Performance Guarantee: How to Avoid Pitfalls and Overcome Hindrances in a Transfer Pricing Analysis

Abstract

Performance guarantees are a common form of support used in commercial transactions and their use within multinational enterprises has become increasingly frequent in recent years. This article assesses whether (and to what extent) the methods described in the OECD Transfer Pricing Guidelines in relation to financial guarantees can be used by analogy for the determination of the commission fee related to the provision of a performance guarantee. The authors examine the technical and operational aspects that should be carefully assessed when applying the different methods reported by the OECD to determine transfer prices in line with what third parties would have agreed upon in comparable circumstances and, therefore, with the arm’s length principle.