The OECD’s planned guidance on the profit split method will likely consist of a series of examples that demonstrate when the method is considered the best method for transfer pricing purposes and how it should be applied, Michael McDonald, a financial economist with US Treasury and US delegate to the OECD said October 7.
Speaking during a PwC webcast, McDonald said that the OECD intends to complete transfer pricing guidance on the profit split method and on financial transactions next year. Guidance will also be issued next year on the attribution of profits to permanent establishments, he said.
McDonald said that when the OECD/G20 base erosion profit shifting (BEPS) action plan was first released in 2013, some read that document as implying that profit splits should be employed in all cases where there is a global value chain.
There has since been clarification, he said, so “all the work on profit split is going to be done under the four corners of the most appropriate method. That standard is still sacrosanct.”
McDonald said that while the scope of forthcoming transfer pricing guidance on financial transactions has not yet been worked out, it is likely to cover issues related to hedging, pricing of guarantees, loans, and captive insurance.
A key issue to be addressed in that guidance, McDonald said, is how to attribute ex post returns to entities that provide funding for the development of intangibles. McDonald said that countries currently lack consensus on this issue.
McDonald said the US’s view is that as long as the entity providing funding truly controls the financial risk, it should be able to make a risky investment and be treated as an equity investor.
In contrast, other countries “look at funding more as a lending transaction, where the risk that they are on the hook for is not directly related to the success or failure of the intangible.” He said the distinction is “critically important,” especially in the context of cost contribution arrangements.
Richard Stuart Collier, a partner with PwC London, said that the final BEPS reports released on Monday made an important change to the rules on dependent agent permanent establishments (PEs).
Previous rules that required negotiation of material elements in contracts have been dropped. The new test asks if the agent is either concluding contracts or playing the principal role leading to the contract conclusion, without there being a material modification by the principal, Collier said.
“I think that’s a much better test – it forces a comparison of the roles of the principal and the agent, whereas the previous test didn’t. [Also,] we have to ask if the agent is playing ‘the’ principal role, not ‘a’ principal role,” he said.
Collier said he anticipated difficulties under the new framework in cases where both principal and agent perform functions relating to the process, as well as when both parties do very little, for example in the case of automatic contracts or standard form contracts.
McDonald noted that the changed threshold could be a reason to consider modifying the rules on attribution of profits to PEs for dependent agent PEs.
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