The Luxembourg Parliament has approved a draft law, effective 1/1/2015, that will provide a formal transfer pricing framework, coupled with relevant transfer pricing documentation.
PwC’s newsletter provides a summary of these developments:
Summary of key points:
- Alignment with the arm’s length principle as stated in the OECD Model Tax Convention, covering transactions between Luxembourg related parties or cross-border transactions.
- Tax return report of upward, or downward, transfer pricing adjustments whenever the transfer prices do not reflect the arm’s length standard.
- Transfer pricing documentation expectation for the three-tiered approach in accordance with the OECD’s final Chapter V guidelines.
- APA’s: Competent Authority will seek advice for advance tax confirmations from a tax rulings commission for additional legal certainty. The tax confirmation rulings will be published in anonymous and summary form.
Luxembourg sends a strong statement of its alignment with the arm’s length principle and revised OECD transfer pricing documentation guidelines. Tax transparency of the APA ruling process and recognition of transfer pricing adjustments, upward or downward, also provide a revised state of play in this jurisdiction that performs a vital tax and economic role going forward for MNE’s and other tax administrations.
Working Party No. 6 of the Organization for Economic Cooperation and Development (“OECD”) has prepared a Revised Discussion Draft on Intangibles, following an earlier Discussion Draft in June 2012. This revised Draft includes changes based upon comments received, including a public consultation, in 2012.
This Draft addresses, directly and indirectly, actions contained in the OECD Action Plan on Base Erosion and Profit Shifting (“BEPS Action Plan”). Refer to my 19 July 2013 post for information on the OECD BEPS Action Plan.
The changes in the Draft include a new section addressing local market features, location savings, assembled workforce and group synergies, in addition to explanatory changes to the definition of intangibles. As stated in the Revised Discussion Draft, a transfer pricing intangible is not solely determined by its general tax or accounting characterization. The intangible definition is also mutually exclusive from the definition of royalties for purposes of Article 12 of the OECD Model Tax Convention. Additionally, functions, assets and risks related to intangibles are determined via the functional analysis, and are not presumed to be held by the legal owner of the intangible.
The Draft includes an interesting discussion of the use of projected growth rates and discount rates, including examples in the Annex to illustrate the guidance on special considerations for intangibles.
Written comments may be submitted to the OECD on or before 1 October 2013. A public consultation will also be held on 12-13 November 2013 in Paris, France, selecting speakers from those providing written comments.
Analogous to my 31 July 2013 post for the OECD White Paper on Transfer Pricing Documentation, this Revised Discussion Draft should be reviewed and compared with the current methodology for intangibles, noting significant variations for internal analysis. Intangibles are a significant component of transfer pricing, thus this Draft should be seriously considered by all multinationals.