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Intercompany Pricing of Services Provided by Captives and Shared
Services: © 2007 William B. Bierce On January 16, 2007, the Internal Revenue Service issued a guidance note that extends the date for implementation of temporary regulations on intercompany transfer pricing for services provided by a foreign captive service provider. (This does not apply to domestic captives that are consolidated for tax reporting purposes.) The guidance note highlights the impact of the August 2006 temporary tax regulations on the “service cost method” of intercompany transfer pricing. The “Service Cost Method.” By adopting the temporary regulations in 2006, the IRS requires that captives the provide value be paid in accordance with the economic value. Under the “service cost method,” a captive may charge, as an “arm’s length” value, the charges of controlled services transactions between affiliates by reference to the total costs of services, without a markup. Only two “outsourceable” types of services are potentially eligible for this treatment: ·
Specific
Covered Services.
In 2006, the IRS identified 48 specified covered services by activity
or groups of activities. For
further information, see 2006-34 I.R.B. 321 (Aug. 21, 2006), under Temp. Treas.
Reg. 1.482-9T(b)(4). Such
“covered services” cannot include high-value services such as o
manufacturing, o
production, extraction, exploration or processing of natural
resources, o
construction, o
reselling, distribution or acting as a sales or purchasing agent,
or acting under a commission or similar commercial arrangement, o
engineering or scientific services, o
financial transactions including guarantees, and o
insurance or reinsurance.
·
Low
Margin Services.
Low-margin
services are back office services that, in the taxpayer’s reasonable judgment,
do not contribute significantly to key competitive advantages, core
capabilities, or fundamental risks of success or failure in one or more of its
trades or businesses of the “control group” (intended to include the service
provider, the service recipient or both). Temp.
Treas. Reg. 1.482-9T(b)(2). By
definition, these are “controlled services transactions” (between
affiliates) for which the median comparable markup on total services costs is
not more than seven percent. In the case of shared services, the arm’s length charges to each participant in the services will be the portion of the total costs of service allocable to such participant. Shared services arrangements must be properly documented. Administrative Services. The temporary regulations underscore the urgency of establishing appropriate frameworks for establishing, monitoring and periodically auditing intercompany pricing. At the least the parent company (for example, in the United States) would be able to charge an administrative service fee to its foreign subsidiaries for “headquarters services,” and its foreign subsidiaries could do likewise in respect of “back office” administrative and clerical services. The interplay of US taxes and foreign taxes would need to be considered, inviting a review of the applicable income tax treaties and foreign local rules on intercompany pricing of services between affiliates. Effective Date of SCM Pricing. In response to comments, the IRS delayed the effective date of its temporary regulations. For controlled services eligible to be priced at cost , the effective date starts with taxable years beginning after December 31, 2007. Otherwise, December 31, 2006 is the start date. Posted: January 22, 2007 Further Reading: |
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