Arm's Length Principle in International Taxation Law

In international taxation, the arm's length principle governs the pricing of transactions between related parties, such as multinational enterprises (MNEs) with cross-border operations. It aims to ensure that these transactions are conducted on terms and conditions that would apply between unrelated entities under similar circumstances.

The arm's length principle is crucial in preventing the manipulation of transfer prices, which refers to the prices at which related parties transact with each other. By manipulating transfer prices, MNEs can shift profits from high-tax jurisdictions to low-tax jurisdictions, reducing their overall tax liabilities.

To apply the arm's length principle, tax authorities and MNEs use various methods to determine transfer prices that would have been agreed upon by unrelated entities in comparable transactions. The most common methods include:

Comparable uncontrolled price (CUP) method: This method compares the price of a controlled transaction to the price of a similar transaction between unrelated parties.

Resale price method (RPM): This method looks at the resale price of goods or services purchased from a related party and compares it to the resale price of identical or similar goods or services sold to unrelated parties.

Cost plus method (CPM): This method adds an appropriate markup to the cost of goods or services provided by a related party to determine the arm's length price.

Transactional net margin method (TNMM): This method examines the net profit margin of a related party involved in a controlled transaction and compares it to the net profit margin of comparable independent entities.

Profit split method (PSM): This method allocates profits between related parties based on the division of profits that would have been agreed upon by unrelated entities in similar circumstances.

These methods rely on analysing comparable transactions or entities to establish a range of prices or profit margins that would be considered arm's length. The selection of the most appropriate method depends on the availability of reliable data and the nature of the transaction.

Tax authorities have the power to make adjustments to transfer prices if they believe that related parties have not adhered to the arm's length principle. These adjustments may involve reallocating income and expenses between related parties, leading to potential tax assessments and penalties.

The arm's length principle is endorsed and promoted by international organisations such as the Organisation for Economic Co-operation and Development (OECD) through its Transfer Pricing Guidelines. Many countries have incorporated the arm's length principle into their domestic tax laws and require taxpayers to demonstrate compliance with this principle when engaging in cross-border transactions with related parties.
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