draining development.pdf - Khazar University

Accounting for the Missing Billions 285obvious: the places most likely to be subject to transfer mispricing abuseare also the places least likely to enjoy protection from such abuse.It is accepted that other regulation, such as controlled foreign companyrules, might limit the opportunity for such abuse, but, as secondaryprotection, they do not do so efficiently. First, they do not restore correctpricing between the parties that initiated the trade; so, tax remains inappropriatelyallocated to jurisdictions given that the application of theserules to transfer mispricing only gives rise to an additional tax paymentin the jurisdiction in which the ultimate parent company is located, notin the jurisdiction that lost out initially. Second, the abuse has to be discoveredin the parent company jurisdiction. For the reasons noted below,this can be difficult. Consequently, the chance that transfer mispricingwill take place without being detected is high.The Particular Problem in Developing CountriesThe issue of enforcing transfer pricing rules in developing countries isparticularly acute, as many published reports have shown. 21Global Witness has published a report on the operations of MittalSteel (now Arcelor Mittal) in Liberia. The report provides commentaryon the tax provisions of Mittal’s mineral development agreement, notingthat “probably the single biggest problem with this agreement is that itgives the company [Mittal] complete freedom to set the price of the ironore, and therefore the basis of the royalty rate” (Global Witness 2006, 7).There were no restrictions at all in the original agreement betweenMittal Steel and Liberia on the transfer prices the company could use. Asa result, while there is no suggestion of impropriety, the possibility thattransfer mispricing occurred was increased by the absence of any regulationintended to prevent it. In this case and as a direct result of the workof Global Witness, the contract was revised. The changes were noted in anew commentary issued by Global Witness, which reported that “underthe amended agreement the [transfer] price is set under the arms lengthrule, which means that it will be based on the international market priceof the ore” (Global Witness 2007, 1).It would be pleasing to report that all such risks of transfer mispricinghave been eliminated so speedily, but the evidence is clear that this is notthe case. Problems with transfer mispricing have been found after similar