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CHAPTER III

TRANSFER PRICING METHODOLOGIES

Transfer Pricing Methodologies

3.1
The following methodologies can be used in determining arm's length price:
(i)
Comparable uncontrolled price method
(ii)
Resale price method
(iii)
Cost plus method
(iv)
Profit split method
(v)
Transactional net margin method
The first three methods are commonly known as "traditional transactional methods". Although the taxpayer is given the right to choose any method, the emphasis should be on arriving at an arm's length price. It is advised that methods (iv) and (v), commonly referred to as "transactional profit methods", be used only when traditional transactional methods cannot be reliably applied or exceptionally cannot be applied at all. This will depend heavily on the availability of comparable data. The method that requires the fewest adjustments and provides the most reliable measure of an arm's length result is preferred by the IRBM as this will reduce the scope and nature of future disputes. Therefore, in deciding the most appropriate method, the following must be considered:
(a)
The nature of the controlled transaction, determined by conducting a functional analysis,
(b)
The degree of actual comparability when making comparisons with transactions between independent parties;
(c)
The completeness and accuracy of data in respect of the uncontrolled transaction;
(d)
The reliability of any assumptions made; and
(e)
The degree to which the adjustments are affected if the data is inaccurate or the assumptions incorrect.

Where both the traditional transactional method and transactional profit method cannot be applied at all, the Director General may allow the application of other methods provided the prices arrived at is in accordance with the arm's length principle.

3.2
Comparable Uncontrolled Price Method (CUP)

The CUP method is the most direct way of ascertaining an arm's length price. It compares the price charged for a property or services transferred in a controlled transaction to the price charged for a property or services transferred in a comparable uncontrolled transaction, in comparable circumstances. A difference between the two prices may be an indication that the conditions of the commercial and financial relations of the associated persons are not arm's length, and that the price in the uncontrolled transaction may need to substitute for the price in the controlled transaction.

The method is ideal only if comparable products are available or if reasonably accurate adjustments can be made to eliminate material product differences. Other methods will have to be considered if material product differences cannot be adjusted to give a reliable measure of an arm's length price.

3.2.1

Comparability Analysis

A MNE using the CUP method to determine its transfer price must first identify all the differences between its product and that of an independent person. The MNE must then determine whether these differences have a material effect on the price, and adjust the price of products sold by the independent person to reflect these differences to arrive at an arm's length price.

A comparability analysis under the CUP method should consider amongst others the following:

(a)
Product characteristics such as physical features and quality.
(b)
If the product is in the form of services, the nature and extent of such services provided.
(c)
Whether the goods sold are compared at the same points in the production chain.
(d)
Product differentiation in the form of patented features such as trademarks, design, etc.
(e)
Volume of sales if it has an effect on price.
(f)
Timing of sale if it is affected by seasonal fluctuations or other changes in market conditions.
(g)
Whether costs of transport, packaging, marketing, advertising, and warranty are included in the deal.
(h)
Whether the products are sold in places where the economic conditions are the same.
3.2.2
CUP may be identified from either an internal comparable transaction or an external comparable transaction as shown in the following examples:
Example 1

Taxpayer A, a MNE, sells 60% of its product to an associated company B, at a price of RM100 per unit. At the same time, the remaining 40% of that product is sold to an independent enterprise C at RM150 per unit.

TP

The products sold to B and C are the same, and the transaction between A and C may be considered as a comparable uncontrolled transaction. However, a functional analysis of B and C must first be carried out to determine any differences. If there are differences, adjustments must be made to account for these differences. Adjustments must also be made to account for product quantity discounts since volume of sales to B and C are different. Assuming there are no material differences that require adjustments to be made, the CUP method may be applied using the unit price of RM150 as a comparable arm's length price.

Example 2
TP

Manufacturer A exports its product to associate company B. Manufacturer X exports the same product, in similar quantities and under similar terms to company Z, an independent party operating in similar markets as B. The uncontrolled sales price is a delivered price whereas the controlled sales are made FOB factory. These differences in terms of transportation and duties have an effect on price. Therefore, adjustments should be made on the uncontrolled transaction to eliminate the differences.

Selling price X to Z
RM 150

Less:

Adjustment for freight
RM 10
Adjustment for duties
RM 5
Total adjustments
(15)
Arm's length price A to B
RM 135
3.3
Resale Price Method (RPM)

The resale price method is generally most appropriate where the final transaction is with an independent distributor. The starting point in the resale price method is the price at which a product that has been purchased from an associated enterprise is then resold to an independent enterprise. This price (the resale price) is then reduced by an appropriate gross margin (the resale price margin) representing an amount from which the reseller would seek to cover its selling and other operating expenses and in the light of functions performed (taking into account assets used and risks assumed), make an appropriate profit. An arm's length price for the original transaction between associated enterprises is obtained after subtracting that gross margin, and adjusting for other costs associated with the purchase of the product (e.g. custom duties). A typical adjustment may be represented as follows:

TP

As shown in the formula, the focus is on the resale price margin. This margin should ideally be established from comparable transactions between the reseller (involved in the controlled transaction) and other independent parties. In the absence of such transactions, the resale price margin may be determined from sales by other resellers in the same market. The resale price margin is expected to vary according to the amount of value added by the reseller. The factors that may be contributed to the value added depend on the level of activities performed by the reseller.

3.3.1
Comparability Analysis

In making comparisons for purposes of RPM, the focus is more on functions performed compared to product characteristics. Factors which may influence the resale price margin and other considerations when performing a comparability analysis include:

(a)
The functions or level of activities performed by the reseller: whether only performing minimal services to taking on full ownership and responsibility for the risk involved in the transactions e.g. whether the reseller is merely a forwarding agent or a distributor who assumes full responsibility for marketing and advertising the product by risking its own resources in these activities;
(b)
The degree of added value or alteration the reseller has done before the product is resold. The method is difficult to apply if the product has gone through a substantial number of processes;
(c)
Employment of similar assets in the controlled and uncontrolled transactions e.g. a developed distribution network;
(d)
Although broader product differences are allowed as compared to the CUP method, product similarities are still significant to some extent particularly when there is a high value or unique intangible attached to the product;
(e)
If the resale price margin used is that of an independent enterprise in comparable transaction, differences in the way business is managed may have an impact on profitability;
(f)
A resale price margin will be more accurate if it is realized within a short time lapse between original purchase and the resale of the product as a longer time lapse may give rise to changes in the market, exchange rates, costs etc.;
(g)
Whether the reseller is given exclusive rights to resell the products;
(h)
Differences in accounting practices, where adjustments must be made to ensure that the components of costs in arriving at gross margins in the controlled and uncontrolled transactions are the same.
Example 3

Taxpayer B, a distributor, is a Malaysian subsidiary of multinational A, which is located overseas. B distributes high quality product manufactured by A. A also sells similar product of a lower quality to an independent distributor C in Malaysia. The cost of product purchased from A by B is RM 7.60 per unit. B resells the product to independent party for RM8. A functional analysis shows that B and C perform similar functions. The gross profit ratio of C was found to be 10%.

TP

In this example, it is noted that there are product (quality) differences when comparing the controlled and uncontrolled transactions. However, since the focus of comparison is on margins the differences are not as material as they would have been if the basis of comparison were on prices. Furthermore, B and C carry out similar functions (C being another reseller in the same market), thus the resale price margin of 10% will be used as a basis to determine the arm's length price for the original purchase by B from A.

Arm's length price of product purchased (in RM) = 8 – (8 X 10%) = RM 7.20

Example 4

Using similar facts in example 3, assume now that there are the following differences between the controlled and uncontrolled transactions:

  • B bears warranty risk but C does not, as the risk is borne by A; and
  • A provides samples and promotional materials to C free of cost while B produces its own promotional materials and bears the related costs.

The two margins are not comparable until an adjustment is made to account for these differences.

Calculation of adjusted resale price margin:

Distributor B net sales to independent customer
= RM 8.00
Arm's length resale price margin of C (%) is
= 10%
Therefore,
Arm's length resale price margin for B (10% x RM 8.00)
= RM0.80

Adjustments for functional and risk borne by B:

Promotional costs
RM 0.10
Warranty costs Total Adjustments
RM 0.20
RM 0.30
Adjusted resale price margin for B
RM1.10

Calculation of Arm's Length Price of A to B

Distributor B net sales to independent customer
RM 8.00
Less: adjusted resale price/gross margin
RM 1.10
Arm's length transfer price of A to B
RM6.90
3.4
Cost plus Method (CPM)
3.4.1
The cost plus method is often useful in the case of semi-finished goods which are sold between associated persons, or when different companies in a multinational group have concluded joint facility agreements or when the manufacturer is a contract manufacturer or where the controlled transaction is the provision of services.
3.4.2
The starting point in a cost plus method, in the case of transfer of products between associated persons, is the cost to the supplier. An appropriate mark-up is added to this cost to find the price that the supplier ought to be charging the buyer. The appropriate mark-up should ideally be established by reference to the mark-up earned by the same supplier from comparable uncontrolled sales to independent parties. This is due to the fact that similar characteristics are more likely found among sales of product by the same supplier, than among sales by other suppliers. If no such transactions exist, the appropriate mark-up may be determined based on comparable transactions by independent parties operating independently. If there are material differences between the controlled and uncontrolled transaction that could affect the gross profit mark-up, appropriate adjustments must be made on the gross profit mark- up earned in the uncontrolled transaction.
Formula for arm's length price in CPM:
TP
3.4.3 Comparability Analysis

Comparability when applying the cost plus method should take into account similarity of functions, risks assumed, contractual terms, market conditions, business strategies as well as any adjustments made to account for the effects of any differences in the aforementioned factors between the controlled and uncontrolled transactions. As with the resale price method, fewer adjustments are needed to account for product differences compared to the CUP method.

3.4.4 Cost Structure Consideration
(a)
The method used in determining costs and the accounting policies should be consistent and comparable between the controlled and uncontrolled transaction, and over time in relation to the particular enterprise. The costs referred to in the cost plus method is the aggregation of direct and indirect costs of production. Usage of other costs must be well justified and may be considered only if they result in a more accurate estimate of the appropriate margin. In computing costs, the practice must be in accordance with generally accepted principles or normal accounting standards in Malaysia.
(i)
Direct costs are costs identified specifically with a particular activity including compensation, bonuses, travelling expenses of employees directly engaged in performing such activity, or materials and supplies consumed in providing the activity. In determining the cost base incurred in providing an activity, costs that do not relate to the service under consideration must be excluded and the costs must be consistent with those incurred in comparable transactions.
(ii)
Indirect costs are costs not specifically attributable to a particular activity but nevertheless relate to direct costs or relate to the process of the activity. These include utilities, rental, supervisory and clerical compensation and other overhead costs of the department incurring the direct costs. Indirect costs also include an appropriate share of costs of the supporting units and departments (e.g. accounting and secretarial units etc).
(b)
The determination of costs is important in the application of CPM where the comparable mark up is to be applied to a comparable cost basis. For example, an independent supplier who leases its business assets may not be comparable to a supplier in a controlled transaction who owns its assets. Adjustments must be made to eliminate the differences in these costs.
(c)
It is also important to consider differences in the level and types of expenses (operating and non-operating expenses including financing expenditures) related to the functions performed and risks assumed by the parties or transactions being compared. Consideration of these differences may indicate the following:
(i)
If expenses reflect a functional difference which has not been taken into account in applying the method, an adjustment to the cost plus mark-up may be required;
(ii)
If the expenses reflect additional functions that are distinct from the activities tested by the method, separate compensation for those functions may need to be determined. Such functions may for example amount to the provision of services for which an appropriate reward may be determined. Similarly, expenses that are the result of capital restructures reflecting non-arm's length arrangements may require separate adjustment;
(iii)
If differences in the expenses of the parties being compared merely reflect efficiencies or inefficiencies of an enterprise, as would normally be the case for supervisory and general and administrative expenses, adjustments to the gross margin may be inappropriate.
Example 5

Taxpayer B is a Malaysian subsidiary of foreign multinational A. B manufactures electrical components which it exports to A. The electrical components are specially tailored to meet the requirements of A. All raw materials used in the manufacture of the product are purchased from an independent enterprise C, at RM20 per unit. The total cost per unit of manufactured product is RM80. B then sells the product to A at a price of RM100 per unit at a mark-up of 25%. An independent manufacturing company, performing the same functions, bearing similar risks and using similar assets, selling to another independent company is found to have a mark-up on cost of 40%.

TP
Sales
100
Purchases
20
Mfg Cost
50
Overheads
10
80
Gross Profit
20

Since B's product is highly customised, there are no product comparables available. The mark-up of 40% of the other independent manufacturing company can thus be used as a basis in arriving at arm's length price. Arm's length price of electrical component sold to A by B (in RM)

= 80 + (80 x 40%) =112

Example 6

Company A manufactures customised moulds for independent parties using designs supplied by independent parties earning a cost plus mark-up of 10%. Under these arm`s length agreements, costs are defined as the sum of direct costs (i.e. labour and materials) plus estimated indirect costs (estimated to be 40% of the direct costs).

Cost

=

Direct Costs

+

Estimated Indirect Costs

(40% Direct Costs)

Company A also manufactures moulds for an affiliate, F, using designs supplied by F. Under the agreement with F, costs are defined as the sum of direct costs plus actual indirect costs.

Cost

=

Direct Costs

+

Actual Indirect Costs

Calculation done based on this agreement shows that actual indirect cost is equivalent to 30% of direct cost for each project. In order to determine the appropriate mark-up for A's transaction with F, the cost base of its transaction with the independent parties need to be restated.

The transfer price is calculated as follows:

Original calculation under the arm`s length agreement:

Direct costs

RM

1,000

Indirect costs (40% × RM1,000)

400

Total costs

RM

1,400

Mark-up 10%

RM

140

Price

RM

1,540

Recalculation of mark-up under the arm`s length agreements using restated costs:

Direct costs

RM

1,000

Indirect costs (30% × RM1,000)

300

Total costs

RM

1,300

Price established above

RM

1,540

Mark-up based on restated costs

(RM 1,540 - RM1,300 )

RM

240

Gross mark-up based on restated costs = RM240/RM1,300 = 18.5%

Therefore, the arm`s length transfer price between A and F:

Direct cost

RM

900

Add:

Indirect costs (30% × RM900)

270

Mark-up (18.5% × (RM900 + 270))
216

Arm's Length Price RM

1,386

This example illustrates how the cost base of a tested party and the comparable transaction must be expressed in equivalent terms. For purposes of this example, it has been assumed that the transactions between A and the independent parties are functionally comparable to the transactions between A and F. Under normal circumstances, there may be functional differences, such as marketing, that should be given consideration when determining the arm's length mark-up.

3.5
Transactional Profit Method

Transactional profit methods examine profits that arise from controlled transactions among associated persons. The profit methods that satisfy the arm's length principle are those that are consistent with the transactional profit split method or the transactional net margin method (TNMM) as described in these Guidelines.

3.5.1 Transactional Profit Split Method
(a)
The transactional profit split method provides an alternative solution for cases where no comparable transactions between independent parties can be identified. This would normally happen when transactions are highly integrated that they cannot be evaluated separately. Profit split method is based on the concept that the combined profits earned in a controlled transaction should be equitably divided between associated persons involved in the transaction according to the functions performed. To arrive at an arm's length price, the value of the contributions that each associated person makes to the transaction is assessed based on how independent persons would split the profits among them under similar circumstances.

Two approaches for estimating the division of profits (projected or actual) are described in the following paragraphs. These approaches are neither exhaustive nor mutually exclusive:

(i)
Residual profit split approach

This approach is the most appropriate method in cases where both parties to a transaction contribute significant unique intangibles. There are two stages of profit division under this approach. First, the combined profit is apportioned according to basic returns assigned to each party to the transaction. These returns are based on the basic, non-unique, functions that each party performs, and are determined by reference to market returns obtained by independent parties in similar transactions. This basic return would generally not account for the return that would be generated by any unique and valuable assets owned by the participants. The next stage involves the allocation of the remaining residual profit/loss, also with reference to how independent parties in similar circumstances would have divided such residuals.

The following example demonstrates the application of the residual profit split approach:

Example 7

X, Y and Z are companies located in different countries. Company X designs and manufactures the major components of a high quality electrical product which it sells to its subsidiary. From these components, Y further develops and manufactures them into the final product which it exports to Z, an independent distributor.

TP

The trading accounts of X and Y is as follows:

X
Y
Sales 100 300
Purchases 15 100
Manufacturing cost 20 35
Gross profit
65
165
R&D 20 15
Other operating expenses 15 10
Net profit
30
140

The final product in the transaction happens to be a unique product for which there is no comparable. However, research indicates that there are several companies that carry out similar functions to that of X and Y involving similar semi-finished and final products, of a much lower quality. The average net mark- ups for these independent companies involved in transactions similar to X and Y is 30% and 20% respectively.

Application of Residual Profit Split Approach

In the above example, the CUP method cannot be used due to the uniqueness of the final product. For the sake of simplicity, assume that there is insufficient data and information to apply the cost plus method, while the resale price method is inappropriate as the product has undergone substantial transformation at Y. The profit split method is adopted using the residual approach.

(a)
Residual analysis of the group profit
Calculation of total profit

Total Sales of transaction

300

Cost of goods sold (X)

35

Cost of goods sold (Y) [excluding purchases from X]

35

Gross profit

230

R&D

35

Other operating expenses

25

Net profit

170

Calculation of basic return

The mark-ups derived from external data will be used to calculate basic returns to X and Y.

(i)
Basic return to X = 30% of (COGS + Other operating expenses) = 30% x (35+15) = 15
(ii)
The calculation of basic return to Y has to take into account the fact that the COGS for the comparable independent companies have included the purchase price for the semi-finished product. Since this is the transfer price for Y, the basic return for Y will be a function of the transfer price i.e.

= 20% of [(COGS – purchase price) + other operating expenses + arm's length transfer price]

= 20% [(135 –100) + 10 + TP]

= 20% (35 + 10 + TP)

= 9 + 0.2TP

(b)
Residual profit split:
Calculation of residual profit

Residual profit = Net profit – [(Return to X) + (Return to Y)]

= 170 – [15 + (9 + 0.2TP)]

= 146 – 0.2TP

Assume that in this case R&D is a reliable indicator of X and Y's relative contribution of an intangible asset, the residual profit may be split based on the relative R&D expenditure as follows:

X

Y

R&D

20

15

Total R&D

35

35

R&D expenditure ratio

57%

43%

Calculation of residual profit split
For X = 57% of (146 – 0.2TP) = 83.22 – 0.114TP
For Y = 43% of (146 – 0.2TP) = 62.78 – 0.086TP
Net profit for X
Basic return to X = 15
Residual return to X = 83.22 – 0.114TP Total
net profit for X = 15 + 83.22 – 0.114TP
= 98.22 – 0.114TP
Net profit for Y
Basic return toY = 9 + 0.2TP
Residual return toY = 62.78 – 0.086TP
net profit for Y = (9 + 0.2TP) + (62.78 – 0.086TP)
= 71.78 + 0.114TP
Adjustment for transfer price between X and Y:

Sales price of X (Assume X makes no profit)

= 100 – 30 = 70

Adjusted sales price (i.e. TP)

= 70 + Adjusted net profit for X

= 70 + 98.22 – 0.114TP

= 168.22 – 0.114TP

TP = 168.22/1.114 = 151

Adjusted net profit:

X

Y

Sales

100

300

Arm's length adjustment

51

Adjusted sales

151

Purchases

(15)

100

Adjustment

51

Adjusted purchases

151

Manufacturing cost

(20)

(35)

Adjusted gross profit

116

114

R&D

20

15

Other operating expenses

15

10

Adjusted net profit

81

89

(ii)
Contribution analysis approach
(a)
The second approach under the Transactional Profit Method is the contribution analysis approach. Under this approach, combined profits would be divided between associated persons based on the relative value of functions (i.e. contribution) performed by each of the associated persons participating in a controlled transaction. To determine the relative value of contribution, it may be necessary to focus on the nature and degree of each party's contribution of differing types (e.g. provision of services, capital invested) and assign a percentage based on the relative comparison and external market data.

Unlike the residual approach, basic returns are not allocated to each party to the transaction before the profit split is made. Generally, the profit to be combined and divided is the operating profit. Where allocation of expenses to controlled transactions is impossible, a split of gross profits may be considered, after which expenses attributable to the relevant enterprises will be deducted accordingly.

However, it is difficult to determine the relative value of contribution that each of the participants makes to the controlled transactions, and the approach will often depend on the facts and circumstances of each case. Thus, the approach requires careful judgment and the criteria should always include what adds value to the transaction and how economically important were the functions carried out by each party in earning the profits.

(b)
The division of combined profits under the transactional profit split method is achievable by the use of allocation keys. The choice of allocation keys by which profits are split largely depends on the facts and circumstances that surround a case. An allocation key can be in the form of a figure (e.g. a percentage) or a variable (e.g. specific expenses). Some of the more common types of allocation keys are:
  • Asset-based: useful where the controlled transaction demonstrates strong correlation between assets and the creation of value;
  • Cost-based: where there is clear indication of correlation between cost and value created;
  • Time spent by employees performing intragroup services;
  • Units produced or sold;
  • Number of employees;
  • Space used.
3.6
Transactional Net Margin Method (TNMM)

The TNMM is similar to the cost plus and resale price methods in the sense that it uses the margin approach. This method is useful in instances where it is difficult to compare at gross profit margin such as in situations where different accounting treatments are adopted. The method examines the net profit margin relative to an appropriate base such as costs, sales or assets attained by a MNE from a controlled transaction. As with the cost plus or resale price methods, this margin should preferably be derived from comparable uncontrolled transactions between the same taxpayer and independent parties. If there are no comparable uncontrolled transactions involving that MNE, reference may be made to the net profit margin that would have been earned in comparable transactions by an independent person. Functional analysis of the associated person as well as the independent person will have to be applied to determine comparability.

3.6.1
Application of TNMM
(a)
Net margins (unlike gross margins or prices) tend to be significantly influenced by various factors other than products and functions (e.g. competitive position, varying cost structures, differences in cost of capital, etc). Therefore, where possible, the usage of TNMM should be confined to cases where these factors have a high degree of similarity, so as to eliminate the effects of these other conditions.
Example 8

X is a Malaysian subsidiary of Y, located overseas. Y manufactures computers, which it sells to X and other associated distributors in different countries. The computers distributed by X bear company Y's trademark. X also provides technical support to all its customers.

TP

Trading account for X

Sales

100,000

Cost of goods sold

90,000

Gross Profit

10,000

Operating expenses

15,000

Net loss

(5000)

Margin (Net Loss)

-5%

Assume that the CUP method is not applied as no reliable adjustments can be made to account for differences with similar products in the market; and the resale price method is not used as no comparable measurement of gross margin can be found due to differences in accounting practices amongst independent distributors. The TNMM is adopted on the basis of net profit return to sales. It was found that the net profit margin to sales earned in a comparable transaction by an independent person is 5%.

Adjustments on X will be as follows:
Net profit of X = 100,000 x 5% = 5,000

Adjusted cost of goods sold = 100,000 – 15,000 – 5,000 = 80,000

Example 9

Company A manufactures plastic bags in Malaysia and exports them to its holding company overseas. The gross profit mark up with respect to its manufacturing operations is 15% while the cost of freight is reflected as operating cost.

Company B, another manufacturer of plastic bags in Malaysia, exports these plastic bags to independent parties overseas. The gross profit mark ups with respect to the manufacturing operations is 10%. However, unlike Company A, the freight cost is included in the cost of goods sold for B.

The cost plus method would require a comparability adjustment to the gross profit mark-up of company B to provide for accounting consistency. If the freight costs cannot be identified and there are no more reliable comparisons, it is necessary to examine the net margins.

3.7 Global Formulary Apportionment

IRBM does not accept methods based on global formulary apportionment on the basis that they are arbitrary and could not reliably approximate arm's length conditions. Global formulary apportionment refers to a method which uses a predetermined and mechanistic formula normally based on a combination of costs, assets, payroll and sales to allocate the global profits of an MNE group among associated enterprises in different countries.

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