Comparability in Transfer Pricing: Characteristics of Property or Services

Par Robert Robillard - 12 juin 2014

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Paragraph 1.39 of the OECD Transfer Pricing Guidelines explains:

« Differences in the specific characteristics of property or services often account, at least in part, for differences in their value in the open market. Therefore, comparisons of these features may be useful in determining the comparability of controlled and uncontrolled transactions. Characteristics that may be important to consider include the following: in the case of transfers of tangible property, the physical features of the property, its quality and reliability, and the availability and volume of supply; in the case of the provision of services, the nature and extent of the services; and in the case of intangible property, the form of transaction (e.g. licensing or sale), the type of property (e.g. patent, trademark, or knowhow), the duration and degree of protection, and the anticipated benefits from the use of the property. »

In Canada, paragraph 32 of IC 87-2R International Transfer Pricing recognizes this approach.

In the United States, item (d)(3)(v) of §1.482-1  Allocation of income and deductions among taxpayers suggests:

« (v) Property or services. Evaluating the degree of comparability between controlled and uncontrolled transactions requires a comparison of the property or services transferred in the transactions. This comparison may include any intangible property that is embedded in tangible property or services being transferred (embedded intangibles). The comparability of the embedded intangibles will be analyzed using the factors listed in §1.482-4(c)(2)(iii)(B)(1) (comparable intangible property). The relevance of product comparability in evaluating the relative reliability of the results will depend on the method applied. For guidance concerning the specific comparability considerations applicable to transfers of tangible and intangible property and performance of services, see §§1.482-3 through 1.482-6 and §1.482-9; see also §§1.482-3(f), 1.482-4(f)(4), and 1.482-9(m), dealing with the coordination of intangible and tangible property and performance of services rules. »

In general, it is recognized by the tax administrations that the characteristics of property or services will play a predominant role in order to apply the comparable uncontrolled price (CUP) method.

Robert Robillard, CPA, CGA, MBA, M.Sc. Econ.
Transfer Pricing Chief Economist, RBRT Inc.
514-742-8086; robert.robillard « at » localhost
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