Transfer Pricing implikationer i forbindelse med koncernintern omstrukturering og overdragelse af immaterielle aktiver under påvirkning af COVID-19 pandemien

Abstrakt

The main purpose of this master thesis is to analyze what impact the Transfer Pricing Guidelines from 2022 (TPG 2022) have on a Danish parent company in a multinational enterprise when they evaluate intangible assets that are transferred in an intra-group business restructuring, as well as the challenges the COVID-19 pandemic have caused in this area. Additionally, it is analyzed how the restructuring affects the internal profit allocation. To clarify the challenges that a Danish parent company in a multinational enterprise faces, this thesis analyses articles 1, 6 and 9 in TPG concerning the arm's length principle, intangible assets, and intra-group restructurings. Furthermore, the master thesis focuses on the challenges that the COVID-19 pandemic has caused to Danish parent companies and assesses whether the OECD Guidance on the Transfer Pricing implications of the COVID-19 pandemic (TPG COVID-19) provides sufficient guidance to the challenges encountered by Danish parent companies. Overall, the TPG COVID-19 guidance provides recommendations and guidance to the MNEs in relation to performing a comparability analysis. However, the recommendations and guidance are limited since they only deal with general tendencies. The COVID-19 pandemic may have affected the intangible assets in companies. It obviously depends on the company and the industry whether the pandemic has had a negative or positive impact on the company in question. Given the nature and circumstances of intangible assets the valuations may vary, thus the pandemic has especially influenced the valuation and the evaluation of the commercial use of intangible assets. As a consequence of the COVID-19 pandemic, it is likely that companies have been adjusting internal contracts. This can potentially have caused a restructuring. According to the TPG COVID-19 guidance, it is important that the MNEs consider which commercial reasons lie behind the decision to restructure, especially since the Tax administrations are recommended to be highly skeptical if the only reasoning behind the restructuring is the COVID-19 pandemic, and the restructuring is not backed up by any other reasons within Transfer Pricing. However, in another guidance issued by the OECD, it is decided that when a company undergoes an interim change in place of effective management, this will not count as a restructuring. Lastly, based upon the theoretical chapters and analysis of TPG, the main areas are illustrated in a selfconstructed business case which consists of a Danish parent company in a MNE performing an intra-group business restructuring regarding the transfer of intangible assets as well as DEMPE-functions to their subsidiary in Ireland, resulting in the Irish company becoming the new principal company. The business case demonstrates the challenges that MNEs face due to the COVID-19 pandemic and the impact that these challenges have on the MNEs' valuation and compensation of intangible assets at arm’s length principle. The overall conclusion on the problem statement in the master thesis is that the existing COVID-19 Transfer Pricing guidance is not sufficient regarding intangible assets and intra-group restructuring. To ensure that the Danish MNEs properly meets the requirements from the arm’s length principle regarding these areas, further guidance is needed.