Key transfer pricing issues arising from the transfer of an ongoing concern : A comparison between the OECD TP Guidelines and the German and the U.S. legislations

Abstract: The purpose of this thesis is to analyse and compare the transfer pricing approaches held by the OECD, Germany and the United States when transferring an ongoing concern. The term “ongoing concern” in the OECD Transfer Pricing Guidelines is to be interpreted as very wide and to cover every case where a function is bundled with assets and risks. Even though there is no legal definition of the term , the definition of the OECD can still be said to represent the common definition of the term. When transferring an ongoing concern or a function the three approaches are all that it should be given a value that independent enterprises under similar circumstances would agree upon. Besides some particular cases, the OECD and German approach is that the function, assets and risks should be aggregated when determining the arm’s length price. The approach of United States is somewhat different, where an aggregation of the transactions is not always the case and goodwill and going concern value are not subject to the transfer pricing legislation. The comparability approaches and the transfer pricing methodologies of the three are is very similar, where some factors should be taken into account when determinign the comparability between two transactions and with the selection of the most appropriate transfer pricing method applied to the transaction. The comparable uncontrolled price method should be seen as a primary transfer pricing method, and if it is not possible to find comparable transactions or to make reasonable accurate adjustments the profit split method should be applied. The hypothetical arm´s length test is the method that would be applied in such case according to the German legislation. The selection of which valuation method to apply to the transfer depends on the facts and circumstances of the transfer.