Chapter 12:�International Transfer�Pricing

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Chapter Topics

• Transfer prices, corporate objectives, national tax laws
• Cost minimization and performance evaluation
• U.S. transfer pricing rules
• Five specific methods to determine arm’s-length prices
• Advance pricing agreements (APAs)
• Enforcement of transfer pricing regulations

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Learning Objectives

1. Describe the importance of transfer pricing in achieving goal congruence in decentralized organizations
2. Explain how the objectives of performance evaluation and cost minimization can conflict in determining international transfer prices
3. Show how discretionary transfer pricing can be used to achieve specific cost minimization objectives
4. Describe governments’ reaction to the use of discretionary transfer pricing by multinational companies
5. Discuss the transfer pricing methods used in sales of tangible property

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Learning Objectives

6. Explain how advance pricing agreements can be used to create certainty in transfer pricing
7. Describe worldwide efforts to enforce transfer pricing regulations

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Introduction

Transfer pricing

• Determination of price on the exchange of goods or services between related parties
• Also referred to as intercompany transactions
• Upstream transfers go from subsidiary to parent, while downstream transfers are from parent to subsidiary
• Transfers also occurs between different subsidiaries of the same parent
• Significant proportion of international transactions are intercompany transfers (In 2012, represented 42% of U.S. total goods trade)

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Decentralization and Goal Congruence

• Decentralized companies are organized by division and division managers have significant authority
• Decomposes problems into smaller pieces
• Permits local decision making which provides more responsibility for division managers
• An agency problem can occur since division managers make decisions in their self-interest
• Manager’s self-interest can vary with the best interests of the company
• An effective accounting system can alleviate this agency problem by providing incentives to division managers to act in the interests of the organization
• This is referred to as goal congruence
• These concepts are relevant to both multinational and purely domestic companies

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Performance evaluation systems

• Transfer prices directly affect the profits of the divisions involved in an intercompany transaction
• Some are based on divisional profits
• Effectiveness of these is influenced by the fairness of transfer prices
• Effectiveness of these affects the satisfaction of managers

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Cost minimization

• Profit maximization and, by extension, cost minimization are important corporate objectives
• Manipulating transfer prices between countries is one way for multinational enterprises to achieve cost minimization
• This is referred to as discretionary transfer pricing
• The most common approach is to minimize costs by shifting profits to lower tax rate jurisdictions

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Cost minimization – Example

• Padre Inc., a U.S. company, has two subsidiaries, Hijo and Hija. Hijo is located in Chile and Hija in the U.S. The tax rate is 17 percent in Chile and 35 percent in the U.S. Hijo transfers 100 units of cosa to Hija at a negotiated transfer price of $10 per unit. The cost per unit is $5 for Hijo, and Hija sells the units in the U.S. at $15 per unit. Padre intervenes to set the transfer price at $13 per unit.

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Cost minimization – Example

• Divisional profits under the negotiated transfer price:

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Hijo Hija Padre

Sales $1,000 $1,500 $1,500

Cost of goods sold 500 1,000 500

Gross profit $ 500 $ 500 $1,000

Income tax effect 85 175 260

After-tax profit $ 415 $ 325 $ 740

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Cost minimization – Example

• Divisional profits under the discretionary transfer price:

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Hijo Hija Padre

Sales $1,300 $1,500 $1,500

Cost of goods sold 500 1,300 500

Gross profit $ 800 $ 200 $1,000

Income tax effect 136 70 206

After-tax profit $ 664 $ 130 $ 794

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Cost minimization – Example

• Corporate profits under the discretionary transfer price are $54 greater relative to the negotiated price
• This results from shifting $300 of pre-tax profits from the U.S. to Chile
• The overall tax rate decreases from 26 to 20.6 percent
• The performance evaluation objective is better served by the negotiated transfer price
• The cost minimization objective is better served by the discretionary price

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Conflicting objectives and a solution

• The previous example illustrates how cost minimization and performance evaluation can conflict
• Dual pricing is one solution to this conflict
• Under dual pricing, the official transfer price used for tax purposes is the discretionary transfer price
• A separate set of records used for performance evaluation use the negotiated transfer price

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Performance Evaluation, Cost Minimization, and Transfer Pricing

Other cost minimization objectives

• Withholding taxes on dividends can be effectively avoided via setting favorable transfer prices
• The same can be done to avoid profit repatriation restrictions
• This essentially changes cash flows from dividends to intercompany revenues and expenses
• Minimization of import duties(Tariffs)
• Increase cash flows out of a devaluing currency
• Enhance the competitive position of a foreign operation

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Interaction of Transfer Pricing Method and Objectives

• Transfer pricing method (cost-based or market-based) depends on specific environmental variables
• Cost-based methods are preferred when the following variables are important
• Differences in income tax rates
• Minimization of import duties
• Foreign exchange controls and risks
• Restrictions on profit repatriation
• Risk of expropriation and nationalization
• Market-based methods are preferred when the following variables are important
• Interests of local partners
• Good relationship with local government

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Government Reactions

• Governments are aware of risk that multinationals will use transfer pricing to avoid paying income and other taxes
• Most governments publish guidelines regarding acceptable transfer pricing
• The guidelines typically use the notion of an arm’s-length price
• Arm’s-length price is the price that would be agreed upon by unrelated parties

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U.S. Transfer Pricing Rules (IRC Section 482)

• Allows the Internal Revenue Service to audit international transfer prices
• Penalties of up to 40% of the underpayment of taxes (on a gross valuation misstatement) can be imposed on violators
• Applies to both upstream and downstream transactions, and transactions between two subsidiaries of the same parent
• Important because most MNCs are either headquartered in or have significant business activities in the U.S
• U.S. transfer pricing reforms have influenced other countries’ regulations

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U.S. Transfer Pricing Rules (IRC Section 482)

• A “best-method rule” requires the use of arm’s-length concept
• Primary factors to consider are the degree of comparability to uncontrolled transactions and the quality of the underlying analysis
• The IRS provides for correlative relief to help in situations where the IRS agrees with a company’s transfer pricing but a foreign government does not

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Sale of Tangible Property

• Treasury Regulations require the use of one of five specified methods to determine the arm’s-length price
• Comparable uncontrolled price method
• Resale price method
• Cost-plus method
• Comparable profits method
• Profit split method

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Sale of Tangible Property

Comparable uncontrolled price method

• Widely considered the most reliable measure when a comparable uncontrolled transaction exists
• Transfer price is determined based on reference to the company’s sales of the same product to an unrelated buyer
• Reference to transactions between two unrelated parties for the same product are acceptable
• If an uncontrolled transaction is not exactly comparable, an adjustment is allowable

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Sale of Tangible Property

Resale price method

• Generally used when the affiliate is a sales subsidiary and simply distributes finished goods
• Transfer price is determined by deducting gross profit from the price charged by the sales subsidiary
• Gross profit is determined by reference to uncontrolled parties
• The most important factor in choosing this method is the similarity in function of the affiliated sales subsidiary and the uncontrolled reference company

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Sale of Tangible Property

Cost-plus method

• Most appropriate when comparable uncontrolled transactions don’t exist and sales subsidiary does more than simply distribute finished goods
• Transfer price is determined by adding gross profit to the cost of production
• Gross profit is determined by reference to uncontrolled parties
• Factors influencing the comparability of uncontrolled transactions include: complexity of manufacturing process, procurement activities, and testing functions

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Sale of Tangible Property

Comparable profits method

• Underlying principle is that similar companies should earn similar returns over a period of time
• One of the two related parties in the transactions is chosen for examination
• Transfer price is determined via reference to an objective measure of profit of an uncontrolled company involved in comparable transactions
• Typical measures of profit include: ratio of operating income to operating assets and gross profit to operating expenses

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Sale of Tangible Property

Profit split method

• Treats the two related parties as one economic unit
• Profit from the eventual sale to an uncontrolled party is allocated between the related parties
• Allocation is based on relative contribution of each party
• Contribution is determined by functions performed, risk assumed, and resources employed
• There are actually two versions: comparable profit split method and residual profit split method

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Sale of Tangible Property

Summary

• Any particular transfer pricing method used can result in a range of transfer prices
• Companies can use discretion to set prices within the range in order to achieve cost minimization objectives
• Companies can also use discretion in determining the “best” method
• Section 482 does provide detailed guidance on factors to consider in determining comparability to uncontrolled transactions
• Taxpayer must provide contemporaneous (within 30 days) documentation justifying method selected, covering at least eight specified items (e.g. an analysis of the economic and legal factors as well as an explanation of why one method was selected over alternatives)
• Substantial reporting and record-keeping requirements

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Licenses of intangible property

• Section 482 lists six categories of intangibles, including: patents, copyrights, trademarks, franchises, and methods and procedures
• Four methods are available for setting transfer prices:
• Comparable uncontrolled transaction method
• Comparable profits method
• Profit split method
• Unspecified methods
• Pricing of intercompany loans and intercompany services are also transfer pricing situations

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Advance Pricing Agreements (APA)

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• It is an agreement between a company and the IRS regarding an acceptable transfer pricing method
• A unilateral agreement is between a taxpayer and the IRS, while a bilateral agreement involves the IRS and one or more foreign tax authorities
• The primary advantage is assurance that their approach will not be challenged
• The primary disadvantage is the time and cost involved in arriving at the agreement

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Advance Pricing Agreements (APA)

Some specifics of national APAs

• The U.S. began its APA program in 1991
• An increasing number of other countries have subsequently established programs
• In the U.S., of a total of 42 agreements executed in 2011, approximately 62 percent involve foreign parent companies
• The computer and electronics product manufacturing industry have been the leading users of APAs

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Worldwide Enforcement

• Tax authorities view transfer pricing as a “soft target”
• To avoid lengthy, complicated disputes and increased scrutiny by local authorities a company may just pay the additional tax
• In 2010, an Ernst & Young survey showed that more than two thirds of MNC respondents had experienced a transfer price audit somewhere in the world since 2006
• More than 25% of completed audits resulted in a tax adjustment, with penalties imposed in almost 20% of those cases

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Worldwide Enforcement

• There are a number of documented cases of companies, both U.S. and foreign, deemed to have underpaid taxes in the U.S.
• Some of these cases reflect obvious attempts by companies to evade U.S. taxes by manipulating transfer prices
• In one case, a U.S. subsidiary sold bulldozers to its foreign parent for $551 each
• From 1998-2005, over 60 percent of U.S. and foreign multinationals paid no U.S. income tax
• There is a worldwide trend toward strengthening transfer pricing rules

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End of Chapter 12

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