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Value Chain Planning post BEPSTax Executives Institute – Houston ChapterTS1815Transfer Pricing Planning after BEPS
Thursday, May 10, 2018
Agenda
1 Defining a Supply Chain 3
2Impact of Transfer Pricing on Supply Chain:
Moving to a “Value Chain”8
3 A word on Risk and 13
4 Risk Analysis in a Value Chain Context 20
© 2018 Baker & McKenzie Consulting LLC
What is a Supply Chain?
4
▪ A system of entities, people, activities, information, and resources involved in moving a product or service from a supplier to an end customer
▪ Generally encompasses the following three functions:
▪ Supply of goods or materials to a manufacturer;
▪ The manufacturing process; and
▪ The distribution of finished goods through a network of distributors and retailers to a final customer.
▪ Most supply chain structuring is business driven
▪ Tax planning needed to ensure optimal efficiency of supply chain
© 2018 Baker & McKenzie Consulting LLC
Example - Supply Chain for Drilling
5
▪ The drilling supply chain encompasses the following three functions:
▪ The management of the rig and other assets, labor, and contracts needed to execute the drilling service;
▪ The processing of the above assets to perform the drilling service; and
▪ The supply of the drilling service to the customer.
▪ Similar to the manufacturing supply chain, the drilling supply chain is business driven
▪ Tax planning is an important part of the efficiency of drilling projects
© 2018 Baker & McKenzie Consulting LLC
Example Drilling Supply Chain Structure
6
Foreign
Rig Owner
Local OpCo
(MX)
US Svc ProviderMgmt. Svcs
Third Party Raw
Goods/Svcs
Suppliers
Third Party
Customer
Mgmt. Fees
Rig BBC
Foreign Svc
Provider
(UK)
Foreign Principal
(Swiss)
US Parent
© 2018 Baker & McKenzie Consulting LLC
Treasury & OECD’s View of these Structures?
7
▪ How does Treasury view supply chain structures?
▪ Perception
▪ How does the OECD’s BEPS program view supply chain structures?
▪ Examples and Perceptions
© 2018 Baker & McKenzie Consulting LLC
Supply Chains and Transfer Pricing
9
▪ Transfer pricing is fundamental to supply chain planning
▪ Analysis of the system’s entities, activities, resources, and assets used in the supply chain to determine where system profit belongs
▪ Converts the supply chain into a value chain
▪ Tax authorities continue looking at system profit approaches to valuing a supply chain
▪ Each country places value on their ‘supply chain’
▪ A myopic view (without ‘my activity’ no value is created)
▪ De-emphasizing role of mobile assets (IP, tangible assets)
▪ People functions drive value
▪ Sharing of profits (profit-split, formulary pricing) are favored
© 2018 Baker & McKenzie Consulting LLC
Global Guidance Favors Value Chains
10
▪ Action 8 – 10: Aligning TP Outcomes with Value Creation
▪ BEPS is putting value creation on center stage
▪ Tax authorities are adopting rules that focus on reporting value
▪ Does not answer the what, where, and when’s of value creation
▪ Action 13: TP Documentation and CBC Reporting
▪ BEPS’ Master and Local Files reinforce the justification of the supply chain - taxpayer are required to describe their supply chain
▪ Country-by-country reporting is a post-ante analysis converting your supply chain into dollar flows (crude value chain)
▪ Local countries requesting more on value chains
© 2018 Baker & McKenzie Consulting LLC
U.S. Guidance Moving Toward Value Chains
11
▪ U.S. law (IRC §482) did not focus on the value chain
▪ Historically took a single-entity approach looking at entity arm’s length profitability
▪ Appears IRS is slowly moving toward BEPS-like requirements
▪ Transfer pricing rules have not changed: only their interpretation
▪ IRS notices to consider
▪ Clear focus on TTPO and development of consistent positions from Treasury
▪ Taxpayer initiated positions at the forefront
▪ More important that ever for taxpayers in any given industry to develop the what, where, and when’s of their value creation.
© 2018 Baker & McKenzie Consulting LLC
Value Chain Focus
12
▪ Multiple supply chains exist: each should be considered
▪ Short- or long-term supply chain
▪ Operational versus asset supply chain
▪ Substance (both own-country and counter-party/ies)
▪ Significant People Function
▪ Important to define and demonstrate
▪ Do not underestimate the tax authority’s tunnel vision
▪ Importance of IP and other mobile assets diminishing
▪ Each country places value on their ‘supply chain’
▪ Proving where and how value is created is essential to your supply chains
© 2018 Baker & McKenzie Consulting LLC
Why is Risk important?
15
“Determining the economic significance of risk and how risk may affect the pricing of a transaction
between associated enterprises is part of the broader functional analysis of how value is created by
the MNE group, the activities that allow the MNE group to sustain profits, and the economically
relevant characteristics of the transaction. The analysis of risk also helps to determine comparability
under the guidance in Chapter III.”
Paragraph 1.73, OECD Guidelines July 2017.
© 2018 Baker & McKenzie Consulting LLC
Risks in the Context of Operating Models
16
Strategic or marketplace
risks
Infrastructure or
operational risks
Financial risks
Transactional risks
Hazard risks
Paragraph 1.72, OECD Guidelines July 2017.
© 2018 Baker & McKenzie Consulting LLC
(i) capability to make decisions to take on or decline a risk-bearing opportunity, together with the actual performance of that decision-making function;
(ii) capability to make decisions on whether and how to respond to the risks associated with the opportunity, together with the actual performance of that decision-making function; and
(iii) capability to mitigate risk, that is the capability to take measures that affect risk outcomes, together with the actual performance of such risk mitigation.
(i)
+ (
ii) =
Contr
ol over
risk
(iii)
= R
isk m
itig
ation
New OECD Framework for Performing a Risk Analysis
18
19
Employees have the capability to
mitigate risk, that is the capability to
make measures that affect risk
outcomes, together with the actual
performance of such risk mitigation?
Is the risk mitigation
activity outsourced?
Employees have the capabilitiy to make
decisions on whether and how to respond to
the risks associated with the opportunity,
together with the actual performance of that
decision making function?
Does the outsourcing party have
capability to determine the objetives of
the outsourced activities, to decide to
hire the provider of the risk mitigation
functions, to assess whether the
objectives are being adequately met,
and, where necessary, to decide to
adapt or terminate the contract with that
provider, together with the performance
of such assessment and decision-
making?
Employees have the capabilitiy to make decisions to take on, lay off, decide a risk bearing opportunity.
Together with the actual performance of that decision-making function ?
Control over Risk
Go to Step 4 Risk Management
Does the company have the
financial capacity (access to
funding to take on the risk or lay off
the risk to pay for the risk mitigation
functions and to bear the
consequences of the risk if the risk
materialises)?
Full Risk Return
Entitlement
Yes
No
Yes
Yes
No
No
No
No
Yes
No
Yes
Yes
Six Step Analysis Decision Tree
[Title of document here]
VCA approachValue Chain Analysis – Baker McKenzie Transfer Pricing Framework
01Detailed understanding of company’s
operations through research and analysis
02Industry analysis (starting
from risks) and positioning of
company within the industry
03Categorisation of economically significant
risks
04Identification of key value
drivers of the company
05Operating model (functional,
transactional, contractual)
21
© 2018 Baker & McKenzie Consulting LLC
Understanding the industry
Inputs into Agricultural Production
(e.g., fertilizers,
seeds)
Food Production
(e.g., wheat)
Primary food storage and processing
Secondary food
processing
Distribution, Transport and
Trade
Retailing and Catering
Consumers
Group position in the
global food industry
22
Analysing the Risk Categories
Regulatory risk
Volatility in agricultural input and output prices
Food safety and food recall risk
Brand / reputation risk
Market risk
Operational and financial risks
23
Primary Raw
Materials
Cultivation
Primary
Processing
R&D
Packaging
Sales &
Marketing
Primary
Packaging –
End of Life
Zooming into the Risks within the supply chain
Ingredient
Cultivation
Key risks:
• Food safety
• Commodity price volatility
Key risks:
• Food safety
Key risks:
• Food labelling regulations
• Food safety
Production DistributionCooking &
Consumption
Key risks:
• Food safety
• Operational risk – plant/equipment safety,
production disruption
• Workplace safety
Key risks:
• Food safety
• Perishable food
• Product tampering
Key risks:
• Food safety
• Customer claims
• Product recall
• Reputation risk
24
(i) capability to make decisions to take on or decline a risk-bearing opportunity, together with the actual performance of that decision-making function;
(ii) capability to make decisions on whether and how to respond to the risks associated with the opportunity, together with the actual performance of that decision-making function; and
(iii) capability to mitigate risk, that is the capability to take measures that affect risk outcomes, together with the actual performance of such risk mitigation.
© 2018 Baker & McKenzie Consulting LLC
Key takeaways
▪ New OECD guidance places emphasis on Risks
▪ Six Step Framework for Performing a Risk Analysis (e.g., Decision Tree)
▪ Consider “economically significant” Risks
▪ Important to analyse Risks in the context of industry and sector where the company operates (e.g., Value Chain Analysis)
▪ Risk analysis in the context of a comparability analysis – analysis for the Local File
▪ Practical tip: Revisit inter-company legal agreements
25
Baker & McKenzie Consulting LLC is a subsidiary of Baker & McKenzie LLP, a member firm of Baker & McKenzie
International, a Swiss Verein of member law firms around the world. In accordance with the common terminology used
in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a
law firm. Similarly, reference to an "office" means an office of any such law firm. This may qualify as “Attorney
Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.
© 2018 Baker & McKenzie Consulting LLC
www.bakermckenzie.com