Back to Grass Roots: The Arm’s Length Standard, Comparability and Transparency – Some Perspectives from the Emerging World

Abstract

This article addresses some of the fundamental issues behind the current international tax policy debate on transfer pricing, espousing the perspective of the “emerging world”. Despite many calls to fundamental reform and the reconsideration of some of its corollaries in the wake of the BEPS Project, transfer pricing is currently rooted in the observance and implementation of the arm’s length standard. In that regard, this article engages in a qualified defence of the arm’s length standard, both from the specific perspective of emerging economies and in the light of fundamental findings concerning the suitability of the arm’s length standard to ensure the joint pursuit of the broad panoply of policy objectives currently (explicitly or implicitly) addressed at the global level through transfer pricing legislation, the breadth of which could, arguably, not be matched by the most commonly invoked alternative to the arm’s length standard, namely formulary apportionment. At the same time, this article acknowledges that the arm’s length standard needs some reform: the most urgent intervention not really concerning its fundamental assumptions but, rather, the channels through which it can be implemented. By reconstructing how the current transfer pricing methodologies, backed by international organizations, are the by-products of earlier challenges from national experiences (primarily by comparing the US and OECD – often influenced by diverging sensitivities among Member States – developments in this area), this study shows that the list of possible implementation approaches to the arm’s length standard should not be understood in crystallized terms. Rather, the arm’s length standard may have sufficient breadth to accommodate global, regional or even national incremental reform on topical issues. The author identifies “comparability analysis” as possibly the most serious challenge to transfer pricing implementation and, in the light of the above-mentioned incremental reform platform, highlights some country practices (which could be defined as “grass-roots” or “home-grown” experiences, as they developed independently of international recommendations or technical assistance inputs by international organizations) in this area that may be worthy of some consideration. Examples of “home-grown” solutions include the “predetermined margins” approach developed by Brazil, the “sixth method” developed by Argentina with regard to the trading of commodities and the approach developed by the Dominican Republic in relation to transfer pricing in the tourism industry. Such a selection of experiences from the “emerging world” is in line with the key perspective of this article – namely, addressing the transfer pricing challenges of a multiform constituency of world economies. However, the article is meant to stimulate a debate on a global scale, so that, where appropriately revised, some of these approaches could be considered “sustainable best practices” worthy of international consideration and propagation. As no transfer pricing policy proposal can be conceived in a vacuum in the current highly globalized transfer pricing debate, the author also attempts to contextualize these incremental proposals within the current international tax framework, characterized by, inter alia, the increasing relevance of the tax certainty agenda, the reconsideration of safe harbours and the promotion of advance pricing agreements. Such a contextualization may show that the analysed approaches could end up being remarkably in tune with such trends and may thus provide relevant inputs to the ongoing global transfer pricing policy debate.

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