This is already the one-year anniversary of the “Guidance on the transfer pricing implications of the COVID-19 pandemic” (hereafter “the OECD Guidance”) issued on 18 December 2020.
As a reminder, the OECD Guidance represents the consensus view of the 137 member states regarding transfer pricing issues that may arise in the COVID-19 context. Many factors may affect transfer prices and the amount of profits accruing to associated enterprises within a multinational enterprises group. COVID-19 pandemic was definitely one of those factors and led to practical challenges for the application of the arm’s length principle. The Guidance is helpful both for taxpayers and tax administrations.
The Guidance provides many clarifying comments on the practical application of the arm’s length principle in four priority issues in a 34 pages document:
- Comparability analysis;
- Losses and the allocation of COVID-19 specific costs;
- Government assistance programs;
- Advance pricing agreements (APAs) or ruling decisions.
As many enterprises are still in the closing process of reporting period ending on 31 December, we choose to take few examples out of the issues linked to losses and the allocation of costs.
There is a conclusive evidence that many MNE groups have incurred losses due to a decrease in demand, inability to obtain products or provide services or as a result of exceptional costs.
Three main issues are pointed out by the OECD:
- Allocation of losses between associated parties based on analysis of risks incurred in commercial / financial transactions
The Guidance states that in determining whether or not a “limited-risk” entity may incur losses, the risks assumed by an entity will be particularly important. The Guidance gives an example, where there is a significant decline in demand due to COVID-19 (e.g. value of sales is insufficient to cover fixed costs), a “limited-risk” distributor (taking flash-title of the goods) that assumes some market risk may at arm’s length earn a loss associated with the playing out of this risk. It’s crucial to keep consistence and coherence between the risk assumed and the loss incurred. Related parties should also consider to renegotiate their intercompany agreements where required.
- Allocation of exceptional, non-recurring operating costs arising as a result of COVID-19
The Guidance states that the allocation of operating or exceptional costs would follow risk assumption and how third parties would treat such costs. It should be noted that certain operating costs may not be viewed as exceptional or non-recurring in circumstances where the costs relate to long-term or permanent changes in the manner in which businesses operate.
- Option to apply force majeure clauses, revoke or otherwise revise intercompany agreements
The Guidance states that force majeure events arising in the context of COVID-19 could be the prohibition of activities by a governmental body, for example, through the enforced closure of retail facilities. Thus, a party may invoke that the extreme circumstances justify the non-performance of a contract and this may be achieved through the playing out of a force majeure clause (if any in the agreement). Tax administrations will also review the agreements and verify whether the transfer pricing outcome is appropriate taken into account the related transaction and circumstances.
We remain at your disposal to discuss how to apply those guidance to your particular situations. Those Guidance are bringing opportunities but also challenges and our best advice is to act carefully and document as much as possible any change to related intercompany transaction.
Do not hesitate to contact the person in charge of your file or to mail at email@example.com for more information.
Tax Consult A&A
 It should be regarded as an application of existing guidance under the OECD Transfer pricing guidelines to fact patterns that may arise commonly in connection with the pandemic, but not as an expansion or revision of those guidelines.
 See full comments on p. 12-18, OECD Guidance. https://www.oecd.org/ctp/transfer-pricing/guidance-on-the-transfer-pricing-implications-of-the-covid-19-pandemic.htm
 See point 40 of the OECD Guidance.
 See point 40 : OECD states that certain costs relating to teleworking arrangements may become permanent as a result of the pandemic. If teleworking costs are centrally borne by one entity of the MNE group, it may be appropriate to charge out such expenses to parties that benefit from the underlying product or service to which the expense relates.
 See point 55-59 OECD Guidance.