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Okay, so what's new in the *2017 version of the OECD Transfer Pricing Guidelines*? There are several key changes and updates that are important to understand. First off, the 2017 guidelines reflect the work done under the **OECD/G20 Base Erosion and Profit Shifting (BEPS) Project**. BEPS is all about cracking down on tax avoidance strategies that MNCs use to shift profits to low-tax jurisdictions. The guidelines incorporate the recommendations from the BEPS project, particularly those related to transfer pricing. One major change is the enhanced guidance on **intangibles**. Intangibles are things like patents, trademarks, and know-how. They can be tricky to value, and MNCs have often used them to shift profits. The 2017 guidelines provide more detailed guidance on how to determine the arm's length price for transactions involving intangibles. They emphasize the importance of identifying the legal owner of the intangible, the economic owner, and the functions performed in relation to the intangible. The guidelines also address the issue of **hard-to-value intangibles (HTVI)**. These are intangibles for which reliable comparables are not available, making it difficult to determine an arm's length price. The guidelines provide a framework for dealing with HTVI, including the use of ex-post evidence (i.e., looking at what actually happened after the transaction) to assess the reasonableness of the transfer price. Another important update relates to the **allocation of risk**. The guidelines clarify that the allocation of risk between related parties should be consistent with the economic substance of the transaction. This means that if a subsidiary is contractually assuming a risk, it should also have the financial capacity to bear that risk. If the subsidiary doesn't have the capacity to bear the risk, the risk may be reallocated to another entity within the group that does. The 2017 guidelines also include enhanced guidance on **documentation**. They emphasize the importance of preparing robust and detailed transfer pricing documentation to support your transfer pricing policies. This documentation should include information about the functions performed, assets used, and risks assumed by each party to the transaction. It should also explain the reasons for choosing a particular transfer pricing method and provide evidence that the method has been applied correctly. The guidelines also address the issue of **permanent establishments (PE)**. A PE is a fixed place of business through which a company conducts its business. If a company has a PE in a country, it may be subject to tax in that country. The 2017 guidelines provide guidance on how to determine whether a PE exists, including the attribution of profits to the PE. In addition to these specific changes, the 2017 guidelines also include a general emphasis on **substance over form**. This means that tax authorities will look beyond the legal form of a transaction to its economic substance. If the economic substance of a transaction doesn't align with its legal form, the tax authorities may disregard the legal form and recharacterize the transaction based on its economic substance. Overall, the changes and updates in the 2017 version of the OECD Transfer Pricing Guidelines reflect a global effort to combat tax avoidance and ensure that MNCs pay their fair share of taxes. By understanding these changes, MNCs can help to ensure that their transfer pricing policies are compliant with the latest international standards.
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