Hagen Luckhaupt

The OECD Approach to Transfer Pricing: A Critical Assessment and Proposal

The OECD approach to assessing transfer prices relies on the arm’s length principle. The intra-firm transaction is compared to a market transaction. However, this comparison is conceptually flawed because market prices for intra-firm transactions rarely exist. As a consequence, the identification of comparable transactions requires data that are often unavailable. The lack of relevant data provides considerable room for maneuvering. A survey of the empirical literature confirms that the OECD approach is associated with profit-shifting opportunities and, in particular, with high double taxation risks and assessment costs. We suggest a decrease in the complexity of current transfer pricing rules. We propose a transaction-based apportionment method that combines a fixed standard profit margin with apportionment of residual profits. Reliance on a small set of easily observable and measurable factors to assess transfer prices reduces compliance and enforcement costs as well as double taxation risks.