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Archive for July, 2019

Texas A&M University School of Law Recruiting Multiple Outstanding Scholars for Professorships

Posted by William Byrnes on July 22, 2019


TEXAS A&M UNIVERSITY SCHOOL OF LAW aims to hire multiple outstanding scholars, across an array of fields, over the next several years.

Since integrating with Texas A&M six years ago, the School of Law – based in Dallas/Fort Worth – has achieved a remarkable forward trajectory by dramatically increasing entering class credentials; adding nine new clinics; strengthening student services; and hiring twenty-six new faculty members. The Appointments Committee welcomes expressions of interest in all areas, including especially from candidates who will add to the diversity of our faculty. Areas of particular interest include:

cybersecurity, privacy, and health law (with emphasis on healthcare finance, policy, regulation, delivery, and unfair competition).

The Texas A&M System is an Equal Opportunity/Affirmative Action/Veterans/Disability Employer committed to diversity. Texas A&M University is committed to enriching the learning and working environment for all visitors, students, faculty, and staff by promoting a culture that embraces inclusion, diversity, equity, and accountability. Diverse perspectives, talents, and identities are vital to accomplishing our mission and living our core values. The School of Law provides equal opportunity to all employees, students, applicants for employment or admission, and the public, regardless of race, color, sex, religion, national origin, age, disability, genetic information, veteran status, sexual orientation, or gender identity.

Candidates must have a J.D. degree or its equivalent. Preference will be given to those with outstanding scholarly achievement and strong teaching skills. Successful candidates will be expected to engage in scholarship, teaching,  and service. Rank as an Executive Professor, Assistant Professor, Associate Professor, or Professor will be determined based on qualifications and experience.

Applicants should email a cover letter (indicating teaching and research interests) and CV/references to Professor Milan Markovic, Chair of the Appointments Committee, at appointments@law.tamu.edu. The Appointments Committee will treat all applications as confidential, subject to the requirements of state and federal law.

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Nike State Aid case analysis: Would you pay $100 for a canvas sneaker designed the 20’s? (Where does the residual value for “Just Do it” and the ‘cool kids’ retro branding of All Stars belong?)

Posted by William Byrnes on July 19, 2019


I have received several requests this month about my initial thoughts on the EU Commission’s 56-page published (public version available here) State Aid preliminary decision with the reasoning that The Netherlands government provided Nike an anti-competitive subsidy via the tax system.  My paraphrasing of the following EU Commission statement [para. 87] sums up the situation:

The Netherlands operational companies are remunerated with a low, but stable level of profit based on a limited margin on their total revenues reflecting those companies’ allegedly “routine” distribution functions. The residual profit generated by those companies in excess of that level of profit is then entirely allocated to Nike Bermuda as an alleged arm’s length royalty in return for the license of the Nike brands and other related IP”

The question that comes to my mind is: “Would I pay $100 for a canvas sneaker designed the 20’s that I know is $12 to manufacture, distribute, and have enough markup for the discount shoe store to provide it shelf space?” My answer is: “Yes, I own two pair of Converse’s Chuck Taylor All Stars.” So why did I spend much more than I know them to be worth (albeit, I wait until heavily discounted and then only on clearance).  From a global value chain perspective: “To which Nike function and unit does the residual value for the ‘cool kids’ retro branding of All Stars belong?”

infograph

U.S. international tax professionals operating in the nineties know that The Netherlands is a royalty conduit intermediary country because of its good tax treaty system and favorable domestic tax system, with the intangible profits deposited to take advantage of the U.S. tax deferral regime that existed until the TCJA of 2017 (via the Bermuda IP company).  Nike U.S., but for the deferral regime, could have done all this directly from its U.S. operations to each country that Nike operates in.  No other country could object, pre-BEPs, because profit split and marketing intangibles were not pushed by governments during transfer pricing audits.

The substantial value of Nike (that from which its profits derive) is neither the routine services provided by The Netherlands nor local wholesalers/distributors.  The value is the intangible brand created via R&D and marketing/promotion.  That brand allows a $10 – $20 retail price sneaker to sell retail for $90 – $200, depending on the country.  Converse All-Stars case in point.  Same  $10 shoe as when I was growing up now sold for $50 – $60 because Converse branded All-Stars as cool kid retro fashion.

Nike has centralized, for purposes of U.S. tax deferral leveraging a good tax treaty network, the revenue flows through NL.  The royalty agreement looks non-traditional because instead of a fixed price (e.g. 8%), it sweeps the NL profit account of everything but for the routine rate of return for the grouping of operational services mentioned in the State Aid opinion. If Nike was an actual Dutch public company, or German (like Addidas), or French – then Nike would have a similar result from its home country base because of the way its tax system allows exemption from tax for the operational foreign-sourced income of branches.  [Having worked back in the mid-nineties on similar type companies that were European, this is what I recall but I will need to research to determine if this has been the case since the nineties.]

I suspect that when I research this issue above that the NL operations will have been compensated within an allowable range based on all other similar situated 3rd parties.  I could examine this service by service but that would require much more information and data analysis about the services, and lead to a lesser required margin by Nike. The NL functions include [para 33]: “…regional headquarter functions, such as marketing, management, sales management (ordering and warehousing), establishing product pricing and discount policies, adapting designs to local market needs, and distribution activities, as well as bearing the inventory risk, marketing risk and other business risks.”

By example, the EU Commission states in its initial Nike news announcement:

Nike European Operations Netherlands BV and Converse Netherlands BV have more than 1,000 employees and are involved in the development, management and exploitation of the intellectual property. For example, Nike European Operations Netherlands BV actively advertises and promotes Nike products in the EMEA region, and bears its own costs for the associated marketing and sales activities.

Nike’s internal Advertising, Marketing, and Promotion (AMP) services can be benchmarked to its 3rd party AMP providers.  But by no means do the local NL AMP services rise to the level of Nike’s chief AMP partner (and arguably a central key to its brand build) Wieden + Kennedy (renown for creating many industry branding campaigns but perhaps most famously for Nike’s “Just Do it” – inspired by the last words of death row inmate Gary Gilmore before his execution by firing squad).

There is some value that should be allocated for the headquarters management of the combination of services on top of the service by service approach.  Plenty of competing retail industry distributors to examine though.  If by example the profit margin range was a low of 2% to a high of 8% for the margin return for the combination of services, then Nike based on the EU Commission’s public information falls within that range, being around 5%.

The Commission contends that Nike designed its transfer pricing study to achieve a result to justify the residual sweep to its Bermuda deferral subsidiary.  The EU Commission states an interesting piece of evidence that may support its decision [at para 89]: “To the contrary, those documents indicate that comparable uncontrolled transactions may have existed as a result of which the arm’s length level of the royalty payment would have been lower…”.  If it is correct that 3rd party royalty agreements for major brand overly compensate local distributors, by example provide 15% or 20% profit margin for local operations, then Nike must also.  [I just made these numbers up to illustrate the issue]

All the services seem, on the face of the EU Commission’s public document, routine to me but for “adapting designs to local market needs”.  That, I think, goes directly to product design which falls under the R&D and Branding.  There are 3rd parties that do exactly this service so it can be benchmarked, but its value I suspect is higher than by example ‘inventory risk management’.  We do not know from the EU document whether this ‘adapting product designs to local market’ service was consistent with a team of product engineers and market specialists, or was it merely occasional and outsourced.  The EU Commission wants, like with Starbucks, Nike to use a profit split method.  “…a transfer pricing arrangement based on the Profit Split Method would have been more appropriate to price…”.  Finally, the EU Commission asserts [para. 90]: “…even if the TNMM was the most appropriate transfer pricing method…. Had a profit level indicator been chosen that properly reflected the functional analysis of NEON and CN BV, that would have led to a lower royalty payment…”.

But for the potential product design issue, recognizing I have not yet researched this issue yet, based on what I know about the fashion industry, seems rather implausible to me that a major brand would give up part of its brand residual to a 3rd party local distributor.  In essence, that would be like the parent company of a well-established fashion brand stating “Let me split the brand’s value with you for local distribution, even though you have not borne any inputs of creating the value”.  Perhaps at the onset of a startup trying to create and build a brand?  But not Nike in the 1990s.  I think that the words of the dissenting Judge in Altera (9th Cir June 2019) are appropriate:

An ‘arm’s length result is not simply any result that maximizes one’s tax obligations’.

The EU Commission obviously does not like the Bermuda IP holding subsidiary arrangement that the U.S. tax deferral regime allows (the same issue of its Starbucks state aid attack), but that does not take away from the reality that legally and economically, Bermuda for purposes of the NL companies owns the Nike brand and its associated IP.  The new U.S. GILTI regime combined with the FDII export incentive regime addresses the Bermuda structure, making it much somewhat less comparably attractive to operating directly from the U.S. (albeit still produces some tax arbitrage benefit).  Perhaps the U.S. tax regime if it survives, in combination with the need for the protection of the IRS Competent Authority for foreign transfer pricing adjustments will lead to fewer Bermuda IP holding subsidiaries and more Delaware ones.

My inevitable problem with the Starbucks and Nike (U.S. IP deferral structures) state aid cases is that looking backward, even if the EU Commission is correct, it is a de minimis amount (the EU Commission already alleged a de minimis amount for Starbucks but the actual amount will be even less if any amount at all).  Post-BEPS, the concept and understanding of marketing intangibles including brands is changing, as well as allowable corporate fiscal operational structures based on look-through (GILTI type) regimes. More effective in the long term for these type of U.S. IP deferral structures is for the EU Commission is to spend its compliance resources on a go-forward basis from 2015 BEPS to assist the restructuring of corporations and renegotiation of APAs, BAPAs, Multilateral PAs to fit in the new BEPS reality.  These two cases seem more about an EU – U.S. tax policy dispute than the actual underlying facts of the cases.  And if as I suspect that EU companies pre-BEPS had the same outcome based on domestic tax policy foreign source income exemptions, then the EU Commission’s tax policy dispute would appear two-faced.

I’ll need to undertake a research project or hear back from readers and then I will follow up with Nike Part 2 as a did with Starbucks on this Kluwer blog previously.  See Application of TNMM to Starbucks Roasting Operation: Seeking Comparables Through Understanding the Market and then My Starbucks’ State Aid Transfer Pricing Analysis: Part II.  See also my comments about Altera:  An ‘arm’s length result is not simply any result that maximizes one’s tax obligations’.

Want to help me in this research or have great analytical content for my transfer pricing treatise published by LexisNexis? Reach out on profbyrnes@gmail.com

Prof. William Byrnes (Texas A&M) is the author of a 3,000 page treatise on transfer pricing that is a leading analytical resource for advisors.

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TaxFacts Intelligence Weekly of July 18, 2019 – Actionable Analysis for Financial Advisors

Posted by William Byrnes on July 19, 2019


2019’s Tax Facts Offers a Complete Web, App-Based, and Print Experience

Reducing complicated tax questions to understandable answers that can be immediately put into real-life practice, Tax Facts works when and where you need it….on your desktop, at home on your laptop, and on the go through your tablet or smartphone.  Questions? Contact customer service: TaxFactsHelp@alm.com800-543-0874

 

William H. Byrnes, J.D., LL.M. and Robert Bloink, J.D., LL.M.

Jul 18, 2019

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Words of Caution for Non-spouse Beneficiaries of Inherited IRAs

Generally, non-spouse beneficiaries are required to take distributions from the account either under the five-year rule (i.e., exhaust the funds within five years of inheriting them) or based on that beneficiary’s life expectancy. However, what many beneficiaries fail to understand is that when they take a distribution, that distribution will be taxable, cannot be undone by rolling the amount into another IRA and can cause the IRA to forfeit its stretch treatment. Non-spouse beneficiaries should be advised that their only opportunity with respect to rollover of an inherited IRA is to transfer the account (as an inherited account) to a new IRA custodian via a direct trustee-to-trustee transfer. For more information on inherited IRAs, visit Tax Facts Online. Read More

District Court Finds Retiree Not Entitled to Change Election Regarding Pension Distribution Form

A district court recently ruled that a pension plan did not abuse its discretion by denying the request of a participant in pay status to change her election from a monthly annuity payout to a lump sum payment. In this case, the pension had opened a window whereby retirees could elect to switch from receiving an annuity to the lump sum option. The option also allowed the participant to revoke the change by a certain set date, and revert back to the annuity. Here, the retiree and her son, who had power of attorney, took the lump sum option but later revoked it to revert back to the annuity. Later, when the retiree was diagnosed with a neurological disease, they attempted to revoke the revocation to receive the lump sum. The court held that there was no abuse of discretion in the pension’s denial of that request because the window for electing the lump sum had closed. The impact of the neurological disease was irrelevant because the son who made the initial requests had power of attorney to speak on the participant’s behalf. For more information on what to consider when facing a lump sum option, visit Tax Facts Online. Read More

Updated IRS FAQ Confirms Section 1231 Gains Invested in Qualified Opportunity Funds in 2018 are Qualifying Investments

The second round of proposed regulations regarding qualified opportunity zone fund (QOF) investments generated questions as to the treatment of Section 1231 gains that had been invested in a QOF. Section 1231 capital gain treatment generally applies to depreciable property and real property used in a business (but not land held as investment property). Under the proposed regulations, Section 1231 capital gains are only permissible QOF investments to the extent of the 1231 capital gain amount, if the investment is made within 180 days of the last day of the tax year. IRS released FAQ to provide relief for the 2018 tax year, so that investment in the QOF and deferral will be available for the gross amount of Section 1231 gain realized during the 2018 tax year if the investment was made within 180 days of the sale date, rather than the last day of the tax year (assuming that the taxpayer’s tax year ended before May 1, 2019, when the regulations were released). For more information on opportunity zones, visit Tax Facts Online. Read More

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Getting its “fair share” from the U.S., U.K. implements 2% tax on gross revenues of Google, Amazon, and Facebook

Posted by William Byrnes on July 11, 2019


From April 2020, the government will introduce a new 2% tax on the revenues of search engines, social media platforms and online marketplaces which derive value from UK users. Large multi-national enterprises with revenue derived from the provision of a social media platform, a search engine or an online marketplace (‘in scope activities’) to UK users.

The Digital Services Tax will apply to businesses that provide a social media platform, search engine or an online marketplace to UK users. These businesses will be liable to Digital Services Tax when the group’s worldwide revenues from these digital activities are more than £500m and more than £25m of these revenues are derived from UK users.

If the group’s revenues exceed these thresholds, its revenues derived from UK users will be taxed at a rate of 2%. There is an allowance of £25m, which means a group’s first £25m of revenues derived from UK users will not be subject to Digital Services Tax.

The provision of a social media platform, internet search engine or online marketplace by a group includes the carrying on of any associated online advertising business. An associated online advertising business is a business operated on an online platform that facilitates the placing of online advertising, and derives significant benefit from its connection with the social media platform, search engine or online marketplace. There is an exemption from the online marketplace definition for financial and payment services providers.

The revenues from the business activity will include any revenue earned by the group which is connected to the business activity, irrespective of how the business monetises the platform. If revenues are attributable to the business activity and another activity, the business will need to apportion the revenue to each activity on a just and reasonable basis.

Revenues are derived from UK users if the revenue arises by virtue of a UK user using the platform. However, advertising revenues are derived from UK users when the advertisement is intended to be viewed by a UK user.

A UK user is a user that is normally located in the UK.

Where one of the parties to a transaction on an online marketplace is a UK user, all the revenues from that transaction will be treated as derived from UK users. This will also be the case when the transaction involves land or buildings in the UK. However, the revenue charged will be reduced to 50% of the revenues from the transaction when the other user in respect of the transaction is normally located in a country that operates a similar tax to the Digital Services Tax.

Businesses will be able to elect to calculate the Digital Services Tax under an alternative calculation under the ‘safe harbour’. This is intended to ensure that the tax does not have a disproportionate effect on business sustainability in cases where a business has a low operating margin from providing in-scope activities to UK users

The total Digital Services Tax liability will be calculated at the group level but the tax will be charged on the individual entities in the group that realise the revenues that contribute to this total. The group consists of all entities which are included in the group consolidated accounts, provided these are prepared under an acceptable accounting standard. Revenues will consequently be counted towards the thresholds even if they are recognised in entities which do not have a UK taxable presence for corporation tax purposes.

A single entity in the group will be responsible for reporting the Digital Services Tax to HMRC. Groups can nominate an entity to fulfil these responsibilities. Otherwise, the ultimate parent of the group will be responsible.

The Digital Services Tax will be payable and reportable on an annual basis.

Draft legislation

Explanatory notes

Read:

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TaxFacts Intelligence Weekly of July 11

Posted by William Byrnes on July 11, 2019


2019’s Tax Facts Offers a Complete Web, App-Based, and Print Experience

Reducing complicated tax questions to understandable answers that can be immediately put into real-life practice, Tax Facts works when and where you need it….on your desktop, at home on your laptop, and on the go through your tablet or smartphone.  Questions? Contact customer service: TaxFactsHelp@alm.com800-543-0874

Prof. William H. Byrnes, Esq. and Robert Bloink, Esq. of

Texas A&M University Law Wealth Management programs

Jul 11, 2019

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IRS Snapshot Guidance Provides Insight into Post-2018 Plan Hardship Distribution Requirements

The Bipartisan Budget Act of 2018 made substantial changes to the rules governing hardship distributions from qualified plans beginning in 2019. These changes have left many employers wondering how to adequately comply with the new rules. The IRS has directed its agents to review the language in the plan document, as well as any written statement provided by the participant to ensure all documents are properly executed and signed. Further, agents are directed to examine any records that the employer used to verify that a true hardship did exist, as well as the amount of that hardship. These records can include bills, eviction notices, closing documents for purchase of a home, etc. The employee should also provide documentation to establish that no other readily available source of funds existed, which can be as simple as an employee attestation. For more information on post-2018 hardship distributions, visit Tax Facts Online. Read More

IRS Clarifies Treatment of Transportation Benefits Upon Termination of Employment

An IRS information letter has clarified that a taxpayer forfeits any unused transportation benefits upon termination of employment. Because employers have only been permitted to provide tax-preferred transportation benefits to current employees, those benefits must be lost once the individual is no longer an employee. This is the case even if the benefits were provided through pre-tax employee contributions, and even if the employee is fired (i.e., compensation reductions cannot be reimbursed if the employee had not fully used them). Importantly, employees can change their elections regarding transportation benefits monthly without the need for a change in status event. For more information on employer-provided transportation benefits, visit Tax Facts Online. Read More

Ninth Circuit Affirms Termination of Pension Benefits for Working Retiree

The Ninth Circuit recently confirmed that a pension plan was within its rights to terminate pension benefits to a participant who retired early, but then returned to work in the same industry. This was the case even though the plan itself had initially approved the taxpayer’s post-retirement work in the same industry in which he worked prior to retirement. Although Supreme Court precedent prohibits a pension from adding additional requirements to a participant’s benefit eligibility after that participant has retired, the court here found that the precedent did not apply because the plan in question had always required participants to withdraw from the industry in order to be eligible for benefits. The plan had begun enforcing the rule pursuant to a voluntary corrective action with the IRS that was entered in order to maintain the plan’s tax-qualified status. For more information on situations where a pension plan may reduce a participant’s benefits, visit Tax Facts Online. Read More

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For questions, contact Customer Service at 1-800-543-0874.

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Texas A&M Hiring Senior Associate Vice President positions

Posted by William Byrnes on July 10, 2019


The Division of Research at Texas A&M University is seeking applications for one or more positions at the Senior Associate Vice President (AVP) level.

The retirement of the Executive Associate Vice President for Research (EAVP) provides an opportunity to realign and expand the portfolios overseen by the EAVP and the two current Senior AVPs.  Senior AVPs report directly to the Vice President for Research and each has a portfolio of administrative, compliance, and research advancement responsibilities. Responsibilities to be covered by the appointment of new Senior AVP(s) include:

  • Oversight of the Comparative Medicine Program (CMP), as well as supervision of the Attending Veterinarian. The CMP is the centrally administered support service for research and teaching programs at Texas A&M and provides high quality animal care consistent with the standards established by the Guide for the Care and Use of Laboratory Animals and all pertinent local, state, and federal laws. The Attending Veterinarian is responsible for the health and well-being of all animals used for research, teaching, and testing at Texas A&M.
  • Leadership of The Texas A&M University System’s expanding emphasis on interdisciplinary life sciences, health, biomedical activities, and multidisciplinary research initiatives for the Division.
  • Oversight of the membership of compliance committees (IACUC, IRB, IBC).
  • Oversight of facilities-related issues for the Division; and developing campus-wide policies for research space.
  • Oversight of the development and recognition of University researchers at all levels.
  • Development of external partnerships.
  • Serving as the University’s Research Integrity Officer (RIO).

Ideal candidates will communicate effectively and work well with all segments of the University and its external constituencies. In addition, these positions require a demonstrated commitment to diversity, equity, and inclusion. Experience implementing and designing processes and projects is ideal. Familiarity with faculty-associated rules, guidelines, and administrative procedures is preferred.

Applications should include a cover letter with a clear statement of why the applicant believes they are qualified for the position, a description of key relevant experience, a vision statement for the position and its role in the Division of Research, a vita, and names and contact information of three references. For full consideration, applications should be received no later than July 22, 2019. These positions will remain open until filled. Applications should be submitted through email to Dr. Mark Barteau.

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Counter-Terrorism Financing’s International Best Practices and the Law – new book by Dr. Nathalie Rébé

Posted by William Byrnes on July 9, 2019


Counter-Terrorism Financing

International Best Practices and the Law

Series:

In Counter-Terrorism Financing: International Best Practices and the Law, Nathalie Rébé, offers a new comprehensive framework for CTF worldwide and reviews the strengths and weaknesses of current regulations and policies.

Both accessible, interesting and engaging in how it approaches chronic problems of Counter-Terrorism Financing, this book provides general understanding of this topic with a literature review and a gap-analysis based on CTF experts’ advices, as well as a very detailed analysis of current international regulatory tools.

Nathalie Rébé’s ‘all-in’one’ CTF manual is innovative in this field and provides answers for the international community to fight terrorism financing together more effectively, using a set of standards which promotes strong and diligent cooperation between countries concerning reporting, information exchange and gathering, as well as enforcement.

order here: https://brill.com/abstract/title/55779?rskey=Qa3MQv&result=1

For the Americas call (toll free) 1 (844) 232 3707 | or email us at: brillna@turpin-distribution.com
For outside the Americas call +44 (0) 1767 604-954 | or email us at: brill@turpin-distribution.com

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