Draft OECD guidance on hard to value intangibles (HTVIs) allows tax authorities to use hindsight in their tax assessments – honestly?

The newly released public Discussion Draft “Implementation Guidance on HTVI” (the “Discussion Draft”) aims at tackling the information asymmetry between the taxpayer and the tax administration. In particular, the tax administration may find it difficult to objectively evaluate the taxpayers’ pricing for the transfer of HTVI, given its relative lack of knowledge of each intangible.

Our concerns can be considered in three groups:

• The first considers how ex post outcomes relate to solving the potential problem of information asymmetry.
• The second considers the practical implementation of the 20% bandwidth exemption.
• The third considers the impact of the HTVI approach on transfer pricing documentation requirements and other procedures.

We provided our comments on 30 June 2017.