After years of debate and negotiation, the Organization for Economic Cooperation and Development’s (OECD’s) Pillar One, Amount B has taken a major step forward with the IRS’s release on December 18, 2024, of Notice 2025-04: “Application of the Simplified and Streamlined Approach under Section 482.”
The notice announces the intention of the U.S. Department of the Treasury and the IRS to issue proposed regulations to implement the OECD’s Amount B for U.S. taxpayers by introducing a new transfer pricing method, the simplified and streamlined approach (SSA), to Reg. §1.482.
The notice states that U.S. taxpayers can elect to apply the SSA as a safe harbor for tax years beginning on or after January 1, 2025. Prior to the release of proposed regulations, taxpayers can rely on the guidance in the notice in conjunction with the report the OECD published in February 2024, “Pillar One – Amount B: Inclusive Framework on BEPS” that was incorporated into the OECD Transfer Pricing Guidelines for Multinational Enterprises as an annex to Chapter IV.
The notice also states that Treasury and the IRS expect that the proposed regulations will not deviate significantly from the OECD report. Therefore, the notice does not “restate or address every element of the Report.” It does, however, provide some U.S.-specific information regarding the SSA, including how taxpayers are to make the election to apply it, and its interaction with U.S. documentation requirements under Reg. §1.6662-6.
Background
The OECD report on Amount B provided a simplified and streamlined approach for determining the returns to baseline marketing and distribution activities for intercompany transactions involving tangible goods. The approach allows, in certain circumstances, distributors who purchase tangible goods from related suppliers for resale to determine their transfer pricing using a simplified approach rather than a full transfer pricing benchmarking analysis.
The U.S. has been a strong supporter of Amount B; the notice represents the adoption of the principles of the OECD report in U.S. transfer pricing guidance.
Notice 2025-04
The notice indicates that the IRS is implementing the SSA effective January 1, 2025. The SSA will be available to both inbound U.S. distributors that purchase tangible goods from non-U.S. related parties and to U.S. manufacturers selling tangible goods to outbound non-U.S. related parties. At a minimum, implementation will be in accordance with Option 1 of the OECD report, which allows the SSA to be applied only if a taxpayer elects for it to apply. Treasury and the IRS are considering whether the proposed regulations should also allow the IRS to apply the SSA, even if the taxpayer does not elect to apply it (Option 2), presumably in an audit context.
The notice contains instructions on how a taxpayer can make the election to apply the SSA. The election would be made by filing a statement with the taxpayer’s original tax return for the year indicating the transactions to which the taxpayer intends to apply the SSA, and providing other information specified in the notice. The SSA would apply on a transaction-by-transaction basis for the tax year for which the election is made. However, Treasury and the IRS are considering alternatives to the transaction-by-transaction and year-by-year election.
The notice also provides guidance on the documentation required to enable the IRS to verify that the taxpayer has complied with the SSA. These documentation requirements supplant those specified in Reg. §1.6662-6, although there is some overlap.
Some specific books and records that need to be maintained include:
- An intercompany agreement between the supplier and related distributor that supports the application of the SSA;
- Detailed financial data necessary to confirm the application of all steps of the SSA as delineated in the OECD report;
- Non-financial information necessary for application of the SSA; and
- Several statements affirming compliance with aspects of the SSA.
Request for Comments
The notice requests comments on all SSA-related topics, and three specific issues:
- Whether application of the SSA should be determined solely by the taxpayer’s election (Option 1);
- Whether there should be SSA elections other than on a transaction-by-transaction basis or tax year-by-tax year basis; and
- The selection of 30% as the cap in the operating expense cross check (cap-and-collar) calculation
Comments must be submitted by March 7, 2025.
BDO Insights
For some multinational enterprises with intercompany transactions involving the purchase/sale of tangible goods, the SSA could be a useful, simplifying alternative to transfer pricing benchmarking. The extent to which it is adopted by U.S. manufacturers and distributors will depend on a variety of factors, including how many countries – other than the U.S. -- agree to accept it.
Every multinational with either a distributor or manufacturer of tangible goods in the U.S. and intercompany transactions involving those tangible goods should evaluate whether the application of the SSA would be practical and beneficial. In some cases, application of the SSA may not be practical because the tax authority on the other side of the transaction will not accept it. In other cases, the SSA could provide a useful simplification of at least some transfer pricing compliance requirements, in particular in cases in which there have been challenges in developing traditional benchmarks.
BDO transfer pricing specialists can assist in evaluating the transfer pricing landscape of manufacturers and distributors, including whether adoption of the SSA would be advantageous.
Please visit BDO’s Transfer Pricing Services page for more information on how BDO can help.