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Transfer Pricing Alert

Re-characterization of Transactions

In delineation of controlled transactions in transfer pricing, it is essential to determine the substance of the commercial or financial relationship between the parties. Aside from formal terms and conditions stipulated in written contracts, the analysis of the actual conduct of the parties and other economically relevant characteristics are important in accurately delineating the controlled transactions and determining the arm’s length price.

In certain circumstances, the tax authority may be allowed to disregard and recharacterize a controlled transaction to determine the arm’s length price.

When is re-characterization applied?

1. Substance differs from the form

When the actual conduct of the parties shows that the economic substance differs from the terms and conditions in the written contract.

2. Transaction lacks commercial rationality

When the form and substance of a controlled transaction are the same but the arrangement, if viewed in its totality, differs from those which would have been adopted by independent parties behaving in a commercially rational manner in comparable circumstances. In this case, the transaction lacks commercial rationality. 

Rationale of re-characterization

The rationale for re-characterizing a controlled transaction stems from the fact that the character of the transaction is often influenced by the relationship between the parties, rather than by the normal conditions that would typically apply in arrangements between independent parties. Thus, the controlled transaction may have been structured by the taxpayer to avoid or minimize tax.

However, in conducting an analysis, the key question is whether the controlled transaction possesses the commercial rationality that would be expected in an arrangement between the independent parties under comparable conditions, and not whether the same transaction can be observed between independent parties. Thus, even if the controlled transaction is not commonly seen between independent parties, it may still be consistent with the arm’s length principle if it possesses commercial rationality.

(Chapter I, [1.139 to 1.145] of OECD Transfer Pricing Guidelines 2022; Section B.3.b.7 of Revenue Audit Memorandum Order 1-2019)

Given the increasing scrutiny by tax authorities during transfer pricing audits, taxpayers must adopt a proactive approach to mitigate the risk of re-characterization. This involves accurately delineating transactions, ensuring that contractual terms are commercially feasible and realistic, aligning intercompany agreements with the actual conduct of the parties, and preparing transfer pricing documentation that reflects the actual functions, assets, and risks involved in the controlled transaction.

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