Koncerninterne omstruktureringer i medfør af armslængdeprincippet fra Danmark til udlandet

Abstract

The aim of this thesis is to shed light on the integration and application of the OECD Transfer pricing guidelines in danish law, when applying the arm’s length principle on business restructurings within a Multinational enterprise, from Denmark to foreign jurisdictions with an emphasis on the movement of intangible assets. Identifying what a business restructuring from Denmark to foreign jurisdictions pertains, includes understanding the reasoning for undergoing a business restructuring, and delineating the objects that can be a part of a business restructuring. Hereby identifying functions, assets, and risks that affect the profit potential of the corporations. Delineation of the effect of the business restructuring, is based on a comparability analysis and a functions and risk analysis. By performing the functions and risk analysis before and after the restructuring, it is possible to accurately identify what has been transferred from one company to another in a business restructuring. This includes cases where there has been a transfer of something of value, which constitutes changes in the profit potential of the corporations. When identifying the transfer of something of value, the regulation of the arm's length principle in the Danish Tax assessment act § 2 applies, in accordance with the separate entity approach, which should be applied in all controlled transactions. Risk management and control are of particular significance when assessing the magnitude of the lost profit potential of the corporation undergoing a business restructuring. The transfer of something of value, must be at arm’s length, and in accordance with industry standards. The theoretical approach of the current legal state is backed up by case law analysis, which indicates a more practical application of the OECD’s arm's length principle between tax authorities and Multinational enterprises. The vague definition of intangibles and the difficulty of proving the transfer of risks and assets could incentivise attempts of skewing the claim of the transfer of something of value between the tax authority and the Multinational enterprises for the sake of tax optimization. The analysis of case law concluded that the common denominator, from the Multinational enterprise’s point of view, was the denial of transfer of intangible assets, compared to the transfer of functions or risks. This would result in a smaller compensation for the lost profit potential, as it is closely tied to this particular variable. The same argument can be made from the authorities point of view, that the identification of these particular variables were a key point in the dispute. When identifying profit potential, all the variables are to be seen holistically through the lens of their actual contribution of value. Functions, assets, and risks, and the control of these as well as their real value, should be considered in unison.

Kolofon: Denne side er en del af AAU Studenterprojekter — Aalborg Universitets studenterprojektportal. Her kan du finde og downloade offentligt tilgængelige kandidatspecialer og masterprojekter fra hele universitetet fra 2008 og frem. Studenterprojekter fra før 2008 kan findes i trykt form på Aalborg Universitetsbibliotek.

Har du spørgsmål til AAU Studenterprojekter eller Aalborg Universitets forskningsregistrering, formidling og analyse, er du altid velkommen til at kontakte VBN-teamet. Du kan også læse mere i AAU Studenterprojekter FAQ.

A master thesis from Aalborg University

Koncerninterne omstruktureringer i medfør af armslængdeprincippet fra Danmark til udlandet

[Business restructurings within Multinational enterprises, from Denmark to foreign jurisdictions]