Transfer pricing: a framework for implementing transactional profit split arrangements

In transfer pricing as in everyday life the existence and extent of contractual rights have a significant impact on the financial terms on which parties are willing to enter into transactions. A number of recent decisions in transfer pricing cases have reaffirmed the need for transfer pricing policies to be legally implemented through appropriate intercompany agreements in addition to their implementation in operational practice.

The OECD’s transfer pricing guidelines provide a framework for analysing the transfer pricing aspects of controlled transactions after the event. This includes analysing contractual terms between related parties as well as their actual conduct in order to determine the ‘actual transaction’. However they do not provide guidance for the more difficult task of structuring and documenting arrangements...