The OECD Transfer Pricing Guidelines and Value Creation / Mirna Screpante.

Format:

Book

Author/Creator:

Screpante, Mirna, author.

Series:

Doctoral series ; Volume 68.

IBFD Doctoral Series ; Volume 68

Language:

English

Subjects (All):

Transfer pricing--Law and legislation.

Transfer pricing.

Transfer pricing--Taxation--Law and legislation.

International business enterprises--Taxation--Law and legislation.

International business enterprises.

Physical Description:

1 online resource (466 pages)

Edition:

First edition.

Place of Publication:

Amsterdam, The Netherlands : IBFD, [2023]

Summary:

The book conducts a critical assessment of the modifications made to the OECD Guidelines concerning intangibles, examining how these changes influence profit shifting, the concept of value creation and anti-avoidance measures within the framework of the arm's length principle.

Contents:

Cover

IBFD Doctoral Series

Title

Copyright

Acknowledgements

Foreword

List of Abbreviations

Part I: Introduction

Chapter 1: Introduction

1.1. Context and background of the study

1.1.1. Transfer pricing rules as a tool to segregate taxable income

1.1.2. The BEPS Project and Actions 8-10

1.1.3. The problem of artificial segregation of profits

1.2. Aim of the book

1.3. Relevance of the book

Chapter 2: Research Questions and Structure of the Book

2.1. Hypothesis and research questions

2.2. Structure of the book

2.3. Methodology

2.4. Terminology and formalities of citations

Part II: The "Paradoxical" Paradigm of the Arm's Length Principle

Chapter 3: Conceptual and Practical Implications of the Arm's Length Principle as a Profit Allocation Tool in Tax Structuring The Seeds of Artificial Segregation

3.1. Introduction

3.2. Historical (hypothetical) allocational and anti-avoidance-based approach to the allocation of profits

3.2.1. The Carroll Report and the 1933 Draft Model Convention

3.2.2. The US regulations

3.3. Historical (factual) fractional-based approach to the allocation of profits

3.3.1. The International Chamber of Commerce proposal

3.3.2. The League of Nations Reports

3.3.3. Formulary apportionment of profits as a proposal

3.3.4. The OECD PSM: The arm's length formulary principle

3.3.5. Fractional apportionment under OECD Pillar One

3.4. The rationale of the ALP

3.4.1. ALP as a profit allocation discipline

3.4.2. ALP as an anti-avoidance discipline

3.5. Tax structuring based on the (hypothetical) allocational but not on the anti-avoidance-based approach of the ALP

3.5.1. Tax structuring with intangibles profit-shifting planning models

3.5.2. The role of tax structuring with commonly accepted patterns.

3.5.3. The functionality of IP structuring

3.5.4. Alternatives for tax structuring with intangibles in an allocational-based profit model

3.5.4.1. The royalty structure

3.5.4.2. The cost sharing structure

3.5.4.3. The principal/centralized entrepreneur structure

3.5.5. A unified result for allocational-based profit models

3.6. Interim conclusions

Chapter 4: The Post-Base Erosion and Profit Shifting Arm's Length Principle Reinforces Typical Intangibles Profit Shifting Tax Planning

4.1. Introduction

4.2. Intangibles Importance, definition and types

4.2.1. Importance of intangibles within the OECD framework after Actions 8-10

4.2.2. Definition and types of intangibles according to the OECD Guidelines

4.2.2.1. Hard intangibles

4.2.2.2. Soft intangibles

4.3. The Actions 8-10 modification to the OECD Guidelines

4.3.1. The requirement of the "accurate delineation of the transaction"

4.3.2. The requirement of control and financial capacity over risk

4.3.3. The actual conduct of the parties vis-à-vis DEMPE functions

4.3.4. The role of legal ownership vis-à-vis the "actual conduct of the parties"

4.3.5. Actions 8-10 A "more explanatory" guidance of the OECD Guidelines

4.4. Practical impact of Actions 8-10 on the OECD Guidelines

4.4.1. The IP Licence Model: An illustrative framework

4.4.2. The IP Licence Model as an optimization model

4.4.3. The core elements of the IP Licence Model

4.4.3.1. Preliminary phase: IP transfer under a cost-sharing arrangement

4.4.3.2. Secondary phase: centralized legal ownership and funding of IP

4.4.3.3. Final phase: IP intra-group outsourcing

4.4.4. Optimization of the IP Licence Model tax position after Actions 8-10

4.5. The paradox of attribution of profits to intangibles based on DEMPE functions.

4.5.1. The role and impact of DEMPE functions in MNEs

4.5.2. The origins of the problem of profit shifting

4.6. Interim conclusions

Part III: Rethinking the Interpretation and Application of the Arm's Length Principle in Light of Value Creation: The Reinforcement of the Anti-Avoidance Approach

Chapter 5: Current Normative and Interpretative Framework of the Arm's Length Principle in Light of the "as accurately delineated principle"

5.1. Introduction

5.2. Interpretational conceptual framework on tax avoidance

5.2.1. The meaning of "tax avoidance" within and beyond the BEPS initiative

5.2.1.1. BEPS initially intends to define "tax avoidance": no common underlying principle

5.2.1.2. A general definition of "tax avoidance": a common underlying concept

5.2.1.3. The anti-avoidance purpose of Actions 8-10 as a mirror of the anti-avoidance non-discrimination test under EU law

5.2.1.4. The ALP in light of EU law "artificiality": A brief lesson for the ALP under the OECD Guidelines (2022)

5.2.2. The meaning of tax avoidance as an international standard in transfer pricing

5.3. Normative framework (de lege lata) of (non)-recognition and recharacterization of transactions

5.3.1. International framework on non-recognition and recharacterization of transactions

5.3.1.1. (Non)-recognition and recharacterization under article 9(1) of the OECD Model

5.3.1.1.1. Article 9(1) has not merely a profit allocation purpose but also one of tax avoidance

5.3.1.1.2. Article 9(1) is neither restrictive nor expansive and non- exceptional concerning transactional adjustments

5.3.1.1.3. Article 9(1) cannot enforce autonomously transactional adjustments, but it is not merely illustrative

5.3.1.2. (Non)-recognition and recharacterization of transactions under the OECD Guidelines (2022).

5.3.1.2.1. A general - not exceptional - anti-avoidance standard for (non)-recognition of the transaction

5.3.1.2.1.1. The "as accurately delineated principle" as a standard - not exceptional - to not recognize the actual transaction as undertaken and recognize a new hypothetical transaction

5.3.1.2.1.2. The "as accurately delineated principle" is merely a soft law guidance and does not function as enabling domestic law

5.3.1.2.2. Commercial rationality as a general rule for (non)-recognition and recharacterization of transactions not exceptional?

5.3.2. Domestic law framework for non-recognition and recharacterization of transactions undertaken

5.3.2.1. (Non)-recognition and recharacterization under domestic legislation and the OECD Guidelines

5.3.2.2. (Non)-recognition and recharacterization under GAARs and transfer pricing rules as SAARs in light of the "as accurately delineated principle"

5.3.2.3. Jurisdictional analysis on (non)-recognition and recharacterization

5.3.2.3.1. Canadian legal basis of non-recognition (recharacterization) of transactions undertaken

5.3.2.3.1.1. Recharacterization in case law AgraCity (Cameco doctrine)

5.3.2.3.1.2. Author's view on the impact of the "as accurately delineated principle" of the OECD Guidelines (2022) as an interpretative source in domestic tax law

5.3.2.3.1.3. Author's view on the interplay of the Canadian GAAR and the OECD Guidelines (2022) as a jurisprudential interpretative source

5.3.2.3.2. Australian legal basis of non-recognition (recharacterization) of transactions undertaken

5.3.2.3.2.1. Recharacterization in case law Glencore Investment Pty Ltd (Chevron doctrine)

5.3.2.3.2.2. Author's view on the impact of the "as accurately delineated principle" and commercial rationality of the OECD Guidelines (2022) as part of domestic law.

5.3.2.3.2.3. Author's view on the interplay of the Australian GAAR and the OECD Guidelines (2022) as domestic tax law

5.3.2.3.3. Spanish legal basis of non-recognition (recharacterization) of transactions undertaken

5.3.2.3.3.1. Recharacterization in case law BICC and Peugeot

5.3.2.3.3.2. Author's view on the impact of the "as accurately delineated principle" of the OECD Guidelines (2022) in domestic tax law as a source of interpretation

5.3.2.3.3.3. Author's view on the interplay of the Spanish GAAR and the OECD Guidelines (2022) recognized in domestic tax law as a source of interpretation

5.3.2.3.4. Italian legal basis of non-recognition (recharacterization) of transactions undertaken

5.3.2.3.4.1. Recharacterization in case law Henraux and ItalCo

5.3.2.3.4.2. Author's view on the impact of the "as accurately delineated principle" of the OECD Guidelines (2022) in domestic tax law as the main reference

5.3.2.3.4.3. Author's view on the interplay of the Italian GAAR and the OECD Guidelines (2022) in domestic tax law beyond a source of interpretation

5.4. Interpretational proposal (de lege lata) of the "as accurately delineated principle" of transactions under the OECD Guidelines (2022)

5.4.1. The "as accurately delineated principle" under article 9(1) of the OECD Model

5.4.2. The "as accurately delineated principle" under domestic transfer pricing rules

5.5. Interim conclusions

Chapter 6: Proposed Interpretative and Normative Framework of the Arm's Length Principle in Light of the Functional (i.e. DEMPE) Formula-Based Value Creation Standard

6.1. Introduction

6.2. Descriptive and conceptual framework of value creation

6.2.1. Value creation from a political perspective

6.2.1.1. The concept(less) notion of value creation ("taxation where value is created").

6.2.1.2. The function of "taxation where value is created" under the OECD BEPS initiative.

Notes:

Description based on publisher supplied metadata and other sources.

Description based on print version record.

Includes bibliographical references.

Other Format:

Print version: Screpante, Mirna The OECD Transfer Pricing Guidelines and Value Creation

ISBN:

9789087228644

9087228643

OCLC:

1419871308