In a pandemic environment, longstanding transfer pricing policies can lead to suboptimal tax results. Multinationals that incur losses in some locations while earning generous profits in others could be overpaying taxes. For many companies, modifications to intercompany pricing that reduce taxes payable and utilize losses are overlooked tax savings opportunities.
A multinational company's transfer prices of goods, royalties, services and loans affect where profits are generated, or the losses incurred in each country. For companies impacted by COVID-19, an assessment of estimated taxes payable and losses by country can highlight tax savings opportunities.
Ryan Strauser is a Principal and Principal for Marketing in the Ares Wealth Management Solutions Group. Prior to joining Ares in 2021, Strauser was a senior vice president at Black Creek Group in the Product Management Group where he focused on product management, positioning and due diligence efforts for the firm’s offerings.
Previously, Strauser was a vice president at Jackson National where he focused on new product development, investment selection and product positioning. Before that, he held similar positions at OppenheimerFunds (now Invesco), Old Mutual Capital and Great-West (now Empower). Strauser holds a bachelor of business administration in marketing from Wartburg College and a master of business administration from the University of Colorado.
Alex Selarnick is an associate at Goodwin who advises insureds, insurers, and insurtechs, as well as their lenders and investors on a broad range of compliance, regulatory and transactional matters. Mr. Selarnick’s practice focuses on the intersection of insurance and technology, and he frequently works with clients on the legal and regulatory challenges associated with the use of technology in the insurance space. Mr. Selarnick also has extensive trade credit insurance experience, and he guides market leading supply chain and trade finance companies on the development and negotiation of international credit insurance programs.
Greg Hoffnagle is a partner in Goodwin’s Financial Industry group and Insurance practice. Mr. Hoffnagle guides insurtechs, emerging and technology companies, venture capital and private equity firms and other insurance-related service companies through cutting-edge compliance, regulatory and transactional matters.
With a particular focus on the intersection of insurance and technology, a considerable part of Mr. Hoffnagle's advisory work involves working with technology clients in creating innovative products and bringing them to market quickly, from choosing an operating structure to licensing and regulatory issues. Mr. Hoffnagle is an experienced litigator for complex insurance and reinsurance related disputes, as well as international commercial arbitrations and internal investigations. He is also a trusted advisor for companies and institutions on risk management issues and complex insurance claims.
For many cross-border businesses, well-established policies have facilitated the pricing of intercompany goods, royalties, and services transactions over many years. However, even the most robust transfer pricing policies were not designed for pandemic-driven closures. As a result, multinational companies have a high global effective tax rate even when incurring company-wide losses. Paying unnecessary income tax bills is particularly painful for those companies already short on cash.
Tangible tax savings
An example may best illustrate the potential for savings from revisiting transfer pricing policies in the wake of the pandemic. In this situation, a wholly owned manufacturer relies on a sizeable cost-plus margin policy when selling inventory to the parent company.
For a subsidiary in a 30 percent tax rate jurisdiction, a $2 million reduction in transfer prices leads to $600,000 in tax savings by utilizing tax-inefficient parent company losses. Corrections to royalty rates and service fees have similar impacts. The result is the same: utilizing tax net operating losses in Country A while reducing Country B’s taxes. That being said, there does need to be economic substance to justify these changes.
Implementing tax savings
Utilizing tax NOLs in Country A while paying fewer income taxes in Country B is, at first glance, a straightforward concept. However, implementing corrections to transfer pricing often requires some planning. In my experience, senior management on both sides of the border needs to be involved in the decision-making process. Other issues, such as adjustments to Customs entries, are additional complications. Transfer pricing documentation is often well-advised support for changes to transfer prices.
Tax auditors may have questions about why transfer prices have changed. COVID-19 has transformed the global business environment, but preparing support to quantify the pandemic's impact on a company is advisable. Furthermore, making modifications before year-end is less complicated than afterward.
Now more than ever, multinational companies should consider modifications to transfer prices when assessing their global effective tax rate; however, changes to cross-border taxes need to be explained. While there are some complications, cash and tax savings can be well worth the effort.
