RoyaltyStat Blog

The subject of this article is transfer pricing in Brazil with a focus on financial transactions. The topic of financial operations was recently updated both in the Transfer Pricing Guidelines of the Organization for Cooperation and Development (OECD TPG), in 2020, and in the UN Practical Manual on Transfer Pricing for Developing Countries (UN Manual), in 2021, which was launched last year at the 22nd Session of the United Nations Committee of Experts on Taxation.

The company-level operating profit markup can be estimated as a power function or a linear function between Net Sales (SALE) and Total Cost = XOPR = COGS + XSGA. The difference between Net Sales and Total Cost (measured by XOPR) is OIBDP (operating income [profit] before depreciation and amortization, or EBITDA). Some analysts include DP (depreciation and amortization) in total cost; however, DP is subject to substantial accounting discretion (such as including acquisition related impairment charges), which can prejudice cross-section comparisons.

As a transfer pricing practitioner with many years' experience across many industries and transactions, I’ve heard many reasons for making working capital adjustments (WCA). I’ve seen it described as ‘standard’ or ‘automatic’, as well as ‘unreliable’ and ‘rarely to be performed’. I’ve also heard some describe it as an adjustment they ‘believe in’, or an economic factor that an arm’s length party would ‘always’ take into account in their pricing. To untangle this knot, I’ve set out below some of the issues that I would consider before undertaking a WCA.

Brazil’s approach to intercompany financing may respect the currency of denomination of a multinational’s intercompany loan policies but falls short of other key aspects, such as the term of the intercompany loan. The OECD released its transfer pricing guidance on financial transactions on February 11, 2020. The guidance on the pricing of intercompany loans placed appropriate focus on the contractual terms as well as the credit rating of the borrowing affiliate.

Organizations around the world are gaining valuable insight into not only the potential benefits of the Cloud, but also the practical challenges of adopting these highly disruptive technologies. One of the key considerations when deploying Cloud computing in a multinational enterprise (MNE) is whether or not operating in the Cloud changes the nature of the transaction from a transfer pricing perspective.

The OECD Transfer Pricing Guidelines (2017, ¶ 6.192) makes a perfunctory reference to multi-year data analysis covering intangibles. The guidance about using multi-year analysis of profit indicators is described on ¶ 3.75 to ¶ 3.79 (“examining multiple year data is often useful in a comparability analysis, but it is not a systematic requirement.”). One expects more competence in economics and statistical principles from the OECD Guidelines, instead of the misleading quote. Unsystematic requirement is nonsense.

Here, I show that the return on operating assets (ROA) can be specified as the return on investment (ROI).

Economic time series may have one-period autoregressive errors (AR(1)).

Before Newey-West, the Cochrane-Orcutt or the Prais-Winsten AR(1) error correction was pervasive in applied research. Estimating time-dependent economic variables, such as the individual company’s (tested party and comparables) return on operating assets, without the AR(1) error correction will result in inefficient parameter estimates, and the standard errors will be inconsistent. Hence, the unaware reader can begrime the arm’s length range of comparable return on operating assets.

Some jurisdictions, like the Chinese State Administration of Taxes (CSAT), include location savings as a key topic in a transfer pricing analysis. CSAT is particularly clear on its expectations on this front. It will only consider an APA when the enterprise has provided a thorough value chain/supply chain analysis that takes into account China’s location-specific advantages such as cost savings and market premiums in choosing and applying an appropriate transfer pricing methodology.

The return on assets (ROA) is misused to determine the tested party’s operating profits in transfer pricing. ROA is unreliable because multiple (ill-defined) denominators are employed. Only the composite asset property, plant & equipment (PPENT) is consistent with well-received economic theory. If book (accounting) PPENT is the denominator (explanatory variable), ROA is still unreliable because of varied accumulated depreciation practices.

The Federal Court of Australia (FCA) recently decided against the ATO in the case of Commissioner of Taxation v Glencore Investment Pty Ltd (2020). On one issue however - shipping - the Australian Taxation Office (ATO) recorded a win. The FCA agreed with the ATO that the taxpayer had failed to discharge its onus of proof on this issue. So, what is the burden of proof in an Australian transfer pricing case?