longer period. This interest-free period does not apply to simple loans or advances of
money. Taxpayers may establish a more appropriate rate which takes into account all
the relevant factors. The following is an example.
Suppose T, a U.S. taxpayer, lends $1,000 to its foreign subsidiary interest-free.
The IRS can compute interest income to T based on the AFR. The foreign subsidiary,
as a correlative adjustment, has an interest deduction.
(ii) Services. Where an entity performs personal services for a related entity and the
services are not an integral part of the trade or business of either of the entities, a
mere reimbursement of actual costs is permitted. However, where the personal serv-
ices are an integral part of the trade or business of either, a profit must be added to
the change. The regulations do not provide a safe-haven profit rule. An arm’s-length
charge for such services would be the amount that would have been charged by un-
related parties performing the same services in a comparable transaction. An arm’s
length charge is required where:
- Either party receiving the services or the party performing the services is en-
gaged in a trade or business of providing similar services to unrelated parties.
This also applies where the party performing the services is a member of a group
and another member of the group performs, as one of its principal activities,
such services for unrelated parties. - The services performed are one of the principal activities of the party perform-
ing the services. - The party performing the services is clearly capable of doing so and the services
are a principal element in the recipient’s operations. - The recipient of the services has received a benefit or a substantial amount of
services from related entities during the taxable year. Services other than man-
ufacturing, production, extraction, or construction services are presumed not to
be a principal activity of the party performing them if during the taxable year all
the direct and indirect costs (including the cost of services constituting manu-
facturing, production, extraction, or construction) for the taxable year attributa-
ble to related entities do not exceed 25% of the performing entity’s total cost
(excluding cost of goods sold).
(iii) Use of Tangible Property. A safe-haven formula applies to leases entered into
before August 7, 1986, or pursuant to a binding written contract entered into before
May 9, 1986. After that date, there is no safe-haven formula for leases.
(iv) Use of Intangible Property. The regulations do not provide a safe-haven rule for
royalties. An amount charged in similar transactions involving unrelated parties is
considered an arm’s length charge. The IRS can adjust the royalty rate to ensure that
the royalty is commensurate with the income derived from the use of intangible prop-
erty. In lieu of providing a royalty on the transfer of intangible property, taxpayers
can have a cost-sharing arrangement.
(v) Sales. The most difficult area in Section 482 and the one with the largest poten-
tial impact is intercompany pricing. These provisions are described in detail in the
prior chapter.
30.5 TRANSFER PRICING 30 • 15