Skattenytt nr 5 2010 s. 282
Transfer pricing aspects of business restructurings: some comments on the transfer of a profit potential
Business restructurings refer to the cross-border redeployment of functions, assets or risks within a multinational enterprise. This topic has already been under discussions at the OECD level for some time, especially since a roundtable organised in 2005. These discussions are particularly relevant in the context of an economic downturn, as many companies need to cut costs in order to face lower sales volumes. Also, globalisation opens new opportunities but at the same time creates new threats, as it increases competition. Consequently, companies are under higher pressure in order to be efficient and remain competitive.
The decision to enter into a business restructuring is not necessarily tax-driven. It is true that a multinational enterprise may wish to enjoy certain jurisdictions that offer lower tax rates and concentrate in this jurisdiction important functions, risks, or assets. A group may be interested by certain privileged tax regimes that may be available e.g. for the location of intangible assets or the performance of certain administrative functions. However, a business restructuring may be motivated by other than purely tax reasons: for example, a group may wish to shift some functions to another country in order to reduce production costs or get closer to a certain market. A multinational enterprise may also wish to re-organise its operations in order to centralise certain functions or adapt to the evolution of the legal environment.
The fact that a business restructuring may be motivated by savings (whether such savings are due to lower taxes or to lower costs) should not, in itself, constitute abuse and be disregarded for taxation purposes: the OECD Guidelines state that tax administrations "should not disregard the actual transactions or substitute other transactions for them” "in other than exceptional cases”1. A structure may only be disregarded if "the economic substance of a transaction differs from its form” or if, "while the form and substance of the transaction are the same, the arrangements made in relation to the transaction, viewed in their totality, differ from those which would have been adopted by independent enterprises behaving in a commercially rational manner and the actual structure practically impedes the tax administration from determining an appropriate transfer price”2. Although these provisions are general and can lead to conflicts of interpretation, the principle remains that a multinational enterprise should have the possibility to organise and re-organise its operations, as long as it does so for sound business purposes.
As a business restructuring is likely to lead to a shift in business profits, the OECD has issued a discussion draft intended to provide guidance on how such restructurings could be dealt with for transfer pricing purposes (2). The OECD considers that in certain cases a State involved in a business restructuring may be entitled to levy a tax on a presumed compensation that a party to a business restructuring should have obtained at arm’s length. It is, however, very difficult to determine the extent to which a State should be entitled to such a tax jurisdiction, particularly with regard to the transfer of a profit or a loss potential (3). The fact that a State may in certain cases be able to levy such a tax raises also issues from an EU law perspective (4).
See Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published by the OECD (hereinafter referred to as "the OECD Guidelines”), § 1.36.
OECD Guidelines, § 1.37.
2 Business restructurings are likely to result in a shift in business profits: the OECD Discussion Draft
Business restructurings are likely to lead to a shift in the allocation of business profits between the different entities of a multinational enterprise. After a business restructuring, the States involved in the transfer of functions, risks or assets may be entitled to lower profit expectations, but at the same time they may also get a lower exposure to losses. On the other hand, other States may have the possibility to tax more business profits, but they should also be ready to accept higher costs or losses. For example, assume that a full-fledged manufacturer is converted to a toll-manufacturer. A full-fledged manufacturer usually performs research & development functions, has a full range of production, owns inventories, sources raw materials and may market products in its own name. On the other hand, a toll-manufacturer has limited autonomy on manufacturing planning and does not take title of inventory: it is the principal who retains title to the goods and own intangibles. Therefore, a full-fledged manufacturer assumes heavy risks and usually owns valuable intangibles created by its activities. It is consequently entitled to a significant part of the profits resulting from these operations. In contrast, a toll-manufacturer bears few business risks and does not own intangibles; it will usually be remunerated on a cost plus basis, in order to ensure a low but stable profit.
As a result of this restructuring, the manufacturer should be entitled to reduced income expectations, as well as a lower exposure to losses. The residence State of this entity may loose substantial taxable income, if the business was profitable before the restructuring. Therefore, this State may be tempted to expect the transferor to be compensated for the transfer of profitable functions, assets or risks, and tax such a compensation. On the other hand, if the operations transferred were not profitable, the residence State of the transferor may no longer accept losses over a longer period of time. Also, if the activity transferred is loss-making, the State of the transferee may consider that an independent enterprise would not have taken on such functions, risks or assets without some financial support, thereby taxing the transferee on a presumed compensation for being attributed a loss-making activity. Consequently, as a business restructuring often implies a cross-border shift of business profits, it also implies concurring tax claims between the States concerned. Such concurring tax claims are likely to result in double taxation, as the taxation of a presumed compensation does not necessarily give rise to a corresponding deduction in the other States involved in the business restructuring.
The OECD has been working on transfer pricing aspects of business restructurings since several years and published a Discussion Draft on 19 September 2008. In this document, the OECD Members reiterate their conviction that the arm’s length principle should motivate the transfer pricing aspects of business restructurings. That is, compensations upon redeployments of functions, assets and risks should be priced as if such transactions would have taken place between independent entities. It is also important that the business restructuring is at arm’s length for each party involved into a transaction, not only from a group perspective: a business restructuring may well be motivated by sound business reasons at the group level, e.g. in order to achieve global synergies, but this does not necessarily mean that each party involved receives an arm’s length treatment.
The problem consists in determining the extent to which States should be able to challenge a business restructuring and impose taxes on a presumed compensation that would have been paid at arm’s length. This problem is particularly accurate with regard to a profit or a loss potential.
3 The transfer of a profit or a loss potential upon a business restructuring
The starting point of the Discussion Draft is that taxpayers and tax administrations should rely on the arm’s length principle to determine whether a compensation should be paid and, if so, the amount of this compensation. One of the questions raised in the Discussion Draft is whether or not the transfer of a profit or a loss potential may be considered as an asset or a liability and have tax consequences as such. The OECD observes that "on the one hand, potential losses and possible liabilities may, as a result of the transfer, shift to the transferee; on the other hand, the expected return attached to the risk transferred may be realised by the transferee rather than the transferor”3.
It is stated at Paragraph 64 of the Discussion Draft that "the profit / loss potential is not an asset”: "the arm’s length principle does not require compensation for loss of profit / loss potential per se”. Consequently, the arm’s length principle does not necessarily require a compensation for the transfer of a loss or a profit potential upon a business restructuring. This also indicates that in certain cases, the payment of a compensation may be required. Actually, it could be stated that any business restructuring implies the transfer of a profit or a loss potential, since income is normally computed according to the realisation principle. The OECD indeed observes that "business restructurings involve transfers of functions, assets and / or risks with associated profit / loss potential between associated enterprises, for instance from a restructured operation to a foreign related principal”4. Therefore, that a compensation may be required upon a business restructuring associated to a profit potential is not particularly surprising; the difficulty consists in determining in which cases the tax administration of a country involved in a restructuring should be able to levy a tax on a deemed compensation corresponding to the transfer of a profit potential, as well as the extent of the taxable compensation. Here, it can be distinguished between the transfer of intangible assets (3.1) and the transfer of functions and risks (3.2).
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 63.
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 46.
3.1 Transfer of a profit or loss potential with regard to intangible assets
In case an intangible asset is transferred to another group company, the OECD Guidelines indicate that this asset should be valued and compensated at arm’s length on the basis of the profits that were reasonably foreseeable at the time that the transaction was entered into5. In order to value such an intangible asset, one may compute the expected income that would be derived from this asset in the future. Formally, this is a potential profit as it is not yet realised. However, the high probability that income will be derived from this asset as well as the fact that independent parties would have agreed upon a certain price for its transfer, indicate that a compensation should be paid. So for the transfer of intangible assets, it is quite clear that a compensation should be computed at arm’s length between the parties even if the assets transferred carry a profit or a loss that is not yet realised. The OECD Discussion Draft confirms this way of reasoning, as it is stated that "if an entity has no discernable rights and / or other assets at the time of the restructuring, then it has no compensable profit potential. On the other hand, an entity with considerable rights and / or other assets at the time of the restructuring may have considerable profit potential, which must ultimately be appropriately remunerated in order to justify the sacrifice of such profit potential”6. Therefore, out of Paragraph 64 of the Discussion Draft, exit taxation based on a deemed compensation may be levied if the restructured entity owns a "right” or "another asset” at the time of the restructuring.
The question is to what extent the tax administrations impacted by a business restructuring may take into account a profit or loss potential for taxation purposes upon a business restructuring. It can be observed that the Discussion Draft entitles tax administrations to a rather large tax jurisdiction. Indeed, the Discussion Draft reiterates the possibility for tax administrations to make an ex-post adjustment to a valuation made in good faith if the parties may have required a price adjustment mechanism or may have renegotiated the transaction7. Indeed, the Discussion Draft indicates at Paragraph 87 that if a valuation was correctly performed at the time of the transfer, the price of the transaction should not, in principle, be adjusted in the future. However, Paragraph 88 discusses whether the valuation may still be adjusted even though it was correctly performed at the time of the transaction. It is indicated that "the main question is to determine whether the valuation was sufficiently uncertain at the outset that the parties at arm’s length would have required a price adjustment mechanism, or whether the change in value was so fundamental a development that it would have led to a renegotiation of the transaction. Where this is the case, the tax administration would be justified in determining the arm’s length price for the transfer of the intangible on the basis of the adjustment clause or re-negotiation that would be provided at arm’s length in a comparable uncontrolled transaction. In other circumstances, where there is no reason to consider that the valuation was sufficiently uncertain at the outset that the parties would have required a price adjustment clause or would have renegotiated the terms of the agreement, there is no reason for tax administrations to make such an adjustment as it would represent an inappropriate use of hindsight”8.
Accordingly, tax authorities can consider that the parties may have insisted to adopt an adjustment clause in case the valuation was uncertain enough at the time of the transaction: even if the valuation was correctly performed, if the tax authorities demonstrate that independent parties would have included such an adjustment clause, the Discussion Draft allows for an ex-post adjustment of the transfer price. It may prove very difficult to determine when a valuation was sufficiently uncertain so that the parties would have required a price adjustment mechanism. This rather broad tax jurisdiction may lead de facto to taxation of profits that were only potential at the time of the transaction, which increases the risk of double taxation. Similarly, the second part of this sentence, referring to a change in value that is "so fundamental a development that it would have led to a renegotiation of the transaction”8 may also stir up the risk of double taxation: how to determine the threshold as from which the parties would have renegotiated a transaction? Also, it is not at all certain that independent parties would have had the possibility to renegotiate the transaction, particularly in case there is a significant difference in the bargaining power between the parties involved.
These two aspects illustrate the difficulty to take into account a profit or a loss potential upon a transfer of intangible property. With regard to the aforesaid, it would seem desirable to also explore the ways of solving issues related to the transfer of intangible assets the value of which could not be correctly determined at the time of the transaction. In that respect, it can be wondered whether an advance pricing agreement (APA) may be a suitable tool. APAs are normally intended to determine a certain transfer pricing methodology. The transfer of intangible assets usually requires a valuation of such assets, which is much more factual. The OECD Guidelines do not exclude APAs that are more specific or determine a particular result, although it is indicated that "great care must be taken if the APA goes beyond the methodology, the way it will be applied, and the critical assumptions, because more specific conclusions rely on predictions about future events”10. Also, the frame provided by article 25 of the OECD Model Tax Convention is large and allows competent authorities to adopt pragmatic solutions. Consequently, APAs may be a tool that could help avoid disputes related to the transfer of intangible property as part of a business restructuring.
If no APA has been reached, another solution could consist in favouring simultaneous tax audits. Simultaneous tax audits are recommended for transfer pricing cases at Paragraph 4.93 of the OECD Guidelines, and the transfer of intangible property may prove being an area where a simultaneous tax audit avoids double taxation for a multinational enterprise. However, the complexity of these issues, the possible differences of interpretation as well as the possible importance of the amounts at stake may deter tax administrations from engaging in simultaneous tax audits. This may particularly be the case absent an arbitration clause and outside the European Union, as in such case no requirement exists for the full elimination of double taxation. Indeed, an ex-post adjustment resulting from a transfer of intangible property may not be accepted by the competent authorities of the other States involved in a business restructuring as part of a mutual agreement procedure. Mandatory arbitration or the Arbitration Convention could help resolve such issues, if their length and costs do not deter taxpayers from accepting non-arm’s length adjustments.
Difficulties may also exist with regard to the transfer of a profit or a loss potential with regard to functions or risks.
See particularly chapter VI of the OECD Guidelines: Special considerations for intangible property.
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 64.
This possibility was already considered by the OECD Guidelines, particularly at § 6.34 and 6.35.
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 88.
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 88.
OECD Guidelines, § 4.125.
3.2 Transfer of a profit or loss potential with regard to functions and risks
Based on Paragraph 64 of the Discussion Draft, it seems that no compensation can be taxed for the mere transfer of a function of a risk to which no asset is related. Indeed, the Discussion Draft indicates that "if an entity has no discernable rights and / or other assets at the time of the restructuring, then it has no compensable profit potential”11. However, Paragraph 65 of the Discussion Draft discusses the "determination of the arm’s length remuneration for a change in the allocation of the profit / loss potential that follows from the reallocation of risks”. This Paragraph seems to extend the possibility that exit taxation is levied even in the absence of a transfer of asset. The OECD is, however, not perfectly convinced that this is necessarily the correct approach, as it is indicated that "comments from the public are particularly invited on this issue”. Such an extension of exit taxation to the transfer of risks may increase situations of double taxation.
In practice, the transfer of a risk may already be taken into account by adapting the transfer pricing policy within a multinational enterprise in the post-restructuring phase: for example, if an entity is being attributed certain risks that it did not bear before a restructuring, this change will be reflected in the functional analysis and consequently, the transfer pricing model will be adapted. Paragraph 65 of the Discussion Draft may amplify the claims of the tax administrations involved, which could expect more than what an updated transfer pricing policy would have resulted in.
It could be argued that an independent party may not accept to be deprived from a certain profit potential related to a transfer of functions and/or risks, or may not accept additional losses/liabilities without being adequately compensated. The Discussion Draft considers these issues, particularly at Paragraphs 66 to 69. Indeed, if e.g. a full-fledged manufacturer is converted into a contract manufacturer, the new transfer pricing model will probably entitle the restructured entity to a lower but stable income. That is, the restructured entity will no longer have the possibility to make as much profits as it used to do before the restructuring. Based on that observation, it could be considered that an independent manufacturer would have required the payment of a compensation for a breach of contract resulting in a lower remuneration. However, what is the actual difference between the situations pre- and post-restructuring? The main difference may result from the profits associated to intangible asset that the manufacturer will no longer earn. For that difference, i.e. for the transfer of intangible property, the restructured entity should be remunerated at arm’s length, as discussed above. In contrast, if no intangible asset is owned by the manufacturer, then exit taxation would be levied on purely potential profits: if the full-fledged manufacturer starts its activity and is immediately converted into a contract manufacturer, the full-fledged manufacturer may be deprived from a profit potential (since as a contract manufacturer it may not earn as much profits), however there is no certainty at all that this activity would have been profitable. When the manufacturer has not built any valuable intangible assets, nothing indicates that its activity would have been profitable. It may well have been loss-making. Another example is the conversion between two entities that are not entitled to ownership of intangible property but bear different levels of risk, such as the conversion of a contract manufacturer to a toll manufacturer: although the toll manufacturer is usually entitled to a lower remuneration than a contract manufacturer, an exit tax levied upon a conversion would still be based on potential profits that are not necessarily connected to economic reality. Therefore, imposing exit taxation seems unjustified when no intangible asset has been transferred. Taking into account the very transfer of functions or risks for exit taxation purposes would exacerbate risks of double taxation and would probably influence business decisions negatively.
Consequently, in order to avoid confusions and prevent tax administrations from exercising too broad tax claims, one may hope that the OECD in the final business restructuring document explicitly limits the right to levy an exit tax to cases in which an asset is transferred: the shift in function or risk should not, in itself, be a taxable event and give rise to an additional tax burden compared to what could be expected from an updated transfer pricing policy post-restructuring.
Transfer Pricing Aspects of Business Restructurings: Discussion Draft for Public Comment, § 64.
4 EU law implications
EU law aspects may play an important role in the context of business restructurings. As discussed above, there may be cases in which the OECD Discussion Draft results in taking into account a potential profit or loss for exit taxation purposes. This would probably not happen in a domestic situation, as the profits are normally computed according to the realisation principle. Therefore, the question is raised whether the implications of the Discussion Draft are in line with the requirements of the Treaty on the Functioning of the European Union (formerly EC Treaty) as interpreted by the ECJ. This section provides only for a short overview of some of the possible implications of the Discussion Draft from an EU law perspective.
It has not always been obvious that exit taxes were in the scope of the fundamental freedoms. The ECJ in the non-tax case Daily Mail12 had the opportunity to, indirectly, find exit taxes incompatible with EC law. The Court did not reach such a conclusion and found that the freedom of establishment did not give a right to transfer the central management and control of a company to another Member State while remaining incorporated in the emigration State. This implied indirectly that the UK was not prohibited from levying an exit tax upon emigration of the taxpayer.
Several years after Daily Mail the ECJ had the opportunity to rule in exit tax cases. In the Lasteyrie13 and N14 cases, the Court had to consider the taxation of individuals who owned shares and emigrated. In both cases the taxpayer could postpone payment of taxes if certain requirements were fulfilled. The ECJ found immediate taxation at the time of emigration incompatible with EC law, as well as certain requirements for postponing exit taxation. As a consequence, exit taxes as such have not been found incompatible with the fundamental freedoms. Only immediate taxation upon emigration is not accepted, and a deferral granted in proportionate conditions may be enough to secure the tax jurisdiction of the emigration State.
As a consequence of Lasteyrie and N, it could be argued that an exit tax levied by the State of the transferor of an asset may be incompatible with EU law if such a tax is levied at the time of the business restructuring, as no such tax may have been levied domestically. However, contrary to the realisation of a capital gain, profits that were still potential upon a business restructuring are not necessarily realised at a certain point in time, as they are probably realised over a certain period of time. ECJ case law on exit taxation may, therefore, be difficult to transpose to business restructurings.
Another non-tax case, Cartesio15, should also be taken into account. In Cartesio, the ECJ found that Member States have the right to decide on the conditions for a company to exist, including the winding up as a consequence of the transfer of real seat. However, a significant difference exists with Daily Mail: in Cartesio, the ECJ found that if the immigration State allows the moving company to be transformed into a company according to its domestic law, then the emigration State cannot require that the moving company is wound up. If the company is continued, Cartesio may indicate that the emigration State can not levy an exit tax, i.e. the emigration State could loose its tax jurisdiction over capital gains incurred before emigration. Transposed to business restructurings, Cartesio may imply that if an asset transferred is still used by the transferee after the business restructuring, then the State of the transferor may be prohibited from levying an exit tax. The implications of Cartesio from a taxation perspective will hopefully be clarified in future case law.
On the other hand, ECJ case law may justify the levy of an exit tax upon a business restructuring, as a tax reassessment based on the arm’s length principle was accepted in Thin Cap Group Litigation16
SGI17. By levying a tax upon a cross-border redeployment of functions, assets or risks a Member State would be acting in line with the arm’s length principle, which was not found incompatible with EU law by the ECJ.
Accordingly, there seems to be arguments that plead both for and against the compatibility of an exit tax levied upon a business restructuring. In the absence of a Court decision in that respect, more guidance may come from the other institutions of the European Union. The European Commission, in a Communication from late 2006, encouraged Member States to coordinate their practices with regard to exit taxes18. The Communication indicates that a Member State may levy taxes on the difference between the book value and the market value of an asset through a proportionate deferral. As indicated above, this may be difficult to apply in practice since a business restructuring may not result in a realisation by the transferee: the asset transferred may be continued to be used after the business restructuring. More interestingly, the Communication encourages Member States to avoid double taxation and double non-taxation, which has been followed by the Council of the European Union in a Resolution from late 200819. These statements support taxation from the emigration State and at the same time limit its tax jurisdiction, for the immigration State to be able to tax gains arising after the date of the transfer. In that respect, it is necessary that Member States coordinate their tax claims in order to avoid double taxation, which supposes that they agree on the value of the transfer. For this purpose, both the Commission and the Council of the European Union encourage Member States to use dispute resolution mechanisms. It is true that the Arbitration Convention is, in theory, an efficient tool to prevent double taxation. It may, however, be available only after a tax reassessment leading to double taxation.20 Also, article 8 of the Arbitration Convention authorises a Member State to refuse access to the procedure if a taxpayer has been subject to a "serious penalty”. The definition of a "serious penalty” is still not harmonised, although the Communication suggested that a "serious penalty” is limited to "exceptional cases like fraud”21, which has been accepted by the Council in the Revised code of conduct.22 Consequently, one cannot rely entirely on the Arbitration Convention in order to eliminate double taxation. It can therefore be hoped that APAs and/or simultaneous tax audits will also be considered by Member States, in order to minimise situations of double taxation that can only be solved by means of mutual agreement procedures.
Last, EU law aspects may also play a role with regard to potential losses. The European Court of Justice found in N that upon a transfer of residence, the former residence State had to grant relief for capital losses incurred after leaving the departure State. If, upon a business restructuring, the transferee incurs losses connected with the transferred assets, a consequence of the N case may be that the State of the transferee refuses to grant relief for such losses, considering that it is a matter for the State of the transferor. Such issues could hardly be solved by the Court in an objective way, i.e. it cannot be determined in advance which State shall, in principle, be liable for losses arising post-restructuring.
ECJ, 27 September 1988, case C-81/87, The Queen v H. M. Treasury and Commissioners of Inland Revenue, ex parte Daily Mail and General Trust plc. (Daily Mail).
ECJ, 11 March 2004, case C-9/02, de Lasteyrie du Saillant.
ECJ, 7 September 2006, case C-470/04, N. v Inspecteur van de Belastingdienst Oost/kantoor Almelo (N).
ECJ, 16 December 2008, case C-210/06, Cartesio Oktató és Szolgáltató bt (Cartesio).
ECJ, 13 March 2007, case C-524/04, Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue (hereinafter referred to as Thin Cap Group Litigation), para. 80: "legislation of a Member State may be justified by the need to prevent abusive practices where it provides that interest paid by a resident subsidiary to a non-resident parent company is to be treated as a distribution only if, and in so far as, it exceeds what those companies would have agreed upon on an arm’s-length basis”.
ECJ, 21 January 2010, case C-311/08, Société De Gestion Industrielle (SGI) v Belgian State.
COM(2006) 825 final, 19 December 2006, Exit taxation and the need for co-ordination of Member States’ tax policies.
Council Resolution on coordinating exit taxation, 2 December 2008.
Indeed, article 5(1) first indent of the Arbitration convention encourages member states to first inform the enterprise of the intended adjustment, but the second indent makes it clear that providing such information shall not prevent the member state from making the proposed adjustment.
COM(2009) 472 final, 14 September 2009.
See Revised code of conduct for the effective implementation of the convention on the elimination of double taxation in connection with the adjustment of profits of associated enterprises, 2009/C 322/01, Official Journal of 30 december 2009.
Business restructurings raise complex transfer pricing issues. The OECD Discussion Draft recognises a rather broad tax jurisdiction to the States involved with regard to profit or loss potential, which may stir up situations of double taxation. Transfer pricing aspects of cross-border business restructurings have also EU law implications. The compatibility of the recommendations of the OECD with EU law is a difficult question, for which Member States should find inspiration in the recommendations of the Commission and the Council. More guidance may also be provided in the future by the ECJ. Indeed, the Commission has started infringement procedures against Portugal and Spain for having too restrictive exit taxes for companies which cease to be tax resident in these countries23. Spain had already been referred to the ECJ for its provisions taxing emigrating individuals24. Most recently, the Commission requested Portugal25 to amend provisions on the exit taxation of individuals, which may result in an infringement procedure if Portugal does not change its legislation. Similar requests have been sent to Belgium, Denmark and the Netherlands.26 Sweden has also been requested by the Commission to amend its exit taxation provisions on companies ceasing being resident there27, but this procedure has been closed as Sweden has complied with the Commission’s request.26 This is explained by the steps taken in order to amend the Swedish provisions and ensure that they are compliant with EU law29. From a business restructuring perspective, one could expect German taxpayers or the Commission to refer to the Court regarding the rules implemented in Germany concerning the transfer of functions: according to the recently enacted reform in the German Foreign Tax Act, an exit tax may be imposed on the cross-border transfer of functions out of Germany. Such a case could provide the ECJ with a good opportunity to balance the limitations to exit taxation found in Lasteyrie and N with the respect for the arm’s length principle that results from Thin Cap Group Litigation and SGI.
Irrespective of whether or not the Discussion Draft is compatible with EU law, it illustrates the need to have some coordination between the work conducted by the OECD and the European Union.
Jérôme Törner Monsenego, Ph.D candidate at Uppsala University, member of Centre for Tax Law at Uppsala University, tax lawyer with PricewaterhouseCoopers in Stockholm. Centre for Tax Law is supported by Deloitte, Ernst & Young, KPMG, Mannheimer Swartling, Skeppsbron Skatt and PricewatercourseCoopers.
See press release IP/09/1460, 8 October 2009.
See press release IP/09/431, 19 March 2009.
See press release IP/09/1635, 29 October 2009.
See press release IP/10/299, 18 March 2010.
See press release IP/08/1362, 18 September 2008.
See press release IP/10/299, 18 March 2010.
See promemoria Anstånd med inbetalning av skatt i samband med uttagsbeskattning, m.m., 3 April 2009, proposition 2009/10:39 and proposition 2009/2010:24, which was enacted on 25 November 2009 and entered into force on 1 January 2010.