How Kenya has Implemented and Adjusted to the Changes in International Transfer Pricing Regulations: 1920-2016

transfer pricing; cross-border taxation; Kenya; Africa; tax avoidance; base erosion and profit shifting.A large proportion of international trade in goods and services is conducted between what are known technically as related parties. In practice, most of this trade is between different companies forming part of the same transnational corporate grouping. This is typically highly integrated in economic and financial terms, while legally appearing as a set of separate companies incorporated in a wide range of countries. For accounting, customs and general tax purposes, any two related companies engaging in cross-border transactions need to decide the price that they will set for the goods and services they exchange – ideally they will not make a profit off each other, as would be the case with unrelated companies. Inevitably, however, these are not market prices but administered prices. The process of setting these prices is known as transfer pricing (TP). In principle there is a standard mechanism, agreed internationally, to guide transfer pricing – the arm’s length principle. This means that cross-border transactions between related parties should be booked at the prices that would have applied had these been open competitive market transactions between unrelated parties (arm’s length transactions). It can be extremely difficult – and sometimes impossible – for revenue authorities to apply the arm’s length principle in daily operations. This paper analyses Kenya’s experience of trying to deal with transfer pricing, and looks at difficulties facing developing and middle-income countries in the application of transfer pricing rules. It discusses the course Kenya has taken in introducing TP laws, regulations, policies and administrative training in order to audit TP transactions effectively. Section 1 sets out the background to Kenya, its position in the African continent and globally, explaining why it has been selected as a case study. Section 2 sets out the historical experience of Kenya, both in developing its TP laws, regulations and procedures, as well as building capacity of its staff on issues of transfer pricing. Sections 3 and 4 reflect on the Kenyan position as set out in Section 2, and the appropriateness of some of the changes being proposed internationally by Actions 8-10 and 13 of the BEPS project of the G20/OECD. This paper attempts to unpack the issues surrounding TP in a developing country like Kenya, and to reflect on what is really needed in the BEPS process to make it usable in developing countries. The paper concludes by stating that the issues being raised in TP have been only partially resolved through improved capacity, regulations and policy. The OECD BEPS process does not seem to resolve problems faced by countries like Kenya, but instead foists a set of complex and unwieldy rules on Kenya and other developing and middle-income countries.Department for International DevelopmentBill and Melinda Gates Foundatio

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Scholarship on international health law is currently pushing the boundaries while taking stock of achievements made over the past few decades. However despite the forward thinking approach of scholars working in the field of global health one area remains a stumbling block in the path to achieving the right to health universally: the financing of heath. This paper uses the book Global Health Law by Larry Gostin to reflect and take stock of the fiscal support provided to the right to health from both a global and an African perspective. It then sets out the key fiscal challenges facing global and African health and proposes an innovative solution for consideration: use of the domestic principles of tax to design the global health financing system

Ten Truths about Tax Havens: Inclusion and the Liberia Problem

There has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the Liberia problem. In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia but not Switzerland as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar blacklists still target Black and Brown jurisdictions despite the fact that experts mean something quite different when they speak of the scourge of tax havens and secrecy jurisdictions. We think differently in important respects but believe that those real disagreements demonstrate the need for a less insular global tax policymaking apparatus. And we share a conviction that a more inclusive and more level playing field in the international tax arena would benefit all states. To show why, we offer a series of truths designed to prompt a long-overdue conversation about perceptions of bias and privilege in international taxation

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