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Thursday, 20 January 2022

International Tax Update: 'New' 2022 OECD Transfer Pricing Guidelines: Bundling of earlier guidance

The OECD published today the successor of the July 2017 edition of the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (“OECD TP Guidelines”). This 'January 2022' edition of the OECD TP Guidelines incorporates:

  • the revised guidance on the application of the transactional profit method as approved in 2018 (‘Revised Guidance on the Application of the Transactional Profit Split Method - BEPS Action 10’ published on 21 June 2018),
  • the guidance for tax administrations on the application of the approach to hard-to-value intangibles as agreed in 2018 (‘Guidance for Tax Administrations on the Application of the Approach to Hard-to-Value Intangibles - BEPS Action 8’ published dd. 21 June 2018), and
  • the transfer pricing guidance on financial transactions approved in 2020 (‘Transfer Pricing Guidance on Financial Transactions: Inclusive Framework on BEPS: Actions 4, 8-10 as published 11 February 2020’).

It is important (and positive) to note that this January 2022 edition is merely a bundling of all formal guidance published by the OECD after the July 2017 edition’s release, and that no new content is included.

It was expected that the OECD would launch a new edition of its OECD TP Guidelines as the reports of the above listed topics had already made it clear that they were considered an integral part of the OECD TP Guidelines. After all, it was stated that ‘[t]he current provisions of Section […] of Part […], Chapter […] of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations are deleted in their entirety and replaced by the following language’.

With another edition of these guidelines, timing becomes even more crucial when applying these OECD TP Guidelines, because it is essential to use the correct version of this document. As a rule, one should take the effective date of the controlled transaction to assess which OECD guidance to use as an appropriate source of reference. Therefore, it is recommended to keep track of the respective relevant dates of the different underlying reports published by the OECD rather than only assessing the publication date of the consolidated versions of the OECD TP Guidelines.

Finally, we note that 2022 OECD TP Guidelines are available in 2 languages: English and French, in digital (PDF) format for which the OECD charges 99 EUR. In our view, charging taxpayers for these guidelines contradicts the very essence of what the OECD attempts to accomplish, namely having the entire world abiding by the same OECD standard in a consistent manner. Moreover, we would suggest deleting footnote 5 on page 266 referring to work to be undertaken in 2016 and 2017…

If you have questions or would like to obtain more information on this topic, do not hesitate to contact the authors.

Furthermore, if you have any issues or questions from the Belgian tax authorities, we welcome you to visit our website dedicated to Belgian transfer pricing audits (www.tpaudit.com).

Heleen Van Baelen – Senior Manager at Tiberghien economics (heleen.vanbaelen@tiberghien.com)

Andy Neuteleers – Partner at Tiberghien economics (andy.neuteleers@tiberghien.com)

 

Tiberghien’s international tax team will continue to monitor these and other tax developments relevant for Belgium / Luxembourg based multinational enterprises. Our editorial board consists of: 

Koen Morbée (International and EU corporate tax, koen.morbee@tiberghien.com);

Michiel Boeren (International and EU corporate tax, michiel.boeren@tiberghien.com);

Ahmed El Jilali (International and EU corporate tax, ahmed.eljilali@tiberghien.com);

Katrien Bollen (HR tax and global mobility, katrien.bollen@tiberghien.com);

Ben Plessers (Transfer Pricing and Valuations, ben.plessers@tiberghien.com);

Gert Vranckx (VAT, customs, excises and other indirect taxes, gert.vranckx@tiberghien.com

Rik Smet (International and EU corporate tax, rik.smet@tiberghien.com

In case you have further questions on this publication or want to discuss a tax query, please do not hesitate to contact the author(s) or one of the members of the editorial board. 

This newsflash is for information purposes only and cannot be relied upon as legal advice.

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