International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Saturday, December 19, 2020

OECD publishes information on the state of implementation of the hard-to-value intangibles approach by members of the Inclusive Framework on BEPS

The OECD has published jurisdiction-specific information on the implementation of the hard-to-value intangibles ("HTVI") approach. To date, 40 jurisdictions have provided information on whether their domestic legal system provides for transfer pricing rules aimed at transactions involving HTVI.

The publication of this information is part of the monitoring process of the implementation of the HTVI approach agreed by the OECD/G20 Inclusive Framework on BEPS, whereby participating jurisdictions report on their legislation and administrative practices relevant to the application of the HTVI approach. Importantly, this information provides tax administrations, taxpayers and other stakeholders with a better understanding of the extent to which the HTVI approach has been adopted and applied in practice by countries around the world, with the aim to reduce misunderstandings and disputes between governments. The information published today was provided by those countries to which the information relates.

The HTVI approach was the outcome of the work done under Action 8 of the Action Plan on Base Erosion and Profit Shifting, which is found in the 2015 Final Report for Actions 8-10, Aligning Transfer Pricing Outcomes with Value Creation and it was formally incorporated into the OECD Transfer Pricing Guidelines (Guidelines), as Section D.4 of Chapter VI. The HTVI approach protects tax administrations from the negative effects of information asymmetry by ensuring that they can consider ex post outcomes as presumptive evidence about the appropriateness of ex-ante pricing arrangements. At the same time, the approach permits taxpayers to rebut such presumptive evidence by demonstrating the reliability of the information supporting the pricing methodology adopted at the time the controlled transaction took place. In 2018, the HTVI approach was supplemented with a new annex to Chapter VI of the Guidelines that contains guidance that would ensure a common understanding and practice among tax administrations on how to apply adjustments resulting from the application of the HTVI approach.

Further information on the state of jurisdictions’ transfer pricing legislation and practices can be found in the Transfer Pricing Country Profiles.

William Byrnes’ two-volume 4th Edition Practical Guide to U.S. Transfer Pricing (2021 version forthcoming December 2020) is revised and updated annually to help multinationals cope with the U.S. transfer pricing rules and procedures, taking into account the international norms established by the Organisation for Economic Co-operation and Development (OECD). It is also designed for use by tax administrators, both those belonging to the U.S. Internal Revenue Service and those belonging to the tax administrations of other countries, and tax professionals in and out of government, corporate executives, and their non-tax advisors, both American and foreign.  Professor Byrnes organizes the sixty leading industry advisors form the contributing subject matter expert team that analyzes the highly technical issues faced by tax and risk management counsel, translating them into actionable strategy.

“As the transfer pricing treatise’s primary author, I take an active role in working with each of my subject matter experts within the chapters, as well as developing and cultivating additional subject matter tax experts to contribute to the expansion of country-based and industry-based chapters. I organize the law, create an interpretive framework, clarifies the role of legal rules and the enforcement institutions, and demonstrate what ‘the law’ requires. Moreover, I ensure the most up to date analysis and risk strategy for a business navigating the complexity of intra-group transfer pricing among multiple taxing jurisdictions.” William Byrnes

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