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Intercompany agreements should reflect the functional, legal, and economic allocations of responsibilities and risks that support a taxpayer's transfer pricing positions. Notwithstanding the importance of these agreements, it is easy to put little effort into drafting these documents even though a poorly drafted intercompany agreement can, and often does, lead to major transfer pricing disputes. Indeed, these agreements sometimes fail to reflect the economic realities of a transaction or don’t sufficiently address or anticipate changes such as BEPS developments, the invalidation of regulatory requirements as in Altera, and other important changes, like proposed regulations such as those promulgated under section 385.
In 60 minutes, Brian Kittle and Scott Stewart will review the key steps and best practices required to write effective intercompany agreements that avoid penalties and controversy. They will examine:
• Requirements imposed by both the final BEPS action items and section 382 on intercompany agreements;
• Agreements that, for example, fail to define the IP properly, omit key terms and conditions (e.g., the sales base on which royalties are paid and the owner of future-developed IP), and/or contain limited terms and/or short-term termination clauses wholly inconsistent with the long-term investment (and assumption of risk) required for a licensee to exploit the IP;
• Sales and marketing agreements that purport to limit the risk of a distribution affiliate, but which lack any significant substantive provision effectuating such intent;
• Compensation arrangements for all different kinds of related-party transactions that merely cross-reference the "arm's-length standard";
• Instances where the agreements have created unforeseen and unexpected issues.
• Get practical tips and a basic approach to drafting intercompany agreements that will be beneficial, defensible, and sufficiently flexible and enduring to the company
• Learn from best practices in drafting intercompany agreements using real examples of company agreements to demonstrate how to bolster a taxpayer’s tax positions
• Know how to avoid unnecessary controversy and the imposition of IRS penalties
Who would benefit most from attending this program?
Corporate tax practitioners; in-house counsels, general counsels, accounting advisories
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Brian Kittle is co-leader of Mayer Brown’s Tax Controversy & Transfer Pricing practice. Since joining the firm in 2006, Brian has represented clients in every facet of tax controversy and litigation—from IRS examinations and administrative appeals, through the litigation, trial and appellate review of highly complex tax controversies involving a broad range of international and domestic tax issues. His controversy experience also includes frequent use of IRS alternative dispute resolution tools, including Pre-filing and Advance Pricing Agreements.
In addition to his controversy practice, Brian also provides tax advice on related party and highly-sophisticated transactions involving acquisitions and integrations. He also frequently speaks on and authors articles about substantive and procedural tax issues.
Brian has been repeatedly recognized as a rising star by International Tax Review Tax Controversy Leaders guide and Super Lawyers.
Before joining Mayer Brown, Brian served as an attorney advisor to Judge Joseph R. Goeke of the United States Tax Court. This experience provides him with unique insight into the Tax Court’s procedures and decision making process.
Since joining Mayer Brown in 1989, Scott M. Stewart's practice has focused exclusively on tax disputes, including transfer pricing and intercompany debt matters. He represents taxpayers at all levels of federal tax controversy, including audits, administrative appeals before the Internal Revenue Service, mediation involving the Appeals division of the IRS, and litigation before the United States Tax Court.
Scott’s transfer pricing litigation experience includes a number of the major cases of the last two decades, such as National Semiconductor, Seagate Technology, Nestlé Holdings and United Parcel Service.
Scott's experience also includes acquisition-related issues, such as valuation of tangible and intangible assets. He advises clients on tax treaty matters, competent authority issues, attorney-client and related privilege issues, civil and criminal tax penalties, and accounting for tax matters under FIN 48 of the Financial Accounting Standards Board. His industry experience includes manufacturing, pharmaceutical, medical device and food processing companies. Scott holds a JD from Harvard Law School and an MBA from the Johnson Graduate School of Management at Cornell University.
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