The Comparable Uncontrolled Price (CUP) method is one of the most widely used approaches in transfer pricing. It is often discussed in the context of ensuring fair and arm’s-length pricing between related parties. Below, we’ll address the most common questions about the CUP method to help you understand its nuances and applications.

What is the Comparable Uncontrolled Price (CUP) Method?

The CUP method compares the price charged for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction in comparable circumstances. If there is any difference between the two prices, this may

indicate that the conditions of the commercial and financial relations of the associated enterprises are not arm's length, and that the price in the uncontrolled transaction may need to be substituted for the price in

the controlled transaction (OECD Transfer Pricing Guidelines 2017, para. 2.14).

Why is the CUP Method Important in Transfer Pricing?

The CUP method is critical because it establishes whether related parties are conducting business as if they were independent entities. Tax authorities use the CUP method to ensure fair pricing and prevent profit shifting, which could lead to reduced taxable income in higher-tax jurisdictions.

How Does the CUP Method Work?

The process involves two key steps:

1. Identify Comparable Transactions: Look for transactions involving identical or similar products/services between independent parties.
2. Adjust for Differences: Make adjustments for any material differences between the controlled and uncontrolled transactions to ensure comparability.

For example, if a controlled transaction involves the sale of a widget and the uncontrolled transaction involves the same widget but in a different market, adjustments must account for market differences.

What Are the Two Types of Comparisons in the CUP Method?

There are two main types of comparisons used in the CUP method:

1. An Internal CUP compares the controlled transaction of the entity with the third party transaction(s) of the entity or its associated enterprise.
2. An External CUP, on the other hand, compares the controlled transaction of the entity with the transaction between two unrelated/non-associated enterprises in the open market.

Examples

Example Internal Comparable: Middle East-based company Oil Ltd. supplies both its German subsidiary, Oil Refinery Germany GmbH, and third-party German refiners with crude oil of the same quality during the same time period. The price charged to the third-party German refineries for a comparable quantity of crude oil serves as the arm's length price under the price comparison method. In practice, it is usually necessary to make appropriate adjustments due to differences in quality and quantity as well as differences in delivery conditions.

Example External Comparable: A Patisserie in Paris is supplied with wheat and rye by its German subsidiary. The German subsidiary distributes these products to Bio-Bäckerei GmbH, a German parent company. Since no internal comparable price is available, the arm's length price comparison is performed using the external comparable price based on the quoted price for wheat and rye.

When is the CUP Method Most Suitable?

The CUP method is most suitable when:

• The CUP method is therefore particularly suitable for homogeneous deliveries of goods or marketable services for which, from the buyer's point of view, there are no significant price influencing intrinsic differences. Decisive homogeneity criteria for the comparability of a product are the type or variety, origin, utility, quality of the product and economic, legal and market conditions. 
• Significant transaction characteristics that can affect the price of a product or service are quality, the level of trade, timing of delivery terms and payment terms.

How Does the CUP Method Differ from Other Transfer Pricing Methods?

The CUP method is unique in its direct focus on price comparison. Other methods, such as the Resale Price Method (RPM) or the Transactional Net Margin Method (TNMM), analyze profitability or margins rather than prices. The CUP method is the most straightforward when reliable price data is available but is less flexible in scenarios where comparables are scarce.

Are There Industry-Specific Applications of the CUP Method?

Yes, the CUP method is commonly applied in industries with standard pricing practices. Examples include:

• Commodities: Oil, gas, and raw materials with published market prices.
• Financial Transactions: Interest rates on loans or intercompany deposits.
• Licensing Agreements: Royalties with public benchmarks.

How Do Adjustments Ensure Comparability in the CUP Method?

Adjustments are made to account for differences in:

• Market Conditions: Regional pricing differences or economic factors.
• Volume Discounts: Differences in transaction size or bulk purchasing.
• Timing: Variations due to changes in market prices over time.

What Happens If No Reliable Comparables Are Found?

If no reliable comparables exist, taxpayers may need to use an alternative transfer pricing method, such as the TNMM or the Profit Split Method. Tax authorities may also scrutinize the transaction more closely.

What Documentation is Required for the CUP Method?

Comprehensive documentation is essential to support the CUP method. This includes:

• Details of the controlled transaction.
• Evidence of comparable uncontrolled transactions.
• Justifications for adjustments made to enhance comparability.
• Supporting data from internal or external sources.

How Do Companies Stay Compliant Using the CUP Method?

To stay compliant:

• Regularly review and update transfer pricing policies.
• Use robust databases and expert analysis to identify comparables.
• Maintain thorough documentation to justify pricing decisions.