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Transfer Pricing Alert

Understanding Comparable Uncontrolled Price (CUP) Method

The CUP method compares the price charged in a controlled transaction with the price charged in a comparable uncontrolled transaction under similar conditions. It is considered one of the most direct and reliable methods when high-quality comparables are available, as it directly assesses pricing based on market benchmarks.

There are two types of CUP Method:

1. Internal CUP Method – Applicable if the Company transacts comparable transactions with both related and unrelated parties. This means the company compares the price it charges in a controlled transaction to the price it charges in a similar transaction with an unrelated party, using the company’s internal data. When the internal data is consistent and the transactions are highly comparable, it is considered more reliable than using external CUP.

2. External CUP Method – Applicable if the Company uses comparable data of transactions entered into between two unrelated parties. In other words, the company compares its related-party price to market prices from other companies doing similar transactions.

Between the two, external CUP is more difficult to apply due to the usual lack of publicly available data on comparable third-party transactions.

Comparability Factors to determine if uncontrolled transactions are comparable to a controlled transaction:

1. Characteristics of the goods or service transferred – Goods or services should be highly similar like in physical feature, quality and grade of the product, functionality and intended use and scope and complexity of the service.

2. Functional Analysis – It examines the functions performed (i.e., Distribution and Research and Development), assets used (i.e., Trademarks and Buildings), and risks assumed (i.e., Operational risk and Credit risk) by each company involved in a controlled transaction. 

3. Contractual Terms – it refers to the specific conditions agreed upon by the parties involved like payment timelines and delivery conditions. These must be matched between controlled and uncontrolled transactions. 

4. Economic Circumstances – It refers to the market and business conditions under which transactions take place. These are external factors such as but not limited to geographic location, economic cycles, market level, and timing of the transaction like seasonal demand and currency fluctuations. 

5. Business Strategies – It refers to the business strategies involved in a transaction that may justify differences in pricing between controlled and uncontrolled transactions such as Product differentiation Strategy and Risk Management Strategy.

Advantages of the CUP Method

1. Simple and direct - compares actual controlled prices with comparable uncontrolled prices

2. Highly reliable- produces accurate result when comparable data is highly similar.

3. Flexible comparables- can use both internal and external comparable transactions.

4. Suitable for commodity transactions- works well with actual public market prices such as oil, metals, or grains where pricing is standardised and widely published.

Limitations and Challenges

1. Strict comparability requirement - it is challenging to identify a transaction that’s appropriately comparable to the controlled transaction.

2. Adjustment difficulties - making accurate and quantifiable adjustments can be complex to account for differences. 

3. Market fluctuation sensitivity - harder to establish comparability without time-aligned data since prices may vary significantly over time or between markets.

4. Not suitable for highly differentiated products.

(Chapter II: Transfer Pricing Methods, OECD Transfer Pricing Guidelines, January 2022 and BIR RR No. 2-2013)

To ensure the use of CUP method is both accurate and compliant, it is crucial to find reliable comparable data and thoroughly evaluate the comparability factors. Where differences exist, adjustments should be made to improve comparability. Also, maintaining detailed documentation throughout the process is essential to support compliance and reduce tax risks.

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