The Action Plan on Base Erosion and Profit Shifting provide for some specific rules related to transfer pricing on intangibles. Other than the profit allocation problem between associated group, it is to stress the as important problem to reach a price to something that is priceless, and the frequency of multinational of consider as intangibles even business model.
The OECD BEPS has reached in highly mobility of intangibles in associated groups one of the main cause of base erosion, this would favor a discrepancy between the state in which the value of the intangible is created and the state in which the intangible is taxed. The BEPS aim that the profit allocation would be in line with the value creation, as a matter of fact it chanced the intangibles definition and transfer pricing rules to achieve this aim.
The term Intangibles can have a wider or broader scope. Thus, in the OECD Guidance on Transfer Pricing Aspects of Intangibles, the word intangibles “is intended to address something which is not a physical asset or a financial asset, which is capable of being owned or controlled for use in commercial activities, and whose use or transfer would be compensated had it occurred between independent parties in comparable circumstances” .
It can be seen from that definition that, in the field of the regulation of transfer pricing, intangibles are not only immaterial goods but also rights. As a matter of fact partial rights to intangible goods are themselves intangible assets. In other terms, trademark and trademark license are considered as two separate intangible assets.
The OECD Final Report On Actions 8-10 deals with the problem of hard to value intangibles; it states that hard-to-value intangibles refers to intangibles or rights in intangibles in which no reliable comparable exist and is highly uncertain the projections of future cash flows or income from that kind of intangible at the time of the transfer between associated enterprises.
The problems occur when tax administrations find it difficult to establish or verify what events are relevant for the pricing of a transaction involving hard-to-value intangibles, in the Final Report it is provided that tax administrations may consider “ex post” outcomes as presumptive evidence about the appropriateness of the “ex ante” pricing arrangements. This presumptive evidence can be overridden, where it can be demonstrated that it does not affect the accurate determination of the arm’s length price.
A cura di Giacomo Pataracchia
