US and OECD harmonise approaches to arm's-length principle

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

US and OECD harmonise approaches to arm's-length principle

Tax specialists are praising the OECD’s decision to equalise the methods for allocating income and expenses between controlled entities under the arm’s length principle.

In September 2009, the OECD released draft proposed revisions to Chapters one through three of their 1995 guidelines.

One of the most important proposed changes included the abandonment of the traditional hierarchy of transfer pricing methods.

The proposed guidelines suggested that taxpayers should instead use the method that provided the most reliable measurements.

One potential reason behind the change is that a growing number of tax authorities may have realised the difficulty multinationals face in trying to get reliable data to apply to the traditional methods.

Tax practitioners and specialists welcome the change.

“This will simplify the process of doing global documentation for large multinationals, and over time will potentially reduce the number of disputes,” said Paul Burns, counsel at DLA Piper.

“These are sensible changes that would bring the two main promulgators of the arm’s length standard, the US and the OECD, into closer harmony in the application of that principle,” said Richard Boykin, principal economist at Baker & McKenzie.

Though there is no definite date for the finalisation of these guidelines, the US Department of Treasury (Treasury) has confirmed that the proposals do abandon a strict hierarchy of methods in favour of an approach that is more similar to the one now in place at the Treasury and IRS.

The US Treasury adopted its own version of the “best method rules” in 1994.

“Tax authorities outside the US now have the benefit of 15 years of US experience with the best methods rule,” said Burns. “My sense is that they have reached a certain comfort level with this.”

“This is one area where it seems that the US is out in front leading and the OECD guidance sort of converged later to get there,” said David Ernick, associate international counsel at the Treasury, at a BNA Tax Management International Luncheon on March 31.

The proposed guidelines also contained a helpful discussion about issues of comparability. Recognising that reasonably comparable controlled transactions are often unavailable for complex multinational transactions, especially those involving intangibles, the guidelines allow for use of profit-based methods, as long as the allocation method is reliable and consistent.

This explanation about comparability will also help to bridge differences between the application of the US and OECD methods.

more across site & shared bottom lb ros

More from across our site

ITR understands that UK Chancellor Rachel Reeves will announce a consultation on the proposed financial reward scheme, which had left advisers fretting
The long-running dispute centres on Medtronic’s use of the comparable uncontrolled transaction TP method; in other news, Paul Hastings and FTI Consulting both made double tax hires
The boutique Australian firm’s TP award recognition proves that world-class advisory services aren’t limited to the ‘big four’, the firm’s founder tells ITR
Canadian and Indian dual VAT models have been a source of inspiration for the Brazilian model, but the latter has unique and innovative features, the OECD paper claimed
More sophisticated use of technology, heightened TP scrutiny and stricter filing requirements are making South African Revenue Service audits a formidable challenge
The hire of Doug Wick expands Baker McKenzie’s state and local tax practice and adds to the firm’s growing ex-IRS expertise
One year after Nuwaru joined the WTS network, leaders James Jobson and Matthew Missaghi reflect on the firm’s mission to offer mid-tier pricing but deliver top-tier results
Join ITR's Head of Research, John Harrison, for an overview of key dates, new developments, best practices, and more for next year’s research cycle
The president’s tariff regime has already caused misery for taxpayers. Losing at the Supreme Court would mean it was all for nothing
The US itself was the biggest loser of tax revenue to American multinationals’ profit shifting, the Tax Justice Network reported; in other news, firms made key tax hires
Gift this article