OECD’s BEPS-projekts indflydelse på immaterielle rettigheder

Abstract

The purpose of this thesis is to analyze the effects of OECD’s BEPS project regarding intellectual properties in a transfer pricing context. This includes an analysis of the BEPS projects influence on OECD’s Transfer Pricing Guidelines with the main focus on intellectual property in a business restructuring.
In a growing globalized world, foreign products are a major part of people's shopping habits why multinational companies are an important part in the increased interest in foreign products, which leads to an increased trade between countries. The trade among countries requires rules and guidelines in which OECD provides. OECD also provides rules and guidelines regarding the transfer of intellectual properties. In a practical manner intellectual property can be relatively easy to move across national borders between affiliated companies, but it can be quite difficult to value them properly.
OECD started a project addressing the base erosion and profit shifting (BEPS) in February 2013 in which they raise the concern regarding intellectual property. This thesis examines the BEPS-project with focus on action points 8 (intangibles), 9 (risk and capital) and 10 (high risk transactions), and has an increased focus on the allocation of risk between the MNE in a business restructuring. The paper also analyzes the importance of valuing them properly according to the functions performed, assets utilized and risks assumed. Changes according to the BEPS project have caused definitions of intellectual property and business restructurings to appear relatively wide. This thesis guides in identifying the intellectual properties and allocates its ownership in a business restructuring.
To demonstrate the interpretations and clarifications of the BEPS project of intangible property and business restructurings this thesis includes a setup of a fictive case restructuring of the MNE with analyzing important functions, assets and control. In this context the analysis includes an assessment regarding the DEMPE functions. The relocation of significant and valuable functions, and the transfer of intellectual properties, results in relocation in profit potential to the subsidiary why the parent company has to be compensated.