Regulations Governing Assessment of Profit-Seeking Enterprise Income Tax on Non-Arm's-Length Transfer Pricing
The term "comparable circumstances" or "comparable transactions" referred to in Paragraph 1 of the preceding Article means the same or similar circumstances or transactions. When determining whether the circumstances of a profit-seeking enterprise and Unrelated Parties, or its Controlled Transaction and Uncontrolled Transactions made between Unrelated Parties are the same or similar, and the degree of its comparability, the following factors affecting the price or profits should be considered:
1. Characteristics of the assets or services:
(1)Where Tangible Assets are the objects of the transaction, the physical features of the assets, their quality, their volume of supply, and whether any Intangible Assets are included;
(2)Where Intangible Assets are the objects of the transaction, the form of transaction (i.e. licensing or sale), the type of assets, the duration and degree of protection under the laws, and the anticipated benefits from the use of the assets.
(3)Where services are the objects of the transaction, the nature of the services and whether any Intangible Assets are included.
2. Functions performed, including:
(1)research and development;
(3)procurement and raw material/supply management;
(4)manufacturing, processing and assembling;
(5)marketing, distribution, inventory management, warranty, advertising, and product services;
(6)transportation and warehousing; and
(7)operative management, accounting, finance, legal, credit, collection, training and personnel management services.
3. Contractual terms, including:
(1)the form of consideration charged or paid;
(3)scope and terms of after-sale warranties provided;
(4)rights to renew or amend the contract;
(5)the duration of relevant license or contract, and the rights of termination or re-negotiation of the contract;
(6)agreement on provision of auxiliary or supplementary services between the transaction parties;
(7)terms of delivery, such as FOB or CIF; and
(8)terms of credit and payment.
4. Risks assumed, including:
(1)market risks, such as risks of fluctuation in costs, demand, pricing, and inventory level;
(2)risks associated with the success or failure of research and development activities;
(3)financial risks, such as fluctuation in foreign currency rates of exchange and interest rates;
(4)credit risks, such as risks in credit extension and collection; and
(5)product liability risks.
5. Economic and market conditions, including:
(1)the similarity of geographic markets;
(2)the relevant size of each market and its potential of development;
(3)the level of the markets, such as wholesale or retail;
(4)the market share;
(5)the extent of competition in each market, consumer purchasing power, the alternatives available to the buyers and sellers;
(6)government regulations of the market;
(7)status of the industry, such as whether it is an emerging industry or declining industry; and
6. Business strategies, including:
(1)strategies on innovation and new product development;
(2)risk aversion; and
(3)market penetration strategies.
7. Other factors affecting the degree of comparability.
If there is a substantial difference on the aforesaid factors between the circumstances of a profit-seeking enterprise and Unrelated Parties, or between its Controlled Transaction and a Uncontrolled Transactions made between Unrelated Parties, an adjustment shall be made to the prices or profits in the comparable Uncontrolled Transaction taking into account the impact of such differences; if the impact from such differences could be eliminated after the appropriate adjustments, the Unrelated Parties and Uncontrolled Transactions may be selected as the comparables.
The preceding two paragraphs shall also apply to the situations when the profit-seeking enterprise determines the degree of comparability of its Controlled Transactions with Related Parties and the Uncontrolled Transactions with Unrelated Parties as well as whether such Uncontrolled Transactions with Unrelated Parties can be selected as the comparables.