The Complexity of Transfer Pricing for Intercompany Services
By Dezan Shira & Associates
Posted: 11th October 2016 08:16
Most MNCs will charge for services provided to other entities within the same company or business. These are classed as intercompany service fees. Often, while trying to protect its tax base, China’s tax authorities will regularly encounter inconsistencies in transfer pricing for intercompany services, such as lack of access to necessary information due to opaque business structures, unclear rules under Enterprise Income Tax (EIT) laws, and difficulty determining whether selected transfer pricing methods for services comply with the arm’s length principle. Companies found guilty of these inconsistencies can be penalized by China’s tax authorities, making it essential to understand the country’s regulations connected to intercompany services.
Transfer pricing analysis of intra-group services
While China’s transfer pricing regulations do make provision for a selection of intercompany services, guidance is limited to a select amount of company structures, and lacks a wider analysis for services provided by the Chinese subsidiaries of MNCs. Tax authorities have also traditionally upheld that fees charged for intercompany services by parent companies are not deductible for CIT under EIT law.
Guidance on intra-group services from a transfer pricing perspective can be obtained from guidelines provided by the OECD, which highlight two issues that should be observed. Firstly, whether intra-group services have been provided. A service is defined as an activity which provides an entity with economic or commercial value which enhances its commercial position. This can be determined by whether an independent enterprise would pay for an activity (service) provided by an outside entity, or if it could have sourced it in-house.
Secondly, whether services were charged under the arm’s length principle. The OECD guidelines note that the CUP or cost plus methods are the most suitable for intercompany services. Once an appropriate base rate is determined, a percentage mark-up will typically be added to calculate the total value of the service charge.
China’s position on intercompany services
Guoshuifa  No. 863 stipulates that intercompany service fees should be calculated by the arm’s length principle. Furthermore, the 2016 transfer pricing regulations specify that service-related payments should be categorized into a single line item as “service payments”, and that China’s tax authorities will examine the provider and recipient of services, their specific contents and necessity, method of conducting, as well as how both parties benefit from the services. Assessment of who benefits from the services is particularly important for taxpayers, as tax authorities pay special attention to discerning service and royalty payments and the supporting documents disclosing this information.
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