2015年-德勤全球_The_new_transfer_pricing_landscape_43页_5mb

报告摘要

Deloitte: The New Transfer Pricing Landscape - A Practical Guide to BEPS Changes

Core Content Overview

The document provides an in-depth analysis of the changes to the OECD's Transfer Pricing Guidelines following the Base Erosion and Profit Shifting (BEPS) project. These changes, which are part of the final reports from the OECD, introduce a more detailed and granular approach to transfer pricing, focusing on accurate delineation of transactions and the role of risk in determining arm's length pricing. The guide is intended to help multinational enterprises (MNEs) understand and adapt to the new global transfer pricing environment.

Main Points and Key Information

1. Introduction to BEPS Changes

The OECD released final reports under the BEPS project in November 2015.
These reports were endorsed by G-20 finance ministers and are expected to be approved by G20 heads of state.
The new guidance amends the Transfer Pricing Guidelines and introduces significant changes to the transfer pricing methodology.
The changes require more detailed analysis and documentation, increasing compliance costs for many taxpayers.

2. Accurate Delineation of the Transaction and Risk

The new guidance emphasizes the importance of identifying the actual transaction and its associated risks, rather than relying solely on contractual terms.
A five-step process is outlined to accurately delineate transactions, including:
- Reviewing contractual terms
- Assessing functions, assets, and risks of each participant
- Evaluating the characteristics of the property or services transferred
- Analyzing the economic circumstances and business strategies of the parties
- Documenting the findings in the local file
The concept of "accurate delineation" ensures that transfer pricing reflects the real economic activities and risks involved, not just the written contract.

3. Role of Risk

Risk is defined as the effect of uncertainty on the objectives of the business.
A two-pronged test is introduced to determine whether an entity is entitled to a residual return:
- Financial Capacity: The entity must have the ability to access funding and bear the consequences of the risk.
- Control: The entity must have the capability and authority to make decisions about the risk and its mitigation.
If an entity does not meet both criteria, the tax administration may reallocate the risk and its associated returns to the appropriate party.
The guidance emphasizes that the financial return for funding risks is limited to a risk-adjusted return, not residual income.

4. Location-Specific Advantages (LSAs)

LSAs refer to market features or factors of production that enable a firm to achieve better financial outcomes in a particular location.
The new guidelines recognize two types of LSAs:
- Location Savings: Cost savings due to differences in operational costs (e.g., labor, real estate) between high- and low-cost jurisdictions.
- Other Local Market Features: Attributes such as purchasing power, product preferences, market growth, and competition that may influence pricing and margins.
The OECD does not consider LSAs themselves as intangibles, as they are not owned or controlled by the MNE, but rather used.
The net location savings (savings minus dis-savings) are the only relevant factor for transfer pricing purposes.

5. Practical Implications

The new guidance applies to all related-party transactions and requires a transactional approach, not a functional analysis of the entire entity.
Taxpayers must identify and document the economic substance of each transaction, including the allocation of risks and returns.
The process is complex and may require significant lead time for analysis and adjustment, especially for highly fragmented MNEs.
The document includes an example to illustrate how LSAs and risk allocation work in practice, showing that control and financial capacity are essential to claim returns.

6. Dispute Resolution and Documentation

The new guidance mandates more detailed documentation and country-by-country reporting.
Taxpayers are advised to consider the implications of the new rules in their structures and to seek guidance from transfer pricing professionals.
The lack of a clear definition for risk-adjusted return may lead to disputes and prolonged controversies.

Conclusion

The new transfer pricing rules significantly alter the way MNEs analyze and document their transactions, emphasizing accurate delineation, risk control, and the impact of location-specific advantages. These changes are expected to have a wide-ranging effect on transfer pricing outcomes, particularly for entities that may have previously relied on the transactional net margin method or comparable profits method. The document underscores the need for detailed analysis and documentation to ensure compliance with the new standards and to avoid disputes with tax administrations.