Skatteplanlægning med immaterielle aktiver og omkostningsfordelingsaftaler

Abstract

Background: Both international and national tax-professional literature contains a lot of articles and reports regarding the tax avoiding and tax evading opportunities of cost contribution arrangements. However, these opportunities are only treated superficially from the point of view of Danish taxpayers. Therefore this thesis seeks to analyze this field of study in depth, thus leading to the following thesis statement: Problem: Which opportunities and which limitations do tax planning with intangible assets and cost contribution arrangements offer the taxpayer under Danish law? Method: The method used to solve the problem is an interdisciplinary approach combining legal insight with economic financial theory. The thesis is dominated by the legal perspective but it is continuously complimented by an economical perspective when appropriate. The legal perspective will be analyzed through a legal dogmatic analysis using primarily Danish legal sources and OECD’s Transfer Pricing Guidelines. The economic perspective will be analyzed through the application of financial theory regarding valuation, information asymmetry and risk management. Main findings: There are multiple models for transferring income from intangible assets to controlled entities in tax havens. As every model is countered by regulation, the tax planning possibilities mainly consist of the exploitation of key weaknesses in the laws regulating transfer of intangible assets. The key weakness is uncertainty regarding valuation of intangible assets, which, due to information asymmetry, can be used to achieve tax savings when transferring intangibles. The analysis shows that there are certain advantages to cost contribution arrangements compared to other transfer-models, primarily when exploiting the weaknesses regarding the time for valuation and possibilities of continuous adjustments. On the other hand the analyzed example of cost contribution arrangement is linked to several risks, among these double taxation as well as an increased risk of being disregarded for tax purposes due to lack of commercial interest. Therefore it is recommended that cost contribution arrangements are combined with group-internal structural changes in order to substantiate a commercial interest in the arrangement. Additionally the analysis reveals that due to multiple significant differences between Danish and American cost contribution legislation, a cost contribution arrangement like Apple’s could not work for a similar group based in Denmark. Originality: This thesis stands out from other available theses regarding transfer pricing as it analyzes a very specific problem from specific examples. Therefore the thesis addresses very definite groups and situations, which results in concrete answers and recommendations.