With the OECD issuance in June 2018 of its final guidance on the profit split method, individual countries must determine how they might consider and apply the profit split method (PSM) going forward.
The OECD guidance issued reflects a consensus view that included input from the very large number of countries. The need for consensus means that guidance can only reflect the lowest common denominator of country positions. Hence, it is not surprising that the final guidance does not include innovative proposals for simplification of the PSM or any effort to expand its use. In previous comments to the OECD concerning the PSM, the BEPS Monitoring Group recommended making the PSM truly easy to apply by taxpayers and tax authorities alike by establishing standardised concrete allocation keys and weightings for common business models.
This article calls for individual countries and regional groups to now consider adopting this approach. It also suggests that countries that choose to do so could not only establish standardised concrete allocation keys and weightings for common business models, but such countries could require that any groups whose businesses reflect these common business models must use the PSM and these required keys and weightings. Another method or the use of alternative keys and weightings could only be used where a taxpayer group establishes to the satisfaction of the relevant tax authorities that some other transfer pricing method or key and weighting approach is, in fact, more appropriate. Countries should also consider encouraging the Platform for Collaboration on Tax to take on the challenge of further developing this approach so that it could more easily be adopted by many countries.
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