At the OECD International Tax Conference in DC on June 3 and 4, Joe Andrus, Head of the OECD’s Transfer Pricing Unit, announced that the OECD’s Discussion Draft on Intangibles released in 2012 is under revision in two key areas: definition of intangibles and ownership and entitlement to intangibles related returns (referred to as "IRR”). Areas of focus on the definitional aspects include the treatment of goodwill, local market advantages and location savings, and corporate synergies. It seems clear from the discussion during the conference that accounting definitions of goodwill, in particular arising from purchase accounting, will not be determinative of the transfer pricing analysis.
There was considerable discussion of IRR. The panel acknowledged that the OECD had received extensive commentary on the Discussion Draft from business commentators expressing concern that the Draft did not give sufficient weight to the legal ownership of and financial investment in intangibles development in addressing entitlement to IRR. (These and other concerns were advanced in a submission by the International Bar Association’s Taxes Committee on the Draft that was coordinated by this author.) We can expect a revised Discussion Draft from the OECD in due course and hope that the OECD is able to bring greater clarity to the taxpayer community on treatment of intangibles, which remains one of the most contentious in transfer pricing.
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