Transfer Pricing and Customs Valuation Current WCO and

Transfer Pricing and Customs Valuation Current WCO and international developments 1

What is the issue for Customs? Customs objective: Ø To verify whether a price has been influenced in a related-party transaction Options: Ø Test values (difficult to use) Ø Examine ‘circumstances surrounding the sale” Key questions: Ø How can information contained in a transfer price study be accepted as the basis for verifying a related party transaction? Ø How should post-importation adjustments be dealt with? Business concerns : Ø “Double obligation”; need to satisfy both Customs and Tax authorities on similar issues 2

Competing tensions Customs administration objective Direct Tax authority objective Ensuring all appropriate elements are included in the customs value Ensuring the transfer price does not include inappropriate elements Pull in opposite directions Trade objective To minimise Customs value To maximise transfer price (incl. cost of imported goods) to reduce taxable profit 3

Key Differences Customs Valuation Transfer Pricing Ø Goods only Ø Goods and services etc. Ø Transaction based Ø Often based on Ø Confirmed at point of customs clearance Ø Different definition of relationship aggregates/annual in practice (transactional in theory) Ø Confirmed retrospectively (some years after event) 4

Activities to date Ø Two joint WCO/OECD conferences (2006, 2007) Ø Full alignment not possible/ realistic Ø Focus Group – identified key technical issues Ø On agenda of TCCV Ø Commentary 23. 1 Ø Draft case studies Ø WCO producing guidance material

TCCV Commentary 23. 1 Examination of the expression “circumstances surrounding the sale” under Article 1. 2 (a) in relation to the use of transfer pricing studies ü …the use of a transfer pricing study as a possible basis for examining the circumstances of the sale should be considered on a case by case basis ü … any relevant information and documents provided by an importer may be utilized for examining the circumstances of the sale ü A transfer pricing study could be one source of such information 6