Economic Analysis for Tax and Transfer Pricing Disputes in Puerto Rico

By Christopher Skerritt, M.Ed., MBA, Chief of Economic Services · Published

KW Economics prepares the economic analysis in tax and transfer pricing disputes involving businesses in Puerto Rico: the controlled transactions at issue, the functional analysis and comparables that test their prices, and a report written for the forum that decides the dispute, whether a federal tax forum, a state tax appeal, or a court in Puerto Rico, for either side.

A tax or transfer pricing dispute asks whether the prices one company in a group charged another for goods, services, intangibles, or loans match what unrelated parties would have agreed to, and how much income moves if they do not, answered from the intercompany agreements, the companies' conduct, and comparable transactions. Read the full tax and transfer pricing dispute analysis guide.

Puerto Rico forums and expert standards

Federal tax forums test expert testimony under the federal rules of evidence, which the Tax Court applies by statute: whether the expert is qualified, whether the testimony rests on sufficient facts or data and on reliable methods, and whether those methods were reliably applied to the facts of the case. The commercial, shareholder, and matrimonial claims heard in Puerto Rico's courts are tested under its own standard, and a state tax appeal follows the rules of the forum that hears it. Puerto Rico's rules of evidence follow the federal model for expert testimony: the court asks whether the economist is qualified, whether the opinion rests on sufficient facts and reliable principles and methods, and whether those methods were reliably applied to the case. A transfer pricing report meets each of these inquiries by stating every method choice and naming the data behind every comparable.

Where these cases are heard

Highest court: Supreme Court of Puerto Rico (Tribunal Supremo de Puerto Rico). Federal venues: D.P.R.

Tax and legal framework

A federal transfer pricing dispute applies the same statute and regulations wherever the business is based, but where it is based decides which appellate decisions govern: an appeal from the Tax Court ordinarily goes to the federal court of appeals for the circuit where a corporation has its principal place of business (for a business based in Puerto Rico, the First Circuit), whose precedent the Tax Court follows, and a refund suit is filed in the federal district where the business is based or in the Court of Federal Claims. Whether Puerto Rico reallocates income between related companies under its own tax, requires royalties or interest paid to an affiliate to be added back, or combines affiliates in one return, and whether a commercial, shareholder, or matrimonial claim in Puerto Rico adopts an arm's length benchmark, are questions counsel confirms; the report presents the analysis so it can be applied under either party's position.

How the analysis is built

The same four steps apply to a tax or transfer pricing dispute involving Puerto Rico; the forum that hears the dispute and the rule of decision it applies decide how the result is used.

  1. Delineate the controlled transactions from the intercompany agreements, invoices, and ledger, and test the written terms against what the companies actually did.
  2. Establish which company performed each function, owned each valuable asset, and bore and controlled each risk, from the operating records and interviews.
  3. Select the method that gives the most reliable measure of an arm's length result, search for comparables with stated screens, and compute the range from several years of data.
  4. Compare the controlled result with the range, quantify any adjustment or restated profit by year, and show how the result moves under the opposing method, tested party, and comparables.

Attorney guides for tax and transfer pricing dispute cases

Services for tax and transfer pricing dispute cases in Puerto Rico

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Frequently asked: tax and transfer pricing dispute cases in Puerto Rico

Which forums hear a tax or transfer pricing dispute involving Puerto Rico?

Federal income tax disputes over related-party prices are heard in the United States Tax Court or, on a refund claim, in a federal district court or the Court of Federal Claims; appeals from the Tax Court and the district courts ordinarily go to the federal court of appeals for the circuit where the business is based, and appeals from the Court of Federal Claims to the Federal Circuit. A dispute over Puerto Rico's own tax follows its administrative and appeal process. Commercial and shareholder claims in Puerto Rico that turn on an intercompany price are heard in the Court of First Instance (Tribunal de Primera Instancia) (General jurisdiction trial court of the Commonwealth, organized into Superior and Municipal divisions; hears civil and criminal matters), with final appeals to the Supreme Court of Puerto Rico (Tribunal Supremo de Puerto Rico), and a divorce in which one bears on income or the value of a business is heard in the court that hears divorce in Puerto Rico. Matters within federal jurisdiction proceed in the United States District Court for the District of Puerto Rico.

Which rules govern a tax or transfer pricing dispute involving Puerto Rico?

A federal transfer pricing dispute applies the same statute and regulations wherever the business is based, but where it is based decides which appellate decisions govern: an appeal from the Tax Court ordinarily goes to the federal court of appeals for the circuit where a corporation has its principal place of business (for a business based in Puerto Rico, the First Circuit), whose precedent the Tax Court follows, and a refund suit is filed in the federal district where the business is based or in the Court of Federal Claims. Whether Puerto Rico reallocates income between related companies under its own tax, requires royalties or interest paid to an affiliate to be added back, or combines affiliates in one return, and whether a commercial, shareholder, or matrimonial claim in Puerto Rico adopts an arm's length benchmark, are questions counsel confirms; the report presents the analysis so it can be applied under either party's position. Federal tax forums test expert testimony under the federal rules of evidence, which the Tax Court applies by statute: whether the expert is qualified, whether the testimony rests on sufficient facts or data and on reliable methods, and whether those methods were reliably applied to the facts of the case. The commercial, shareholder, and matrimonial claims heard in Puerto Rico's courts are tested under its own standard, and a state tax appeal follows the rules of the forum that hears it. Puerto Rico's rules of evidence follow the federal model for expert testimony: the court asks whether the economist is qualified, whether the opinion rests on sufficient facts and reliable principles and methods, and whether those methods were reliably applied to the case. A transfer pricing report meets each of these inquiries by stating every method choice and naming the data behind every comparable.

More questions about tax and transfer pricing dispute analysis

References

Request a consultation on tax and transfer pricing dispute cases in Puerto Rico or call (201) 343-0700. Plaintiff and defense counsel.