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Transfer pricing and intangibles – part 2: analysing intangibles under the 2017 OECD Transfer pricing guidelines


Subdivision 815-B of the Income Tax Assessment Act 1997 (Cth) (Subdiv 815-B) was drafted with the intention of being aligned with the international standard, the arm’s length principle, as set out in the 2010 OECD Transfer pricing guidelines for multinational enterprises and tax administrations (2010 OECD Transfer pricing guidelines). Notwithstanding this, the 2017 OECD Transfer pricing guidelines significantly modified the 2010 OECD Transfer pricing guidelines, particularly in relation to the analysis of intangibles. These modifications were made following the issue of the report Aligning transfer pricing outcomes with value creation, actions 8-10 – 2015 final reports, OECD/G20 Base Erosion and Profit Shifting Project. Part 2 of this article considers the analysis of intangibles under the 2017 OECD Transfer pricing guidelines with the aim of identifying potentially significant differences with respect to the analysis of intangibles under the 2017 OECD Transfer pricing guidelines compared with Subdiv 815-B (discussed in a general sense in part 1). A number of case studies are included based on examples
contained in chapter I and in the Annex to chapter VI of the 2017 OECD Transfer pricing guidelines to facilitate that purpose.

Author profile

Damian Preshaw CTA
Damian Preshaw is a transfer pricing specialist with more than 25 years’ experience in both the private sector and with the Australian Taxation Office and provides specialist transfer pricing services to accounting firms and law firms. Prior to establishing Damian Preshaw Consulting Pty Ltd, Damian was a director in KPMG’s Transfer Pricing Services Group in Melbourne for 12 years. In this capacity, Damian advised a wide variety of multinational clients on transfer pricing and profit attribution issues with a special focus on dispute resolution, financial services, financial transactions and business restructuring. Before joining KPMG, Damian was an international tax counsel in the ATO’s Transfer Pricing Practice in Canberra where he was extensively involved in the ATO’s transfer pricing rulings program and was an Australian delegate to the OECD’s Working Party No.6 (Taxation of Multinational Enterprises) from 1994 to 2003. Damian is a Chartered Tax Adviser and represented The Tax Institute on the ATO’s Division 815 Technical Working Group. Damian has twice appeared as a witness before the Senate Economics Legislative Committee’s hearings in relation to Australia’s new transfer pricing rules on behalf of The Tax Institute. - Current at 09 July 2020
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