TRANSFER PRICING CASE STUDIES WORKSHOP SAN JOSE 31 MARCH - 4 APRIL 2 014

1. TRANSFER PRICING CASE STUDIES WORKSHOP SAN JOSE 31 MARCH - 4 APRIL 2014 3-c. Comparability OECD freely authorises the use of this material for non-commercial purposes. All requests for commercial uses of this material or for translation rights should be submitted to rights@oecd.org. The opinions expressed and arguments employed herein are those of the author and do not necessarily reflect the official views of the OECD or of the governments of its member countries.

2. Reorganization of Chapters I-III:

3. The notion of “reliable comparables” ¶¶ 3.2-3.3 • Most reliable comparables in the circumstances of the case, keeping in mind the limitations in availability of information and that searches for comparables data can be burdensome • No requirement for an exhaustive search of all possible sources of comparables/ all methods

4. Comparability Analysis • The 5 Comparability Factors(para. 1.38 – 1.63 OECD Guidelines) • Characteristics of property or service • Functional analysis • Contractual terms • Economic circumstances • Business strategies Note: For any substantial differences between the compared transactions or enterprises appropriate comparability adjustments need to be made!

5. Internal and external comparables ¶¶1.33; 3.27-3.38 • Comparable: • Between one party to the controlled transaction and a non-associated party (“internal comparable”) • Between two independent enterprises, neither of which is a party to the controlled transaction (“external comparable”).

6. Internal and external comparables ¶¶1.33; 3.24-3.54 • A « comparable » is: • An uncontrolled transaction (not between associated enterprises); • None of the differences could materially affect the conditions (price or margin), or • Reasonably accurate adjustments (“comparability adjustments”) can be made to eliminate the effects of such differences

7. Internal and external comparables ¶¶1.33; 3.27-3.28 • Internal comparables can: • Be easier to find and more reliable; • Be more complete and less costly to document • This is not always the case  there is no hierarchy between internal and external comparables • But where internal comparables are reasonably reliable  no need to make a database search

8. Internal Comparables • Example 1: Contract manufacturing case study • For the purposes of evaluating transactions (sales or services) with related parties, a potential internal comparable would exist if the taxpayer (tested party) sells the same of similar products or provides the same or similar services under comparable conditions to unrelated (independent) parties. Controlled Transaction • China • (related distributor) Controlled Transaction • A. Japan • (Manufacturer) Potential Internal Comparable XYZ India (IndependentDistributor) • A. Japan • (Manufacturer) Uncontrolled Transaction(arm’s length price)

9. Internal Comparables

10. Internal Comparables Segmented Financials Example 2: Distribution Company A. US$ ’000 Overall Financials

11. Conclusion? Internal Comparables

12. External Comparables • For the purposes of evaluating transactions (sales or services) with related parties, a potential external comparable would exist if (unrelated) third parties perform similar functions and sell the same or similar products or provide the same or similar services to unrelated parties under similar conditions. • Problem: rarely do we find external “comparables”(except commodities, financial products)

13. External Comparables • Search process for external comparables • Selection of Industry – Electronics Manufacturing • Selection of Region • Number of companies under the selected industry/region • Number of controlled companies excluded, i.e., 50% or above owned by another company • Number of companies excluded for insufficient data • Number of companies excluded for sustained operating losses • Number of companies excluded for incomparable functions, e.g., significant R&D, marketing, distribution, services, etc. • Refined comparable set • Should loss companies be removed?

14. Typical 9- step process ¶ 3.4 • Determination of years to be covered • Broad-based analysis of the taxpayer’s circumstances • Understanding the controlled transaction(s) under examination, based in particular on a functional analysis, in order to choose the tested party (where needed), the most appropriate transfer pricing method to the circumstances of the case, the financial indicator that will be tested (in the case of a transactional profit method), and to identify the significant comparability factors that should be taken into account • Review of existing internal comparables, if any • Determination of available sources of information on external comparables where such external comparables are needed and the sources’ reliability

15. Typical 9- step process ¶ 3.4 • Selection of the most appropriate transfer pricing method and, depending on the method, determination of the relevant financial indicator (e.g. determination of the relevant net profit indicator in case of a transactional net margin method) • Identification of potential comparables: determining the key characteristics to be met by any uncontrolled transaction in order to be regarded as potentially comparable, based on the relevant factors identified in Step 3 and in accordance with the comparability factors • Determination of and making comparability adjustments where appropriate • Interpretation and use of data collected, determination of the arm’s length remuneration

16. Evaluation of a taxpayer’s separate and combined transactions ¶¶ 3.9-3.12 • Ideally, to arrive at the most precise approximation of fair market value, the arm’s length principle should be applied on a transaction-by-transaction basis • However, there are often situations where separate transactions are so closely linked or continuous that they cannot be evaluated adequately on a separate basis • For instance, pricing a range of closely-linked products (e.g. in a product line) • Portfolio approach  business strategy consisting in bundling certain transactions for the purpose of determining or testing transfer price • For instance: printers and cartridges, vending coffee machines and coffee capsules

17. Choice of the tested party ¶¶ 3.18-3.19 • The choice of the tested party should be consistent with the functional analysis of the transaction; • The party to which a transfer pricing method can be applied in the most reliable manner and for which the most reliable comparables can be found, • It will most often be the one that has the less complex functional analysis

18. Information on the foreign associated enterprise ¶¶ 3.21-3.23 • One-sided methods (cost plus, resale price or TNMM) require: • Qualitative information on the comparability factors of both parties to the controlled transaction • Financial information on the tested party (whether domestic or foreign) • Two-sided methods (profit split method): • Financial information on all the parties to the transactions

19. Foreign comparables ¶ 3.35 • Non-domestic comparables should not be automatically rejected ; • Examine whether non-domestic comparables are reasonably reliable on a case-by-case basis: • Five comparability factors • Careful consideration of market differences and accounting standards, and of whether reasonably reliable comparability adjustments can be made where needed

20. Secret comparables ¶ 3.36 • It would be unfair to apply a transfer pricing method on the basis of such data unless the tax administration was able, within the limits of its domestic confidentiality requirements, to disclose such data to the taxpayer so that there would be an adequate opportunity for the taxpayer to defend its own position and to safeguard effective judicial control by the courts.

21. Limitations in available comparables ¶¶ 1.37; 3.38-3.39 • Assess the relative importance of missing information before rejecting a potential “comparable” • A pragmatic solution may need to be found on a case-by-case basis

22. Comparability adjustments ¶¶ 3.47-3.54 + Annex • Not automatic: whether comparability adjustments should be performed in a particular case is a matter of judgement that should be evaluated in light of the discussion of costs and compliance burden • Comparability adjustments should be envisaged where (and only where) they can be expected to increase the reliability of the results • Are the comparables data of sufficient quality to warrant comparability adjustments?Adjustments should not be made to create the wrong impression that the outcome is “scientific”

23. Comparability adjustments ¶¶ 3.47-3.54 + Annex • Too many adjustments or adjustments that greatly affect the outcome may indicate that the third party transactions being adjusted is in fact not sufficiently comparable • On the other hand, comparability adjustments do not need to be, and in fact should not be, performed to correct differences that have no material effect on the comparison • Avoid automatic or « routine » adjustments • Comparability adjustments need to be documented (reasons for adjustment/how?) • Example of a working capital adjustment provided in Annex

25. Arm’s length range and statistical tools ¶¶ 3.55-3.62 • In some cases it will be possible to arrive at a single figure (e.g. price or margin) • In most cases: arm’s length range where all figures are relatively equally reliable • Where it is possible to determine that some uncontrolled transactions have a lesser degree of comparability than others they should be eliminated. • If comparability defects remain that cannot be identified and/or quantified, and are therefore not adjusted  use of statistical tools that take account of central tendency might help to enhance the reliability of the analysis

26. Arm’s length range and statistical tools ¶¶ 3.55-3.62 • If the relevant conditions of the controlled transaction (e.g. price or margin) are within the arm’s length range  no adjustment should be made • If the relevant conditions of the controlled transaction (e.g. price or margin) fall outside the arm’s length range asserted by the tax administration  the taxpayer should have the opportunity to present arguments that the conditions of the transaction satisfy the arm’s length principle, and that the arm’s length range includes their results.

27. Arm’s length range and statistical tools Adjustment to a point in the range: ¶¶ 3.55-3.62 • Point within the range that best reflects the facts and circumstances of the particular controlled transaction • Where the range comprises results of relatively equal and high reliability any point in the range satisfies the arm’s length principle. • Where comparability defects remain use measures of central tendency (for instance the median, the mean or weighted averages, etc.) to minimise the risk of error due to unknown or unquantifiable remaining comparability defects.

28. Loss-making comparables ¶¶ 3.63-3.66 • Not systematically rejected; no systematic interquartile range in the OECD TP Guidelines • But are they truly comparable to the tested party? (risk profile in particular)

29. Loss-making comparables ¶¶ 1.70-1.72 and ¶ 3.64 • Associated enterprises, as independent ones, may be loss-making due for instance to start-up costs, unfavourable economic circumstances, commercial or industrial inefficiencies, etc.

30. Loss-making enterprises ¶¶ 1.70-1.72 and ¶ 3.64 • However, an independent enterprise would not continue loss-making activities unless it has reasonable expectation of future profits. • Consistency with the functional and risk profile of the enterprise

31. Loss-Making Distributors ¶¶ 1.70-1.72 and ¶ 3.64 • Furthermore, an independent enterprise would not remain loss-making indefinitely. • Where an associated enterprise remains loss-making over several years: is it providing a service to the group by maintaining a commercial presence?

32. Timing issues ¶¶ 3.67-3.79 • Contemporaneous uncontrolled transactions are preferred (although availability of information may be limited in practice); otherwise, past information can be used as long as it is adjusted to account in case economic circumstances are significantly different

33. Questions and/or comments?