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Transfer Pricing Alert

Characterisation of Business and Level of Profitability

Understanding and analysing the nature of a business’s activities, along with the roles and responsibilities of different divisions within a business entity or various entities in a multinational enterprise, is crucial, especially during transfer pricing audits. This analysis helps determine the impact of these factors on each entity’s profitability. Ensuring that transactions between related parties are conducted at arm's length means they are comparable to transactions between independent enterprises.

Key Points

  • Contractual Terms: To accurately reflect economic activities and value creation among related parties in a transfer pricing arrangement, delineation of the transaction involves documentation of the contractual terms of the transaction, such as pricing and payment terms, nature of transaction, intellectual property rights and dispute resolution. Nevertheless, the economic substance of a transaction should prevail over its legal form when there are discrepancies between the written agreement and the actual transaction.
  • Functional Analysis: To understand the business, the analysis focuses on examining the functions performed, assets utilised, and risks assumed (FAR analysis), which involves identifying the economically significant activities and responsibilities undertaken by each related party.
  • Entity Characterisation: To select reliable comparable companies, accurate determination of the characteristics of the entity’s business is essential. Common entity characterisations based on the nature of business activities are full-fledged manufacturers, contract manufacturers, toll manufacturers, full-fledged distributors, limited-risk distributors, commission agents, entrepreneurial or full-fledged service providers, and risk-mitigated or routine service providers.
  • Profit Level Indicators (PLIs): To compare the profitability of related party transactions with those of independent enterprises, financial metrics are used to assess the profitability of a business. Common PLIs include the operating margin, return on assets, and return on sales. 
  • Economic Circumstances: To relate the FAR analysis and comparability analysis with independent enterprises, an industry analysis of the economic environment in which the business operates is conducted, which includes market conditions, competitive landscape, and regulatory environment.
  • Business Strategies: To enhance the overall analysis, business strategies such as market penetration, product differentiation, or cost leadership are considered, as these can significantly influence the level of profitability.

These elements collectively help in characterising the business activities and determining the appropriate level of profitability for transfer pricing purposes.

(Chapter I [D], OECD Transfer Pricing Guidelines and Section B, Revenue Audit Memorandum Order No. 1-2019)

To properly reflect the characterisation of a business and level of profitability in assessing the arm’s length price of related party transactions, conduct a thorough functional and comparability analysis, utilise appropriate profit level indicators, consider economic circumstances, and evaluate business strategies, while maintaining robust documentation and regularly reviewing transfer pricing policies.

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