The legality of transfer pricing certainly has a grey line. Sure, there needs to be the benefit of companies trading with other foreign companies. Companies need to benefit from the abundance of goods and resources from foreign land. However, when prices are set as to avoid the larger taxes and gain maximum profit, litigation may be mandatory.
Transfer mispricing is defined as trade to related parties at distorted prices to minimize the overall tax bill. Unrelated parties who participate in a trade that generally follows a good transfer pricing through the use of the “Arm’s Length Principle” where a common market price for the item being traded is set. However when a company has related subsidiaries, they may participate in this price manipulation. Let us say there are three related companies: X, Y, and Z. Company X has an abundance of minerals that they will trade to Company Y at a low price. Company Y is located in a tax haven, or a place where the tax rates tend to be low. Company Y then trades to company Z at an artificially high price. Company Z has low profits, however company Y has very high profits. Along with that, they are in a low tax area, therefore their high profits achieve maximum profit as they avoid the burden of heavy taxes (Tax Justice Network). As a result, taxes become skewed.
As an actual example, China faced issues regarding transfer price manipulation. In the article, “How To Train A Toothless Dragon: Finding Room For Improvement In China’s Transfer Pricing Regulations”, fifty-five percent of Chinese companies reported a net loss in 2005. Along with this number, a staggering forty percent of transnational companies held in China were forced to make tax adjustments. The Chinese Government believed this was actually due to price manipulation and sought to eradicate that practice in their country. In order to accomplish this goal of avoiding the mispricing of international trade, the Chinese government enacted the sixth chapter of the Enterprise Income Tax Law of 2008. This increases penalties against companies whose intention is to lower their taxes, requires companies to fill out detailed disclosures of their international trade, and demands an advance pricing agreement where the taxpaying company and the Chinese tax authority agree ahead of time on the price of taxes.
Transfer mispricing is so hard to track because the trades switch from multiple companies in multiple countries that all have different tax rates. A single, uniform tax rate might be ideal in theory in order to ease the tracking and the tax pricing of these trades, but it of course would not work in practice. Some companies need a lower tax rate in order to promote business in their area. Countries, like China in from 1996 to 2000, have to put a lot of effort in order to recover billions of dollars lost through transfer pricing. China during this time period recovered almost 10 billion yuan in this time period.
Transfer pricing also has a burden separate of mispricing. Even if companies comply fully with the Arm’s Length Principle, they are subject to disputes that cause adjustments to their taxable income as well as potential penalties because the tax authorities may not agree with the corporations’ economic method or value chain (Journal of Accountancy). Statistically, a growing number of participants in a survey conducted by Earnest and Young said that their companies faced penalties due to transfer pricing. They note that transfer pricing is among the top of all tax concerns because the company is unsure if they are properly abiding by the rules set by the tax authority.
The article regarding the struggles China has faced with transfer pricing sets up an argument. The argument is instead of focusing on reviews after the fact, focus on stopping transfer mispricing in its tracks while it is occurring. The government, like most other governments, focus on how to respond to the acts of price manipulation. These responses are generally after the mispricing has been done and the investigation generally takes a large amount of time. Often, these investigations are failures as the companies committing these illegalities slip right under the investigators’ fingers. In order to potentially prevent this from happening, the article proposes that China better educates its local tax officials on what price manipulation is. They also suggest a stronger cooperation with other countries in distributing information about transfer price offenders. These strategies can be performed by all countries to reduce and hopefully eventually prevent transfer mispricing.
Transfer pricing is a key issue with both individual companies and entire countries. It is a key driving force that sways a country’s taxable revenue as well as a corporation’s income. The uncertainty of transfer pricing is what makes both companies and countries very precautious. A stronger, more uniform tactic to stop the disputes of transfer pricing can serve as a useful tool as training can be done in multiple areas since they will all share the same method. Overall, trading internationally needs to have more defined regulations.