Big pharma takes apart the OECD on marketing intangibles
Major pharmaceutical companies, such as AstraZeneca, fear that the OECD digital tax proposals on marketing intangibles threaten the fundamentals of transfer pricing.
Since the OECD released its policy note on digital tax in January, business leaders have had time to chew over the details and they fear that the move away from the
The OECD’s discussion draft suggested that the existing transfer pricing (TP) rules have resulted in corporate income being under-allocated in certain jurisdictions. This is due to the ability of companies to participate in a jurisdiction without having any physical presence there.
“This simply does not apply to more traditional businesses,” said Catherine Harlow, head of TP at AstraZeneca. “The pharmaceutical industry, for example, requires significant physical presence to perform value generating activities and current transfer pricing rules under the
“Any potential marketing [intellectual property] generated locally is simply a by-product of the performance of routine functions that are rewarded in accordance with the
Yet the focus is very much on IP assets and particularly marketing intangibles. The OECD has to find the key to overhaul global tax rules, and intangibles are high up on the list of options.
Two pillars, one task
The OECD breaks down its focus into two pillars. The first seeks to address the digital economy and focuses on taxing rights, profit allocation, nexus issues
How to approach the first pillar is highly contested. The US
AstraZeneca has “significant concerns” about how the marketing intangibles proposal would apply to its business operations. These concerns have, no doubt, worsened because the digital tax debate spells fundamental change.
“We do not agree with the OECD’s premise that
Harlow said the marketing intangibles proposal would “undermine the
This would run the risk of misallocating profits out of line with value creation. It would not only take companies beyond the ALP, but it would make the profit split method the main approach to allocating residual profit.
AstraZeneca is far from alone in its concerns about marketing intangibles. Pharmaceutical company GlaxoSmithKline (GSK) has made it clear that it shares these concerns.
“Certain sectors, such as pharmaceuticals, are highly regulated in how they engage and interact with customers and are, in most countries, subject to regulated pricing which means they do not interact with their customer base in the same way as in other sectors,” GSK said in a statement.
“Seeking to allocate a marketing intangible return in such scenarios would be an inappropriate deviation from the [ALP] which would not reflect the nature of the engagement with the market jurisdiction,” the company said.
The pharmaceutical industry derives much of its value through research and development (R&D), not from marketing intangibles – although the sector is rich in IP given the nature of its products. Nevertheless, TP directors stress that the value of the intangibles still comes down to the outcome of clinical trials.
This may be why Timothy McDonald, vice president of finance at Procter & Gamble (P&G), stressed the problems of reducing
He said: “The most difficult part of this process is not defining what a marketing intangible is, it is in developing what is the relative share of residual income attributable to that defined marketing intangible as compared to all other intangibles deployed within the enterprise.”.
“Over the last few years, we have divested over 150 small or local brands and now focus on 65 brands globally and regionally,” he continued. “Across all P&G brands, it would be nearly impossible to separate the relative value contribution either by
In other words, the same arguments over the role of data in value creation extend to marketing intangibles as a whole. “It is not about the data,” McDonald said, adding, “it is about what companies do with the data that creates value”.
Finding the right formula
There are alternative proposals on the table.
However, many observers are concerned that this would open the door to formulary apportionment (FA). This would threaten the basis of traditional TP arrangements. Not only could it expand the remit of taxing rights in the developing world,
“Any of the Inclusive Framework’s recommendations within the consultation document will lead to increased tax controversy,” McDonald said.
It’s no surprise that the business community remains firmly wedded to the ALP. Yet the direction of travel appears to be away from this standard. The consequences of abandoning the principle could be immensely expensive.
“The [ALP] is sufficient to ensure that the vast majority of multinationals pay the appropriate amount of tax in each territory in which they operate in line with the functional and risk profile of their activities in that territory,” Harlow said.
“A fractional apportionment method represents a departure from economic reality,” GSK said. “This could drive unwanted
It’s obvious why countries vulnerable to capital flight would want to expand their taxing rights, but there is no consensus on how exactly FA should work in practice.
If the world does move away from the ALP, the OECD will need to look at ways to limit the potentially destructive fallout. This might mean a second multilateral instrument or even a global tax court. In any case, the work that began with BEPS is far from finished.