By Richard Goldberg
Indeed, given the recent US tax law amendments and OECD BEPS developments,
In addition, the widely adopted OECD response to Action 13 of the BEPS initiative requires significant information of a qualitative (master file and local files) and quantitative (country-by-country reporting) nature, there again well positioning MNEs with robust globally consistent OTP execution. Taxpayers not prepared to provide a consistent explanation of their TP practices to tax authorities, or if they are unable to effectively model the impact of transfer pricing on taxable income of legal entities, will be at a competitive disadvantage to those that can.
This article describes
What is operational transfer pricing?
OTP is an integrated process consisting of a series of steps commencing with a process to identify and initiate a transfer pricing analysis of a potential intercompany transaction, moving through the
Key OTP success factors
A transfer pricing governance framework tailored to the structure and requirements of the MNE is the key to an effective OTP environment. This is further discussed below.
A second key OTP success factor is the designation of an intercompany global process owner (GPO). The GPO will play
The GPO will also consider potential opportunities to innovate by enhancing process efficiencies and leveraging technology within a framework of continuous improvement. The essential nature of the GPO is potentially heightened at the MNE-level with a decentralised operating company environment since there is increased risk of non-compliance with the transfer pricing governance framework potentially leading to unidentified intercompany transactions, inconsistent TP methodologies, disparities in data completeness, and miscommunication of relevant information required to meet tax and legal entity reporting requirements.
Lastly, an innovative MNE corporate culture, when combined with a like-minded GPO mindset within the context of a well-constructed TP governance framework, will naturally lead to an appropriate level of
The TP governance framework
The TP governance framework is the core set of minimum requirements that must be adhered to across
The ITPS should generally have three requirements:
1. All Intercompany transactions must be valued at an
2. All Intercompany transactions must be cash settled; and
3. All intercompany transactions must be documented by a signed intercompany service agreement.
To allow for appropriate flexibility, the ITPS can specify limited exceptions to the above, for example where a materiality threshold is permitted or where it may not be possible or advisable to
In some cases, such as in a highly regulated banking environment or where there are material intercompany transactions across separately audited companies within
The next level of the TP governance framework, underneath the ITPS, is what can be called the ‘implementation layer’. This layer may consist of roles and responsibilities, training materials, operating manuals and procedures, and practical guidance (potentially in
The roles and responsibilities document establishes clear accountability and expectations of each unit performing activities necessary to achieve an effective OTP process. The scope and assignment of roles and responsibilities
However, as a general rule, roles and responsibilities should at a very minimum address the following:
1. The internal unit(s) responsible for identifying potential intercompany transactions and the information and process to initiate an
2. The internal SME unit(s) responsible for performing the
3. The unit responsible for preparing and ensuring execution and
4. The unit responsible for reconciling intercompany accounts and ensuring timely and accurate cash settlement of intercompany transactions.
Depending upon the industry and materiality of transfer pricing, it may be appropriate for mandatory TP training and education, particularly to
Designing the OTP end-to-end operating model
The OTP end-to-end operating model is the most important and tailored element of an effective OTP framework. It starts with an OTP process map collaboratively created from a ‘clean sheet of paper’ by a multidisciplinary team of stakeholders. The OTP process map involves a thoughtful exercise of designing each specific step in the OTP end-to-end to execute on the ITPS and other elements of the TP governance framework. A series of workshops may be useful to build the OTP process map. Like solving a jigsaw puzzle, these workshops may be
Though there is no singular correct approach, it may be appropriate to divide the OTP process map into three phases:
1. Intercompany transaction identification and initiation;
2. Pricing and costing; and
3. The record to report process.
In addition, a fourth phase overlaying the end-to-end consisting of
Process automation is a key element to achieving an efficient, scalable and well-controlled OTP end-to-end. The first step in developing one or more technology solutions is to identify what processes are amenable to automation.
The following activities are strong candidates for automation:
1. Complex calculations requiring large amounts of data;
2. Complex potentially error-prone output such as journal entries and invoices; and
3. Query functionality to slice-and-dice output to generate key reports including intercompany transaction profit and loss (P&L) trends, variance analyses and KPI metrics.
In addition, the OTP process map should inform on whether workflow automation tracking tools may be helpful.
There is a wide assortment of OTP end-to-end technology vendor solutions available to MNEs. It is recommended that MNEs consider multiple vendors and in-house IT products. There are likely to be a number of pros and cons to consider. It is highly recommended that the in-house IT development team help guide the selection and effective implementation of the selected technology solution(s). The in-house IT development team is a valuable partner in this process given their subject matter expertise and understanding of compatibility of available technology solutions to current and potential future-state technology platforms used by the MNE.
OTP control environment
Timely control-related input is critically important during the design of the OTP process map. Section 404 of the US Sarbanes–Oxley Act of 2002 (SOX) requires management and
Change management and sustainability
Two aspects of an OTP end-to-end implementation requiring foresight and close attention are the change management process and sustainability. Change management is necessary to communicate, transition and properly educate and train individuals impacted by conversion from legacy to the new TP governance framework and the related roles and responsibilities. Individuals likely to be impacted include the business and support units, controllers, tax, legal, IT, operations, compliance, internal audit, and various other internal and external stakeholders globally. Similarly, a sustainability analysis should be performed to ensure that each function is properly resourced and therefore positioned for success.This article was written by Richard M. Goldberg, JD, CPA. Goldberg has led the transfer pricing functions at two of the world’s largest and most globally diversified financial institutions (Citigroup and MUFG Americas) where he was responsible for the design and sustainable implementation of effective OTP governance frameworks. Goldberg currently consults MNEs on transfer pricing technical and operational matters