other topics on 19 and 20 March 2015.
14 November 2013
At the public consultation on transfer pricing at the OECD on 11/12 November, Joe Andrus said in fulfilling the OECD’s secretariat function for Working Party 6 …
that the scope of Action 10 was still under discussion.
We were asked to make one of the lead presentations in the area of financial transaction, where the transfer pricing considerations would, it was agreed, depend to some extent on the outcome of the work on interest deductibility limitations (Action 4). Sharing our views on what the BEPS work on financial transactions should address, we stressed that taxpayers were in desperate need of unified guidance.
In determining appropriate arm’s length prices for loans and guarantees between related parties, it is first necessary to determine the debt capacity of the relevant company. However, even this preliminary task requires consideration of a number of factors, including industry variables and arm’s length comparables, thin capitalisation rules / concessions and group / parent affiliation.
Determining an appropriate price for loans and guarantees then becomes important. An approach based upon market behaviour could be used (for example, taking into account implicit guarantees – which almost entirely depend on the lender’s risk profile, as opposed to the borrower or their parent).
2 September 2013
The overall approach adopted may indicate a marked increase in importance of directly-relevant comparable pricing information. However, in our view…
the arm’s length principle doesn’t require that comparables between unrelated parties exist for every transaction and also that when they don’t transactions can still be priced by resort to transfer pricing methods. Increasing use of recharacterisation could lead to uncertainty and double taxation.
15 August 2013
Several countries have been advocating that transactions which would not, or would rarely, occur among independent parties should not be respected…
, and should be recharactised for tax (including TP) purposes, instead of adopting a pricing solution. Countries like Australia, France and Germany are strong advocates of recharacterisation while the US and, more latterly, the UK seem to consider it less appropriate.
19 July 2013
Rules will be developed to prevent BEPS by engaging in transactions which would not realistically occur between third parties. This will require …
clarification of the circumstances in which transactions can be recharacterised. There is also to be a clarification of TP methods, in particular profit splits, which should be applied in the context of global value chains. The work will also aim to provide protection against common types of base eroding payments, such as management fees and head office expenses. The work is to be completed within two years.