Transfer Pricing Developments: Future Business Models for Managing Global Companies. Saturday December 5, 2015 Session

Transcription

1 Transfer Pricing Developments: Future Business Models for Managing Global Companies Saturday December 5, 2015 Session

2 Chairman: Gautam Doshi, Reliance ADA India Panel leader: Caroline Silberztein, Baker & McKenzie, France Panellists: Anis Chakravarty, Deloitte, India Carol Dunahoo, Baker & McKenzie, USA Daniel Erasmus, TRM, South Africa, Africa & USA Sanjiv Malhotra, Baker & McKenzie, Singapore T.P. Ostwal, T.P. Ostwal & Associates, India Kamlesh Varshney, Tax Commissioner responsible for APAs, India

3 1. ASSURE THAT TRANSFER PRICING OUTCOMES ARE IN LINE WITH VALUE CREATION

4 Back office services, IT systems R&D, design Source raw materials, components Transfer pricing questions at each step of the supply chain Make (process, package) Market Sell Deliver (warehousing, inventory management, transportation) After sales services, returns 4

5 Creation of value? Capital Funding the acquisition and development of intangibles Bearing entrepreneurial and financial risks Labour People functions (manufacturing, marketing, sales, R&D) Strategic decisions, Control over risks Location savings Market Consumers base Growing demand Buying power 5

6 2. INTANGIBLES AND DEMPE FUNCTIONS

7 OECD-G20 Definition of intangibles for transfer pricing purposes Something which is not a physical asset or a financial asset, which is capable of being owned or controlled for use in commercial activities, and whose use or transfer would be compensated had it occurred in a transaction between independent parties in comparable circumstances. Not always an intangible asset for accounting purposes Availability and extent of legal, contractual, or other forms of protection may affect the value. Separate transferability is not a necessary condition for an item to be characterised as an intangible for transfer pricing purposes Differing country definitions / experiences? 7

8 Rewarding contributions of affiliates to the creation of intangible value : the DEMPE functions Determine, by means of a functional analysis, which member(s) perform and exercise control over development, enhancement, maintenance, protection, and exploitation functions ( DEMPE ), which member(s) provide funding and other assets, and which member(s) assume the various risks associated with the intangible, whether or not legal owner of the intangible. 8

9 In summary, where the legal owner Performs and controls all of the DEMPE functions; provides all assets, including funding, necessary to the DEMPE; and assumes all of the risks related to the DEMPE entitled to all of the anticipated returns derived from the exploitation of the intangible Provides funding and exercises control over the financial risk associated with the provision of funding, without the assumption of, including the control over, any other specific risk generally only expect a risk-adjusted return on its funding Lacks the capability to control the risk associated with investing in a riskier financial asset 9 it will have no more than a risk-free return; even less if legal ownership is disregarded 9

10 3. IP HOLDING COMPANY

11 High tech company Parent 1 IP Co Existing IP / R&D 3 2 High tax; original IP development 4 Low tax; intragroup acquisition of IP High tax / low tax; further IP development Market Co Manufacturing 11 11

12 Legal owner of product intangibles: Royalties Bermuda cash box Infusion of funds Cashbox Legal owner of IP Funds R&D Assumes risk of funding Parent Contract R&D Home country Offshore Offshore Subsidiary Performs and controls all activities (DEMPE of IP), including management of operational risk Actions 8-10: Transfer pricing Bermuda legal owner and funds development India performs Design and control of R&D program Management and control of budget Control over strategic development Defence and protection Ongoing quality control Three scenarios possible: No management of funding risk: entitlement to no more than risk-free return Management of funding risk: entitlement to risk adjusted return Management of funding risk and operational risk: not a cash box! For information, contact Deloitte Touche Tohmatsu Limited. 12

13 4. DIGITAL SUPPLIES

14 Digital supplies Online auction platform, internet search and downloadable digital products $ Services Services Marketing services co. Server co. Server Principal Services $$ Customers Communication Source country Actions 8-10: Transfer pricing issues Profits should be taxed where economic activities deriving the profits are performed and where value is created. [G20 Leaders Communiqué Brisbane Summit, November 2014] Particular area of interest Interplay with Action 1 Demand or supply creates value? Fragmented functions: Who, in fact, controlling the activity? Increased interdependencies create uncertainty Will profit split likely be viewed by some as a reliable method? Value of fragmented functions in the value chain may not be observable in transactions with independent parties For information, contact Deloitte Touche Tohmatsu Limited. 14

15 Multisided Business Models Scenario 2 (from OECD 2014 draft on profit split) RCo Group provides Internet services to customers worldwide: Advertising services ; fee based on number of users who click; Online services free of charge to users; provides RCo with a substantial amount of data R = Parent company - Original development and funding of technology IP Local subs : - Promote use of online services free of charge to users - Generate demand and adapt advertising services 15

16 5. SALES ORGANISATIONS

17 Principal and Sales IP co Suppliers Low tax; no people; IP ownership Principal Low tax; centralise risks; substance Sales to customers Market Co High tax; sales support 17

18 Unique and valuable contributions Scenario 3 P = manufacturer of high tech equipment; - Extensive R&D; funding and ownership of technology IP; - Global trademark; broad guidance to subs on marketing strategy S = sales and marketing Close relationships with customers, on-site services; Extensive stock of spare parts; Highly proactive maintenance program; advice to customers and adaptation to local conditions => Significant competitive advantage 18

19 6. MARKETING

20 Example 5 Company P in Country A owns trademark. It manufactures the products and sells them to Distributor in Country B. Distributor incurs Advertising, Marketing and Promotional expenses in Country B. Does Company P acquire / develop - a local marketing intangible? - economic ownership of the trademark? - co-ownership of the trademark? Consider 3 cases : 20

21 CASE 1 : ROS, no AMP refund Sales revenue 1,000 COGS (Transfer Pricing) (550) Advertising, Marketing, Promotion (AMP) (100) Other OPEX (300) Return on Sales : 5% + 50 CASE 2: ROS, AMP refund Sales revenue 1,000 COGS (Transfer Pricing) (650) Advertising, Marketing, Promotion (AMP) (100) Other OPEX (300) Reimbursement of AMP +100 Return on Sales : 5% + 50 CASE 3: ROS, partial AMP refund Sales revenue 1,000 COGS (Transfer Pricing) (580) Advertising, Marketing, Promotion (AMP) (100) Other OPEX (300) Reimbursement of AMP +30 Return on Sales : 5%

22 7. MARKETING AND PROCUREMENT HUBS

23 Physical supply Plants Sales transactions / Invoicing Marketing hub (Singapore) Buy-sell affiliated distributors 23

24 Physical supply Plants Sales transactions / Invoicing Marketing hub (Singapore) Sales support services Sales support companies 24

25 Physical supply Plants Warehousing / distribution platform (Singapore) Sales transactions / Invoicing Sales support services Repatriation of excess profit to IP owner? Sales support companies 25

26 Physical supply Plants 2 toll-manufacturing Sales transactions / Invoicing 1 raw mater ials Third party suppliers 2 finished products 1 Marketing hub (Singapore) 3 - Sales support services Sales support companies 26

27 8. LOCATION SPECIFIC ADVANTAGES

28 Location Savings Parent (U.S.) Principal (Singapore) Manufacturer Manufacturer (China) (India) How to quantify Location Savings: - Compare to whom, what, and where? - What if no relocation of activity? - What if products evolve? - What about dissavings? How to attribute Location Savings? 28

29 Market Premium Parent (U.S.) Principal (Singapore) Manufacturer (China) Manufacturer (India) Distributor (EMEA) Distributor (China) Distributor (India) 29

30 9. CONCLUSIONS, Q&A

31 Thank you