The OECD has published a discussion draft on Hard to Value Intangibles.
On 23 May 2017, the OECD published a discussion draft on Hard to Value Intangibles (HTVI). This is a follow up to the BEPS Actions 8-10 final recommendations published in 2015. The OECD had previously set out the pricing approach for HTVI. This paper sets out the principles that should underline the implementation of that approach, provides illustrative examples and addresses the interaction between the approach to HTVI and the mutual agreement procedure under an applicable treaty. The OECD welcomes comments on the discussion draft by 30 June 2017 (although comments should be restricted to the implementation guidance, and not the underlying approach to pricing).
The purpose of this guidance is to set out proposals for the implementation of the approach to pricing HTVI. It aims to protect both the tax authority and the taxpayer. The guidance should protect the tax authority from the negative effects of information asymmetry by ensuring that tax authorities can consider ex post outcomes (i.e. actual, historic outcomes) as presumptive evidence about the appropriateness of the ex ante (i.e. future) pricing arrangements.
However, on the other hand, the taxpayer has the opportunity to rebut such presumptive evidence by demonstrating the reliability of information supporting the pricing arrangement at the time the transaction in question took place.
We plan to submit our comments to the OECD. If you have any points you would like us to consider as part of our response, please get in touch with your usual KPMG contact.
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