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INDEX
1.1 U.S. Record-Keeping Requirements (section 6038A IRC)
1.2 U.S. Accuracy-Related Penalties (section 6662 (e) IRC)
1.3 U.S. Transfer Prices And Customs Value (section 1059A IRC)
1.4 New U.S. Transfer Pricing System (section 482 and Reg. sec. 1.482
IRC)
In General
Comparable Profits Method
Arm's Length Principle
Best Method
Transfer Price Methods
Arm's Length Range
Market Entry, Defence, And Expansion Strategies
Functional Analysis
Intangible Assets
Procedural Matters
1.5 U.S. Advance Pricing Agreements
DEVELOPMENTS IN THE UNITED STATES
1.1 U.S. Record-Keeping Requirements (section 6038A IRC)
Section 6038A IRC was amended in 1989 to help insure the availability to the IRS of documentation useful in reviewing the transfer pricing structures of foreign groups doing business in the United States. Congress believed that the inaccessibility of relevant documents had substantially interfered with the ability of the IRS to review international transfer prices. Allegedly, the net income of U.S.-controlled corporations had risen proportionate to the increase in gross receipts, but net income of foreign-controlled corporations had declined despite increased receipts.
As interpreted by the relevant regulations, the law establishes sweeping reporting and record-keeping requirements for foreign corporations engaged in a trade or business in the United States and for foreign-owned U.S. subsidiaries ("reporting corporations"). A U.S. corporation is foreign-owned if any single foreign person, legal or natural, directly or indirectly owns 25 % of its stock, by vote or by value. The direct or indirect 25 % foreign owners of the reporting corporation and all companies under common control therewith are "related parties". The reporting corporation must file an annual return (Form 5472) giving details of its dealings with all related parties. A separate form must be filed for each related party. Furthermore, the reporting corporation must maintain or create certain records in the English language on these transactions.
The record-keeping obligations go significantly beyond the general obligations under section 6001 IRC. An agreement can be entered into with the IRS concerning the form, location, and scope of these records. The records may be maintained abroad, but must be produced on 60 days notice (90 days if translation into English is necessary). A de minimus exemption exists for reporting corporations with limited related party transactions.
The law also requires foreign related parties to appoint their reporting corporation as agent to receive service of process if the IRS so requests. This permits the IRS to summon employees of the foreign related party to appear and give testimony on matters beyond the knowledge of the U.S. reporting corporation. Similarly, demands for production of documents not controlled by the reporting corporation can be served by this means on the foreign related party.
The penalties for non-compliance with section 6038A are twofold. Firstly, there are monetary penalties of US-$ 10,000 for isolated compliance failures (e.g. failure to submit Form 5472 or incomplete filing thereof). If non-compliance continues for more than 90 days after notice from the IRS, additional fines of US-$ 10,000 per month or fraction thereof are levied. Furthermore, the IRS is given discretion to deny deductions for sums paid or owing to a related party in the event of failure of the reporting corporation to keep and produce records, failure of a related party to appoint the reporting corporation as agent for service of process, or failure of a related party to comply with process so served.
1.2 U.S. Accuracy-Related Penalties (section 6662 (e) IRC)
Transfer pricing penalty provisions were added to this section in 1990 and modified in 1993. These penalties amount to 20 % or 40 % of the tax owing as a result of transfer pricing adjustments which exceed any of three thresholds. The 20 % penalty applies in the event of:
i. Purchase of goods, services, rights etc. for 200 % or
more of their adjusted price; or
ii. Sale of goods, services, rights etc. for at 50 % or less
of their adjusted price; or
iii. Net transfer pricing adjustments exceeding
US-$ 5 million or 10 % of gross receipts, whichever is
less, in a single tax year, regardless of the degree of
the adjustments made.
For example, the penalty applies when goods or services are purchased for double or more than their adjusted value or sold for half or less than their adjusted value. Furthermore, total adjustments of US-$ 5 million or 10 % or gross receipts trigger a penalty irrespective of how close the chosen transfer price was to the adjusted price.
The 40 % penalty applies to "gross valuation misstatements", defined as
i. purchase at 400 % or more of the adjusted price
(quadruple the adjusted price); or
ii. sale at 25 % or less of the adjusted price (one
fourth or less); or
iii. net adjustments exceeding US-$ 20 million or 20 %
of gross receipts, whichever is less.
Obviously, the penalty thresholds are particularly dangerous for large international groups which can exceed the third threshold even if their transfer prices are well within the ranges established by the first and second thresholds.
The penalties described are imposed without regard to fault. The taxpayer may, however, avoid imposition of the above penalties by qualifying for what has been called the "contemporaneous documentation exception". This due care exception is codified in section 6662 (e) (3) IRC. It essentially requires the taxpayer to show that his transfer prices, albeit incorrect, were arrived at using under the rules established by section 482 IRC and its related regulations, as evidenced by documentation created contemporaneously with application of the transfer prices (specifically, documentation in existence at the time of filing of each annual tax return). Such documentation must be presented to the IRS within 30 days of any request. The documentation involved may overlap somewhat with that under section 6038A IRC, but is not identical with it.
Furthermore, the IRS has specified the following in the regulations to section 6662 IRC:
- In his documentation, the taxpayer must justify his choice of a particular transfer pricing method (including a method not specifically defined in the regulations) under the "best method rule" (see below sec. 1.4) by considering other methods and showing why they are not the best one;
- If the taxpayer has used a transfer price range, he must analyse his data to see where his transfer prices fall inside the range. Prices at one extreme or the other are not regarded as at arm's length.
In view of the uncertainties surrounding transfer price determination, section 6662 IRC in effect creates a substantial risk of penalties for taxpayers who:
- Fail to analyse (e.g. using a study performed by outside experts based on sound business accounting principles) and document their transfer pricing systems contemporaneously with their implementation, at least as regards the United States or
- Fail to apply the United States approach to transfer pricing determination, as articulated in the final regulations to section 482 IRC.
1.3 U.S. Transfer Prices And Customs Value (section 1059A IRC)
Under section 1059A IRC, a taxpayer importing goods into the United States may not claim a transfer price in excess of that used for customs purposes. This does not prevent adjustment under section 482 IRC to a price under the customs value.
1.4 New U.S. Transfer Pricing System (section 482 and Reg. sec. 1.482 IRC)
In General
The final regulations under section 482 IRC are universally regarded as a major improvement over the initial proposed regulations and an incremental improvement over the intermediate temporary regulations. They direct attention to many relevant factors while at the same time refraining from simple solutions as to the weight to be given to each in concrete situations. They refine the established approach of analysing the allocation of risk and function chosen by the taxpayer as reflected in contractual arrangements and their actual performance. The insistence of the regulations on adjusting reported income where necessary to determine the taxpayer's "true taxable income" still sounds ominously aggressive, however. Unlike the new OECD Guidelines, the U.S. regulations contain no explicit recognition that "transfer pricing is not an exact science", hence that tax authorities should "not demand from taxpayers in their transfer pricing a precision which is unrealistic under all the facts and circumstances" (OECD Guidelines par. 4.8, 4.9).
Comparable Profits Method
The comparable profits method of transfer pricing determination was the single most objectionable aspect of the U.S. regulations in their initial form. By defining strict standards of comparison for the traditional pricing methods (comparable uncontrolled price, resale price, and cost-plus) and requiring data on the price and cost structure of competitors which is often not available, the regulations appeared to ensure that the comparable profits method would always operate by default. Despite some relaxation in the standards of comparison for other methods and better definition of the comparable profits method itself to make clear that average industry profit statistics cannot be used without analysis and adjustment, it is still by no means clear that the changes made are more than cosmetic. There is recognition that the method must be applied transactionally based on the profit from specific business operations, not with respect to average earnings from disparate activities. The comparable profits method is furthermore now identified as a "method of last resort", to be used only when all other methods are less reliable. The fear remains that the other methods will be found "less reliable" with a certain regularity and that the comparable profits method could operate to mandate that an enterprise earn the same average profit as its competitors whether this is true in fact or not, i.e. irrespective of actual performance.
Arm's Length Principle
There is considerable doubt as to whether the comparable profits method is consonant with the arm's length principle since the underlying presumption that all companies earn similar profits on similar transactions is dubious, to say the least. A second prime problem remains the treatment of transfer pricing for intangibles, as to which the Congress in 1986 expressly provided for transfer pricing commensurate with the income derived from the use of the intangible. This approach involves taking account of circumstances subsequent to the time of transfer of the intangible and is tantamount to fixing prices by hindsight. It is inconsistent with the arm's length principle, and hence most U.S. tax treaties, because unrelated parties dealing at arm's length fix prices with respect to what is known or reasonably anticipated at the time of contracting. However, the final regulations narrow the scope of operation of periodic adjustments in the transfer prices of intangibles and require no such adjustment for fluctuations due to extraordinary subsequent events or which are within a corridor of +- 20 % compared with the income forecast at the time of transfer.
Best Method
The regulations establish no priorities among transfer pricing methods and instead enjoin the taxpayer to employ the "most reliable method" (as opposed to the "most accurate method" in the temporary regulations). Reliability is determined with respect to the quality and comparability of the available data. The regulations contain extensive comment on this subject. As mentioned above, to avoid the penalties under section 6662 IRC the taxpayer is expected to consider other methods and defend his choice of method. While the regulations state that extensive analyses and detailed studies under all conceivable methods are not required, nevertheless it is also clear that the taxpayer is not conceded a measure of discretion to choose among reasonably accurate methods. The taxpayer must use the "best" method, not just a good one. The IRS is free to challenge the taxpayer's choice of method. Furthermore, the taxpayer is required to use more than one method where this is appropriate for determining the true taxable income. Where different methods lead to varying results without it being possible to determine that any one is clearly the best, i.e. the most reliable, an averaging of results may be indicated.
Transfer Price Methods
The regulations establish five methods and a general category of "other methods":
i. Comparable uncontrolled price method
ii. Resale price method
iii. Cost-plus method
iv. Comparable profits method
v. Profit split method
vi. Other methods
The first three methods are not new as such and have been little changed in content. There is more detailed guidance as to when and how to use them. For intangibles, the first method is replaced by the "comparable uncontrolled transaction" method. The new and highly controversial comparable profits method attempts to identify the profit which unrelated third persons earn on (roughly) comparable uncontrolled transactions and to fix the profit in a controlled transaction with respect thereto. Aside from the reservations expressed above with respect to this method, one may doubt whether the true profit derived by a competitor from an activity can ever be determined based on his published financial data alone. To the extent, however, that data available only to the tax authorities (e.g. from tax audits of other firms) is used, the taxpayer has no way of verifying the assertions with which he is confronted or discovering mistakes the tax authorities may have made in gathering or applying the data. For this reason, some insist that a tax authority seeking to rely on this method must carry the burden of proof as to its reliability and accuracy.
The profit split method seeks to determine the overall profit derived by the controlled parties with respect to a transaction and then to divide this profit appropriately among the participants in light of their relative functions, risks, and contributions. While also controversial, there is nonetheless a certain appeal to the profit split method as it does not require the same degree of comparison of the controlled transaction to uncontrolled transactions as do the traditional methods. Furthermore, by dividing the total profit from the start it seems suited to avoiding double taxation, whereas the comparable profits method appears prone to the opposite. Some therefore consider the profit split method appropriate for situations in which the controlled transaction being analysed is one which has no analogy in the uncontrolled world because it, by its nature, only takes place between controlled parties. A major problem in the application of the profit split method is determining the overall profit from a transaction, since this can involve examining the accounting of many entities around the world.
Arm's Length Range
The concept of an arm's length range is in itself nothing new. At least outside of stock and commodity market transactions, reasonable unrelated third parties fix prices as the result of a bargaining process involving many imponderables and based on imperfect knowledge. There is thus no single correct arm's length price. However, the concept is not discussed in the U.S. regulations in order to remind revenue agents that transfer pricing is an inexact science. The regulations contain detailed comments on how to determine the arm's length range and seem designed to objectify and narrow it. One clear principle is that a transfer price outside of the arm's length range will be corrected to the interquartile or arithmetic average of this range. However, the mere fact that a transfer price is inside the range is not sufficient to avoid an adjustment, for instance when the "best method" has not been used and this leads to transfer prices located elsewhere within the range.
Market Entry, Defence, And Expansion Strategies
The U.S. regulations recognise in principle that expense and hence losses incurred to enter a new market or to defend or expand market share in a market on which the taxpayer is already established can be in the interest both of the group parent and its local marketing company. The proper apportionment of such expense between the two depends on their relative anticipated benefit under the particular circumstances.
Functional Analysis
The U.S. regulations contain detailed comments on how to identify relevant factors such as allocation of risk, functions performed (grouped into critical and non-critical functions), capital and assets committed, etc. They are not dogmatic as to how the individual factors are to be weighed in a particular case. The analysis is often insightful.
Intangible Assets
The regulations provide detailed analysis of the various factors of relevance in this complicated area and call attention to the differences between the many types of intangibles involved. The commensurate-with-income requirement now contained in the law has led to provision in the regulations for periodic adjustments of the transfer prices based on later developments. The incompatibility of this approach with the arm's length principle was discussed above. It should be noted that recently issued regulations under section 482 regulate cost sharing arrangements to develop intangibles such as patents or know-how. The participants in such an arrangement acquire a right to use the resulting intangible. In effect, their cost contribution replaces later royalty fees.
Procedural Matters
The most objectionable aspects of the U.S. transfer pricing system are to be found in this area. In the United States, the taxpayer bears the burden of proof for establishing the correctness of his transfer prices. To avoid the risk of penalties, the taxpayer must plan his transfer pricing in advance and document it contemporaneously. The penalties themselves are imposed without regard to fault in the event the contemporaneous documentation does not meet demanding standards. The taxpayer must use the best method in determining his transfer prices, not merely a reasonable method. He must apply a complicated system of transfer pricing rules and even apply several methods in the alternative, at least in certain circumstances. The cumulative result is considerable administrative burden with little security, not even the assurance that penalties can be avoided in the event of transfer pricing adjustments.
1.5 U.S. Advance Pricing Agreements
Advance pricing arrangements are another American transfer pricing invention. Since their inception in 1991 they have been widely discussed and also put into practice in an increasing number of instances. Nevertheless, there has been no avalanche of APAs (as of March 1996 58 completed U.S. APAs, 125 APAs pending, 50 APAs under consideration). Various countries besides the U.S. also offer APAs or something similar, at least in theory, which opens up the possibility of a bilateral APA. Germany is among the countries to have declared its willingness in principle to negotiate APAs with taxpayers and to cooperate in an international APA. A bilateral or multilateral APA has much to recommend it since the interests of the two (or more) national taxing authorities are necessarily adverse, meaning that an arrangement entered into with one party only may well prove unacceptable to the other(s). On the other hand, the more tax administrations involved, the greater the costs. APAs remain attractive as a means of avoiding the uncertainty and minimising the administrative expense inherent in transfer pricing in general and the new U.S. system in particular, especially in light of the feared aggressive application by the IRS of its new regulations and penalties.
An APA entered into with the IRS is valid for approximately three years, after which it must be reviewed (new APA). The subject of an APA is the transfer pricing methodology to be applied, not the transfer prices themselves arrived at by applying the methodology. The pros and cons of the U.S. APA procedure are as follows:
Advantages of APAs
i. Relative assurance (subject to "critical assumptions" - see
no. vii in drawbacks below) that the transfer pricing method
agreed on will not be challenged on audit, hence:
- reduced risk of adjustment
- no risk of penalties
- no expense of defence of transfer pricing method on audit and in litigation
- increased certainty for planning purposes
ii. Possibility to define scope of record-keeping obligations
iii. Possibility of retroactive application (may, however, entail
adjustment for prior years)
iv. IRS perhaps more willing to compromise in APA proceeding than
on audit
v. APA perhaps quicker than audit
vi. APA perhaps peculiarly suited to certain businesses (e.g.
global trading) for which new regulations offer little
transfer pricing guidance
vii. Possibility of bilateral APA
Drawbacks of APAs
i. Expense of APA procedure itself
ii. Valid for limited period only (approx. three years)
iii. Widespread disclosure of internal information to IRS may
improve IRS bargaining position
iv. No guarantee that the procedure will lead to agreement in fact
v. IRS retains right to use information acquired in APA procedure
even if no agreement is reached
vi. IRS can use information acquired on audit of prior years which
APA does not cover
vii. APA is contingent on continued validity of its defined
"critical assumptions" (e.g. market share, currency exchange
rates)
viii Security against penalties perhaps more cheaply achieved
without comprehensive disclosure by commissioning outside
transfer pricing study
ix. Mutual agreement procedure under tax treaty may yield
satisfactory result in event of challenge by IRS in absence of
an APA
x. APA of diminished value unless (at least) bilateral
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