Transfer Pricing in the crisis Milan, October 2009.
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Transcript of Transfer Pricing in the crisis Milan, October 2009.
Transfer Pricing in the crisisTransfer Pricing in the crisisMilan, October 2009Milan, October 2009
Agenda
I. Current tax audit practice in Germany
II. The impact of the crisis
III. Outlook
I. Current tax audit practice in Germany (1)
• Focus on the period 2003/4 – 2006/7• Tax auditor plus TP specialist• Main goals beside collecting tax revenue
– Receive a TP documentation in writing– Fix a mutual understanding between tax office and client
about allocation of risks / functions andmajor transactions, e. g. intercompany charges
– Use this as basis for the next audit– Enforce information sharing cross-boarder
I. Current tax audit practice in Germany (2)
• Makes deals more difficult as the audit TP specialists needs to give his approval for the TP issues first (he is not involved nor interested in the national issues)
• Requires a defense team = Tax advisor plus TP specialist and close co-ordination in order to get the deal
• Deals are often driven by lack of documentation, especially for cost allocation schemes
II. The impact of the crisis
• Restructuring costs• Adjustment payments• FX risks
1. Restructuring costs
• No specific guidance available• Standard principles shall be followed• Functional analyses decisive
T1-Corp T2-Corp
M-Corp
Toll manufacturer
Redundancy costs shall be born by M-Corp
Example
Contract manufacturer
Redundancy costs shall be splitted
Q – Payment for Intangibles at the start-up?
Cost +
Cost ++
Capacity redundancy
2. Adjustment payments
• More frequent = higher risk• Set-offs only recognized by German tax authority
if agreed upfront and in writing• Waiver = generates taxable income• Any modification shall be supported by a business
case and economic substance
3. FX risks
• Area of uncertainty due to lack of instructions• Discussion with German tax authorities highlights
importance of availability of a contract in writing including section regarding foreign exchange risk
• Agreement shall be overruled only in case of a permanent loss position for one of the parties
III. Outlook (1)
TP audit = key element for collecting tax revenue
• Support for the client ensuring ongoing documentation process is crucial
• Focus on non-ordinary transactions, e. g.– driven by change of strategy
– market circumstances
III. Outlook (2)
Intercompany cost allocation scheme
• Detailed documentation becomes more crucial
• Benchmarking analyses less important
• Focus on:– Specific benefits
– Involved resources
– Allocation keys
III. Outlook (3)
Counter-correction process becomes important
• Avoid stand-alone solutions, which won't be accepted by the other countries tax authority
• Focus on tax audit reports with a detailed explanation of the circumstances underlying the tax correction
Thanks for your attention
Sten Günsel Professional background:
University of Halle/Wittenberg School of Law, Mandatory Legal Clerkship – Focus on Tax LawFrom 1995 – 2000 PwC Hanover, 1999 qualification as tax advisoraccording to German lawFrom 2000 – 2005 PwC Czech Republic, Brno/Prague, Leader of the German tax deskFrom 2005 – 2006 Leitner & Leitner, Czech Republic, PartnerSince 2006 Ebner Stolz Mönning Bachem, Stuttgart – works in his capacity as tax advisor and attorney
Main Areas of Focus:International taxation, Expatriate taxation, Tax structuring, Transfer pricing, Central and Eastern Europe
Business Sectors:Investment - Service - Distribution – Manufacturer - Automotive
German Tax advisor – Attorney at Law –
Certified Expert for International Tax
[email protected] +49 711 2049 1258Fax +49 711 2049 3258
Ebner Stolz Mönning Bachem locations in Germany, over 700 employees
Kiel *)
Hamburg *)
HannoverBerlin
München
Leipzig
Stuttgart
Frankfurt
SolingenKöln
Düsseldorf
Kiel *)
Hamburg *)
HannoverBerlin
München
Leipzig
Stuttgart
Frankfurt
Kiel
Hamburg
HannoverBerlin
München
Leipzig
Stuttgart
Reutlingen
Frankfurt
SolingenKöln
Düsseldorf
Bonn
Kiel *)
Hamburg *)
HannoverBerlin
München
Leipzig
Stuttgart
Frankfurt
SolingenKöln
Düsseldorf
Kiel *)
Hamburg *)
HannoverBerlin
München
Leipzig
Stuttgart
Frankfurt
Kiel
Hamburg
HannoverBerlin
München
Leipzig
Stuttgart
Reutlingen
Frankfurt
SolingenKöln
Düsseldorf
Bonn