Skip to Main Content
 

Clark Armitage Weighs in on Amazon Case Against European Commission in Tax Notes

May 14, 2021, Tax Notes

Although the EU General Court reached different conclusions in Amazon and Engie, its decisions in both cases illustrate the limits of state aid law as a transfer pricing enforcement tool.

. . .

The General Court’s rejection of what Donohue described as a “novel” set of arguments may reflect a misplaced focus on transfer pricing as a target of state aid enforcement, according to some observers. J. Clark Armitage of Caplin & Drysdale said a fundamental issue that connects Amazon with other state aid cases targeting transfer pricing arrangements is that the real issue isn’t actually transfer pricing. The untaxed income that drew the commission’s scrutiny in Amazon was ultimately caused by Luxembourg’s tax treatment of the intellectual property holding company, which was treated as a partnership and subject to no entity-level tax, and its foreign partners, Armitage said.

“A bunch of these cases — Fiat, McDonald's, Apple, and Amazon — all suffer from the same thing, which is they're trying to use transfer pricing to challenge something that has nothing to do with transfer pricing,” Armitage said. “You can't use transfer pricing to attack the way the laws are structured to encourage low-tax local investment. You’ve got to use a different tool.”

To the extent that Amazon’s European transfer pricing practices were inconsistent with the arm’s-length principle, the issue would be better addressed by national tax authorities’ examination of the Luxembourg operating company’s transactions with the individual European affiliates, Armitage said.

Armitage criticized multiple aspects of the commission’s transfer pricing analysis, noting that the minimum and maximum royalty thresholds may not be as arbitrary as they appear and that reimbursing the holding company’s cost-sharing payments at cost would ignore the investor risk that Amazon faced during its European expansion effort. More broadly, he questioned whether there is any one authoritative interpretation of the arm’s-length principle that can appropriately serve as a baseline for assessing selectivity.

The parties’ dispute in Amazon over the relevance of concepts added to the OECD transfer pricing guidelines after the relevant APAs illustrates the problem noted by Armitage. In arguing that the Luxembourg holding company was not entitled to the residual returns associated with the cost-shared Amazon IP, the commission emphasized that the entity merely sublicensed IP rights to the operating company without performing or controlling any of the functions associated with the development, enhancement, maintenance, protection, and exploitation (DEMPE) of the IP. The guidance on DEMPE functions, which was incorporated into the OECD transfer pricing guidelines by the base erosion and profit-shifting project's report on actions 8-10, remains one of the most controversial aspects of the OECD guidelines.

Armitage agreed with the General Court’s holding that the DEMPE guidance was a substantive change, not a mere clarification that should be retroactively applied. But the ongoing disagreement regarding the DEMPE guidance raises the possibility that endorsing a relatively common interpretation of the arm’s-length principle could be construed as state aid, he said.

“DEMPE could be a place where the Luxembourg's rules are noncompliant with the OECD guidance, but I guess the question is: Are they required to adopt the OECD guidelines when it comes to transfer pricing? The [commission’s] assumption is that DEMPE is definitely part of the arm's-length standard, but a lot of people don't agree with that,” Armitage said. “Is it state aid to disagree with how to interpret transfer pricing rules?”

For the full article, please visit Tax Noteswebsite (subscription required).

________________________________________________

About Caplin & Drysdale
Celebrating our 55th Anniversary in 2019, Caplin & Drysdale continues to be a leading provider of legal services to corporations, individuals, and nonprofits throughout the United States and around the world. We are also privileged to serve as legal advisors to accounting firms, financial institutions, law firms, and other professional services organizations.

The firm's reputation over the years has earned us the trust and respect of clients, industry peers, and government agencies. Moreover, clients rely on our broad knowledge of the law and our keen insights into their business concerns and personal interests. Our lawyers' strong tactical and problem-solving skills -- combined with substantial experience handling a variety of complex, high stakes, matters in a boutique environment -- make us one the nation's most distinctive law firms.

With offices in New York City and Washington, D.C., Caplin & Drysdale's core practice areas include:
For more information, please visit us at www.caplindrysdale.com.
Washington, DC Office:
One Thomas Circle NW
Suite 1100
Washington, DC 20005
202.862.5000
New York, NY Office:
600 Lexington Avenue
21st Floor
New York, NY 10022
212.379.6000

___________________________

Disclaimer
This communication does not provide legal advice, nor does it create an attorney-client relationship with you or any other reader. If you require legal guidance in any specific situation, you should engage a qualified lawyer for that purpose. Prior results do not guarantee a similar outcome.

Attorney Advertising
It is possible that under the laws, rules, or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation.
©2021 Caplin & Drysdale, Chartered
All Rights Reserved.

Related Professionals

Related Practice Area(s)