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William Byrnes (Texas A&M) tax & compliance articles

Posts Tagged ‘#transferpricing’

Cost-Sharing Post TCJA | The Fiona Show sponsored by Crossborder AI Solution for Transfer Pricing

Posted by William Byrnes on April 14, 2020

Cost-sharing arrangements are subjective at best—even by transfer pricing standards. Over the years, major tech-companies like Xilinx, Amazon, Altera, and now Facebook, have all been victims of their own interpretations of cost-sharing regulations that have been written, re-written, modified, and in some cases, grandfathered to previous or even temporary versions. And that’s all not to even mention the Tax Cuts and Jobs Act. So, does the world have a right to be a little perplexed? We’d say so.

Listen to our recorded webinar in front of a live audience of transfer pricing counsel from large U.S. MNEs representing 10 major industries.  The webinar explores the mis-understood history of cost-sharing, the impact of Covid-19 on stress testing intra-group risk allocation amongst its global value chain, and the likely impact of the TCJA on future cost-sharing arrangements.

Episode 41: Cost-Sharing Post TCJA

Interested in tax risk management, technology, and analytics?  Check out what Texas A&M is doing this Summer International Tax Risk Management Summer Zoom Courses May 18 – July 3 interested in transfer pricing and tax risk management? Check out Texas A&M’s transfer pricing courses


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What’s New in the 4th Edition Practical Guide to U.S. Transfer Pricing?

Posted by William Byrnes on December 20, 2019


In this release, Professor William Byrnes launches a new 4th Edition of Practical Guide to U.S. Transfer Pricing, in which chapters have been reorganized, substantially revised and expanded to align the publication to the Tax Cuts and Jobs Act, the 2017 OECD Transfer Guidelines and BEPS, and the 2017 UN Practical Manual.

His new edition has 47 chapters, 1,800 pages of technical, jurisprudence, and regulatory analysis to advise clients from a tax risk management perspective and to mitigate controversy. Order a copy here: https://store.lexisnexis.com/products/practical-guide-to-us-transfer-pricing-skuusSku60720

There are 29 U.S. specific chapters (Part I), 7 OECD/BEPS/EU chapters (Part II, IV), 9 industry-specific chapters (Part V), 2 foreign country chapters (Part VI).

New Country Chapters. India (Chapter 121) and Brazil (Chapter 120).

Financial Industry Chapters. Financial Industry Transfer Pricing Issues (Chapter 92), Determining Arm’s Length Interest (Chapter 93), Defending Intercompany Debt (Chapter 94), Performance Guarantees (Chapter 95).

Business Structuring Chapters. Business Restructuring: U.S. Tax and Transfer Pricing Rules (Chapter 27), Mergers and Acquisitions (Chapter 96), International Strategy for Transfer Pricing Compliance: A Checklist for Multinationals (Chapter 90), Transfer Pricing Aspects of Business Restructurings (Chapter 43).

Hybrid Rules and Transfer Pricing. New Chapter 45.

Cost Sharing casesAmazon and Altera, analyzed in depth and contrasted. see Chapter 13 and Chapter 10.

Tax Cuts and Jobs Act. Revision of U.S. Business Restructuring Chapter 27 includes the impact of GILTI, FDII, BEAT, Transition Tax, on U.S. business’s transfer pricing exposure. BEAT and Service Cost Method are discussed in Chapter 14.

Digital Taxation and Transfer PricingSee new Chapter 44.

Transfer Pricing Review Panel and Transfer Pricing Examination Process Updates. See Chapter 20, Examination and Appeals.

Value Chain Analysis. See Chapter 42, Porter’s Value Chain Analysis Case Study of Amazon; Chapter 97, Value Chain Study of Coffee Industry; Chapter 98, Value Chain Study of the Tobacco Industry.

Taxpayer First Act of 2019. Impact on LB&I Discussed in Chapter 20.

Impact of 2015 APA and Competent Authority Revenue Procedures. Analysis of trends and risks in Chapter 21, APAs and in Chapter 22, Competent Authority.

* * * * * * * * * * * * * * * * * * *

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Advisors will discover a rich selection of Lexis titles examining hot, cutting-edge issues like: Practical Guide to U.S. Transfer PricingLexis Guide to FATCA Compliance; a country-by-country examination of anti-money laundering laws; Taxation of Intellectual Property and TechnologyFederal Taxation of Oil and Gas Transactions; and Foreign Tax & Trade Briefs, which provides summaries of the tax laws and systems of over 120 countries. Nine treatises are authored or co-authored by Professor William H. Byrnes (Texas A&M University Law School) who leads teams of contributing subject experts in analyzing the management of operational and transactional risk confronting tax officers and their advisors, and providing compliance and planning insights.

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William Byrnes’ 4th Edition Practical Guide to U.S. Transfer Pricing Treatise Published December 19, 2019

Posted by William Byrnes on December 19, 2019

William Byrnes’ 4th Edition of his industry-leading Practical Guide to U.S. Transfer Pricing treatise was published December 19, 2019 by Matthew Bender LexisNexis.  William Byrnes is the author or co-author of nine Lexis titles and an advisory board member of Law360’s International Tax journal.

William Byrnes’ completely revised 4th Edition Practical Guide to U.S. Transfer Pricing (2020) has been expanded to 2,000 pages of analyses and practice notes, 47 chapters divided over six parts: Part I: U.S. regulatory analysis, application of transfer pricing methods, and jurisprudence; Part II: OECD; Part III: United Nations; Part IV: European Union; Part V: Industry topics; and Part VI: Country practice and tax risk management. Professor Byrnes brings together 50 of the industry’s eminent transfer pricing counsel, economists, and financial accountants to provide a comprehensive two-volume “go-to” resource for tax risk management.

William Byrnes explained, “I am fortunate to be able to call upon and work with the industry’s leading transfer pricing professionals from firms such as Alston, Covington, Pillsbury, Jones Day, McDermott, Duff & Phelps, Miller Chevalier, PwC, KPMG, and multinational companies like Vertex and Veritas.” Sixty contributors add subject matter expertise on technical issues faced by tax and risk management counsel.

“Transfer Pricing is one of the most complex and changing areas of tax risk in the United States and globally,” continued Byrnes. “The big-ticket cases, ones with over a half-billion-dollar adjustment, are almost always transfer pricing.  And with the renewed government focus on this topic around the world, transfer pricing audits will both increase in number and in actions taken, not just for the IRS, but most countries’ revenue authorities. U.S. companies are often the target.”

Byrnes shared, “Dr. Lorraine Eden (Texas A&M) and I will be using the treatise to teach transfer pricing online from January 13 through April 20 as part of the Texas A&M international tax curriculum”.



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Transfer Pricing case studies online course Jan 13 – Apr 19 (live Zoom based classes, small team groups)

Posted by William Byrnes on November 26, 2019

Interested to join one of the case study teams for TRANSFER PRICING taught live online, using Zoom, by Dr. Lorraine Eden, Prof. William Byrnes, and industry experts January 13 – April 19. The courses are for tax attorneys, accountants, or economists and count toward the Texas A&M INTERNATIONAL TAX online Master curriculum. The class meets each week to discuss the real-world post-BEPS client studies and then again weekly the teams present their positions and solutions.  During the week the teams meet internally via Zoom and study provided materials, videos and audio casts based on provided PPTs, while using a robust online law & business database library.  For more information about how to apply, contact Texas A&M Admissions https://info.law.tamu.edu/international-tax

Texas A&M Law offers the premier online program in international tax with a multidisciplinary, risk-management-focused approach. Our TP Aggiesunique, industry-based online curriculum is vetted by and focuses on the needs of multinational corporations, large firms, and governments. Though one of the largest U.S. public universities of 70,000 students and an annual budget exceeding $6 billion (FY2020), Texas A&M’s international tax curriculum offers small class sizes (maximum 30) to ensure personal faculty and in-class engagement. Smaller class sizes also allow stronger engagement and connections to develop among classmates who learn from each other’s corporate experiences.

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Release of Taxation of IP & Technology Update for 2020

Posted by William Byrnes on November 11, 2019

Taxation of Intellectual Property and Technology 2020 edition is a 1,000 page analytical treatise to the federal tax consequences of the development, purchase, sale and licensing of intellectual properties and intangibles.  Primary author William Byrnes leads a team of America’s leading tax senior counsel to analyze tax risk challenges for business and investment decisions concerning intellectual property, technology, intangibles, and the digital economy. This 2020 update published in November (next update published in June 2020) contains:

  • Expands this treatise beyond 1,000 pages of analysis and planning research.
  • Provides in-depth analysis of the 2019 final and proposed regulations that impact intellectual property and intangibles, including GILTI and FDII.
  • Analyzes the new Cloud Computing Regulations.
  • Expanded analysis of the 2018 Supreme Court Wayfarer decision and its impact on interstate digital business models and trademark holding companies.
  • Analysis of several 2019 decisions cases including AmazonAlteraSlaughterhouse.

Major revisions this update, by chapter, include:

  • GILTI regulations. The final and newly proposed GILTI regs are analyzed in depth in § 2.04[8].
  • FDII regulations. The proposed regulations are explained in depth in § 2.04[9].
  • Cloud Computing Regulations. The proposed regulations are explained in depth in § 2.05[3] and § 10.02[2][c][iii][G].
  • International Transactions. Chapter 12 has been substantially revised and additional analysis of the Service Regulations as well as the Cost Sharing Regulations in light of Amazon and Altera.
  • Economic presence tax nexus and digital services tax. See analysis within Chapters § 11.09, § 14.07[6] and § 15.05[1].
  • Wayfarer’s Impact. On taxation of holding companies, see § 4.06. On tax nexus and sales tax, see Chapter § 11.04.
  • Taxation of Emerging Technologies for Cloud Computing, Blockchain, and Artificial Intelligence. See Chapter § 10.02[2][c].
  • Slaughter v Comm’r. IRS argued that the author’s promotion for the publisher which builds her brand is her trade or business and thus her royalties are net earnings from self-employment. Analyzed and critiqued in Chapter § 1.06[4].

New domestic and internationally focused chapters are in development by treatise author Prof. William Byrnes (Texas A&M Law) for 2020, including on the valuation of intangibles, tax considerations for entrepreneurs, and country analysis chapters. His team of internationally recognized expert practitioners provide strategic and tax risk analysis: Carlos Perez Gautrin, Yair Holtzman, Iselle Coronado-Torres, Jeffrey Trey, Arinjay Kumar Jain, Leonardo Macedo, Venetia Argyropoulou, Pamela Ann Fuller, William Seeger, Lucia Valenzuela, and Charles Lincoln. Please contact William Byrnes with chapter proposals. Taxation of Intellectual Property Publication Update (2019)

Nine seats remain for the Spring (4 teams of 3 students each) to join the current 4 teams January 13 – April 20 semester for TRANSFER PRICING course taught by Dr. Lorraine Eden, Prof. William Byrnes, TP Aggiesand several industry experts. The courses count toward the INTERNATIONAL TAX online Master curriculum of Texas A&M for tax attorneys, accountants, and economists. Taught live twice weekly using Zoom involving teams working to design positions and solutions for real-world post-BEPS client studies each week, supported by originally authored materials, videos and audio casts, PPTs, and a robust online law & business database library.  For more information, contact Texas A&M Admissions https://info.law.tamu.edu/international-tax

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Transfer Pricing case studies based course Jan 13 – Apr 20 (Zoom based, small team groups)

Posted by William Byrnes on November 7, 2019

Nine seats remain for the Spring (4 teams of 3 students each) to join the current 4 teams January 13 – April 20 semester for TRANSFER PRICING taught by Dr. Lorraine Eden, Prof. William Byrnes, TP Aggiesand several industry experts. The courses count toward the INTERNATIONAL TAX online Master curriculum of Texas A&M for tax attorneys, accountants, and economists. Taught live twice weekly using Zoom involving teams working to design positions and solutions for real-world post-BEPS client studies each week, supported by originally authored materials, videos and audio casts, PPTs, and a robust online law & business database library.  For more information, contact Texas A&M Admissions https://info.law.tamu.edu/international-tax

Texas A&M Law offers the premier online program in international tax with a multidisciplinary, risk-management-focused approach. Our unique, industry-based online curriculum is vetted by and focuses on the needs of multinational corporations, large firms and governments. A degree from Texas A&M University, a Tier-1 research institution and one of the largest U.S. public universities, is recognized worldwide. Texas A&M’s online International Tax Program is specifically designed for tax professionals, both lawyers and non-lawyers, whose careers demand an understanding of international taxation and related issues.  For more information, contact Texas A&M Admissions https://info.law.tamu.edu/international-tax

The International Tax graduate program is an online, 24 or 30 credit hour graduate degree that can be completed in less than two years. The degree program offers a competitive advantage to any tax professional, including lawyers, accountants, finance executives and economists, that advises multinational clients on business and investment, or that works within a tax (risk management) department.

    • Industry-Responsive Curriculum:  A tax-risk management approach with a focus on tax data management and risk analysis based on the results of in-depth industry research.
      • Hanover Research, on behalf of Texas A&M, interviewed one-on-one and then validated by anonymous survey over 100 tax executives from multinational corporations, large firms and government. As a result, the program is designed with faculty and degree candidates that are multidisciplinary, including both tax lawyers and non-lawyer tax professionals, engaged together in teams.
    • Incredible Student Experience:  Texas A&M law offers small class sizes to ensure each student gets personal attention. These small class sizes allow ​you to forge strong connections with your classmates and to learn from each other’s experiences.
    • Faculty Expertise & Leadership:  The curriculum has been developed and is led by Professor William Byrnes, an international tax authority and globally recognized online education pioneer focused on student outcomes. The program’s faculty are multidisciplinary (e.g. lawyers, economists, accountants, data scientists) and include renowned authors, academics, tax executives of multinational corporations, and tax advisors from large firms.

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Professor Jeffery Kadet responds with his thoughts on the Nike European Commission Decision

Posted by William Byrnes on July 26, 2019

Professor Jeffrey Kadet (University of Washington Law) responds below to my thoughts about Nike’s state aid case (Thank you Professor Kadet for your very informed counter to my contentions)

William, it was a pleasure reading your piece on the Nike situation (below in this blog).  I have a few thoughts. Please feel free to add this to your blog if you think these thoughts would be useful to the discussion.

I of course agree with your analysis of transfer pricing and the various functions that are performed (or not performed) in various places. My focus is rather on how groups like Nike, Starbucks, and Apple have potentially hoisted themselves on their own petards.

What do I mean by this? I mean that these groups created structures that make no sense except in light of a tax ruling that never should have been issued in the first place. They were so excited about their respective rulings that they didn’t build into their structures any Plan B in case the ruling were unexpectedly revoked or disappeared for any reason. They of course didn’t anticipate the European Commission actions; nobody anticipated it. But now that it’s there, they’re stuck with the structures they created.

Nike chose to place ownership of certain production and marketing intangibles through a cost-sharing agreement in a special purpose company (initially Nike International Limited and then later Nike International CV) with no personnel or operations of its own. The SPC then licensed whatever IP it held to Nike European Operations Netherlands BV, which clearly conducts an operating business. Since the focus here is Dutch taxation and not U.S. taxation, we ignore the check-the-box structure that Nike presumably created in which the SPC and NEON are merely divisions within one Nike CFC. I haven’t seen any public information on the group’s actual structure in this regard except within the July 29, 2016, Tax Court petition, which described NEON as “a disregarded subsidiary of NIKE Pegasus”.

In any case, the European Commission decision notes that NEON was established and began operations in 1994. The decision goes on to say that NEON has been acting as a principal and regional HQ since 2006. This at least implies that it conducted activities prior to 2006 as either an agent or distributor. In any case, it would have in all years conducted real operations locally and within Europe that added to the group’s marketing intangibles.

Maybe on the surface, NEON is just distributing branded products. However, contractually and economically, it is a manufacturer. How does it do its manufacturing? Prior to a 2009 restructuring, it contracted directly with contract manufacturers using Nike Inc. as an agent for arranging and contracting with these manufacturers. As described in the decision, Nike Inc. conducted for NEON as its agent the types of functions described in Reg §1.954-3(a)(4)(iv)(b) [Foreign base company sales income – (4)Property manufactured, produced, or constructed by the controlled foreign corporation]. Following the 2009 restructuring when the Singapore branch of Nike Trading Company BV was added to the mix, things are less clear but it seems doubtful that many production functions changed. Likely, a few functions might have been moved from the U.S. to Singapore. That, however, logically shouldn’t change NEON’s character as a manufacturer.

With the above in mind, Nike has voluntarily created NEON, which has conducted an active business now for 25 years. Over those years, it has created to some extent the marketing intangibles that it uses. This is in addition to whatever IP rights it secures from the SPC under the license agreement. Further, either through its own personnel or through its agents it is conducting all production activities aside from the physical production itself. NEON has never suggested that it has a PE in the U.S. or elsewhere that is conducting purchasing functions.

Nike structured an active manufacturing and sales business within NEON, which pays (i) a royalty for manufacturing IP and some marketing IP to an SPC with no operations of its own, and (ii) service fees (the arm’s length nature of which no one is questioning) to Nike Inc. and NTC for their production functions. NEON has no PE outside the Netherlands to which any profits could be attributed. Any royalty that NEON pays should be an arm’s length royalty for manufacturing IP and any marketing IP that NEON does not already hold based on its activities since its formation in 1994. To suggest that commercial returns in excess of this arm’s length royalty should be included in an expanded royalty to the SPC is completely contrary and out of phase with the structure that Nike voluntarily created. The revenues, production costs, and other expenses that NEON earns or incurs should be fully within the Dutch tax computation; there’s nowhere else it can go.

The same issue of creating a structure dependent on a tax ruling that invites, in the absence of that ruling, full taxation in the country where operations are being conducted is true as well for Starbucks in the Netherlands and Apple in Ireland. The latter, of course, created Apple Sales International, which manufactures products through contract manufacturers and sells them. With all the manufacturing functions (aside from the physical manufacturing performed by contract manufacturers) presumably being conducted by related parties under service agreements, there again is no basis to suggest that any of ASI’s profits should be attributed to some location outside of Ireland. Should the service fee payable to Apple U.S. group members be higher? Probably, but Apple chose its structure and the level of intercompany service fees. The ruling that created an allocation to a home office with no personnel or physical operations is creating a fiction. With the ruling being negated by the Commission’s decision and with no Plan B, Apple created its own mess.

William, I hope the above is useful to your thinking.

All the best,

Jeff (his faculty website is here)

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EU Agrees on the Automatic Exchange of Tax Rulings – Transfer Pricing Audits Expected

Posted by William Byrnes on October 8, 2015

European Union (EU) Ministers for Economy and Finance met in Luxembourg EU Commissionfor an ECOFIN Council chaired by the Luxembourg Minister for Finance Pierre Gramegna. The Ministers expressed their political agreement on a proposed Directive on the automatic exchange of information (AEI) on tax rulings.

On the basis of a compromise agreement brokered by the Luxembourg Presidency, the Council expressed its political agreement on a proposed Directive designed to improve transparency in the context of advance cross-border tax rulings, by making their automatic exchange between tax administrations compulsory.

The proposed Directive [Download EU AEOI TP] is part of a series of measures presented in March 2015 which aim to prevent tax avoidance and aggressive tax planning by companies. It aims to modify Directive 2011/16/EU on administrative cooperation in the field of taxation, which defines the practical terms and conditions for exchanging information in order to include advance tax rulings.  The Directive requires Member States to proceed with AIE in the field of advance cross-border tax rulings, as well as advance pricing agreements. The Commission will implement a secure central directory, accessible to all Member States and the Commission, where the information exchanged will be stored.

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OECD Releases BEPS Proposed Action 8 on Cost Contribution Arrangements & Transfer Pricing

Posted by William Byrnes on May 1, 2015

Logooecd_enPublic comments are invited on a discussion draft which deals with work in relation to Action 8 of the Action Plan on Base Erosion and Profit Shifting (BEPS).

Action 8 (“Assure that transfer pricing outcomes are in line with value creation: Intangibles”) requires the development of “rules to prevent BEPS by moving intangibles among group members” and involves updating the guidance on cost contribution arrangements. The discussion draft sets out a proposed revision to Chapter VIII of the Transfer Pricing Guidelines and is intended to align the guidance in that chapter with the other elements of Action 8 already addressed in the Guidance on Transfer Pricing Aspects of Intangibles released in September 2014.

Interested parties are invited to submit written comments by 29 May 2015 (no extension will be granted) and should be sent by email to TransferPricing@oecd.org in both PDF and Word format. They should be addressed to Andrew Hickman, Head of Transfer Pricing Unit, Centre for Tax Policy and Administration.

Check out William Byrnes’ Lexis’ Practical Guide to U.S. Transfer Pricing, available within LexisNexis, which is updated Book Coverannually to help multinationals cope with the U.S. transfer pricing rules and procedures, taking into account the international norms established by the Organisation for Economic Co-operation and Development (OECD). It is also designed for use by tax administrators and tax professionals, corporate executives, and their non-tax advisors, both American and foreign.  Fifty co-authors contribute subject matter expertise on technical issues faced by tax and risk management counsel. Chapter 13 covers Cost Sharing Arrangements.

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