قیمت گذاری انتقالی دارایی های نامشهود: هماهنگی و تضاد در پنج کشور

Transnational corporations (TNCs) regard transfer pricing as the most important tax issue confronting them in the immediate future. Coupled with the increase in the number and type of cross-border transfers of intangible property, concerns arise about the adequacy of current transfer pricing regulations, and the harmony, or lack thereof, of such regulations when a TNC must address both host- and home-country tax authorities. This study of TNCs domiciled in Canada, Germany, Japan, the United Kingdom, and the United States (US) reveals a similarity in corporation approaches to valuing intangible property that transcends national borders. This is in stark contrast to current practices regarding the transfer of tangible goods, which vary by country, rather than by industry or nature of the transferred good. However, in many cases, this agreement is reached because TNCs are using transfer pricing methods for intangible transfers that do not follow the Organization for Economic Cooperation and Development (OECD) and/or US Internal Revenue Service (IRS) guidelines.

Transfer pricing remains a key international issue for multinational organisations and will be the key issue facing them over the next two years. (Ernst & Young, 1999, p. 4) The transfer of intangible assets is viewed in some analyses as providing more positive impacts on a host's economy than capital transfers. (Government of Canada, 1996) The taxation of income from intangibles is perhaps the most important large case issue in the intercompany transfer pricing world today … In the case where a series of products are highly profitable, there is almost always some key intangible property involved. (Mentz & Carlisle, 1997, p. 50) Given these declarations, the transfer pricing of intangible assets is a critical concern of transnational corporations (TNCs). Transfer pricing is both a business strategy and a tax issue because “decisions regarding products, location and supply-chain matters affect tax planning and tax compliance in both home and subsidiary countries” (Ernst & Young, 1997, p. 4). As more TNCs expand their foreign direct investment (FDI), conflicts among TNCs and the host and home countries' transfer pricing legislation and the philosophies of their tax authorities increase. These differences may also encourage some TNCs to shift income from higher to lower tax jurisdictions to minimize their total tax burden and maximize profits. Consequences may include increased audits, litigation, double taxation, and penalty assessment, dampening a TNC's enthusiasm for FDI, especially in developing countries and economies in transition. The need for increasing FDI in these lesser-developed countries and economies is so important that the United Nations (UN) is currently developing a multilateral framework on investment for such countries. Among the key issues included in this framework are the transfer pricing of tangible goods and intangible property (UNCTAD, 1999) and the transfer of technology, including intellectual property rights (not yet released). The “gross income tax gap” in the United States (US) attributable to transfer pricing was in excess of US$2.8 billion per year for the 1996–1998 period. How much of this is due to intangible property transfers is not clear. However, it was the perception of the US Congress about significant abuse involving the transfer pricing of US developed intangibles, which led to the major 1986 revision by the US Internal Revenue Service (IRS) of Section 482 vis-à-vis the transfer pricing of intangible property (Cole, 1999, Section 1.02). Continuing concerns with abuses and the magnitude of tax revenues associated with intangible property transfers led the Organization for Economic Cooperation and Development (OECD) to revise its transfer pricing guidelines in 1996 to include a chapter wholly devoted to intangible property issues (OECD, 1996). Past and recent activity of the US Tax Court is one indicator of both the importance and the prevalence of the transfer pricing of intangible property in TNCs. Since the Section 482 revision in 1986, many Tax Court cases have involved very significant adjustments and penalties attributable to the improper transfer pricing and valuation of intangible property.1 One estimate is that “nearly half of all adjustments proposed by the US IRS under Section 482 have involved the use or transfer of intangibles” (Cole, 1999, Section 8.01). In one recent and ongoing case, DHL Corp. v. Commissioner,2 the TNC is appealing the assessment by the US IRS of US$424.6 million in deficiencies and US$992.2 million in allocations from trademark sales and royalties. Another indicator is the number of advance pricing agreements (APAs) involving the negotiation of transfer prices for intangible property. The APA program allows TNCs to negotiate acceptable pricing methods for complex transactions for an extended time period to radically reduce the risks of audit and penalty assessment. Since the US IRS began its APA program in 1992, 231 APAs have been completed, of which 64 deal with intangible property and 111 with the performance of services (IRS, 2000). In this study, of the 262 TNCs using transfer pricing, 61% (159 TNCs) used it relative to intangible property. Of concern is how these 159 TNCs domiciled in different countries transfer intangibles across borders, and the effect of these transfers on their audit status, profitability, and relationship with host-country governments. Has the objective of globally acceptable transfer pricing methods been achieved, as called for by the OECD and the UN? Alternatively, are transfer pricing methods determined by TNC for economic and environmental attributes rather than by the desire for harmony and a globally accepted transfer pricing framework? Or, do the correlative objectives of tax minimization and profit maximization eclipse all other concerns? The study has two objectives, the first being a primer on intangible property and existing transfer pricing legislation. The second objective is a two-pronged analysis to answer the questions previously raised. The transfers of intangibles by US TNCs to host and home subsidiaries are analyzed first. Then, US TNC transfer pricing behavior and characteristics are compared to those of Canadian, German, Japanese, and United Kingdom (UK) TNCs with subsidiaries in the US. Data for the study were collected through a mail survey of international and tax vice presidents of TNCs domiciled in the five countries of interest. Responses were elicited for both home- and host-country subsidiaries to allow for cross-border comparisons of intangible transfer pricing and performance evaluation practices. There is much more agreement among TNCs and their transfer pricing methods for intangible property than their transfer pricing methods for tangible goods. Regardless of country, significant differences in TNC demographics, and differences in the types of intangibles transferred, there were no significant differences in the methods used to value intangible property in cross-border transfers. The logical assumption is that this harmony may be due in part to the relative concurrence of the OECD guidelines (followed by Canada, Germany, Japan, and the UK) with the US IRS regulations regarding the valuation of intangible property. With the recent issuance of the OECD's guidelines on cost sharing, it could be assumed that intangible transfer pricing practices may become even more aligned across countries. However, upon further analysis, the harmony is deceptive. Fully 25% of the responding TNCs currently use a transfer pricing method to value intangible property that is not one of the methods specifically defined by either the OECD or the US IRS. Even if the guidelines and regulations were relaxed, 23% would still apply a nonspecified method. This study provides possible explanations for this divergence of the TNCs' practices with the theoretically preferred methods in the OECD guidelines and IRS regulations. The results of this study show that TNCs differ much less across borders in the transfer pricing methods used to value intangible property compared to wide disparity in their transfer pricing choices when transferring tangible goods. However, although the TNCs agree on the methods to be used for intangible property, those methods may not be in accordance with those prescribed by the OECD guidelines or the US IRS regulations.

There is much more agreement among TNCs and their transfer pricing methods for intangible property than their transfer pricing methods for tangible goods. Regardless of country, significant differences in TNC demographics, and differences in the types of intangibles transferred, there were no significant differences in the methods used to value intangible property in cross-border transfers. The logical assumption is that this harmony may be due in part to the relative concurrence of the OECD guidelines (followed by Canada, Germany, Japan, and the UK) with the US IRS regulations regarding the valuation of intangible property. With the recent issuance of the OECD's guidelines on cost sharing, it could be assumed that intangible transfer pricing practices may become even more aligned across countries. However, upon further analysis, the harmony is deceptive. Fully 25% of the responding TNCs use a transfer pricing method to value intangible property that is not “acceptable” to either the OECD or the US IRS. Fully 25% of the responding TNCs currently use a transfer pricing method to value intangible property that is not one of the methods specifically defined by either the OECD or the US IRS. This noncompliance is due to any or all of the following: a reliance on historical practice, the supplanting of US regulations by OECD guidelines, stronger country-specific transfer pricing rules and penalties, and/or the innovative intangibles spawned by technological change and global expansion. The choice of an intangible pricing method is not related to country, but to industry (and, therefore, the type of intangible property transferred), TNC philosophy of managerial performance evaluation, the need for information for decision making, and global factors such as the economy, currency fluctuations, political stability, and cross-border competition. In contrast, the choice of a transfer pricing method for tangible goods is definitely related to where the TNC is domiciled, in addition to other factors. Perhaps intangible assets are more global in nature and therefore receive a more universal treatment not constrained by national borders when compared to tangible goods. Audit experience among these TNCs does not seem to be driven by the type of transfer pricing method utilized. Instead, both the country in which the TNC is domiciled, and internal TNC practices, seem to increase the chances of an audit by the home-country tax authority. It seems that tax authorities are honoring both the letter and the spirit of the OECD guidelines and giving TNCs the discretion to choose the method optimal for their given circumstances, and that it is other factors driving an audit. An area of future research, either as a case or empirical study, is the audit status of Japanese TNCs. Given the Ernst & Young (1997) and this study's findings, why are they seldom audited by their own tax authority, the NTAA, yet, are very frequently audited by the host countries' tax authorities? Many studies on tangible transfer pricing conclude that (1) regulations need to be revised to reflect a TNC's operating realities and (2) differences between OECD guidelines and US regulations must be eliminated. In the case of intangible assets, however, the guidelines and regulations are remarkably similar, with the majority of TNCs using one of the specific approved methods for valuation, thereby satisfying both host and home tax authorities. It is a pleasure to recommend the status quo regarding the transfer pricing of intangibles, and to hope that the concurrence of TNC practice and host/home regulations will be contagious, eventually affecting the more contentious realm of tangible transfer pricing.