Tassazione del reddito delle imprese ed il transfer pricing degli intangibili: analisi dell'evoluzione della disciplina dal punto di vista OCSE

The present work is aimed at delineating the evolution of the discipline of transfer pricing of intangible assets through the lens of corporate tax avoidance, from the perspective of what has been released by the Organization for Economic Co-operation and Development (OECD) and G20 countries to prevent erosion of the tax base and profit shifting by multinational enterprises (MNEs).The matter of aggressive tax planning and tax avoidance by MNEs is increasingly becoming an issue affecting the international tax system, and since the last financial crisis the public awareness around large corporations’ elusive behavior increased. In response, the OECD jointly with G20 countries, while collaborating with what has been subsequently called the Inclusive Framework, started to work to a much-needed harmonization and coordination work at international level, a major part of which was dedicated to transfer pricing of intangibles. The aim of this paper was to highlight what are the characteristics of the present international tax system that allowed MNEs to exploit mismatches and loopholes to their advantage. Going deeper with the analysis, it emerged that the concept of transfer pricing itself, based on the so-called arm’s length principle (ALP) presents some critical aspects that make the whole discipline ambiguous and inconsistent, to some extent. Particularly critical is the same concept on which the whole pricing system if intra-group transactions is based: the so-called separate entity theory, a principle that dates back to 1930, whose core is to treat enterprises belonging to the same multinational group as if they were independent. Back in the days, this principle was effective in bringing parity of treatment between enterprises organized in groups and stand-alone, and demonstrated to be a useful tool until globalization and digitalization started to make the principle of taxation at residence and source not representative of the economic reality. Indeed, thanks to the ability of MNEs to be present in different jurisdictions while still remaining vertically integrated, they are able to exploit synergies, economies of scales and more advantageous market conditions that stand-alone enterprises will never have the chance to experience. Hence, the separate entity theory and the ALP appear to be, nowadays, inherently flawed. For this reason, following the BEPS Actions 8-10 Final Report, the OECD Transfer Pricing Guidelines (TP Guidelines) revisited some of the regulations about transfer pricing of intangibles, giving the ALP “new clothes” to make it more suitable to face the problems posed by today’s economy. In particular, the major problems related to intangible assets – unicity, high-mobility, hard-to-value- have been tackled by a series of new actions, i.e. the legal ownership of an intangible is now related not only to contractual provisions but especially to the members of the group that perform the so-called DEMPE functions (development, enhancement, maintenance, protections and exploitation) related to the intangible; the Profit Split Method (PSM) can be used to determine the arm’s length compensation to a transaction involving intangibles by the nature of which it is impossible to find comparable transactions; the ex-post evaluation for hard-to-value intangibles (HTVI) able to make adjustments if the ex-ante pricing arrangements are unjustifiably lower or higher than the actual value of the intangible.