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Best Practices in Transfer Pricing Risk Management • Raising interdepartmental awareness of transfer pricing risks during business restructuring • Development and implementation of effective transfer pricing risk management strategies • The role of transfer pricing risk assessment in overall corporate risk governance framework Keith Brockman, EMEA Tax Director, Mars
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Best Practices in Transfer Pricing Risk Management
Keith Brockman
EMEA Tax Director
Mars ETBC
Agenda
• Transfer Pricing (TP) Risks / Awareness
• TP Risk Management Strategies
• TP Risk Governance Framework
TP: Consistency / Controversy
Transparency / Information Exchange
• Multilateral Convention on Mutual Administrative
Assistance in Tax Matters
• 64 countries have signed the Convention as of 5 May
2014
TP Risks / Awareness: GAAR
• Anti-Avoidance Rules:
– Specific (SAAR) + Targeted (TAAR) + General (GAAR)
• Subjective & inconsistent
• Unilateral measures re: treaty interpretation
• Country implementation prior to OECD BEPS proposals
TP Risks / Awareness: GAAR
• Burden of proof: Taxpayer and / or tax authorities
• Treaty override of domestic GAAR rules
• Alternative dispute mechanisms?
GAAR: EU Parent-Subsidiary Directive
• Domestic law implementation
• Financial mismatches (PPL, hybrids, etc)
• GAAR:
– Artificial arrangements: gain improper tax advantages, and
defeats object, spirit and purpose of tax provisions
• Compliance with Directive by 31 Dec 2014
GAAR: EU Parent-Subsidiary Directive
• Determination of artificiality (one or more):
– Legal characterization, vs. substance, of individual steps
– Does not reflect economic reality
– Arrangement is not ordinarily used in reasonable business conduct
– Arrangement has offsetting or cancelling elements
– Transactions are circular in nature
– Arrangement results in a significant tax benefit which is not reflected in the business risks undertaken by the taxpayer
GAAR: Opportunities
• Tax governance framework: Significant transactions
– Materiality, internal governance approvals,
documented process
• Additional business purpose memorandum points
• Document alternative positions considered
• External advice, including opinions re: GAAR
International Audits: Challenges
• “Co-operative compliance” relationships
– Voluntary,
– No standardization
– Benefits? (Low risk rating (UK) vs. no significant benefit)
– Resource limitations
– Memorandums of Understanding
– Appeal & Arbitration avenues
• Longer periods of appeal (MAP, APAs, etc.)
• OECD / UN: Assistance to other countries
• Increased controversies / Double taxation
• Transfer pricing training / Development
International Audits: Opportunities
• Advisors: Global coordination / company knowledge
• Legal counsel: Internal / external coordination
• Proactive co-operative compliance relationships
• Regional / HQ coordination for key tax risks & TP issues
• APA’s: prior and future years
Perception: Country Tax Reporting
Challenges:
• Efficient & timely data collection
• Various proposals / comments & perspectives
• Technical basis vs. perception
• Confidentiality of information provided
Opportunities:
• Tell a story: supplemental reporting options
• Non-tax country contributions
• Review current disclosures in public domain
• Develop framework for internal discussion with scenario planning
Avoiding Double Taxation
Challenges:
• Time-consuming process for all parties
• Tax treaty mechanisms & domestic law
• Compensating adjustments: mutuality
• Increased informal / formal appeals globally
Opportunities:
• Co-operative compliance relationships
• Fast track appeals, advance / informal rulings
• Parallel appeals: domestic / bilateral / multilateral
• APAs, MAP, EU Arbitration Convention
Transfer Pricing Documentation
Challenges:
• Different requirements for multiple jurisdictions
• OECD principles + domestic overlay
• Complexities / cost for annual updates
Opportunities:
• Low risk assessment = simpler reporting
• Co-operative compliance opportunities
• Risk-based assessment approach
• Balance resources: compliance / strategic inputs
Transfer Pricing Governance
Challenges:
• Complexity of legislation and business structures
• Subjectivity of legislation and implementation
Opportunities:
• Global consistency in response to audit inquiries
• Centralized governance structure and policies
• Risk assessment process for new transactions
• Global TP risk assessment on a recurring basis
• Develop objective criteria & principles
• PE: Do’s & Don’ts List / tools for risk areas
Opportunities
• Global Tax Risk Policy
• Team Collaboration
• Negotiation Planning
• Partnering with the Business: Sit at the Table
• Taxpayer / Tax Administration Mutuality
• Proactive Audit Defense Strategies
Global Tax Risk Management Policy
• Reputational risk
• Board of Directors risk management
• Monitoring process
• Tax risk scenario planning
• Tax risk workshops
• Recurring assessment process
• Internal management alignment with overall strategies
Team Collaboration
• Country / Regional / HQ team collaboration
– Global disclosures
– Issue consistency
– Legislative developments: country impact / global assessment
– Combine country expertise with global tax risk knowledge
• Tax Team Organization: different roles for changing times?
– Tax Risk function
– Exchange of tax information by tax administrations
– Issue coordination
– Unilateral / Bilateral / Multilateral approach for audit defense
Strategic Negotiation Planning
• Negotiation training for tax audit engagement / appeals
• Proactive audit defense strategies for flexibility
• Alignment with external advisors
• Tax counsel coordination
Partnering with the Business
• Have a seat at the table: GAAR/strategies/risks
• Global mobility: PE awareness, coordination
• Business development: steering committee
• Key tax contacts for the business
• Tax newsletter: develop awareness and alignment
Taxpayer / Tax Administration Mutuality
• Risk assessment discussions
• Ways of Working
– Issue development
– Agreed upon procedures
– Draft data requests, timing of responses
– Non-relevant information / public disclosures
– Appeal procedures, minimize double taxation
Proactive Audit Defense Strategies
• Pre-audit planning: transactions, documentation
• Who will meet with the auditors: issue knowledge
• Transfer pricing issue coordination
• Review appeal strategies: local / rest of world
• Post-audit critique: develop learnings
Best Practices Blog
Keith Brockman
@taxsafari
www.strategizingtaxrisks.com