Acceptance of changed guidelines for transfer pricing

On 23 May, the OECD Council approved the changes to the guidelines for multinational companies and tax administrations stipulated in the BEPS reports on Actions 8-10, “Transfer Pricing” and on Action 13, “Transfer Pricing Documentation and Country-by-Country Reporting”. These changes result in greater clarity and legal security as regards the status of the BEPS changes, which were endorsed by the Council on 1 October 2015, by the G20 Finance Ministers on 8 October 2015 and by the G20 Leaders on 15-16 November 2015.

The amendments approved by the Council translate these BEPS transfer pricing measures into the Transfer Pricing Guidelines, as well as into the Recommendation of the Council on the Determination of Transfer Pricing Between Associated Enterprises, which now contains a reference in the Preamble to these BEPS Reports. Given the way in which the Transfer Pricing Guidelines are integrated into the domestic law of certain countries, including by direct reference to the Guidelines themselves, this update process further clarifies the status of the BEPS changes to the Transfer Pricing Guidelines.

The specific changes introduced in the Transfer Pricing Guidelines by these Reports are as follows:

• The current provisions of Chapter I, Section D of the Transfer Pricing Guidelines are deleted in their entirety and replaced by new guidance.
• Paragraphs are added to Chapter II of the Transfer Pricing Guidelines, immediately following paragraph 2.16.
• A new paragraph is inserted following paragraph 2.9.
• The current provisions of Chapter V of the Transfer Pricing Guidelines are deleted in their entirety and replaced by new guidance and annexes.
• The current provisions of Chapter VI of the Transfer Pricing Guidelines and the annex to this Chapter are deleted in their entirety and replaced by new guidance and annex.
• The current provisions of Chapter VII of the Transfer Pricing Guidelines are deleted in their entirety and replaced by new guidance.
• The current provisions of Chapter VIII of the Transfer Pricing Guidelines are deleted in their entirety and replaced by new guidance.

Further work is being undertaken to make conforming amendments to the remainder of the Transfer Pricing Guidelines, in particular to Chapter IX "Transfer Pricing Aspects of Business Restructurings." This work is well advanced and it is expected that Working Party No. 6 of the Committee on Fiscal Affairs will soon invite interested parties to review the conforming changes to Chapter IX to establish that real or perceived inconsistencies with the revised parts of the Guidelines have been appropriately addressed, and duplication appropriately removed.

The conforming changes are expected to be approved later in 2016. Until then, it is stipulated that the provisions of the Transfer Pricing Guidelines should be interpreted to be consistent with those provisions of the Transfer Pricing Guidelines which have been amended by the 2015 BEPS Report on Actions 8-10 and 2015 BEPS Report on Action 13 and, in case of perceived inconsistencies, the modified provisions prevail.

Comments

The Swedish Tax Agency has already in a statement from the 22nd of December 2015 stated that the new guidelines shall apply immediately and can also be applied henceforth in audits. Given that formal approval from the OECD was not made before 23rd of May 2016 the statement made by the Tax Agency already in December could be seen as somewhat premature, however we deem that in practice it is not likely that the OECD Council approval data would have any signficant impact on from what date the revised guidelines will be applied by the Tax Agency in audits. However, as the Upper Adminstrative Court in Stockholm stated in a recent case that suggested changes communicated in non final versions from the OECD should not be used as basis to evaluate how the arm's lenght principle (14:19 IL) shall be interpreted in a particular situation, thus it will be interesting to see if the 23rd of May 2016 might have any significant role to play for future verdicts from the courts.