Transfer pricing: Neither Science nor Law

TJN quotes François Vincent who says transfer pricing is systematically imprecise, not only not an exact science but not a science at all, and moreover, due to its systemic treatment through competent authority decision-making, constitutes "taxation by negotiation rather than taxation by legislation."  The latter is the main argument of my article, How Nations Share, forthcoming (draft here).  Vincent calls the outcome of taxation by negotiation "a secret body of law" but I maintain it is not really "law," at all.   By amalgamating the confidential experiences of the competent authorities of its member countries into "guidelines' and statements on best practices, the OECD functions as an institutional filter between the transfer pricing regime as it actually plays out and public perception about what the law should or does require.  That's no way to make law, but it is remarkably effective at influencing practice.  


Hobbes described "law" as having four core components: it must have certain institutional properties to create binding legal obligations: it must have a known author with recognized lawmaking authority; it must have authentic interpretation; and it must be made known to those subject to it.  (L xxvi. 8-23, 174-81).  The global transfer pricing regime lacks all four components.  That should be very troubling, as I argue in my paper, because it hides a very important legal regime--maybe even the most important tax law regime--from public view.  I am glad to see that people like Mr. Vincent, who know the regime inside and out, are beginning to acknowledge this as a big problem for global tax governance.