842(vo.15,No.22) ANALYSIS The proposal implies that in any case where func tions are relocated the taxpayer must make a compen business manager standard in the section on documen- tation. However, the standard is not mentioned in case sation payment. The definition is very broad as it in of determination of transfer prices cludes not only intangibles and material goods but also opportunities, risks and other advantages. The govern a difference might for instance be seen because the draft law would require that under the prudent business manager standard all facts and circumstances are tangibles. The idea is that the taxpayer must assume known to the parties of a transaction. This legal as- compensation in case future profit is reduced due to the sumption is of course different from circumstances on relocation of busines the market place and might therefore lead to different The wide application might become clear with the following two examples esults than the arm s- length principle. Again, this as- sumption is not stipulated in the oecd guidelines S Corp licenses intellectual property to its German Hypothetical Arm's -Length Test German market. At the end of the license contract the Us parent does not prolong the agreement, but The prudent business manager test provides the offers its affiliate to act as a contract manufacturer ground for the so-called hypothetical arm' s-length test, on behalf of its US parent and as a buy-sell distribu which is the core valuation method for the determina tion of the compensation in case of a relocation of func tor.Under such circumstances the legislative pro- tions. The law foresees a three step process for the de- posal will require that a compensation payment be made because risks and opportunities are relocated termination of prices to the US parent company. This example shows that a In a first step the taxpayer must the wide definition of the proposed law bears a sub- a evaluate if fully comparable data is available or if stantial potential for a disagreement. It is likely that data is available which is fully comparable after having made adjustments for differences in comparability In the Internal Revenue Service would argue that a such a case the standard method shall have priority ceive a compensation as the contract ended and in The taxpayer may use the full range of third party general license contracts do not foresee a compensa- tion after the end of the license period If limited comparable data is available, the tax method after having The German parent company starts a distribution made adjustments In such e the range of arms operation in the United States. In the past the U.S. length values shall be narrowed (e.g, through the appli market was served out of Germany but since the cation of the interquartile range concept, see below business in the United States grows steadily a buy. sell distribution operation is set up. Again, in such a In case third-party data is unavailable, the hypo- thetical arm's-length test shall be used. The taxpayer case tax authorities would assume that compensa tion is required as the U.S. subsidiary shall then determine the full range where the two pr living profit potential. In the case at hand it can be ques dent business managers would potentially agree u The full range shall be determined through the mini tioned if a third-party distributor would be willing to mum price of the seller and the ma aximum price of pay a compensation for the customer list. In case of purchaser. The taxpayer is then obliged to use the mid termination of the agreement the U.S. distribution point of the range uniess there are arguments for a dif company would not have a compensation claim to ferent value within this range In case functions are wards the German supplier and the customer list transferred (including intangibles, risks and opportuni- night in many cases not be used for other products ties), the taxpayer is obliged to determine the minimum and maximum price throughout a cash flow calculation. Prudent Business Manager Test According to the reasoning of the draft law, the tax payer must use a discount rate, which is conforming to The German Supreme Courts have developed the so- the functions and risks taken by the parties called prudent business manager standard, which has dominated the rulings in case of domestic transactions In many cases taxpayers have used discounted cash flow calculati between the shareholder and its corporation. In many set. However, in such cases, taxpayers only have pro- arms-length transfer prices and have developed vided forecasts for the buying company, for example if rules. It is most noteworthy that for instance, the an assembly plant is opened up in another country, the company will have made in general a detailed invest equirements under German law always were based on ment planning. On the side of the selling company, the prudent business manager standard. For the courts have denied the deductibility of a which gives up its production, a forecast is often not bonus of a managing director, which is also the share available. From a business perspective it might make no holder, in cases where the bonus was not agreed in sense to provide an alternative calculation because a lo- writing in advance cal production is not possible due to high labor costs limited capacity or because the business idea is to es It is believed that other than the arm's-length prin- tablish production close to the cust le, empirical evidence is not required to determine a reasonable price. It is argued that it is possible to derive with income standard to such transactions it also will be a price through"logic thinking. "However, the prudent required to update continuously the fictitious forecasts business manager standard is not established in any other jurisdiction. The German government unsucces on the side of the seller. The draft legislation would re- fully tried to introduce the standard in the organization uire that the underlying assumptions for the valuation for Economic Cooperation and Development guidelines 1995 and 1996. The OECD only refers to the prudent See note 5.4, 5.6, 5.11, 5. 28 of the OECD guidelines 32107 Copyright e 2007 TAX MANAGEMENT INC, a subsidiary of The Bureau of National Affairs, Inc. TMTR ISSN1063-2069