Recent changes were made to Form C by the Inland Revenue Board in preparation for the YA 2022. One of the most critical changes is for those businesses participating in transfer pricing arrangements. As a result, the disclosure items have been significantly expanded to cover new areas.
These new areas include stating the characterisation of your company by reference to its functional profile, the business restructuring undertaken by the group during the year, and whether or not your company engages in cash pooling activities, performs any research and development activities or owns any intellectual properties.
Form C Requires Additional Disclosures
The taxpayer is NOW obligated to provide an entity characterisation concerning its business activities, specifically its manufacturing, distribution, and service activities; for instance, whether
manufacturing activities are carried out as a toll manufacturer, contract manufacturer, full-fledged manufacturer, or any other form of manufacturing;
distribution activities are carried out as a full-fledged distributor, commissionaire distributor, agent distributor, limited risk distributor, licenced distributor or any other form of distribution;
service activities are carried out as a management-service provider, IT service provider, treasury or any other service form.
The accurate definition of the entity is critical, and it must be decided based on an analysis of the transfer pricing functions, assets, and risks (FAR).
Definition of Intra-Group Services
The OECD defines an ‘Intra-Group Service’ as:
“An activity (e.g. administrative, technical, financial, commercial, etc.) for which an independent enterprise would have been willing to pay or perform for itself.”
The Malaysian Transfer Pricing Guidelines define an ‘Intra-Group Service’ as:
"Intragroup services are services provided by one or more members of a multinational group to benefit the other members.
In general, the types of services that members of a multinational group can provide to each other include, but are not limited to, management services, administrative services, technical and support services, purchasing, marketing and distribution services and other commercial services that typically can be provided concerning the nature of the group's business.
The costs of such services, initially borne by the parent or other service companies within the multinational group, are eventually recovered from other associated persons through intragroup arrangements."
Challenges for Pricing Intra-Group Services
Throughout business history, intra-group services have typically been priced using a standard method, i.e., remuneration determined by the (net) cost of providing the service, and typically with a relatively modest markup of only 2-5%.
This was typically done primarily for practical convenience so that a lengthy and expensive transfer pricing study was not had to be carried out, rather than doing this for the goal of tax planning.
Nevertheless, over the years, tax authorities have been more critical and have disputed the basis for allocation of expenses, the markup level, and also, more fundamentally, the manner of (cost-based) remuneration for certain intra-group services.
Transfer Pricing Considerations For Intra Company Management Services, Published by Lee Hishammuddin Allen & Gledhill.
Download to read more
The OECD’s Guidance on Intra-Group Services
In its Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations 2017, the Organization for Economic Co-operation and Development (OECD) provides guidance on transfer pricing for intra-group services.
The guidance can be found in Chapter VII of the Transfer Pricing Guidelines, titled "Special Considerations for Intra-Group Services."
Malaysian TP Guidelines 2012: Part VI
What is an Intra-Group Service?
A "service offered by one company within an MNE group to another company within that same MNE group" is what's referred to as an "intra-group service,"
Benefits Test
The test for identifying intra-group services is to determine whether an independent enterprise would have been willing to pay for the service or to perform it for itself. The term for this evaluation is the Benefits Test.
Sometimes it’s straightforward to work out if an intra-group service has been provided
If the situation is less clear-cut, you will need to do a more complex analysis; the Malaysian Transfer Pricing Guidelines outline some of them below:-
Shareholder Activities
Duplication
Incidental Benefits
On-call Services
Shareholder Activities
It would not be considered an intra-group service if a parent or holding company provided a service to one of the MNE group members as a shareholder.
This wouldn't be considered an intra-group service; instead, it would be regarded as a shareholder activity. Because the MNE group member likely did not request the service, the costs associated with providing it should be borne by the parent business.
Duplication
Duplicative services are services performed by a group member that merely duplicates a service that another group member is already performing in-house or that a third party is performing.
Incidental Benefits
This refers to services performed by one member of a multinational group, such as a shareholder or coordinating centre, which relates only to specific group members but incidentally provides a benefit to other group members.
On-call services
An on-call service is where a parent company or a group service centre is on-hand to provide financial, managerial, technical, legal or tax advice to group members at any time.
Suppose you conclude that an independent enterprise would incur standby charges for the service in comparable circumstances. In that case, you should classify the service's availability as an intra-group service and identify a suitable arm’s length charge.
The following table summarises the types of services that may be chargeable and that are non-chargeable:
Characterisation of Intra-Group Service Activity
When referring to the provision of intra-group services, the term "management fee" is frequently employed as a synonym for "any charge between related parties."
However, according to the information that was provided in Section A of the Appendix of Form C for YA 2022, the following is a list of the roles that are included in the provision of intra-group services:
Management-Service Provider;
IT Service Provider;
Treasury;
Others
There is no uniform international definition for Intra-Group Services, which results from the heterogeneity in the understanding of such services in the reality of MNEs.
Hence, the Management-Service provider, IT Service Provider, and Treasury terms aren't defined elsewhere in the C 2022 Guidebook.
Management-Service provider
From a literal understanding of the words, Management Services include arranging and coordinating any activity to provide services to group members. These activities technically include organising, supervising, monitoring, planning, controlling and directing resources such as human resources, finance, technology, physical and others.
Nevertheless, Section A of the Appendix in Form C for YA 2022 indicates that Technology (referred to as "IT Service") and Finance (referred to as "Treasury") are two separate elements.
Management-Service provider herein refers to the party that provides services to group members.
IT Service Provider
From a literal understanding of the words, an IT Service Provider is an entity within the group that offers functions, maintenance, and support of information technology devices, as well as services such as, but not limited to, computer systems application development and maintenance; systems integration and interoperability; operating system maintenance and design; computer systems programming; computer systems software support; planning and security relating to information technology devices; data management consultation, information technology education and consulting; information technology planning and standards; and establishment of local area network and workstation management standards to other group members.
Treasury Function
In its Transfer Pricing Guidance on Financial Transactions 2020, the Organization for Economic Co-operation and Development (OECD) indicates that for MNE groups, the management of group finances is an important and potentially complex activity where the approach adopted by individual businesses will depend on the structure of the company itself, its business strategy, place in the business cycle, industry sector, currencies of operation, etc.
A vital function of a corporate treasury may be, for example, to optimise liquidity across the MNE group to ensure that the business has sufficient cash available and that it is in the right place when it is needed and in the right currency.
Treasury activities include intra-group loans, Cash Pooling and Hedging. Other examples of activities which the treasury may have responsibility for include:
raising debt (through bond issuances, bank loans or otherwise) and
raising equity, and
managing the relationship with the MNE group's external bankers and independent credit rating agencies.
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