Intangibles: New BEPS Guidelines
One of the OECD’s main concerns regarding base erosion mechanisms employed by taxpayers relates to the use of intangibles, particularly in terms of the distortion of their value in controlled transactions or even their strategic allocation in preferential regimes without consideration of applicable transfer pricing rules. For these reasons, Chapter VI of the transfer pricing guidelines was substantially modified to introduce new rules that limit the potential use of these types of assets in aggressive tax planning strategies. The most relevant changes are as follows:
Concept of Intangibles
Action 8 of the BEPS plan, along with the transfer pricing guidelines, provides a new and exclusive concept of intangibles within the context of controlled transactions: “something that is neither physical nor financial, that can be owned or controlled for use in business activities, and whose use or transfer would be compensated in transactions between independent parties”[1].
Distinction Between Legal and Economic Ownership of Intangibles
A change of exceptional significance is the OECD’s proposal to differentiate between the legal and economic owner of an intangible. From a transfer pricing perspective, the legal owner is the person who, for all legal purposes, has registered the intangible in their name. However, the OECD states that mere legal ownership is not sufficient to be entitled to the income derived from the sale or licensing of the intangible[2]. If the legal owner does not perform functions, contribute assets, or assume risks[3] associated with the development, enhancement, maintenance, protection, and exploitation of the intangible they own (the DEMPE functions, as per their acronym in English), the party performing these activities could acquire economic ownership of the intangible or at least be compensated for them. This would, in turn, affect the consideration for the sale or use of the intangible and the taxable base of the participants.
To illustrate how the executors of these functions should be compensated, it is emphasized that if an entity within the group does not perform the functions associated with obtaining the intangible but merely finances its execution, it should only be entitled to a risk-free return on its investment, rather than the income derived from the sale or exploitation of the intangible.
Economic Analysis of Transactions Involving Intangibles
The guidelines propose minimum assumptions for analyzing the arm’s length nature of transactions involving intangible assets[4], requiring a detailed understanding of at least the following:
i) The intangible subject to the transaction.
ii) The related parties attributed with the legal ownership of the intangible.
iii) The DEMPE functions carried out by the parties involved in the transaction (including cases where these functions are outsourced).
iv) The consistency between the legal and economic behavior of the parties, including their capacity to assume the risks associated with executing the DEMPE functions.
v) The confirmation of the correct organization of the transaction or necessary adjustments.
vi) The validation of the arm’s length value of the transaction.
Comparability Analysis of Transactions Involving Intangibles
The comparability analysis of licensing or sale transactions involving intangibles is inherently complex. Therefore, the guidelines propose several key variables that should be minimally considered when analyzing such transactions, including:
i) Whether the licensing of the intangible is exclusive or non-exclusive.
ii) The period for which legal protection is granted.
iii) The geographical market in which the intangible is licensed.
iv) The useful life of the intangible.
v) The state of development of the intangible.
vi) The rights to improvements, revisions, and updates.
vii) The expected future income associated with the intangible.
Compensation for Intangibles That Do Not Provide Value
The guidelines emphasize that not all cases of intangible asset exploitation necessarily require compensation. For example, the use of a trademark should not, in principle, trigger payment if its use is limited to indicating mere membership in a multinational group[5].
Use of Valuation Techniques
For cases where intangible assets are transferred and their value needs to be estimated, the use of valuation techniques is required. The guidelines provide considerations on the use of such techniques and suggest standards regarding the accuracy of financial projections, discount rate application, calculation of the useful life of intangibles, terminal values, and other related aspects.
Hard-to-Value Intangibles
Finally, the new Chapter VI establishes considerations for hard-to-value intangibles—those intangibles or rights over intangibles for which, at the time of transfer between related parties:
i) No reliable comparables exist.
ii) At the time of the transaction, there is uncertainty in estimating future cash flow projections or revenues linked to the transferred intangible, making it difficult to predict the intangible’s success at the time of transfer[6].
To address these challenges, the guidelines suggest the establishment of contingent clauses that allow for the re-evaluation of the intangible at a later date, unless it can be demonstrated that the parties involved in the transaction took all necessary steps to determine an adequate compensation for the transfer of the intangible(s). Additionally, documentation must be provided to show that valuation assumptions did not result in deviations exceeding 20% of the market value of the intangible within five years following its transfer.
Conclusion
The reforms to the transfer pricing regime regarding intangibles are extensive, and taxpayers should evaluate them based on their particular circumstances. Additionally, it is important to consider that the OECD’s holistic approach links Action 8 with at least Action 1 (taxation of the digital economy), Action 5 (aggressive tax practices), and Action 13 (country-by-country reporting and transfer pricing documentation). Notably, Action 13 requires that, at a minimum, the multinational group’s master file includes policies regarding the generation and use of intangible assets. In local reporting, taxpayers are required to clarify their participation in this regard.
[1] OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. 2017. 6.6. “intangible” is intended to address something which is not a physical asset or a financial asset,2 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.
[2]OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. 2017. 6.42. For transfer pricing purposes, legal ownership of intangibles, by itself, does not confer any right ultimately to retain returns derived by the MNE group from exploiting the intangible, even though such returns may initially accrue to the legal owner as a result of its legal or contractual right to exploit the intangible.
[3] El análisis de los riesgos asociados al despliegue de funciones DEMPE debe considerarse en el contexto de las nuevas disposiciones propuestas en los lineamientos de precios de transferencia en la sección D.1.2. (riesgos).
[4] OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. 2017. 6.34
[5] OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. 2017, 6.81.
[6] OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. 2017, 6.189.
