Practical applicability of methods to determine the transfer price of intangibles
This master’s thesis discusses and analyzes difficulties in transfer pricing methods’ applicability to intangibles. With basis from the OECD Transfer Pricing Guidelines and the U.S. regulations, this thesis investigates applicable methods in legislation, theory, recommendations, case law and how they are applied in practice.
The OECD Guidelines do not provide an exact solution to the valuation of a transfer of intangibles between controlled parties. It refers to the arm’s length principle to determine whether the price set for a transfer between controlled parties is the same, as unrelated parties would have paid, under the same circumstances.
The best method rule used in the U.S. has no preferred order of application although it provides specific methods to be applied to intangibles. In the U.S., as in most countries (and recommended by the OECD), the Comparable Uncontrolled Price/Comparable Uncontrolled Transaction methods are considered most reliable if comparables can be identified.
The profit split method is recommended if there are no comparable transactions available and is applicable to non-routine intangibles. Other methods that require comparables are however used in the application of the profit split method to set an arm’s length price on routine functions. This method will probably become more popular in the future since it is not as dependent on comparables as most other transfer pricing methods.
There are several other methods and approaches to the arm’s length principle, which shows the complexity of intangibles and the ambition to find some form of standard.
This master’s thesis has identified the problems with most of the methods applied to intangibles relying on comparables to some extent. The comparability factors concerning intangibles are a problem, as they are difficult to apply strictly and a frequent problem is the limited access to information. A majority of available agreements published in databases are strongly focused on U.S. based enterprises transactions and rarely disclose all the required details. As a result, the comparables used become less reliable since the geographical area, size of the enterprise and functions compared seldom are comparable with the tested party or transaction. In some industry sectors, it is almost impossible to find independent comparables, especially for non-routine intangibles.
The discrepancy between theory and practice is shown through the usage and acceptance by tax authorities and courts, of comparables without sufficient comparability. This simplified and practical approach to transfer pricing derives from the limited availability of information and the need to avoid unreasonable requirements on the MNEs to produce transfer pricing benchmarking in particular and documentation in general.
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