Amount B will apply to the following transactions:

• Buy-sell marketing and distribution transactions where the distributor purchases goods from another group entity for wholesale distribution to third parties; and

• Sales agency and commissionaire transactions where the entity contributes to the wholesale distribution of goods to third parties for another group entity.

Wholesale distribution includes distribution to any customers except end consumers. A wholesale and retail distributor is deemed to solely carry out wholesale distribution if annual net retail sales (to end consumers) do not exceed 20% of total annual net sales.

Consideration is being given as to whether the scope should be expanded to include the wholesale distribution of digital goods.

An accurate delineation of the in-scope transaction will need to be undertaken in accordance with chapter I of the OECD transfer pricing guidelines. Businesses will then need to determine whether “baseline” activities are undertaken using the Amount B scoping criteria. The framework does not provide an exhaustive list of qualifying activities but identifies a set of core functions that distributors should perform in relation to in-scope transactions:

• The qualifying transaction must exhibit economically relevant characteristics that mean it can be reliably priced using a one-sided transfer pricing method, with the distributor, sales agent, or commissionaire being the tested party, i.e., the simpler party to be tested under the transfer pricing rules, commonly but not exclusively using the transactional net margin method (TNMM).

• A quantitative filter will apply to specify that the ratio of operating expenses to annual net sales must be within a range between 3% and 30%-50% (to be specified), based on a three-year weighted average.

• Views are sought on whether there should be separate qualitative scoping criteria to exclude entities that make nonbaseline contributions from the scope of Amount B (“alternative B” in the consultation). Examples of nonbaseline contributions are given, and include technical or specialized support activities, including customization or modification of the products distributed, and contributions specific to highly regulated industries. Under “alternative A,” a largely quantitative approach based on the other scoping criteria and exemptions are considered sufficient and no additional qualitative criteria would be included.
  

Transactions out of scope of Amount B are those:

• Involving the distribution of services or the marketing, trading, or distribution of commodities; and

• Where the entity carries out nondistribution activities (e.g., manufacturing or research and development) in addition to the distribution activities, unless the distribution activities can be adequately evaluated and priced separately from the nondistribution activities. Consideration will be given as to whether transactions should be removed from scope where there is a high dependence on allocation keys to apportion indirect costs between the distribution and nondistribution activities which could materially affect the respective net profit margins.

The TNMM is considered the most appropriate method for pricing in-scope transactions. Where “internal” comparable uncontrolled transactions are available to reliably price in-scope transactions, businesses and tax authorities are permitted to use the comparable uncontrolled price (CUP) method.

The OECD inclusive framework have used common benchmarking search criteria, additional screening, and a qualitative review to produce a global dataset of businesses that undertake baseline marketing and distribution activities. The financial information from that dataset has been used to approximate arm’s length results and develop a matrix of arm’s length pricing outcomes for in-scope transactions, using return on sales as the net profit indicator.

Businesses will determine the arm’s length return for in-scope transactions by selecting the relevant segment of the pricing matrix that corresponds to the business’:

• Industry grouping, selected from three options based on whether the industry was found to have a significant relationship to levels of return; and

• “Factor intensity classification,” selected from five options based on the business’ net operating asset intensity (ratio of net operating assets to net revenue (OAS)) and operating expense intensity (ratio of operating expenses to net revenue (OES)), calculated based on a weighted average of the business’ most recent three-year financial period.
  

OECD pricing matrix (as a percentage of return on sales) derived from the global dataset

(Click the link below and refer the table on Page 26)

Source: Public consultation document: Pillar One—Amount B (July 2023) (oecd.org)

A number of mechanisms are being considered to address potential geographical differences. In each case, a list of relevant countries will be published by the OECD and periodically updated:

A modified pricing matrix could apply for entities in countries where geographical differences influence the profitability of baseline marketing and distribution entities;

A data availability mechanism could be used for entities in countries where there is insufficient data in the global dataset but evidence exists of country risk that may influence the arm’s length return. An uplift to the arm’s length return (taken from the standard pricing matrix) would be calculated by multiplying the entity’s asset intensity percentage (capped at 85%) by a specified percentage based on the sovereign credit rating category of the country. For example, countries with a rating of BBB+ or higher will have no adjustment but countries with a rating of CCC- or lower will apply an upward adjustment equal to 8.6% multiplied by the entity’s asset intensity percentage.

Local pricing matrices could be produced by relevant tax authorities. These will be verified by the OECD inclusive framework and published prospectively. Work continues to determine the limited circumstances in which this approach could be used.

A Berry ratio "cap and collar" guardrail will be used to prevent the over-remuneration of low-operating expense intense entities, and the under-remuneration of high-operating expense intense entities. Where the return on sales determined under the pricing matrix, converted into a ratio of gross profit to operating expenses, is outside the cap and collar range of 1.05 to 1.5, the return on sales will be adjusted to the nearest edge of the range. This applies to all in-scope transactions.

The analysis underpinning the pricing matrices will be updated every five years (unless there is a significant change in market conditions in the interim). Other financial data (including the country risk adjustment percentage under the data availability mechanism and the Berry ratio cap and collar range) will be updated annually.

Businesses with transactions within the scope of Amount B will be required to provide information to tax authorities as part of the transfer pricing local file. This is expected to include:

• An explanation of the delineation of the in-scope transaction, including the functional analysis, the parties to the transaction, and the context of the transaction (e.g., other commercial or financial relations that may influence accurate delineation of the transaction);

• The written contract (if one exists) or agreements governing the transaction;

• Calculations of the revenue, costs, and assets allocated to the in-scope transaction; and

• Information and allocation schedules tying financial data used in respect of the scoping criteria and application of the transfer pricing method to the financial statements.
  

Tax authorities can request further information relevant to assessing the application of Amount B.

In the first year of application, business should include in their documentation a consent to apply Amount B for a minimum of three years, unless transactions are no longer in scope during that period or there is a significant change to the business.

Individual country tax authorities may require businesses to provide a written contract signed prior to the in-scope transactions (but there is no general requirement for a written contract).

Where disputes arise between businesses and tax authorities in relation to the application of Amount B, existing tax dispute prevention and resolution mechanisms will apply, including advance pricing arrangements and mutual agreement procedures. A mutual agreement procedure or bilateral advance pricing agreement reached prior to the adoption of Amount B will take priority for in-scope transactions.

Amount B rules will be incorporated into the OECD transfer pricing guidelines by January 2024. Further work will be undertaken by the OECD inclusive framework in respect of implementation, including whether Amount B should be a “safe harbor.” The implementation timetable will take account of the time businesses need to prepare.

Comments on the pricing framework are invited by 1 September 2023.

Deloitte’s EMEA Dbriefs series will hold a webcast on 2 August 2023 at 14:00 BST/15:00 CEST to discuss these and other Pillar One and Two updates. For more information and to register visit the EMEA Dbriefs website.

The OECD inclusive framework has updated its framework for the Amount B baseline marketing and distribution return for the sale of goods and the new consultation document sets out a more streamlined proposal. There are a number of areas where input is sought from the business community and options to be considered, including in relation to scope and whether there should be adjustments to pricing for country specific factors.

Businesses will want Amount B to be as straightforward to apply as possible, in order to meet its simplification objectives. The base pricing matrix uses a return on sales (from 1.5% to 5.5%), with a cap and collar (based on the Berry ratio) to limit under or over reward due to, for example, sales volume.  This appears relatively simple to apply and businesses will not need to undertake separate benchmarking. The OECD inclusive framework has focused on asset intensity as the main driver of returns, which based on transfer pricing experience would appear reasonable, and has dealt with industry variances by applying three broad groupings. Businesses will be more concerned about the potential for country-specific matrices to vary these returns, whether based on local information or an adjustment for sovereign risk, which could add to complexity. It is not clear what the economic rationale for the sovereign risk adjustment would be, or how reliable that would make the outcome. The OECD has not published its underlying economic analysis showing how the pricing matrix has been arrived at, nor any economic analysis showing that individual country variances are economically significant.

The scope has been broadened to include sales agents and commissionaires as well as buy-sell distributors, and to allow some retail sales as part of a wholesale business. Services remain out of scope, as do commodities, and more work will be done on the distribution of digital goods. There are options for a largely quantitative approach to scope based on averages of the previous years’ results, which businesses will prefer, or a quantitative approach combined with qualitative factors.

Businesses will be pleased to see that documentation requirements have been made much less prescriptive and aligned with the existing general guidance for local file information under the OECD transfer pricing guidelines. The universal requirement for a “contract” setting out the Amount B position has been removed, although individual countries can require one.