Detailed Conference Agenda

Due to the increased emphasis on substance requirements stemming from the BEPS project, certain companies are re-evaluating their IP structures towards the alignment of the legal and the so-called economic ownership of the asset. There is a trend of rising controversy involving companies transferring IP where an entity other than the IP owner are considered to perform the key IP-related (DEMPE) functions. Restructuring may also lead to models where multiple entities are sharing the performance of the same functions and/or the control over the same DEMPE risks.

Session 2 debates the role of the DEMPE concept in the OECD Transfer Pricing Guidelines and domestic law for business restructurings that involve the transfer of an IP, the practical difficulties of its application, the limited and ambiguous guidance provided by the OECD that leads to diverse interpretations and controversy, and a preferrable way forward to mitigate the controversy.

Session 3 focuses on the conceptual legal aspects behind determining the value of patents and trademarks as acquired in business combinations and transferred as stand-alone assets. It covers the particularities of applying valuation techniques of the IP for transfer pricing purposes, the possibility of applying adjustments for synergy benefits, control premiums, and routine functions, as well as relevant global case law on the matter.

Session 4 discusses the circumstances under which there is an exit tax and the relevant case law, the critical aspects of business valuation, the importance of ex-ante and ex-post functional analysis, the role of realistically available options and group synergies, the potential inclusion of indemnity and compensation clauses, and the challenges related to post-restructuring and substance.