Practitioner's Perspective," supra note 6 observes that "while the study states that the taxpayer may rebut the use of subsequent experience, the required burden of showing that unrelated parties would not have provided for adjustments in cases of inexact comparables appears too difficult to me.
This could prove to be an almost impossible burden for a taxpayer to satisfy because of the high standard and the lack of ability to locate comparables.
The Report usefully suggests some criteria that are applied in selecting comparables.
The APA Office generally requires the comparables to have complete financial data available for a specified period of time (e.
The guidelines emphasize the arm's-length principle and the use of transaction-based methods that rely on comparable uncontrolled transactions.
These methods include the comparable uncontrolled price method, the resale method and the cost plus method.
Moreover, although we applaud the listing of the factors and issues to be considered in assessing comparability, we believe that the temporary regulations unnecessarily restrict the ability of taxpayers to rely on comparables in determining an arm's-length price.
9) More important, the "make-orbuy" analysis--which could eliminate the use of potential comparables by hypothesizing what a taxpayer could have done--is contrary to the principle that a taxpayer may structure its tax affairs in any reasonable manner.
The proposed regulations generally require a comparison of a related party's operating profit ratios with those of comparables
for the tax year at issue, as well as the first preceding year and the first succeeding year.
The CUT method also applies to related transactions similar but not quite comparable
to unrelated transactions.