Regulations Governing Assessment of Profit-Seeking Enterprise Income Tax on Non-Arm's-Length Transfer Pricing
A reallocation of profits by business restructurings shall be consistent with the Arm’s-length principle. The following factors should be considered:
1. Special considerations for risks:
(1) Whether the contractual reallocation of risks between associated enterprises is consistent with the economic substance of the transaction.
(2) Whether the allocation and attribution of functions, assets and risks in the Controlled Transaction before and after the restructuring is at arm’s length.
(3) To make sure to have greater control over the risk and financial capacity to assume the risk.
2. Arm’s length compensation for the restructuring itself: (1) The business reasons for and the expected benefits from the restructuring.
(2) The rights and obligations of the parties before and after the restructuring.
(3) Whether the transfer of profit potential is consistent with the reallocation of the risks.
(4) Whether the compensation for the transfer of tangible assets, intangible assets, and activities involved by business restructuring is at arm’s length.
(5) Whether the compensation for the business restructuring parties about the damage from contract termination or renegotiation is at arm’s length
3. Arm’s length remuneration for post-restructuring Controlled Transactions:
(1) The comparability analysis done for the controlled transactions after business restructuring to determine the Arm’s-length Method for the aforementioned transactions.
(2) Comparing the relationship between compensation for the restructuring and post-restructuring remuneration.
The collection authorities-in-charge use related documents about business restructuring provided by taxpayers to recognize the actual transactions undertaken. When the economic substance of Controlled Transactions differs from its form, the collection authorities shall make adjustments to the Non-arm's-length transfer pricing cases in accordance with its substance.