conditions) are either unimportant or secondary
determinants of a market-based transfer pricing
strategy. US Treasury Regulation 1.482 prescribes
the following transfer pricing methods: the uncon-
trolled price method, the resale method, the cost-
plus method, and some other appropriate method
when none of the methods described above is
applicable.
23
Ordinarily, the parent firm should attempt to
maximize its income in low-tax countries and min-
imize profit in high-tax markets. To minimize the
income of a buying subsidiary in a high-tax country,
use of the arm’s length price is appropriate. In fact,
any permissible costs should be added so that the
price charged will be so high that it leaves the buyer
with only a small profit subject to tax.
On the other hand, if the buying subsidiary
is located in a low-tax country, its income should
be maximized. This may be achieved by using a
transfer price based on only direct production
costs.In this case, the buyer will acquire the product
for resale or use at a very low price. Its high profit
is, however, subject only to low tax rates in this
market. Although Cartier’s corporate home is in
low-tax Luxembourg, it wisely prices its watches so
that most of the markup is collected by its lower
taxed Swiss subsidiary.
Section 482 of the US Internal Revenue Code
requires arm’s length dealing between related par-
ties.An arm’s length price or charge is defined as the
amount or price that would be charged or would
have been charged for the same product or service if
independent transactions with unrelated parties
under similar conditions were carried out. This
requirement applies to (1) loans;(2) both goods and
services (e.g., performance of marketing, manager-
ial, technical, or other services for an affiliated
party); and (3) possession, use, occupancy, loan, and
assignment of tangible and intangible property.
If the IRS finds that adjustments are needed to
correctly reflect a company’s income, it is empow-
ered to distribute, allocate, or apportion gross
income, deductions, credits, or allowances among
related organizations regardless of whether they are
organized in the USA. The purpose of the Internal
Revenue code is to prevent a low intercompany
transfer price that shifts income away from the
USA. At the same time, the application of the code
is intended to ensure that the transfer price of a sale
from a foreign company to a related US company is
not so high as to result in a small income being real-
ized in the USA.The US Customs Service, however,
has a different perspective – it keeps an eye out for
low transfer prices, which in turn reduce customs
duties and which may result in dumping.
The IRS employs several methods to determine
an arm’s length price. When available, comparable
uncontrolled sales must be used. When such sales
do not exist, the resale price method is the next
alternative to be used.When the first two methods
are not applicable, it is permissible to use the cost-
plus method.Any other appropriate pricing method
may be used only when it is reasonable to do so and
when the first three methods are not relevant.
In general, US firms with foreign subsidiaries can
minimize their US taxes by overpaying the foreign
subsidiaries for goods and services received or
undercharging them for goods and services ren-
dered. In the case of DHL Corp., the world’s largest
international air express network which links more
than 80,000 cities in more than 200 countries, it
was ordered by the IRS to pay $194 million in back
income taxes and $75 million in penalties.The IRS
determined that DHL and its subsidiaries shifted
taxable income to a Hong Kong subsidiary.
24
The
IRS has also determined that, between 1966 and
1988, the various Hyatt companies under-reported
income by $100 million because they paid too little
for the Hyatt brand and other services provided by
the US parent. A 1999 ruling has determined that
the $10,000 one-time fee that Hyatt International
paid for each hotel bearing the Hyatt name was
much too low.
25
According to President Clinton, the USA could
bring in $45 billion in four years by taking care of
the transfer pricing problem. The new US regula-
tions allow companies to use greater flexibility,
judgment, and subjectivity in determining what
they charge foreign operations for certain services.
At first, it seems that the new regulations may
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PRICING STRATEGIES