Omstrukturering af forretningsenheder i multinationale koncerner: En analyse af skattemæssige overvejelser ved koncernintern overførsel af funktioner, aktiver og risici i relation til kapitel IX i OECD Guidelines

Janne Schultz Rasmussen

Student thesis: Master thesis


According to OECD Guidelines business restructurings can be defined as the cross border redeploy-ment by Multinational Enterprises (MNE) of functions, assets and risks, and represent the change in the way a MNE’s operates its business. A business restructuring can be driven for operational reasons which can have a tax impact, but it can also be driven mainly by tax. A consequence of a tax driven restructuring is that the main profit drivers can be transferred from high tax to low tax jurisdiction, which is a problem for tax authorities. Transfer pricing rules require transactions to be conducted in accordance with the arm's length prin-ciple that prescribes MNE to contract terms and conditions that independent parties would have agreed under similar circumstances. However structural change is not likely to have been made be-tween independent parties, this does not necessarily mean that it is not in accordance with the arm's length principle. In transactions between two independent enterprises compensation usually will reflect the functions that each part perform taking into account assets used and risks assumed. Func-tion, assets and risk are therefore essential to determine arm’s length prices and conditions. According to OECD most of the observed restructuring consist of a conversion to a principal model, which is also the focus in this thesis. The thesis will analyses the main drivers for a business restruc-turing with focus on the functional analysis. Since not all function, risk and assets contribute to value it is important to understand which of these factors that are related to profit potential. A functional analysis that goes beyond the label “Toll manufacturer”, “Contract manufacturer” etc. and analyze the actual risk profile of the entities before and after a reconstruction can provide a useful guidance to ensure that the restructuring are less exposed to adjustment and non-recognition of the desired business model, since the transfer prices after the restructuring will take conditions before the re-structuring into account. By using the guidelines in Chapter IX of the OECD Guidelines this thesis will analyze which observa-tion and which factors that should be taking into account before and after the restructuring to limit the risk for adjustment. It leads to the conclusion that an MNE, needs ensure consistent between the contract and the trans-actions actually taken and that is essential to document the commercial rationale behind the restructuring.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2012
Number of pages101