What’s been keeping tax directors of large multinational corporations up at night recently? The same issue that provided millions of dollars in tax relief a few years before: transfer pricing.
Such companies as Apple, Google, and Microsoft have used offshore subsidiaries and company affiliates to achieve sizable geographic tax savings over the years. But it’s the tax implications of the allocation of those offshore profits among subsidiaries — their transfer pricing — that ranked as a top tax concern for 2013, according to a November 2012 survey by CEB (formerly the Corporate Executive Board), a member-based research advisory, of 64 global tax directors from companies making more than $1 billion in revenue.
Transfer-pricing taxation came in second behind political risk in terms of the likelihood that the issue will actually heat up this year. “Tax departments are being asked to cope with transfer-pricing documentation requirements that are growing by the day,” according to the survey report, which notes that corporate tax directors “are also grappling with inconsistent enforcement across different revenue authorizes. Organizations are bracing themselves for a larger number of transfer pricing investigations and penalties.”
To be sure, multinational tax heads and the CFOs they report to have felt some pressure regarding the tax issues of transfer pricing in prior years. But “heads of tax feel there’s been a significant change in the risk around transfer pricing, particularly because revenue authorities (such as the Internal Revenue Service, in particular) are really trying to find more ways to make a lot more money,” say Cody Villella, a senior director at the CEB.
Corporate tax heads in the survey say they are worried about transfer pricing currently since there is more of a collaborative information-sharing effort under way among the international tax authorities. “We’ve seen very large increases in information between the revenue authorities. There’s a lot of concern about that information exchange,” notes Villella.
Indeed, the corporate tax directors surveyed by the CEB survey were not too keen on the prospect of information sharing. Quite simply, tax information given to one authority in one jurisdiction could very well end up in another governmental agency’s hands — which, respondents believe, could provide more work for CFOs and their staff, since the other authority may not understand the business as well.
The possibility of having joint audits by two authorities is a concern for companies right now, says Villella, noting that the respondents were specifically stressed over their company information being “used in a way that it wasn’t intended for.”
Respondents to the CEB survey also said that local jurisdictions, in particular, were upping demands on them by mandating “previously unseen levels of detail” in their documentation, according to the report.
Regulators and tax authorities worldwide are cracking down on companies that operate abroad to make sure they are paying their fair share of the tax bill in those regions and at home, particularly amid the current poor economic conditions.
Earlier this month, Sen. Carl Levin (D-Mich.), notable for alerting Congress to allegedly dubious offshore corporate practices as far back as 2004, introduced the “Cut Unjustified Tax Loopholes Act,” which calls for the end of transfer-pricing abuses. Levin, who chairs the Permanent Subcommittee on Investigations, called on Congress to limit income-shifting through U.S. property transfers offshore.
Similarly, the European Commission published new measures in December to thwart companies shifting profits for tax purposes, noting that about one trillion euros are lost to tax evasion annually.
Further, corporate tax professionals in the United Kingdom should feel justified in worrying about where that country’s customs and tax regulators will turn their attention to next, notes Stephen Labrum, a U.K. managing director with Alvarez & Marsal Taxand and global head of the firm’s transfer-pricing unit. He anticipates regulators will have a strict eye on transfer pricing for years to come.
To Marshall Hollis, managing director in the international tax services group of business advisory CBIZ MHM, it’s reasonable to expect more IRS requirements concerning transfer pricing. “This is definitely an area the IRS has been trying to target for the past couple of years,” he says. The revenue service, he suggests, could eventually investigate offshore intangibles on a retrospective basis, in contrast to its current practice of merely scrutinizing them at the time goods and services are transferred.
To avoid harsher scrutiny from tax authorities, entering into advance pricing agreements can sometimes help. (APAs are multiyear contracts between a tax authority and a corporation that outline pricing methods that will be used.) Hollis cautions, however, that existing APAs are still receiving increased scrutiny from tax authorities.
There are other ways to soften the blow of transfer-pricing audits. For instance, if CFOs and their staff have good documentation and a routine method for transfer pricing used across geographies, they may warrant less attention than companies that are lacking those, Villella notes. About the survey, he adds: “It was surprising the number of companies that didn’t have formalized processes and procedures and really standardized transfer-pricing policies in place.”