TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Sunday, September 23, 2007

Ainsworth on Harmonizing Inconsistent Transfer Pricing Rules

Richard T. Ainsworth (Boston University) has posted IT-APAs: Harmonizing Inconsistent Transfer Princing Rules in Income Tax -- Customs -- VAT, Rutgers Computer & Tech. L.J. ___ (2007), on SSRN.  Here is the abstract:

In most jurisdictions there are three separate spheres of transfer pricing analysis – income tax, customs and VAT. Although they share policy objectives, terminology and frequently borrowing methodologies from one another these domestic transfer pricing systems are not in harmony. Businesses find this lack of harmony costly, problematical, but also a planning opportunity. The door is open for arbitrage.

What if the transfer pricing rules within a jurisdiction were harmonized? The World Customs Organization (WCO) and the Organization of Economic Cooperation and Development (OECD) are considering this question.

This paper synthesizes the range of transfer pricing regimes currently in use, and argues that an affirmative answer to the WCO/ OECD's harmonization question can only be realized through technology – specifically, an IT-APA (Information Technology – Advance Pricing Agreement). Inherent differences embedded in the annual income tax are nearly impossible to harmonize with transaction taxes like customs and VAT if what is envisioned is a single, monolithic transfer pricing standard. If instead one imagines a standard that employs flexible, integrated rules, where separately harmonized (vertical and horizontal) elements are brought together in a certified automated system, then a harmonized transfer pricing standard can be realized.

It is reasonably clear that the real barriers to vertical harmonization of transfer pricing rules in income tax, customs and VAT have to do with timing and granularity. Income tax valuations are completed much later in time than customs and VAT regimes are comfortable with. Transaction taxes are designed around either having a number or a fixed formula that will objectively determine the number that is the tax base. An IT-APA harmonizes transfer pricing results by using a fixed formula. The formula is embedded in the taxpayer's VAT and customs software, and linked through the ERP to the financial statements and the income tax return. Certification of this digital valuation formula solves the timing issue in vertical harmonization.

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