As a tax or operational manager of your organization, managing the risk potentially arising from the new OECD definition of intangibles ("New Definition") may require a three-step process:
1.Identifying the items within your organization or corporate group that are best represented by the New Definition;
2.Determining how the transfers/utilization of those items are made between related parties; and
3.Deciding whether any of such transfers/utilization can be recognized as a transfer pricing transaction.
The first step above is the most crucial element, which is the central theme of this post. It is all about applying the test based on the New Definition (diagram below - please see my previous post for further detail), and, if needed, (or if the items happened to be abstract, as will be explained in a moment) performing additional analyses to identify specific items of "intangibles" for which specific actions may be devised and executed to minimize any transfer pricing risk.
As regards the test mentioned (to save you some time), the practical starting point, in my view, is to look at OECD's analysis on this. OECD has provided (non-exhaustive) illustrations of how the New Definition may be applied and, in so doing, has verified for us which ones are "intangibles" and which ones are not (please refer to para. 6.18 through 6.31, Guidance on Transfer Pricing Aspects of Intangibles ("GTPAI")) :
As regards the test mentioned (to save you some time), the practical starting point, in my view, is to look at OECD's analysis on this. OECD has provided (non-exhaustive) illustrations of how the New Definition may be applied and, in so doing, has verified for us which ones are "intangibles" and which ones are not (please refer to para. 6.18 through 6.31, Guidance on Transfer Pricing Aspects of Intangibles ("GTPAI")) :
Category
|
Intangible?
|
1.Patents
|
Y
|
2.Know-how and trade secrets
|
Y
|
3. Trademarks, trade names and brands
|
Y
|
4. Rights under contracts and government licenses
|
Y
|
5. Licenses and similar limited rights in intangibles
|
Y
|
6. Goodwill and ongoing concern
value
|
Undefined
|
7. Group synergies
|
N (not capable of being owned or
controlled)
|
8. Market specific characteristics
|
As you can see, most of the conventional intangibles (#1 through #5) are still identified as such under the New Definition. You could choose to bypass them if your organization undertakes economically and legally recognized inter-company transactions involving them and has specific transfer pricing policies or otherwise tax risk mitigation mechanisms in place.
What you have to worry about, though, is category #6. The OECD left goodwill and ongoing concern value undefined, creating rooms for future debates and controversies between tax administrations and taxpayers around the world. It is left to the whims of the two parties to decide whether the items identified under that category should be labeled as intangibles. GTPAI (para. 6.29) says:
"The absence of a single precise definition of goodwill makes it essential for taxpayers and tax administrations to describe specifically relevant intangibles in connection with a transfer pricing analysis and to consider whether independent enterprises would provide compensation for such intangibles in comparable circumstances"
What you have to worry about, though, is category #6. The OECD left goodwill and ongoing concern value undefined, creating rooms for future debates and controversies between tax administrations and taxpayers around the world. It is left to the whims of the two parties to decide whether the items identified under that category should be labeled as intangibles. GTPAI (para. 6.29) says:
"The absence of a single precise definition of goodwill makes it essential for taxpayers and tax administrations to describe specifically relevant intangibles in connection with a transfer pricing analysis and to consider whether independent enterprises would provide compensation for such intangibles in comparable circumstances"
"Goodwill" has been used frequently in the realms of financial statement analyses or due diligence for M&As, serving as the basis for buy-side and sell-side pricing of a target company. So it is used mainly to indicate a specific monetary value rather than the actual source of such value, for use either before or after the merger. To be more specific, from an accounting perspective, the term is defined as the excess value over and above the net asset of an enterprise or the amount paid above the enterprise's book value which comprises part of the price (or consideration) paid.
For verification of intangibles under the New Definition, however, it is necessary that you direct your attention to pure operational and/or economic aspects of goodwill. In other words, goodwill should be thought of as something a fictional buyer of your organization or business would be willing to pay for, for instance, in M&A situations. In that sense, goodwill may be thought of as 'value drivers' of your organization that your third-party customer or buyer would recognize as an element of differentiation, even competitiveness, which may be defined as follows:
"An activity or organizational focus which enhances the perceived value of a product or service in the perception of the consumer and which therefore creates value for the producer" (p.129, Miller, Warren D., Value Maps)
So when identifying value drivers or the components of goodwill, you should look at (i) how your organization's value chain is currently structured and (ii) which activities/features within each link affect those of other link(s) in ways that create/improve perceived value in the eyes of the third-party customers. The notions of value perception is well illustrated by the concept of "signaling criteria" introduced by Dr. Michael E. Porter, the author of Competitive Advantage:
"Signaling criteria reflect the signals of value that influence the buyer's perception of the firm's ability to meet its use criteria. Activities a firm performs, as well as other attributes, can be signaling criteria. Signaling criteria may help a particular supplier to be considered and/ or may play an important role in the buyer’s final purchase decision."
Dr. Porter provided examples of typical signaling criteria as below. Your marketing/sales folks may have more specific and detailed signaling criteria for your organization:
For verification of intangibles under the New Definition, however, it is necessary that you direct your attention to pure operational and/or economic aspects of goodwill. In other words, goodwill should be thought of as something a fictional buyer of your organization or business would be willing to pay for, for instance, in M&A situations. In that sense, goodwill may be thought of as 'value drivers' of your organization that your third-party customer or buyer would recognize as an element of differentiation, even competitiveness, which may be defined as follows:
"An activity or organizational focus which enhances the perceived value of a product or service in the perception of the consumer and which therefore creates value for the producer" (p.129, Miller, Warren D., Value Maps)
So when identifying value drivers or the components of goodwill, you should look at (i) how your organization's value chain is currently structured and (ii) which activities/features within each link affect those of other link(s) in ways that create/improve perceived value in the eyes of the third-party customers. The notions of value perception is well illustrated by the concept of "signaling criteria" introduced by Dr. Michael E. Porter, the author of Competitive Advantage:
"Signaling criteria reflect the signals of value that influence the buyer's perception of the firm's ability to meet its use criteria. Activities a firm performs, as well as other attributes, can be signaling criteria. Signaling criteria may help a particular supplier to be considered and/ or may play an important role in the buyer’s final purchase decision."
Dr. Porter provided examples of typical signaling criteria as below. Your marketing/sales folks may have more specific and detailed signaling criteria for your organization:
- reputation or image
- cumulative advertising
- weight or outward appearance of the product
- packaging and labels
- appearance and size of facilities
- time in business
- installed base
- customer list
- market share
- price (where price connotes quality)
- parent company identity (size, financial stability, etc.)
- visibility to top management of the buying firm
1. Identify your organization's value chain. You should first understand specifically how your organization functions in transactions with its third-party customers or related parties overseas. Don't get bogged down or frustrated with the term "value chain." What it simply means is this:
- the whole process of how your organization performs R&D and product development, purchase of raw materials, operation of production lines, quality control, inventory control, marketing and sales, after-sales activities and so forth; and
- the way of how those functional elements interacts with each other to generate/transfer value. We, transfer pricing specialists call it, a "functional analysis" (I have another post explaining what it is).
You could perform the above analysis yourself internally or seek help from external transfer pricing expert, if such is more practical. Here's how a theoretical value chain looks like (please click on the diagram below for further explanations on value chain):
At the end of step 1, you might want end up with something like this with detailed description of what each item entails (link to the source) :
2. Identify value drivers. From the value chain identified, you should detect and analyze the activities or features from each link that improves those of other link(s) or of the value chain as a whole. You might want to relate these activities/features to each of the signaling criteria of your organization and try to deduce exactly how each criterion is satisfied or improved by one or more of those activities/features identified. Those that prove to satisfy or improve the signaling criteria in a single or multiple ways may be considered "value drivers", the aggregate of which may be considered "goodwill."
3. Determine whether the value drivers are compensable. Once the value drivers are determined, you need to select the ones that 'improve' the signaling criteria - that is, the elements of differentiation - that would justify the level of margin on the price of your organization's output i.e., product or service. Remember. the most common definition of "goodwill" is the excess value over and above the net asset of an enterprise. Hence, a value driver that enhances one or more of the signaling criteria should be able to command part of that excess value, which, in turn, contributes to the overall "attractiveness" of your organization or business in the eyes of its potential buyers. You could consider such value drivers as "intangibles" under the New Definition.
4. Determine overall capital employed and functionality associated with the selected value drivers. Finally, you have to identify the capitals employed in operating those selected value drivers and the functions performed by the key people or assembled workforce assigned to them. They are the true "generators" of "excess value" and understanding how they are mobilized, utilized and transferred from one unit to another becomes a basic building block for the transfer pricing risk management in terms of intangibles. In other words, the transfer between the affiliates or mere use by your organization's related party, of those capital or the people behind the value drivers selected in 3 may trigger recognition of a related party transaction for transfer pricing purposes.
This four-step analysis will lay an ideal groundwork for establishing a risk management framework within your organization regarding transfer pricing aspects of intangibles. Remember. If your organization is global and has business presence in key tax jurisdictions, you'll quickly have to adept to the new way of thinking: that is, "Intangibles" should now be perceived throughout your organization as anything through which compensable value is created. As one of the commentators on the discussion draft of GTPAI once mentioned, "Intangibles" must now be considered, from an entity standpoint, that is, from the perspective of value creation rather than from an asset standpoint (please see p. 596 of this link).
Basically, what this entails is this: as an operational or tax manager for your organization, you must now have a fairly clear and comprehensive mental picture of the entire value chain of your organization, and by diligently tracking how capitals move throughout the value chain, you need to be attentive on how the value drivers of your organizations are affected by such movements.
All this for tax? Yes, sadly and unfortunately.
Please let me know what you think.
댓글 없음:
댓글 쓰기