This Margin Note continues our series on non-transactional risks under the OECD Transfer Pricing Guidelines (TPG). After exploring Strategic and Marketplace Risks, herein we examine Infrastructure and Operational Risks—the internal systems, facilities, processes, and capabilities that enable a business to function profitably and scale.

The paradox is straightforward: these risks are foundational and often enterprise-defining, but their inherently expansive and complex nature results in them frequently being reduced into a generic notion of “market risk” within transfer pricing documentation. That framing increasingly feels incomplete.

Most transfer pricing documentation overemphasizes transactional risks while collapsing strategic business risks into generic “market risk.” This Margin Note examines how the OECD Transfer Pricing Guidelines expect companies to identify, describe, and substantiate non-transactional risks—drawing directly from management’s own public risk disclosures—to strengthen Local and Master File defensibility.

This Margin Note takes a deeper dive into intercompany agreements (ICAs) and focuses on what may be lurking within – or conspicuously missing from – key clauses. For tax teams catching their breath after compliance season, this may be an ideal moment to peek under the proverbial bonnet and assess whether ICAs for key related-party transactions are indeed still fit for purpose.

We have partnered with long-time collaborator Sandra Spector (of law firm TBD), a veteran international tax attorney, to add her perspective on contract construction and how gaps in an ICA may weaken both your tax and legal position. Sandra’s insights allow us to broaden the lens. She reminds us that ICAs are not merely just functional tools of the tax team, but rather, are a critical component of the operational fabric of a company.

Many tax teams know their ICAs need attention, but often don’t know where to start. We hope this guidance will either help you regain confidence in your ICAs, or muster the resolve to spend some quality time with counsel.

So, without further ado, “What’s in Your ICA?”