27/01/2011 - Following an intensive consultation process in 2010 (see contributions received from the business community and report on the November meeting with commentators), the Committee on Fiscal Affairs approved on 25 January 2011 the scope of its new project on the transfer pricing aspects of intangibles. The OECD has now released the scoping document.

 

The Committee highlighted the importance of this project for countries and the business community, given the increasing focus on transactions involving intangibles and their migration between jurisdictions.

 

This work will be carried out by Working Party No. 6 on the Taxation of Multinational Enterprises, through a Special Session on the Transfer Pricing Aspects of Intangibles (“WP6 TPI”) set up for this purpose. The WP6 TPI is open to all interested member countries and those non member countries with Observer status in WP6 (i.e. Argentina, China, India, Russia and South Africa). In addition, Brazil, Indonesia, Malaysia and Singapore will be invited to participate as ad hoc observers.

 

The work will focus on the following aspects:

• The development of a framework for analysis of intangible-related transfer pricing issues;
• Definitional aspects;
• Specific categories of transactions involving intangibles, such as research and development activities, differentiation between intangible transfers and services, marketing intangibles, other intangibles and business attributes;
• How to identify and characterise an intangible transfer;
• Situations where an enterprise would at arm’s length have a right to share in the return from an intangible that it does not own;
• Valuation issues.

This work is expected to lead to an update of the existing guidance on intangibles which is found in Chapter VI of the OECD Transfer Pricing Guidelines (“TPG”). In addition, a review will be carried out of the existing guidance in Chapter VIII of the TPG on Cost Contribution Arrangements, although the extent of any further work that might be needed on that chapter remains to be decided.

 

The WP6 TPI will invite business representatives to participate in its discussions on an ad hoc basis. The intention is to release a discussion draft for public comment if possible by the end of 2013.