Transfer pricing considerations for private equity funds

ARTICLE | December 14, 2023

Authored by RSM US LLP

Funds with cross-border operations often provide an array of services, including fund management, financing (e.g., loans, guarantee fees and cash pooling), managing transactions and carrying out general back-office functions. The sheer gamut of services exchanged between the fund and its portfolio companies is partially what makes analyzing transfer pricing so complex. However, doing so is critical to ensure that transactions between related parties conform to the arm’s-length standard from both U.S. tax and non-U.S. tax perspectives. Otherwise, jurisdictions may reallocate income or disallow expenses or other items that could result in additional income taxes or loss of foreign tax credits.

Navigating the regulatory landscape

Private equity funds often establish a network of subsidiaries, affiliates and investment vehicles in diverse jurisdictions. While such structures offer strategic advantages, they also trigger transfer pricing considerations. The challenge arises when these entities transact with one another, as the prices set for these exchanges should mirror those that would be charged in an open market setting.

Regulations surrounding transfer pricing vary across countries and regions. More specifically, the Organisation for Economic Co-operation and Development guidelines offer a framework for establishing arm's-length pricing—the principle that transactions between related entities should mimic those between unrelated entities. Nevertheless, reconciling local regulations with international standards can be an intricate process, leaving private equity funds with the responsibility of navigating a complex web of rules.

Challenges encountered by private equity funds

• Complex corporate structures: The complex nature of private equity fund structures can make assessing the arm's-length nature of transactions challenging. Funds often hold diverse portfolio investments across industries and geographies, with varying degrees of interconnectedness, to satisfy their investor base.
• Intangible assets: Intangible assets, such as intellectual property and brand value, pose a formidable challenge in transfer pricing. Determining the value associated with and attributing appropriate profits for these intangibles becomes intricate, particularly when funds operate in sectors driven by intellectual property.
• Risk allocation: Determining the distribution of risks and rewards across affiliated entities is a pivotal aspect of transfer pricing analysis. Private equity funds, with their diverse investment portfolio and risk profiles, must meticulously allocate risks to reflect the economic substance of their transactions.
• Benchmarking financial transactions: Private equity funds often look to introduce debt and other financing mechanisms into their fund and operating entities. Questions arise related to debt capacity and the arm’s-length interest rate to be charged. Without proper support, such arrangements could be recharacterized for tax purposes, resulting in unexpected tax inefficiencies and potential penalties.
• Documentation requirements: Many jurisdictions demand comprehensive and contemporaneous documentation justifying the transfer pricing arrangements adopted by private equity funds. Failing to provide adequate documentation can lead to penalties and heightened scrutiny.
• Evolving regulations: Regulatory frameworks surrounding transfer pricing are not static. Private equity funds must remain vigilant to adapt to changes in rules and guidelines, ensuring ongoing compliance across their global operations as regulators push for more transparency, accountability and governance.

Mitigating challenges to stay in compliance

To overcome the complex challenges inherent in transfer pricing, private equity funds must adopt a strategic and comprehensive approach that includes the following components:

• In-depth analysis: Conduct a thorough analysis of the fund's global operations, identifying transactions that fall within the purview of transfer pricing regulations. This involves assessing the economic substance of transactions, analyzing comparable market data and evaluating the allocation of risks.
• Comprehensive knowledge: Given the intricacies of transfer pricing, enlisting the support of experts who specialize in this domain is essential. Tax professionals with deep knowledge of both international regulations and the fund's specific operations can provide invaluable guidance.
• Advance pricing agreements: Engage with tax authorities to establish advance pricing agreements whenever feasible. Such agreements provide a proactive approach by obtaining authorities' confirmation on the appropriateness of the fund's transfer pricing arrangements, mitigating future disputes.
• Robust documentation: Develop comprehensive documentation that outlines the fund's transfer pricing policies, methodologies and economic analyses. This documentation not only demonstrates compliance, but also serves as a crucial defense in the event of an audit.
• Continuous monitoring: Transfer pricing is not a one-time endeavor; it requires ongoing vigilance. As the fund's operations evolve, so do the associated transfer pricing considerations. Regularly reviewing the operations between related parties and updating transfer pricing policies is imperative.

Planning for success

For private equity funds with multinational operations, transfer pricing presents opportunities and challenges that call for a holistic approach to tax planning. Succeeding in today’s global investment landscape requires a sophisticated understanding of evolving cross-border regulations. RSM US LLP’s international tax practice is well-versed in navigating transfer pricing for multinationals and can work with fund managers to accelerate growth in global markets while maximizing value and mitigating risk.

RSM US manager Erik Martin contributed to this article.