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 2026

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

Former IRS commissioner Danny Werfel argues that the biggest obstacle to AI adoption in tax is not technology, but trust, and introduces a practical AI risk framework to help
Howell takes a deep dive into how he led the landmark PepsiCo dispute, discusses the ATO's enforcement priorities, and emphasises KordaMentha's market ambitions
Global tax leader David Linke said that the TaxSim gaming programme could replace aspects of traditional face-to-face learning
Former ATO economist Craig Silverwood is joining from Australian firm MinterEllison
The rebranding, which will see changes to signage, visual identity and digital properties, is scheduled to be completed by the end of this year
The software space was previously more fragmented, but that model is becoming more difficult to sustain as tax administration becomes increasingly digitised
While some may argue that heads should roll following KPMG Australia’s audit leak scandal, client and revenue data emphasises that tax team stability is paramount
A landmark ruling on LLP taxation has clarified who truly holds ‘significant influence’ and which partnership structures are most likely to withstand HMRC scrutiny
Chris Jordan promoted tax schemes to clients and received illicit payments, it has also been alleged
Solving the UK's fiscal deficit requires an ‘ease of doing taxes’ framework driven by tax-as-code – not thousands of additional auditors
Gift this article