This master’s thesis deals with the transfer pricing of intangibles and focuses on the U.S. standard commensurate with income. This standard has been accused of being incompatible with the overriding principle of transfer pricing, the arm’s length standard, and is not endorsed by the OECD. Recent developments on the topic include the introduction of a similar provision in Germany. The purpose is to evaluate the standard’s compatibility with the arm’s length standard and to establish the current position of the concept of commensurate with income. To meet this purpose the thesis first describes the inherent problems surrounding transfer pricing of intangibles as well as provides a background to transfer pricing in the U.S. The focus then shifts towards the history, application and criticism of the commensurate with income standard. The thesis also gives an account of the OECD’s and Germany’s positions on the matter. In the final analysis the compatibility with the arm’s length standard is examined from two angles; the commensurate with income standard’s valuation approach on one hand and its use of hindsight on the other. The commensurate with income standard uses an income approach to valuation of transfers of intangibles instead of the market approach recommended by the OECD. This may lead to overvaluation of intangibles and is not strictly in line with the arm’s length standard. The German commensurate with income provision is more in line with the market approach and is therefore more compatible with the arm’s length standard in this aspect. The commensurate with income standard allows adjustments to transfer prices with the benefit of hindsight. The actual income from a transferred intangible is thus used as evidence as to whether or not the original transfer price was set reasonably. The OECD is of the opinion that only information known at the time of the transfer should be used, but makes an exception for the particular situation when a tax authority can prove that unrelated parties would have adjusted transfer prices retroactively. The point made here is that the commensurate with income standard places the burden of proof on the taxpayer, while the OECD places it on the tax authority. This allows the OECD to stay true to the arm’s length standard, while the U.S. and Germany deviates somewhat from it. However, there is no exact manner in which to define the arm’s length standard, and even the OECD deviates from it more or less. The commensurate with income standard may be one step further away from the purest definition of it but not a complete deviation. The German version of commensurate with income manages to target the same problem while staying closer to the arm’s length standard. Germany has thereby found a middle way and might hold the solution to finding a consensus between the OECD and the U.S.

<p>This master’s thesis deals with the transfer pricing of intangibles and focuses on the U.S. standard commensurate with income. This standard has been accused of being incompatible with the overriding principle of transfer pricing, the arm’s length standard, and is not endorsed by the OECD. Recent developments on the topic include the introduction of a similar provision in Germany. The purpose is to evaluate the standard’s compatibility with the arm’s length standard and to establish the current position of the concept of commensurate with income.</p><p>To meet this purpose the thesis first describes the inherent problems surrounding transfer pricing of intangibles as well as provides a background to transfer pricing in the U.S. The focus then shifts towards the history, application and criticism of the commensurate with income standard. The thesis also gives an account of the OECD’s and Germany’s positions on the matter. In the final analysis the compatibility with the arm’s length standard is examined from two angles; the commensurate with income standard’s valuation approach on one hand and its use of hindsight on the other.</p><p>The commensurate with income standard uses an income approach to valuation of transfers of intangibles instead of the market approach recommended by the OECD. This may lead to overvaluation of intangibles and is not strictly in line with the arm’s length standard. The German commensurate with income provision is more in line with the market approach and is therefore more compatible with the arm’s length standard in this aspect.</p><p>The commensurate with income standard allows adjustments to transfer prices with the benefit of hindsight. The actual income from a transferred intangible is thus used as evidence as to whether or not the original transfer price was set reasonably. The OECD is of the opinion that only information known at the time of the transfer should be used, but makes an exception for the particular situation when a tax authority can prove that unrelated parties would have adjusted transfer prices retroactively. The point made here is that the commensurate with income standard places the burden of proof on the taxpayer, while the OECD places it on the tax authority. This allows the OECD to stay true to the arm’s length standard, while the U.S. and Germany deviates somewhat from it.</p><p>However, there is no exact manner in which to define the arm’s length standard, and even the OECD deviates from it more or less. The commensurate with income standard may be one step further away from the purest definition of it but not a complete deviation. The German version of commensurate with income manages to target the same problem while staying closer to the arm’s length standard. Germany has thereby found a middle way and might hold the solution to finding a consensus between the OECD and the U.S.</p>

臺灣現有移轉計價之規範未有明確的罰則(Penalty)，因而衍生許多稅負規避的問題。本文採用動態最適化(Dynamic Optimization)的模型來觀察跨國企業移轉計價的行為，在面臨懲罰與兩國稅差時企業會如何利用移轉價格及數量來進行獲利移轉以規避稅負，進而分析政府調降稅率以降低稅差並吸引獲利移轉的稅率政策對企業移轉計價的影響，最後再探討罰則在法規制定上的必要性。結果顯示，預料到的稅率政策在長期能有效減少企業從事移轉價格操弄(Transfer Price Manipulation)，但在短期﹝除了宣告那一刻之外﹞反而更助長移轉價格操弄的發生，特別是當政策宣告至執行之期間過長時更為嚴重。此外，由先前的文獻可知無罰則下的最適移轉價格為一邊界解(Boundary Solution)，本文也證明了此邊界解亦可能出現於有罰則的情況下。然而，罰則的存在創造了內部解(Interior Solution)的可能性，此內部解較邊界解更趨近於常規交易價格，因此我們仍建議政府制定罰則。 / This paper employs a dynamic optimization model to determine the equilibrium price and quantity in a multinational firm (MNF) faced with a threat of a penalty. We analyze the impact on transfer pricing that arises from the unanticipated and anticipated permanent taxation policy of home country and host country. Anticipated taxation policy for reducing tax differentials can reduce transfer price manipulation in the long term. However, except for the moment of announcement, such reduction of transfer price manipulation does not occur in the short term, especially in the case of a large time lag of policy. We also show that the boundary solution is possible even though transfer price penalty exists and suggest that governments impose penalty which creates the possibility of interior solution.