‘Country Practices’. The title of Chapter 10 of the new United Nations Practical Manual on Transfer Pricing [pdf] doesn’t exactly set the pulse racing. But as I noted in my blog on the manual as a whole, this document is politically very significant.
It’s probably the only detailed description of Brazil, China, India and South Africa’s approach to transfer pricing, both how they follow and how they differ from the OECD methods. Significantly, these contributions are expressed not just in terms of the legal and administrative realities, but also the policy objectives underlying them. Chapter 10 functions as a comprehensive critique of the OECD guidelines – almost a manifesto – endorsed and in most cases written by tax officials from some of the world’s most powerful economies.
So what’s in it? Here are some digested highlights – but you should read it all.
Brazil: fixed margins
Since the mid 1990s, Brazil has been the world’s transfer pricing maverick. It makes no claim to follow the OECD guidelines, although the core of its approach is analogous to some of the methods outlined in those guidelines. Brazil views its approach as consistent with the arm’s length approach, since it’s another way to approximate the price that would be paid between companies trading at arm’s length. Many others disagree with this view.
Under the OECD approach, the taxpayer (and tax authority, if it is challenging a taxpayer) needs to identify a ‘comparable’ company or transaction for each and every transfer price under assessment, subject to some adjustments. The simplest method is to find two independent companies that are trading a similar good or service, and use that price. Brazil adopts this method too.
If that can’t be done, some other OECD methods (Cost Plus and Resale Minus) use comparable profit margins, applying them to the price paid when the good or service under consideration is eventually bought from or sold to a third party. (There are other OECD methods that are even more complicated, but they’re not used in any form by Brazil). The Brazilian approach uses the same idea, but prescribes fixed profit margins.
In a simple example, imagine a Canadian mining company operating in Brazil. There are two subsidiaries, a mine in Brazil, and then an intermediary in Bermuda that buys the minerals and sells them on to third parties. To apply the OECD’s Resale Minus approach, you’d find a comparable commodity trader that buys minerals from third parties and sells them on to other third parties. You’d look at the profit margin it makes, then apply that same profit margin to the actual price at which the minerals from Brazil were sold on by the Bermudan company to a third party, to obtain the price at which the Bermudan company bought the minerals from its sister company in Brazil.
Brazil’s Resale Price Method is similar, except that rather than looking for a comparable, you apply a fixed margin of (usually) 20% to the actual price at which the minerals were sold on to third parties. In other words, the transfer price from Brazil to Bermuda would be 80% of the resale price from Bermuda to a third party. Last year Brazil made its method a bit more fine-grained, by setting out different margins for different sectors, based on data about each sector.
The Brazilian section of Chapter 10 argues that this method is easier to apply and provides more certainty than the OECD approach. It acknowledges that the approach may create double taxation because it’s not compatible with other countries that use the OECD methods, and that, “it is unavoidable that some Brazilian enterprises will be taxed at (higher or lower) profit margins not compatible with their profitability.”
China, India and South Africa
“As a developing country, China faces a number of difficult challenges, to many of which ready answers have not been found from the OECD guidelines,” notes the Chinese section of Chapter 10, written by two senior tax officials. South Africa’s submission concurs:
Whilst the OECD Guidelines have been particularly useful in providing a conceptual understanding of what is the nature of the arm’s length principle, there are instances when the Guidelines fail to address the more practical aspects of how to apply the principle
According to all three of these countries, the difficulty is with how to implement the arm’s length principle. And their sections of the manual set out many practical problems with implementation. But I think that there’s something more than that at stake here. These countries (or at least India and China) want to claw back a larger share of the tax base, which is about changing the apportionment between themselves and other countries. They may argue that their position is a more accurate implementation of the arm’s length principle, but to do so is to understate what they’re trying to achieve. Below are three examples.
Location specific advantages
The premise of the Location Specific Advantage (LSA) approach is that investments by multinational companies in these countries are more profitable than those in other countries, as a result of LSAs such as a cheap, comparatively skilled labour force, a large, relatively untapped consumer market, and more lax environmental legislation. This needs to be take into account when identifying and using comparables that do not have these same advantages.
To determine the transfer price by reference to a comparable transaction or company in another country, “China takes the view that there may be instances where the differences in geographical markets are so material that it warrants comparability adjustments to bridge the differences.” In other words, China revises up the profit made by Chinese subsidiaries, and hence the tax charge, when comparing them to other countries, because it thinks the LSAs it offers make investments in China more profitable than those in other countries.
South Africa says it shares this concern:
There are many instances where unique dynamics exist within the South African market enabling South African subsidiaries to realise higher profits than their related party counterparts in other parts of the world, or than are evidenced by comparable data obtained from foreign databases…Building on the practice followed in India and China, the SARS is currently considering its approach to location savings, location specific advantages and market premiums etc. within certain industries and such factors will be addressed when conducting audits.
The Indian section also discusses location specific advantages. Its argument, however, relates to whether local comparables, as well as foreign ones, are valid. Although the chapter doesn’t say this, I think India’s argument is also that the arm’s length principle doesn’t work here, because there is no arm’s length scenario that captures the location specific advantages:
Hypothetically, if an unrelated third party had to compensate another party to the transaction in a low-cost jurisdiction by an amount that was equal to the cost savings and location rents attributable to the location, there would be no incentive for the unrelated third party to relocate business to a low-cost jurisdiction.
What makes the LSA concept interesting is not merely that these countries are laying claim to a larger share of MNCs’ tax base than the OECD guidelines attribute to it. They are saying, quite explicitly in China’s case, that under free market (“arm’s length”) conditions, they don’t receive a fair share of the profits from inward investment, because the LSAs aren’t fairly priced by the market. China is using the tax system to correct for what it sees as unfair conditions in the global economy.
Below is a presentation by another Chinese official at a Tax Justice Network conference last year. Scroll through to slide 20 for the part on LSAs.
Transfer pricing is supposed to start from a ‘functional analysis’ that takes into account functions, assets and risks to determine how profit should be allocated. But intangible assets (and risks, see below) can be more easily moved than functions and tangible assets. China and India are concerned that multinationals tend to characterise subsidiaries in their economies as exploiting foreign-owned intellectual property, on which they must pay royalties, in order to deflate the profits made there.
For example, China takes the view that the value of a marketing intangible (such as a brand name) is inextricably linked to the market in which it is sold. In a memorable example, Head & Shoulders is a popular shampoo in China, and a foreign brand. But when it first arrived on the Chinese market, most consumers didn’t know what the words “Head and Shoulders” meant. “Over time,” says the manual, “the local Chinese affiliates acquire the skill and experience from operations in China, and may even contribute to the improvement of the MNE’s original intangibles. The issue in this scenario is whether the local Chinese affiliates should be entitled to additional profit, and if so, what is the appropriate method to calculate the additional profit?”
The Indian approach is similar:
Indian subsidiaries/related parties (which are claimed as no risk and limited risk bearing distributors by the parent MNE in order to justify low cost plus return) have incurred and borne huge expenditure on development of marketing intangibles. These entities generally incur very large losses or disclose very nominal profit as evident from their return of income
Instead of a flow of royalty payments out of India, it argues, the parent company should be reimbursing its Indian subsidiary for the local marketing intangibles created, without which it couldn’t sell into India.
Risks, and the formulary apportionment bombshell
India is concerned that the OECD approach overvalues the role of risks in allocating profits. Risk plays an important role in the functional analysis that underpins transfer pricing, because the higher the risk taken by one part of a company, the higher the transfer price it can charge. The Indian section says risks are “a by-product of [a company’s] performance of functions and ownership and the exploitation or use of assets employed over a period of time.” It “does not agree with the notion that risk can be controlled remotely by the parent company” and says that if “important strategic decisions” are taken in India then “the allocation of risk to the parent MNE is not only questionable but is devoid of logical conclusion.” Ouch.
The Chinese section concurs, arguing that “a risk‐based approach may place insufficient regard for the fact that there are sizeable assets located in China (i.e. the work force and factory plants).” It goes as far as to conclude that, in the case of the electrical manufacturing sector, “In this case, the assets and the people should largely dictate where the group’s profits should stay, and a global formulary approach should be a realistic and appropriate option.”
This is quite a bombshell. The chapter effectively argues that, in order to reduce the distorting effect of risks and intangible assets in transfer pricing, there is a case for the limited use of the formulary system advocated by Tax Justice Network, distributing the profits based on only on the assets and people in each jurisdiction. Wow. That will no doubt get tax justice activists excited, but to me what’s more interesting is the open discussion about which factors to take into account in allocating profits, and which to disregard. That’s not just about refinements to the technical implementation of the arm’s length principle: it’s politics.