CHAPTER 11 INTERNATIONAL TRANSFER PRICING Chapter Outline I. Two factors heavily influence the manner in which international transfer prices are determined: (a) corporate objectives, and (b) national tax laws. There are a variety of cost, especially tax, minimization objectives that MNCs might attempt to achieve through international transfer pricing. However, MNCs must be careful to comply with national tax laws in setting international transfer prices. II.
The three bases commonly used for establishing transfer prices, both for domestic and international transactions, are: (1) cost-based transfer prices, (2) market-based transfer prices, and (3) negotiated prices. Theory suggests that different pricing methods are appropriate in different situations. III. There are two types of objectives to consider in determining international transfer prices: (a) performance evaluation and (b) cost minimization. A. Transfer prices affect the reported profit of both parties to an intercompany transaction; revenue for the seller and an expense for the buyer.
To fairly evaluate performance, transfer prices should be acceptable to both the buyer and the seller, otherwise dysfunctional behavior can occur. B. Cost minimization objectives can be achieved by top management using discretionary transfer pricing. Possible objectives include minimization of worldwide income tax, minimization of import duties, circumvention of repatriation restrictions, and improving the competitive position of foreign subsidiaries. C.
The objectives of establishing transfer prices to form a basis for fair evaluation of performance and at the same time minimize one or more types of cost through discretionary transfer pricing often conflict with one another. IV. National tax authorities have guidelines regarding what is an acceptable transfer price for tax purposes. These national laws often are based on OECD guidelines. The basic rule is that intercompany transactions should be made at an “arm’s length price. ” V. Section 482 of the U. S.
Internal Revenue Code requires intercompany transactions to be carried out at arm’s length prices. A. Section 482 gives the IRS the power to audit and adjust taxpayers’ international transfer prices if they are not found to be in compliance with Treasury department regulations. B. The IRS also may impose a penalty of up to 40% of the underpayment in the case of a gross valuation misstatement. VI. U. S. Treasury Regulations establish specific guidelines for determining an arm’s length price for sales of tangible property, licenses of intangible property, intercompany loans, and intercompany services.
A. The “best method rule” requires taxpayers to use the method that under the facts and circumstances provides the most reliable measure of an arm’s length price. The two primary factors to be considered in determining the best method are (a) the degree of comparability between the intercompany transaction and any comparable uncontrolled transactions and (b) the quality of the data and assumptions used in the analysis. B. One of five specific methods must be used to determine the arm’s length price in a sale of tangible property.
These are: (1) comparable uncontrolled price method, (2) resale price method, (3) cost plus method, (4) comparable profits method, and (5) profit split method. The comparable uncontrolled price method is generally considered to provide the most reliable measure of an arm’s length price when a comparable uncontrolled transaction exists. C. Four methods are available for determining an arm’s length price for the license of intangible property: (1) comparable uncontrolled transaction method, (2) comparable profits method, (3) profit split method, and (4) unspecified methods.
D. Intercompany loans must be made at an arm’s length rate of interest, taking into consideration the principal and term of the loan, the security involved, the credit rating of the borrower, and the prevailing interest rate. A safe harbor range exists equal to 100%-130% of the applicable Federal rate. E. If the services provided are incidental to the business activities of the service provider, the arm’s length price for intercompany services is equal to the direct and indirect costs incurred in providing the service.
An appropriate amount of profit must be included in the transfer price if the service is an integral part of the business operations of the service provider. VII. Application of a particular transfer pricing method can result in an “arm’s length range” of acceptable prices. Companies can try to achieve cost minimization objectives by selecting prices at the extremes of the relevant range. VIII. If the tax authority in one country adjusts a transfer price used by a company, the company will seek correlative relief from the tax authority in the other country involved in the intercompany transaction.
Tax treaties generally require correlative relief if the tax authority in the other country agrees with the adjustment, otherwise the treaty requires the two tax authorities to attempt to reach a compromise. IX. An advance pricing agreement (APA) is an agreement between a company and a national tax authority on what is an acceptable transfer pricing method for specified transactions. The tax authority agrees not to seek any transfer pricing adjustments if the agreed upon method is used. A. APAs negotiated with the U. S.
IRS most frequently covers the sale of tangible property and the comparable profits method is the method most commonly agreed upon. B. A majority of APAs negotiated by the U. S. IRS have been with foreign parent companies with U. S. operations, rather than U. S. parent companies with foreign operations. X. Countries have been stepping up their enforcement of transfer pricing regulations. Transfer pricing is the most important international tax issue faced by MNCs internationally. The United States is especially concerned with foreign MNCs not paying their fair share of taxes in the U. S. Answers to Questions . Transfer prices must be determined for the following intercompany transfers: • sale or lease of a tangible asset • sale or use of an intangible asset • performance of services, e. g. , management, marketing and/or administrative services • intercompany loans 2. Cost minimization objectives that companies might wish to achieve through transfer pricing include: • minimization of income taxes, withholding taxes and/or import duties • protecting foreign cash flows from currency devaluation • avoidance of repatriation restrictions • improve competitive position of foreign operation 3.
The performance evaluation objective of transfer pricing refers to the use of intercompany transfer prices to provide performance measures (sales, costs, income) that allow both parties to the intercompany transaction (buyer and the seller) to be fairly evaluated. To achieve this objective, the intercompany transfer should be made at a price that is agreeable to both parties. 4. To achieve a specific cost minimization objective, headquarters management might need to dictate use of a discretionary transfer price that otherwise would not be agreed to by one of the parties to an intercompany transaction. 5.
Withholding taxes are paid to a foreign government by a foreign subsidiary when it pays dividends (or interest or royalties) to its parent located in another country. In contrast, payments made to the parent for the purchase of goods and/or services are not subject to withholding tax. A parent company can avoid receiving cash payments from its foreign subsidiary in the form of dividends (or interest or royalties) by transferring goods and services to its foreign subsidiary at inflated prices. The higher the price charged to the foreign subsidiary, the more cash can be extracted from the foreign country without incurring withholding tax. . The five methods acceptable under U. S. tax regulations for determining an arm’s length price for the sale of tangible property are: • comparable uncontrolled price method, • resale price method, • cost plus method, • comparable profits method, and • profit split method. The “best method” rule requires use of the method that under the facts and circumstances of a specific transaction provides the most reliable measure of an arm’s length price. There is no hierarchy of methods and no single method will always be considered more reliable than the others. 7.
The “arm’s length range” of transfer prices refers to the fact that the application of a single method could result in a range of transfer prices that are equally reliable. No adjustment will be made by the IRS if the transfer price falls within this range. 8. An international transfer price determines the amount of income taxable in the country of both the seller and the buyer. When the national tax authority in the buyer’s (seller’s) country adjusts the price at which a purchase (sale) was made, the related seller (buyer) will petition the tax authority in its country to provide an offsetting (correlative) adjustment in transfer price.
Tax treaties generally require that when the tax authority in one country makes an adjustment to a company’s transfer price, the tax authority in the other country will provide a correlative adjustment if it agrees with the adjustment. 9. An “advance pricing agreement” is an agreement between a company and a national tax authority in which the company agrees to use a mutually agreed upon transfer pricing method and the tax authority agrees not to seek any transfer pricing adjustments so long as the agreed upon method is employed. 10.
The major benefit to a company from entering into an advance pricing agreement is the certainty that the transfer price determined under the agreed upon method will not be challenged by the tax authority. The major cost is in the form of the labor involved in compiling the extensive information required and in negotiating the agreement. Solutions to Exercises and Problems 1. CTo protect foreign currency cash flows from currency devaluation, a high transfer price should be used to extract as much foreign currency out of the foreign country as possible before the anticipated devaluation occurs. . DThe “best method rule” requires that a company always use the “best method” in establishing intercompany transfer prices. 3. B 4. D 5. D 6. D 7. B 8. A 9. DThe IRS may impose a penalty equal to 40% of the amount of underpayment in the case of a gross valuation misstatement. A gross valuation misstatement exists when the transfer price is less than 25% of the correct price. The correct price is $65, 25% of which is $16. 25. Because the actual transfer price was $15, a gross valuation misstatement exists.
The penalty is 40% x $1,250,000 = $500,000. Acme’s total tax liability is $1,250,000 + $500,000 = $1,750,000. 10. D$1,100 – 25% ($1,100) = $825. 11. B$500 + 50% ($500) = $750. 12. CSales$1,100 less: Operating costs250 Operating profit (5% x sales) 55 Cost of goods sold (transfer price)$ 795 13. Lahdekorpi OY a. The best transfer pricing method in this case is the comparable uncontrolled price method. The appropriate transfer price is $30 per tablecloth, the price at which Lahdekorpi sells the same product to unrelated distributors in Canada.
Although a sale to a distributor in Canada and a sale to a distributor in the United States are not exactly the same, they should be comparable enough to allow the use of this method. b. The best transfer pricing method in this scenario is the resale price method. Lahdekorpi adds no value to the shirts it purchases from Three-O Company before selling them in the Finnish market. A reasonable gross profit to be earned by Lahdekorpi on sales of shirts can be determined by referring to the gross profit normally earned by Finnish retailers of men’s clothing.
The appropriate transfer price is $15 [$25 – ($25 x 40%)]. c. The best transfer pricing method in this case is the cost plus method. An acceptable transfer price is $3 [$2 + ($2 x 50%)]. Both the cost to produce each puzzle and the gross profit earned by similar companies producing similar products can be reliably determined. 14. Superior Brakes Superior Brakes sells directly to truck manufacturers in the United States, and to its 100%-owned sales subsidiary in Brazil. The Brazilian sales subsidiary sells directly to Brazilian truck makers.
Superior Brakes does not sell to unaffiliated distributors in Brazil so there is no comparable uncontrolled transaction from which a comparable uncontrolled price can be determined. If Superior Brakes were to sell to unaffiliated truck brake distributors in Brazil, the price charged could be considered a reliable arm’s length price under the comparable uncontrolled price method if there are no substantive differences in the terms of the sales. The resale price method typically is used when the buyer/reseller is merely a distributor of finished goods and does not add a substantial amount of value to the product.
This is true for Superior’s Brazilian sales subsidiary. To use the resale price method, the final selling price to uncontrolled parties must be known and an appropriate gross profit for the reseller must be determinable. Information on an appropriate gross profit markup for distributors of truck brakes is not provided. The facts of the problem indicate that other than sales in Brazil, Superior Brakes does not use a distributor but instead sells directly to truck manufacturers. The only competitor for which information is provided, Bomfreio, also does not use a distributor for sales of its truck brakes.
Application of the cost plus method requires knowledge of the cost of the product and an appropriate gross profit markup for sales to distributors made by other truck brake manufacturers. There is no information provided about gross profit markups on sales made by other truck brake manufacturers to distributors, so an appropriate gross profit markup is unknown. 15. Akku Company a. $1. 50 transfer priceb. $1. 80 transfer price | | |Germany |U. S |Total | |Germany |U. S |Total | | |Sales price |$1. 0 |$4. 50 |$4. 50 | |$1. 80 |$4. 50 |$4. 50 | | |Production cost |1. 00 |1. 50 |1. 00 | |1. 00 |1. 80 |1. 00 | | |Shipping cost |0. 20 |0. 00 |0. 20 | |0. 20 |0. 00 |0. 20 | | |Import duty |0. 00 |0. 15 |0. 15 | |0. 00 |0. 18 |0. 18 | | |Pre-tax income |$0. 30 |$2. 85 |$3. 5 | |$0. 60 |$2. 52 |$3. 12 | | |Tax |0. 12 |1. 00 |1. 12 | |0. 24 |0. 88 |1. 12 | | |Net income |$0. 18 |$1. 85 |$2. 03 | |$0. 36 |$1. 64 |$2. 00 | | |Total tax and import | | | | | | | | | |duty | | |$1. 27 | | | |$1. 0 | c. The lower transfer price ($1. 50 vs. $1. 80) results in the smaller amount of total income tax and import duty because less pre-tax income is reported in Germany, the higher tax country, and a smaller amount of import duty is paid in the United States. 16. Smith-Jones Company a. (1)The reliability of the comparable uncontrolled price method is reduced by the fact that Smith-Jones is a retailer of Joal handbags in the United States, whereas Joal’s uncontrolled customer in the U. S. is a wholesaler. Thus the two customers operate at different levels of the market and are not strictly comparable.
In addition, the handbags Joal sells to Smith-Jones carry the Joal brand name, whereas the handbags sold to uncontrolled customers do not. Thus, the product being sold is not exactly the same, which is especially important in using the comparable uncontrolled price method. (2) The reliability of the resale price method is reduced by the fact that other U. S. retailers of handbags import their product from Italy making payment in euros, whereas Smith-Jones obtains its product from Mexico making payment in dollars. The other handbag retailers are exposed to foreign exchange risk and Smith-Jones is not. 3)The reliability of the cost plus method suffers from the fact that there are no other companies in Mexico that produce leather handbags of the same quality as Joal due to Joal’s use of a more complex production process. b. The resale price method might be the best of the three methods because the comparison transactions are more comparable than under the other two methods. The major difference is that other leather handbag retailers are exposed to foreign exchange risk and Smith-Jones is not. The other retailers should be expected to earn a higher gross profit on their sales of imported handbags to compensate for this risk.
The gross profit earned by other retailers could be adjusted downward to obtain a more reliable gross profit for determining an appropriate transfer price for the transaction between Smith-Jones and Joal under the resale price method. 17. Guari Company a. Computation of the total amount of income taxes and import duty paid on each bicycle: 1. Before transfer pricing adjustment | | |Taiwan |Australia | | | | | | | |Sales | A$ 100. 0 | A$ 200. 00 | | |Production cost | 20. 00 | 100. 00 | | |Shipping cost | | 10. 00 | | |Import duty | | 10. 00 | | |Pre-tax income | A$ 80. 00 | A$ 80. 00 | | |Income tax rate |25% |36% | | |Income tax | A$ 20. 00 | A$ 28. 0 | | | | | | | |Total tax and import duty |A$ 58. 80 | 2. After transfer pricing adjustment; with correlative adjustment: | | |Taiwan |Australia | | | | | | | |Sales | A$ 80. 00 |A$ 200. 00 | | |Production cost | 20. 00 | 80. 0 | | |Shipping cost | | 10. 00 | | |Import duty | | 8. 00 | | |Pre-tax income | A$ 60. 00 | A$ 102. 00 | | |Income tax rate |25% |36% | | |Income tax | A$ 15. 00 |A$ 36. 72 | | | | | | | |Total tax and import duty | A$ 59. 2 | 3. After transfer pricing adjustment; without correlative adjustment | | |Taiwan |Australia | | | | | | | |Sales |A$ 100. 00 | A$ 200. 00 | | |Production cost | 20. 00 | 80. 00 | | |Shipping cost | | 10. 00 | | |Import duty | | 8. 0 | | |Pre-tax income | A$ 80. 00 | A$ 102. 00 | | |Income tax rate |25% |36% | | |Income tax | A$ 20. 00 | A$ 36. 72 | | | | | | | |Total tax and import duty | A$ 64. 72 | b. The company obtains very little benefit (A$0. 2 per bicycle) from establishing the transfer price for sales from its Taiwanese subsidiary to Guari at a price higher than it ships to uncontrolled customers in Australia. Management should have known that the sale from Taiwan to unrelated Australian customers would be viewed by the Australian tax authority as a comparable uncontrolled transaction and that a transfer pricing adjustment was a possibility. The potential cost to Guari from using an inflated transfer price is that the Taiwanese government might not provide a correlative adjustment. In that case, the total taxes paid increase by A$5 per bicycle, from A$59. 2 to A$64. 72. c. Whether the Taiwanese tax authority will grant a correlative adjustment might depend on whether (1) a Taiwan-Australia tax treaty exists that obligates the Taiwanese tax authority to consider providing a correlative adjustment and (2) the Taiwan tax authority agrees with the adjustment made by the tax authority in Australia. 18. ABC Company This problem can be solved by determining the relative amount of income taxes and import duties that will be paid at a low, e. g. , $10. 00, and a high, e. g. , $13. 00, transfer price for each of the six intercompany transactions.
Sale from X to Y. Strategy: transfer at a relatively high price. | |Low price: $10. 00 | | | |High | | | | | | | |price: | | | | | | | |$13. 00 | | | |Sales | |$180. 0 | |$333. 00 | | | |Malaysian net income |$38. 25 | |$42. 50 | |$45. 90 | | |Less: Withholding tax (30%) |11. 48 | |12. 75 | |13. 77 | | |Dividend to GEC |$26. 78 | |$29. 75 | |$32. 13 | | |Plus: U. S. net income |76. 05 | |72. 15 | |69. 3 | | |Net cash flow |$102. 83 | |$101. 90 | |$101. 16 | | | |highest | | | | | | |Additional U. S. tax on dividend: | | | | | | | | Dividend to GEC |$26. 78 | |$29. 75 | |$32. 13 | | | Plus: Withholding tax |11. 8 | |12. 75 | |13. 77 | | | Grossed-up for w/h tax |38. 25 | |42. 50 | |45. 90 | | | Plus: Income tax |6. 75 | |7. 50 | |8. 10 | | | Grossed up for income tax |$45. 00 | |$50. 00 | |$54. 00 | | | x U. S. tax rate = U. S. tax before FTC |$15. 75 | |$17. 0 | |$18. 90 | | | – FTC allowed** |15. 75 | |17. 50 | |18. 90 | | | = Additional U. S. tax |$0. 00 | |$0. 00 | |$0. 00 | | | | | | | | | | |** FTC allowed is lesser of: | | | | | | | | a. oreign taxes deemed paid |$18. 23 | |$20. 25 | |$21. 87 | | | b. overall FTC limitation |$15. 75 | |$17. 50 | |$18. 90 | Case 11-2 Global Electronics Company (continued) 4. Even with the Malaysian withholding tax rate reduced to 10%, the lowest transfer price still results in the greatest amount of after-tax cash flow for GEC. Note that in this case, additional U. S. income tax must be paid on the dividend received from LG-Malay because the effective Malaysian tax rate 23. % [15% + 10%(1 – . 15)] is less than the U. S. income tax rate of 35%. Transfer Price | | |$180 | |$185 | |$189 | | |Malaysian net income |$38. 25 | |$42. 50 | |$45. 90 | | |Less: Withholding tax (10%) |3. 83 | |4. 25 | |4. 59 | | |Dividend to GEC |34. 43 | |38. 5 | |41. 31 | | |Plus: U. S. net income |76. 05 | |72. 15 | |69. 03 | | |Subtotal |110. 48 | |110. 40 | |110. 34 | | |Less: Additional U. S. tax * |5. 17 | |5. 75 | |6. 21 | | |Net cash flow |$105. 31 | |$104. 65 | |$104. 3 | | | |highest | | | | | | |*Calculation of Additional U. S. Tax: | | | | | | | | Dividend to GEC |$34. 43 | |$38. 25 | |$41. 31 | | | Plus: Withholding tax |3. 83 | |4. 25 | |4. 59 | | | Grossed-up for w/h tax |38. 5 | |42. 50 | |45. 90 | | | Plus: Income tax |6. 75 | |7. 50 | |8. 10 | | | Grossed up for income tax |$45. 00 | |$50. 00 | |$54. 00 | | | x U. S. tax rate = U. S. tax before FTC |$15. 75 | |$17. 50 | |$18. 90 | | | – FTC allowed** |10. 58 | |11. 75 | |12. 69 | | | = Additional U. S. ax |$5. 17 | |$5. 75 | |$6. 21 | | | | | | | | | | |** FTC allowed is lesser of: | | | | | | | | a. foreign taxes deemed paid |$10. 58 | |$11. 75 | |$12. 69 | | | b. overall FTC limitation |$15. 75 | |$17. 50 | |$18. 90 |