Ex Post Facto Considerations in Transfer Pricing of Hard-to-Value Intangibles: Practical and Methodical Issues with the HTVI Approach

The OECD Transfer Pricing Guidelines released in July 2017 contain updates from the BEPS Final Reports on Actions 8-10 (Aligning Transfer Pricing Outcomes with Value Creation) following the work by the OECD to align domestic rules affecting cross-border activities, strengthen international tax standards and improve transparency. The new additions to the Guidelines include a definition of hard-to-value intangibles, as well as a discussion on asymmetric access to information for taxpayers and tax administrations in valuations of such intangibles, among other things. It is concluded in the Guidelines that, due to this asymmetry, ex post facto results should provide presumptive evidence for tax administrations of the reliability of ex ante projections made by the taxpayer at the time of a transaction, referred to as the HTVI approach. Although argued by the OECD to be consistent with the arm’s length principle, the approach raises a number of questions related to its compatibility with the existing transfer pricing regime developed by the OECD, as well as its application in general. This article explores the purpose of the HTVI approach, evaluates the guidance so far released on the topic and identifies potential issues that may arise from its usage.