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OECD PUBLISHES GUIDANCE ON STREAMLINED APPLICATION OF ARM’S LENGTH PRINCIPLE TO
BASELINE DISTRIBUTION ACTIVITIES


OECD PUBLISHES GUIDANCE ON STREAMLINED APPLICATION OF ARM’S LENGTH PRINCIPLE TO
BASELINE DISTRIBUTION ACTIVITIES

The OECD on February 19 released a report on Amount B of Pillar One that
introduces a simplified and streamlined application of the arm’s length
principle for baseline distribution activities. This guidance has been
incorporated into the OECD’s Transfer Pricing Guidelines for Multinational
Enterprises and Tax Administrations 2022 as an annex to Chapter IV. For prior
coverage, see OECD Issues Second Consultation on Pillar One Amount B.

The simplified and streamlined approach for the application of the arm’s length
principle to baseline marketing and distribution activities is meant to enhance
tax certainty and relieve taxpayers’ and tax authorities’ compliance burdens,
with a particular focus on tax authorities in low-capacity jurisdictions with
limited resources. 

Jurisdictions will have the option to implement the simplified and streamlined
approach, formerly referred to as Amount B, in two different ways, or not at
all. A jurisdiction can permit in-scope distributors to elect to apply the
approach or it can require both in-scope taxpayers resident in the jurisdiction
and the tax administration to apply it prescriptively. Jurisdictions can choose
to apply the simplified and streamlined approach for tax years beginning on or
after January 1, 2025.

As is the case with other elective approaches in the OECD transfer pricing
guidelines, an outcome determined under the simplified and streamlined approach
is non-binding on the counterparty jurisdiction. However, the members of the
OECD’s Inclusive Framework on Base Erosion and Profit Shifting are committed to
respecting the outcome determined under the approach if applied by a
low-capacity jurisdiction.





IN-SCOPE DISTRIBUTORS

Qualified transactions for purposes of the simplified and streamlined approach
are buy-sell marketing and distribution transactions and sales
agency/commissionaire transactions for the wholesale distribution of tangible
goods; services (including digital services) and the distribution of commodities
or digital goods are excluded. In addition, in-scope distributors cannot assume
economically significant risks or own unique and valuable intangibles. However,
the simplified and streamlined approach allows in-scope distributors to perform
certain non-distribution transactions if they can be separately and reliably
priced under the general principles of the OECD transfer pricing guidelines. 





DETERMINATION OF THE RETURN

To determine the return for a tested party involving an in-scope transaction
under the simplified and streamlined approach, a tax administration or in-scope
taxpayer must rely on a pricing matrix of returns on sales published by the
OECD. The pricing matrix produces a narrow range of returns on sales for a
tested party based on its net operating asset intensity, operating expense
intensity, and industry grouping. The pricing matrix will be updated every five
years unless there is a significant change in market conditions that requires an
earlier update. A return on operating expense calculation is used as a check
(cap and collar) on the reasonableness of the return on sales.





DOCUMENTATION

Documentation continues to be important as it will substantiate the taxpayer’s
application of the simplified and streamlined approach. Relevant documentation
will include an explanation of the delineation of in-scope transactions through
the functional analysis, written contracts or agreements covering the qualifying
transaction, calculations showing the determination of the financial results
attributable to the in-scope transaction, and schedules showing that financial
data used in the approach ties to the annual financial statements.





BDO INSIGHTS

The OECD’s Report on Pillar One – Amount B represents the culmination of years
of negotiation among the members of the Inclusive Framework. It reflects the
difficulty of achieving consensus, even on the narrow issue of transfer pricing
of baseline marketing and distribution functions. 

Taxpayers who were looking for a truly simplified approach to benchmarking their
wholesale distribution activities may be disappointed. Multinational entities
(MNEs) will still need to conduct a full functional, risk, and asset analysis of
their operations. They will need to determine whether they are in scope of the
new simplified and streamlined approach – which may involve the application of
additional, as yet unspecified qualitative criteria - and may need to segment
their financial results to isolate in-scope activities. And upon audit, this
approach may need to be set aside for a traditional comparable profits
method/transactional net market method analysis (if the country on the other
side of the transaction has not adopted the approach). 

Documentation requirements are unchanged for taxpayers, and certainty is not
guaranteed. As before, transfer pricing will remain subjective and dependent on
a clear understanding and analysis of the functions, assets, and risks of each
party to an MNE’s intercompany transactions.



Have Questions? Contact Us
Article February 22, 2024
BY:
Laurie Dicker
National Tax Office, Technical Practice Leader Transfer Pricing
Midori Nakamura
Senior Manager, Transfer Pricing
AUTHORS
ADD

Laurie Dicker
National Tax Office, Technical Practice Leader Transfer Pricing
Midori Nakamura
Senior Manager, Transfer Pricing
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