Analyse critique de l'action 8 du plan BEPS concernant les prix de transfert d'actifs incorporels

Abstract

In October 2015, the Organisation for Economic Co-operation and Development (OECD) released finalisation of the Base Erosion and Profit Shifting (BEPS) action 8. This action 8 contains recommendations for transfer pricing issues related to intangibles. The main objective of this transfer pricing guidelines’ reform is to realign transfer pricing outcomes from intangibles with value creation. Therefore it would prevent base erosion and profit shifting by moving intangibles among group members of a multinational. The content of action 8 revolves around five axes. Firstly, it provides additional guidance on determination of arm’s length conditions including detailed discussion on location savings, assembled workforce, other local market features, group synergies and available realistic options. Secondly, it provides instructions for the identification of intangibles, especially a new definition of the intangible asset. Thirdly, the action 8 adds guidance to identify which entity or entities within a multinational group are entitled to outcomes from exploiting intangibles. In particular, it emphasises the importance of a detailed functional, risk and asset analysis stating the entities that perform functions, utilise assets and assume risks associated with the development, enhancement, maintenance, protection, and exploitation of intangibles. Fourthly, it provides guidance on the applicability of Transfer pricing methods with intangibles. And finally, it provides specific guidance when an intra-group transaction involves the transfer of hard-to-value intangibles. Based on that observation, we wanted to study the opinion of transfer pricing specialists about the proposals resulting from the action 8. So the problematic viewed is: are action’s proposals in line with the main objective of this action? By using a qualitative approach, we identify the different outlooks of each transfer pricing experts. And the results of our dissertation show that some progresses have been made on the transfer pricing aspects of intangibles. However, the new guidance remains based on the arm’s length principle. Therefore, some orientations appear not to fit with the objective.