In a pandemic environment, longstanding transfer pricing policies can lead to suboptimal tax results. Multinationals that incur losses in some locations while earning generous profits in others could be overpaying taxes. For many companies, modifications to intercompany pricing that reduce taxes payable and utilize losses are overlooked tax savings opportunities.
A multinational company's transfer prices of goods, royalties, services and loans affect where profits are generated, or the losses incurred in each country. For companies impacted by COVID-19, an assessment of estimated taxes payable and losses by country can highlight tax savings opportunities.
Joseph Cecere is a director in Eisner Advisory Group's forensic, litigation and valuation services practice. With nearly 20 years of experience in public accounting, he specializes in estate and gift tax valuations for general partners in private equity and venture capital funds and performs business valuation and forensic accounting calculations in commercial and matrimonial disputes. He has collaborated with firms across diverse industries, including distribution, manufacturing, intellectual property licensing, medical devices, pharmaceuticals, service industries, logistics, financial and technology sectors.
Hubert Klein is a partner and practice leader for the financial advisory services group in Eisner Advisory Group's New Jersey location. With nearly 40 years of experience, he is frequently called upon as a technical resource in various litigation actions. He has consulted and provided services in matters including complex damages, business valuations, due diligence analysis, fraud and forensic investigations, lost profit calculations, shareholder disputes, reasonable compensation and benefits analysis, insurance claims analysis, bankruptcy and matrimonial proceedings.
Daniele D'Alvia is deputy director of the Institute of Banking and Finance Law at the Centre for Commercial Law Studies at Queen Mary University of London. He is also an associate researcher at the European Banking Institute.
For many cross-border businesses, well-established policies have facilitated the pricing of intercompany goods, royalties, and services transactions over many years. However, even the most robust transfer pricing policies were not designed for pandemic-driven closures. As a result, multinational companies have a high global effective tax rate even when incurring company-wide losses. Paying unnecessary income tax bills is particularly painful for those companies already short on cash.
Tangible tax savings
An example may best illustrate the potential for savings from revisiting transfer pricing policies in the wake of the pandemic. In this situation, a wholly owned manufacturer relies on a sizeable cost-plus margin policy when selling inventory to the parent company.
For a subsidiary in a 30 percent tax rate jurisdiction, a $2 million reduction in transfer prices leads to $600,000 in tax savings by utilizing tax-inefficient parent company losses. Corrections to royalty rates and service fees have similar impacts. The result is the same: utilizing tax net operating losses in Country A while reducing Country B’s taxes. That being said, there does need to be economic substance to justify these changes.
Implementing tax savings
Utilizing tax NOLs in Country A while paying fewer income taxes in Country B is, at first glance, a straightforward concept. However, implementing corrections to transfer pricing often requires some planning. In my experience, senior management on both sides of the border needs to be involved in the decision-making process. Other issues, such as adjustments to Customs entries, are additional complications. Transfer pricing documentation is often well-advised support for changes to transfer prices.
Tax auditors may have questions about why transfer prices have changed. COVID-19 has transformed the global business environment, but preparing support to quantify the pandemic's impact on a company is advisable. Furthermore, making modifications before year-end is less complicated than afterward.
Now more than ever, multinational companies should consider modifications to transfer prices when assessing their global effective tax rate; however, changes to cross-border taxes need to be explained. While there are some complications, cash and tax savings can be well worth the effort.
