How leaning into transfer pricing transformation helps manage tax risk

External change is everywhere. Businesses are exploring novel supply chain solutions and embracing digital transformation. Tax regulatory and policy changes are happening at a record speed, challenging tax departments to keep pace with business so they can align and defend their supply chain structures as well as keep pace with the changing tax environment overall.

More than three in four survey respondents (76%) say they are being challenged by the sheer volume, pace and complexity of global tax reforms. Seventy-one percent add that tax reform is increasing TP-related costs for their organizations, with 30% saying costs will increase by at least 10%. Moreover, 58% see new or evolving legislation as a top (25%), second (20%) or third (13%) most critical contributor to TP risk.

“What we are seeing today is the most fundamental international tax reform ever,” says Oliver Wehnert, EY Germany International Tax and Transaction Services Co-Leader. “OECD BEPS 1.0 and 2.0, with its Pillars 1 and 2, are dominating the agenda. Pillar 1 focuses on shifting profits to market countries. Pillar 2 is, among other things, driving discussions around a global minimum tax, which the G-7 [Group of Seven leading industrial nations] has already agreed should be at least 15%.”

Tax reform driven by the Organisation for Economic Co-operation and Development (OECD) Base Erosion and Profit Shifting (BEPS) framework is advancing “because it really is based on what seems to be a kind of a global consensus,” continues Wehnert. “The Inclusive Framework comprises 140 countries – and all are working towards greater alignment and consistency in the international tax framework.”

These elements – and many others – represent profound shifts. Even so, Wehnert suggests companies should be supportive of efforts to harmonize global tax rules. “What we don’t want to see is every region or country in the world writing its own rules based on inconsistent principles,” he says. “That and the consequences of double taxation would be much worse.”

Early movers

However, some countries are not waiting for the principles to reach a point of global consensus, adding risk and complexity to the overall environment. Even before BEPS 2.0 is concluded, “we’re seeing countries moving with different timeframes in terms of unilateral measures designed to perform the same kind of role,” says Luis Coronado, EY Global Tax Controversy Leader. “That’s causing new disputes to occur, as companies try and deal with a plethora of disparate measures in advance of wholesale changes.”

Jay Camillo, EY Global Operating Model Effectiveness Leader, agrees, particularly regarding the US. “No doubt, there is strong overlap between what’s proposed by the Biden administration and the global philosophy coming from the OECD.” Which, Camillo says, is probably “by design – I think this is an obvious, across-the-board move by the US toward greater multilateralism.”

Camillo says he believes the Biden administration’s tax policies exhibit “broad continuity with many of the proposals within BEPS 2.0, Pillar 2 in particular.” This includes the minimum tax of at least 15% that G-7 countries are calling for and encouraging 140 countries participating in a broader initiative by the G-20 to support.

“If a global minimum tax is adopted, there will be a fundamental shift where the predominant question becomes not if or where the profits are taxed but how much tax is paid,” says Camillo. This shift places a heavy burden on tax departments to manage their double taxation profile, which ultimately means, Camillo believes, “that they must be joined at the hip with the business, documenting operating model evolution in real-time and having data readily available on audit.”

Indeed, 47% of survey respondents say they now face – and 49% say they anticipate facing over the next two years – “impact from workers and/or executives being stranded in a jurisdiction other than the jurisdiction of their full-time employment.” Of course, the work-from-anywhere era can also be a source of agility and flexibility. Currently, 75% of survey respondents say they face significant challenges in securing sufficient TP talent. Here, technologies that enable remote collaboration can help these executives cast a wider geographic net.

While virtual and highly mobile workforces and management structures introduce agility, they also add to complexity and risk. The degree to which digitally transformed businesses are creating intellectual property (IP) on a decentralized basis is yet another concern.

Wehnert says an increase in digital innovation is creating new challenges for cross-border enterprises. “Businesses are transforming, and when everyone is working digitally, we are seeing people being innovative, creating new digital services for their customers or digitizing supply chain processes,” he says. “For a lot of companies, and particularly those that are not really technology companies, they may not have the relevant experience, and they are losing control over their IP processes.”

Against this background of rapidly changing tax rules, tectonic shifts in supply chain configuration and fundamental changes how – and where – people work, so too emerges a more robust and assertive tax enforcement environment. Fundamentally, in addition to mandating more transparency – and using it – tax authorities are now cooperating with one another across borders. Increasingly, companies can expect joint or even multilateral audits.

Meanwhile, following nearly two years of lockdowns and accompanying stimulus and support spending, most nations will be even hungrier for revenue than usual. Consequently, says Coronado, “we are seeing expanded funding giving many tax administrations more resources for the pursuit of audits.”

Survey respondents in fact are anticipating an era of more frequent and rigorous audits. In addition to the 65% of respondents who expect that the number of TP audits will rise, 53% expect greater scrutiny of documentation and 48% anticipate more rigorous audits in general, often investigating multilateral issues or entire value chains. As for issues most likely to come under scrutiny, the top three include IP-related issues – location and ownership of assets, control of risk (cited by 38% of respondents), PE (37%) and headquarters and management services transactions (36%). Perhaps even more challenging than the sheer increase in volume of audit activity are the changes in enforcement approach and in the level of information tax authorities are requiring companies to disclose.

Heightened transparency and changing enforcement strategies

“Taxpayers today are now exposed to unprecedented levels of transparency,” Coronado says. “Country-by-country reports and TP master and local files, supplemented with a range of new and evolving national requirements and then coupled with the automatic exchange of taxpayer information, are providing tax authorities with new ways to complement the more subjective scrutiny of their tax auditors.” Audits themselves are becoming more detailed, and, increasingly, jurisdictions can be expected to begin issuing automatic assessments, leaving the burden of proof on the taxpayer to demonstrate otherwise.

Next, authorities are beginning to challenge core business decisions. “In the Tax Cuts and Jobs Act, the Internal Revenue Service (IRS) can analyze arm’s-length pricing vs. alternatives realistically available,” says Camillo. “They’re looking closely into business structures, business relationships and other choices made by taxpayers through the lens of what options did they have available? What were the competing predictions for how those business arrangements would turn out?”

Then very importantly, “what are the differences in any of the risks being borne by either party under the various alternatives?” says Camillo. “They look at licensing, cost sharing and other alternatives and ask why not one over another?”

This leads to companies starting to consider a range of forecasts with a range of potential outcomes, not just the most probable one. “You have to prove how reasonable businesspeople would evaluate the potential outcomes of a business relationship, proposal or arrangement with a particular emphasis and focus on risks,” Fultz says.

In Europe and elsewhere

Looking worldwide, “tax authorities are under urgent pressure to collect more tax,” says Coronado. The solution, says Coronado, is a more rigorous approach to tax risk management.  “Principle should always prevail. In an era of more forensic, detailed audits, companies need to be proactive around TP audit readiness, taking into account not only the new types of evidence they need to present, but also understanding what new tactics they may face from auditors.”

Overall, Camillo, Wehnert, Fultz and Coronado all agree: the future is one of significantly more frequent and intensive audits and controversy.

Going forward, “though there seems general agreement on the direction, as more and more jurisdictions write more and more legislation, there are no guarantees there will be uniformity,” says Jan Bode, EY Europe West Transfer Pricing Leader. “There is a lot of change, a lot of complexity, and it all leads to greater risk.”

For these reasons, Coronado and Bode both say they are seeing renewed interest in tools such as advanced pricing agreements (APAs) – unilateral and multilateral – as well as in programs such as the OECD’s International Compliance Assurance Program (ICAP).

In general, says Coronado, “we think you’ve got to start thinking about taking action earlier in the life cycle of controversy. That means looking across governance, teaming, controls and processes, as well as more extensive use of dispute prevention and resolution programs. That means looking at your data, your people and your processes, figuring out now whether improvements are needed in order to be fit for purpose.” He continues, “Look at your tax risk assessment and look at your management of those risks, and then your dispute management and litigation procedures also. Overall, we think right now is your opportunity to prioritize and reimagine your overall tax controversy approach.”

With 56% of companies taking a minimum compliance approach to TP documentation and 35% of companies taking a shared controversy responsibility approach between local and HQ, the gap between the need for a consistent tax authority approach and decentralization will also need to be filled.

The survey does not provide evidence that companies have digested how they will fill their resourcing and process-related gaps necessary to deal with the amount of change and run side by side with the business. Amid rising complexity, 50% anticipate higher budgets for their increasing TP activities, but only marginally so. Current plans for spending on TP are likely not enough without companies taking on additional risk. Transfer pricing enforcement is evolving to become more active. With tax controversy on the rise, alignment with the business will be essential to a tax department building sustainable and flexible operating models that can be understood by tax authorities.

Forging a response

Joel Cooper, EY Global International Tax and Transaction Services Controversy Leader, also predicts an era of significantly more controversy ahead. “Controversy will definitely expand. The frequency of controversy will increase, as will the breadth and depth and the expectations and requirements from authorities,” he says.

In fact, 56% of participants believe there is uncertainty in TP, creating an unstable environment and decreasing the ability to depend on past settlements and court cases for current enforcement guidance. With over 50% of respondents still relying on their past experiences to assess TP risk, there is a greater need to understand how TP audits are resolved currently and what is being required.

“Audits will become longer and more demanding. Information requests are wide in scope, and authorities will be accessing all the information you can imagine,” says Cooper. “From social media to filings with other countries, tax authorities will want to use it all. Moreover, as this evidence-based approach to audits expands, increasingly we see a push from tax authorities to move to show, not tell.” And sometimes, requested information is in addition to specific items listed for disclosure by the OECD.

In particular, Mikael Hall, EY UK & Ireland Transfer Pricing Leader, sees national tax jurisdictions “beginning to look into entire value chains across corporate and national boundaries. They’ll look at customs duties and R&D filings to see how these mesh with your transfer pricing reporting. They’ll look at your global and regional profitability and any rulings and positions taken in other countries, and they’re going to be looking to see where there’s inconsistencies.” In fact, companies registered tax authority data analytics, information sharing and volume of audits as the largest issues in controversy management.

For TP executives, “they’re going to need to become more proactive in controversy management. And to do that, they’re going to have to do all they can to streamline, simplify and automate their work so their resources can focus more [acutely] on controversy preparedness and response.”

In addition, Cooper believes more companies will seek greater assurance through tools such as bilateral and multilateral APAs or even the ICAP and will more proactively (and more regularly) seek to resolve double taxation through the use of the mutual agreement procedure (MAP).

“My feeling is that with the risk of controversy on the rise, we’re going to see more companies seeking more assurance,” says Cooper. “And so we’re also going to see more companies using these tools to reduce their risks and avoid double taxation.”

Interestingly, businesses with the largest TP departments (30 or more dedicated people) said the number one trend they see in the marketplace is significant improvement in TP dispute resolution processes. Among smaller departments, this trend ranked lower. 

Digital transformation is reshaping every facet of business with the aim to become more effective and efficient. Various technologies are enabling businesses to both streamline and revolutionize business processes, sometimes disrupting entire industries.

Nonetheless, the survey shows that when it comes to TP, companies are proving slow to align technologies to pain points. For example, 72% of companies find their data collection process to be challenging, involving multiple IT systems, and 76% say such matters are riddled with quality issues. But significantly fewer companies were trying to apply tools in this area. Instead, tools are more likely applied for data and information storage and process management.

“One thing I believe we can all acknowledge is that today, so much of what we’re doing TP is compartmentalized. Transfer pricing planning, operationalization, documentation and controversy – they’re each working in relative silos,” says Katherine Pinzon, EY Americas Transfer Pricing Leader.

Robbert Kaufman, EY Americas Intercompany Effectiveness Leader, agrees. “So much of the work is manual, combing through multiple spreadsheets and other disparate sources of data,” he says. “And there seems to be a lack of integration with other functional areas that impact or are impacted by TP, such as supply chain, treasury and finance.” 

As Muhlemann says, “Companies are still thinking about intercompany as a step-by-step process instead of end-to-end.” But at the same time, most businesses have an ongoing digital transformation agenda. “There’s a full spectrum of technology available now that can be put to work right away to lighten the load and improve quality across the whole of TP,” Muhlemann says. With all of the pressures TP teams are feeling, “executives need to get involved as early and as deeply as possible in digital transformations to embed their processes and incorporate their requirements around data, automation and reporting.”

Cornelia Wolff, EY Global International Tax and Transaction Services Technology and Transformation Leader, also advises that TP executives do all they can to get involved in any enterprise resource planning (ERP) initiatives such as a migration from legacy SAP enterprise resource planning systems to SAP S/4HANA. Done correctly, Wolff says, “you will be able to embed all of your data and processes end-to-end and ensure alignment with supply chain and finance.”

Another technology-enabled means of doing more with less is to explore opportunities in outsourcing and co-sourcing. “There is tremendous value in working with external providers,” says Kaufman. “As controversies multiply and become more complex, TP teams need to off-load as much of the routine workload as possible so they can focus on higher-value-added issues such as audit preparedness and response.” Kaufman adds that outsourcing and co-sourcing “become an essential means of bringing greater agility, flexibility and focus into the TP mission.” 

A key solution to keeping pace with rising workloads resulting from controversy and business change lies embedded in one of the megatrends itself. Digital transformation is indeed reshaping every facet of business. But this same digitalization can be harnessed in ways that address TP’s need to become more efficient and focused.

Where from here?

For TP executives at large, things are about to become more challenging. As Fultz concludes, “you must streamline and automate to make the most of limited resources. You must adjust your focus to the needs of the business and become proactive in terms of controversy. You will be under nearly constant pressure, which means you must also be agile and flexible.”

But in the end, Fultz says, “while you will be tested as never before, if you can get it done, you have an opportunity to bring tremendous value to the business. To prepare, TP executives need to take stock of their resources and focus. Not only will their teams need greater alignment with their businesses, the TP function itself will need to streamline its processes plus embrace digital models if it hopes to achieve the needed efficiency, agility and resiliency.”