Back to Grass Roots: The Arm’s Length Standard, Comparability and Transparency – Some Perspectives from the Emerging World

• Autores: Alessandro Turina
• Localización: World Tax Journal: WTJ, ISSN-e 1878-4917, Vol. 10, Nº. 2, 2018, págs. 295-348
• Idioma: inglés
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• Dialnet Métricas: 1 Cita
• Resumen

  • This article addresses some of the fundamental issues behind the current international tax policy debate on transfer pricing, espousing the perspective of the “emerging world”. Despite many calls to fundamental reform and the reconsideration of some of its corollaries in the wake of the BEPS Project, transfer pricing is currently rooted in the observance and implementation of the arm’s length standard. In that regard, this article engages in a qualified defence of the arm’s length standard, both from the specific perspective of emerging economies and in the light of fundamental findings concerning the suitability of the arm’s length standard to ensure the joint pursuit of the broad panoply of policy objectives currently (explicitly or implicitly) addressed at the global level through transfer pricing legislation, the breadth of which could, arguably, not be matched by the most commonly invoked alternative to the arm’s length standard, namely formulary apportionment. At the same time, this article acknowledges that the arm’s length standard needs some reform: the most urgent intervention not really concerning its fundamental assumptions but, rather, the channels through which it can be implemented. By reconstructing how the current transfer pricing methodologies, backed by international organizations, are the by-products of earlier challenges from national experiences (primarily by comparing the US and OECD – often influenced by diverging sensitivities among Member States – developments in this area), this study shows that the list of possible implementation approaches to the arm’s length standard should not be understood in crystallized terms. Rather, the arm’s length standard may have sufficient breadth to accommodate global, regional or even national incremental reform on topical issues. The author identifies “comparability analysis” as possibly the most serious challenge to transfer pricing implementation and, in the light of the above-mentioned incremental reform platform, highlights some country practices (which could be defined as “grass-roots” or “home-grown” experiences, as they developed independently of international recommendations or technical assistance inputs by international