Transfer Pricing
Michael McIntyre has suggested some other proposals to deal with transfer pricing, which include
making transfer pricing penalties nearly automatic for taxpayers who have not kept
contemporaneous records. He also suggests use of some type of formula apportionment plan as a
default for transfer pricing for non-complying taxpayers so the IRS does not have to conduct a
detailed transaction by transaction assessment for the court.
President Obama’s budget proposals would address some of the transfer pricing issues associated
with the transfer of intangibles by clarifying that intangibles include workforce in place,
goodwill, and going concern value and that they are valued at their highest and best use. The plan
would allow the IRS commissioner to aggregate intangibles if that leads to a more appropriate
value.
These proposals would likely have small effects. Any significant solution to the transfer pricing
problem, especially for intangibles, is difficult to entertain short of an elimination of deferral.
The President’s budget proposals also included a more significant proposal to treat excess returns
on intangibles in a low-tax country as Subpart F income (and therefore not subject to deferral)
and to place it in a separate foreign tax credit basket. If such an approach could be successfully
implemented, it might have important consequences for transfer pricing using intangibles.
Other
Transfer PricingMichael McIntyre has suggested some other proposals to deal with transfer pricing, which includemaking transfer pricing penalties nearly automatic for taxpayers who have not keptcontemporaneous records. He also suggests use of some type of formula apportionment plan as adefault for transfer pricing for non-complying taxpayers so the IRS does not have to conduct adetailed transaction by transaction assessment for the court.President Obama’s budget proposals would address some of the transfer pricing issues associatedwith the transfer of intangibles by clarifying that intangibles include workforce in place,goodwill, and going concern value and that they are valued at their highest and best use. The planwould allow the IRS commissioner to aggregate intangibles if that leads to a more appropriatevalue.These proposals would likely have small effects. Any significant solution to the transfer pricingproblem, especially for intangibles, is difficult to entertain short of an elimination of deferral.The President’s budget proposals also included a more significant proposal to treat excess returnson intangibles in a low-tax country as Subpart F income (and therefore not subject to deferral)and to place it in a separate foreign tax credit basket. If such an approach could be successfullyimplemented, it might have important consequences for transfer pricing using intangibles.Other
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