Valuation of Implicit Support from a Transfer Pricing Perspective

Abstract

The concept of “implicit support” has been steadily handled inconsistently by taxpayers and tax authorities alike, and by the courts in particular, which are guilty of applying divergent tax treatment in the same or similar cases. There is no universally accepted definition of “implicit support”, but it can be construed as a benefit assumed to be derived by a group company by virtue of being part of the group of companies. The latest OECD Transfer Pricing Guidance on Financial Transactions provides some guidance on the concept of implicit support. Some tax authorities and courts have also asserted the value of implicit support in determining the arm’s length price of intra-group financial transactions. Such endeavours have not, however, clarified all the issues evolving around implicit support in terms of its scope, impact and manner of implementation. Hence, this has remained an ambiguous issue worldwide, and global consensus is nowhere in sight.