On May 23 2017 the OECD released a public discussion draft on the implementation guidance on Hard-to-Value Intangibles (HTVI).
This discussion draft presents the principles that should underlie the implementation of the HTVI approach, provides examples illustrating the application of this approach and addresses the interaction between the approach to HTVI and the mutual agreement procedure.
Action 8 of the BEPS Action Plan mandated the development of transfer pricing rules or special measures for transfers of hard-to-value intangibles, aimed at preventing base erosion and profit shifting by moving intangibles among group members.
The outcome of this work is found in Section D.4 of the Revised Chapter VI of the Transfer Pricing Guidelines, contained in the 2015 Final Report for Actions 8-10, “Aligning Transfer Pricing Outcomes with Value Creation” (“BEPS TP Report”) and already formally incorporated to the Guidelines.
Section D.4 of Chapter VI addresses the treatment of HTVI for transfer pricing purposes.
This guidance protects tax administrations from the negative effects of information asymmetry by ensuring that tax administrations can consider ex post outcomes as presumptive evidence about the appropriateness of the ex ante pricing arrangements.
At the same time, the taxpayer has the possibility 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.
A number of examples have been included to clarify the implementation of the HTVI approach in different scenarios.
Interested parties are invited to send their comments on this discussion draft by 30 June 2017 at the latest by email to TransferPricing@oecd.org in Word format (in order to facilitate their distribution to government officials).
They should be addressed to the Tax Treaties, Transfer Pricing and Financial Transactions Division, OECD/CTPA.
Commentators should concentrate solely on the proposed guidance contained in this discussion draft for the implementation of the approach and comments in excess of ten pages should attach an executive summary limited to two pages.