effectively executing transfer pricing-cynthia hoffman & niraja srinivasan
TRANSCRIPT
Transfer Pricing Latest Updates
NIRAJA SRINIVASAN, DELL TECHNOLOGIES
CYNTHIA J. HOFFMAN, BLOOMIN’ BRANDS, INC.
SEPTEMBER 27, 2016
1
Transfer Pricing Highlights
Base Erosion & Profit Shifting (“BEPS”)
OECD Published 15 Actions/Guidelines
Proposed Treasury Regulations Under
Section 385
Related Party Financing Arrangements
2
Base Erosion & Profit Shifting (“BEPS”)
Broadly Aimed at Aligning Taxable Income with Value Creation
4 Actions Related Specifically to Transfer Pricing
Action 13 – Transfer Pricing Documentation & Country by Country
Reporting
o Aimed at Reporting Transparency
Action 8 – Intangible Asset Structuring
Action 9 – Risk and Capital
Action 10 – High Risk Transactions
o Actions 8-10 Aimed at setting Standards for Substance
3
BEPS Action 13 Guidance
Action 13 focuses on Transfer Pricing Documentation and Includes the
Country-by-Country Report (CbCR).
Three-tier framework
providing information on
global allocation of income,
economic activity and
intercompany pricing across
a company’s global
operations.
Applies to all multinational
enterprises (MNEs) with
aggregate annual revenue
in excess of $900m.
Tier One: Master File
Overview of Business and Tax/TP Model, IP, Key Drivers of Profit – by Product Line and Geography
Tier Two: Local File
Tier Three: Country by Country (“CBCR”)
4
Summary of Financial + HR Data to Calculate Allocation of Income by Jurisdiction
Legal Entity TP Report, Tying LE Pre-Tax Income to its Operations and Risk Profile
Country by Country Reporting
In General:
Tables 1 and 2 can be publicly disclosed (UK Proposal, Sept 2016)
Voluntary Disclosure May Push Submission timeline to early 2017 (FYE and
country dependent)
Disclosure formats and info sharing mechanism still not clear
Required to reconcile with regulatory and statutory reporting
Build Tools to assist with reconciling
Timing of statutory financial statements may be too late to comply
Tie all together with 5471 & Transfer pricing documentation and reports,
legal documentation and accounting
5
Country by Country Reporting
IRS issued final regulations, effective for US MNE parent with tax
year beginning on or after June 30, 2016
IRS issued draft Form 8975 in August 2016
For tax years beginning before June 30, 2016, US ultimate parent can voluntarily file
Required to reconcile with 5471, statutory F/S filings, and
Regulatory Filings
Building Tools to map US GAAP or Local Stat accounts to CBCR
fields
Timing of CBCR submission and statutory financial statements may
be too late to comply
Standing up X-functional Teams for multiple CBCR prep each year
6
What are companies
doing now?
Country by Country Reporting
Assessing Audit Risk/Defense
Ratio Comparisons
Formulary Apportionment scenarios
Anticipating questions that will come
from tax authorities
Drafting responses and TP
documentation
7
What are companies
doing now?
BEPS – What’s Next?
Actions 8, 9, 10 Substance
Transfer Pricing Outcomes and Value Creation
Action 8 - Intangibles
New definition of intangibles
New guidance on HTV
intangibles
Action 9 – Risk & Capital
Control over risk
Capacity & functionality to manage risks
Action 10 – High-risk Transactions
Intra-group Services
Low-tax Jurisdictions
8
US 482 Regs vs. OECD BEPS Positions on IP
482-7 – Cost Sharing based on Reasonably Anticipated Benefits
482-9 – Cost Plus Remuneration for R&D Service Providers; Legal & Economic Ownership separation is respected
OECD BEPS
Focus on Value Creation
Economic Ownership asserted over Legal Ownership
Value-creating entities across the supply chain are entitled to share of profit
US 482 and OECD BEPS A Balancing Act
9
Monitoring BEPS … What’s Hot, What Not (Yet)
• Action 1 – Address tax challenges of the digital economy
• Action 2 – Neutralize effects of hybrid mismatch arrangements
• Action 3 – Design effective controlled foreign company rules
• Action 4 – Limit base erosion via interest deductions and other financial payments
• Action 5 – Counter harmful tax practices more effectively, taking into account transparency and substance
• Action 6 – Prevent granting of treaty benefits in inappropriate circumstances
• Action 7 – Prevent artificial avoidance of permanent establishment status
• Actions 8, 9, 10 – Align transfer pricing outcomes with value creation
o Action 8 – Intangibles
o Action 9 – Risks and capital
o Action 10 – Other high- risk transactions
• Action 11 – Measure and Monitor BEPS
• Action 12 – Mandatory Disclosure Rules
• Action 13 – Transfer Pricing Documentation and Country by Country Reporting
• Action 14 – Make dispute resolution mechanisms more effective
• Action 15 – Develop a multilateral instrument to modify bilateral tax treaties
Action 1 Taxation of Digital Economy
Action 2 Hybrid Mismatches
Action 3 CFC Rules
Action 4 Interest Deductions
Action 5 Counter Harmful Tax Practices
Action 6 Abusing Treaty Benefits
Action 7 Artificial Avoidance of PE
Action 8 Intangible Asset Structures
Action 9 Risk and Capital
Action 10 Other High Risk Transactions
10
Monitoring BEPS … What’s Hot, What Not (Yet)
Action 13 TP Documentation and CbCR
Action 14 Dispute Resolution Mechanisms
Action 15 Multilateral Instrument
Action 11 Measuring BEPS compliance
Action 12 Mandatory Disclosure Rules
11
Transfer Pricing Highlights
Base Erosion & Profit Shifting (“BEPS”)
OECD Published 15 Actions/Guidelines
Proposed Treasury Regulations Under
Section 385
Related Party Financing Arrangements
12
Proposed Treasury Regulations – Section 385
Contemporaneous documentation requirement (Prop. Reg. Sec. 1.385-2)
Applies to “large expanded groups to “expanded group indebtedness” (“EGI”)
Effective for debt instruments issued on or after date finalized regulations are issued
Documentation prepared within 30 days after issue date (or date becomes EGI)
Penalty for failure is recharacterization of debt as equity
Identify WHO performs documentation
Satisfaction of document requirements does not ensure debt treatment (it is a minimum standard)
“Significant Modification” – deemed new debt issuance
Issued April 4, 2016 Application to Related Party Financing
13
“Expanded Group Indebtedness”
Add Other Entities, including held indirectly
Foreign
Tax Exempt
Affiliated Group (1504(a))
Ownership of 80% vote, OR
Ownership of 80% value
14
“Expanded Group Indebtedness”
US Parent
US Sub
Foreign Sub
US Sub
US Partnership
Foreign Sub
15
Loan USD
Documentation Requirements –1.385-2(b)(2)
Legally binding obligation
Creditor’s right to enforce terms
Evidence of ability to repay at
issuance & annually
Timely interest & principal payments
with default provisions
Four categories of
documents required for
related party financing
instruments to be
respected as debt
16
Documentation Requirements -1.385-2(b)(2)
Special Documentation Required – Revolvers & Cash Pools
Enabling and governing documents and agreements must be maintained
• BOD resolutions, credit agreements, etc.
• On-going operations of the arrangement or services
Trade Payables? Open Accounts?
How much documentation is enough?
Controlled Partnerships (> 80% of capital and profits interest)
Treated as members of the expanded group
Treated as an partnership equity interest if debt treated as stock
17
Other Issues Facing TP
Intra-company Management fees
Non-Deductible Expenses (Brazil management fees)
Documentation Supporting Benefits (Mexico, India)
Local taxes (VAT) on IC charges can drive up real expenses
Withholding tax documentation
18