January 21, 2022
OECD publishes 2022 Transfer Pricing Guidelines
On 20 January 2022, the Organisation for Economic Co-operation and Development (OECD) released the 2022 edition of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD TP Guidelines).
The 2022 edition of the OECD TP Guidelines mainly reflects a consolidation of a number of reports resulting from the OECD/G20 Base Erosion and Profit Shifting (BEPS) Project. It incorporates the following three revisions of the 2017 edition: (i) revised guidance on the transactional profit split method approved by the OECD/Inclusive Framework on BEPS in 2018; (ii) guidance for tax administrations on the application of the approach to Hard-to-Value Intangibles approved in 2018; and (iii) transfer pricing guidance on financial transactions approved in 2020. It also includes some related changes for consistency.
Following its first publication in 1979, the original version of the OECD TP Guidelines was approved by the OECD Council in 1995. A limited update was issued in 2009, primarily to reflect the adoption of the arbitration clause in the 2008 update of the Model Tax Convention. In the 2010 edition, Chapters I-III were substantially revised, with new guidance on: (i) the selection of the most appropriate transfer pricing method for the circumstances of the case; (ii) the practical application of transactional profit methods; and (iii) the performance of comparability analyses. The 2010 edition also included the addition of Chapter IX on the transfer pricing aspects of business restructurings. The 2017 edition incorporated substantial revisions to reflect clarifications and revisions contained in the 2015 BEPS Reports on Actions 8-10 (Aligning Transfer Pricing Outcomes with Value Creation) and Action 13 (Transfer Pricing Documentation and Country-by-Country Reporting).
On 20 January 2022, the OECD published the 2022 edition of the OECD TP Guidelines. This latest edition consolidates the changes made to the 2017 edition of the OECD TP Guidelines resulting from three reports:
Revised guidance on transactional profit split method
The revised guidance on the transactional profit split method1 was developed under the mandate of BEPS Action 10 and was approved in 2018. This guidance amends the guidance on the transactional profit split method in Chapter II of the 2017 edition of the OECD TP Guidelines. The basic premise of the profit split method remains unchanged (i.e., to apply the transactional profit split method where it is found to be the method most appropriate to the particular case).
The revised guidance is intended to clarify and expand on when a profit split method may be the most appropriate method. It also expands on how the profit split method should be applied, including determining the relevant profits to be split and the appropriate profit-splitting factors. The revised guidance also includes several examples illustrating the principles discussed.
Guidance for tax administrations on Hard-to-Value Intangibles
The treatment of Hard-to-Value Intangibles (HTVI) for transfer pricing purposes was addressed in the report of BEPS Actions 8-10 and incorporated in the 2017 edition of OECD TP Guidelines. The guidance was developed to tackle the asymmetry of information available between taxpayers and tax administrations regarding the potential value of an HTVI, when it is transferred. In summary, the HTVI approach authorizes tax administrations to use ex post evidence on the financial outcomes of an HTVI transaction (i.e., information gathered in hindsight about how valuable an intangible has turned out to be) as presumptive evidence on the appropriateness of the ex ante pricing arrangements.
The new guidance for tax administrations2 was approved in 2018 and now has been incorporated into the 2022 edition of the OECD TP Guidelines. This guidance aims to reach a common understanding and practice on how to apply adjustments for HTVI. As a result, the guidance is intended to improve consistency and mitigate the risk of economic double taxation. The guidance contains three main components: (i) an outline of principles underlying the application of the HTVI approach; (ii) a number of examples clarifying the application of the HTVI approach; and (iii) specifics on the interaction between the HTVI approach and access to the mutual agreement procedure.
Transfer pricing guidance on financial transactions
The 2020 report on the transfer pricing guidance on financial transactions3 contained follow up guidance in relation to BEPS Action 4 (Limiting Base Erosion Involving Interest Deductions and Other Financial Payments) and Actions 8-10. The guidance now has been incorporated in the 2022 edition of the OECD TP Guidelines, mainly in new Chapter X.
The guidance covers the accurate delineation of financial transactions, in particular with respect to capital structures of multinational enterprises. The guidance also addresses specific issues related to the pricing of financial transactions such as treasury functions, intra-group loans, cash pooling, hedging, guarantees, and captive insurance. In addition, it addresses the determination of risk-free rates of return and risk-adjusted rates of return where an associated enterprise is entitled to such a return under the guidance in Chapter I and Chapter VI of the OECD TP Guidelines.
The release of the 2022 edition of the OECD TP Guidelines consolidates the changes that have been adopted since the 2017 edition. Individual countries take different approaches with respect to whether and how they incorporate the OECD TP Guidelines into their domestic tax systems. For example, in some countries, the domestic rules explicitly refer to the approved OECD TP Guidelines so that updates are automatically incorporated, while in other countries it requires some form of administrative or other action to incorporate a new version of the TP Guidelines into their domestic law. The substantive changes in the 2022 update were approved by the OECD earlier, when the underlying reports were published.
Companies should understand and analyze the implications of this development for each jurisdiction in which they operate. For example, companies should review the amendments to the OECD TP Guidelines with respect to their global operations and their current transfer pricing policies and approaches. There will likely be increased scrutiny by tax authorities from OECD member countries and non-OECD member countries on the application of the concepts reflected in the amendments to cross-border intercompany transactions.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Tax Advisory Services Sarl, Luxembourg City
Ernst & Young Belastingadviseurs LLP, Rotterdam
Ernst & Young Belastingadviseurs LLP, Amsterdam
Ernst & Young Limited (New Zealand), Auckland
Ernst & Young LLP (United States), Global Tax Desk Network, New York
Ernst & Young LLP (United States), Washington, DC
1 See EY Global Tax Alert, OECD releases final revised guidance on application of transactional profit split method, dated 27 June 2018.
2 See EY Global Tax Alert, OECD releases guidance for tax administrations on application of approach to hard-to-value intangibles, dated 27 June 2018.
3 See EY Global Tax Alert, OECD releases final transfer pricing guidance on financial transactions, dated 11 February 2020.