The global business environment faces a new stress test in the form of tariffs, the magnitude of which is unheard of since the Smoot-Hawley Tariff Act of 1930, in the aftermath of the US election. The unpredictability and changing nature of tariffs require multinational enterprises (MNEs) to reassess the terms and conditions of their controlled transactions and transfer pricing policies. This article intends to explore some ideas about how tariffs may impact transfer pricing and what can be done from the MNEs’ perspective to realign compliance with the arm’s length principle and mitigate potential risks.
U.S. tariffs, introduced unpredictably, have profound effects on international trade and on the pricing of businesses’ structures. For MNEs, these tariffs change the cost dynamics of cross-border transactions, especially for goods. This shift in costs forces a reevaluation of how profits and risks should be allocated within MNEs’ value chains. The impact of this change on transfer pricing matters is inevitable.
The introduction or increase of tariffs affects the cost structures of goods sold (COGS) and, by extension, the profitability of intercompany transactions. Considering the above, MNEs need to address key areas to align their transfer pricing policies with these changes:
• Assessing profitability: MNEs should model the impact of tariffs on their intercompany profitability, to understand how tariffs might affect margins. This is key to determine if, and to what extent (the quantum), transfer pricing adjustments are necessary.
• Reevaluating business models: Companies should evaluate their existing business models and supply chains. In response to tariffs, MNEs may need to adjust their transactions (e.g. moving to lower-risk distribution models, to mitigate the impact on their profitability). At this stage, a deep functional, risks and assets analysis plays a crucial role when (re)determining arm’s length prices for intragroup transactions.
• Reviewing intercompany agreements: MNEs must also assess their intercompany agreements to ensure they are adaptable to changes in tariffs. For instance, force majeure clauses, which allow parties to renegotiate contracts in response to unforeseen events, may become more relevant in this context. If tariffs significantly impact profitability, it may be necessary to renegotiate pricing terms or consider alternative risk-sharing models. In addition, some contracts include renegotiation clauses that allow parties to revisit pricing terms in response to major market disruptions, while others include termination clauses that may come into effect if certain conditions are met. MNEs must carefully evaluate how such clauses might apply in the context of tariff changes and ensure that the impact on transfer pricing adjustments is well-documented and compliant with the arm’s length principle.
• Consider relocation opportunities: US tariffs have not been imposed coherently across the board, thus creating, new opportunities for relocation of assets, functions and personnel. Beyond transfer pricing, relocation strategies should consider a wider spectrum of international tax issues, such as the existing treaty networks, substance concerns and, evidently, the reliability of legal and tax systems.
Whatever strategic changes are adopted, they must be carefully documented and justified from a transfer pricing perspective. Any reallocation of functions or risks must reflect economic substance and be supported by robust functional analyses, updated benchmarking studies, and clear intercompany agreements. Proper documentation is crucial when adjusting transfer pricing policies. MNEs must be prepared to provide evidence to tax authorities that any adjustments made are in line with the arm’s length principle. This includes demonstrating the cause-effect relationship between the tariff increase and any changes to intercompany pricing, with a well-documented rationale and evidence of how the tariffs impacted the intercompany transactions.
To successfully navigate the complexities of tariffs, MNEs must adopt a proactive approach. This involves regularly reviewing transfer pricing policies and intercompany agreements, considering long-term strategies to minimize the risk of future tariff disruptions.
By building resilience into their transfer pricing models and adapting their business strategies to accommodate tariff fluctuations, MNEs can reduce exposure to the risks posed by unpredictable factors such as significant changes on tariff policies.
In conclusion, the evolving nature of U.S. tariffs requires MNEs to reassess their transfer pricing strategies. Companies must model the impact of tariffs on profitability, review their intercompany agreements, and consider the role of contractual terms like force majeure clauses. Through strategic planning and diligent documentation, MNEs can ensure that their transfer pricing policies remain compliant and resilient in the face of tariff changes.
Co-authored by:
• Miguel Pimentel, Partner in the Tax area
• Mariana Martins Silva, Principal Associate in the Tax area
