Thesis presentation final pdf format - LLM University of Amsterdam Thesis presentation final pdf format - LLM University of Amsterdam Presented June 2017 at the IBFD Title: "Comparing U.S. Tax Jurisprudence and OECD Approaches to Risk Allocation in the Post-BEPS Era of Transfer Pricing"

1. Comparing U.S. Tax Jurisprudence
and OECD Approaches to Risk
Allocation in the Post-BEPS Era of
Transfer Pricing
Charles Lincoln
University of Amsterdam LL.M. International Tax Law
Thesis Defense Presentation

2. Company
Taxed
Individual
Taxed
Taxed Per
OECD/BEPS
Traditionally
Taxed

3. Six Step Arm’s Length Allocation of Risk:
Conduct Trumps Contracts
• Step 1: Identify economically significant risks with specificity
• Step 2: Analyze the contractual assumption of risks
• Step 3: Functional Analysis
• Step 4: Interpretation
• Step 5: Risk allocation
• Step 6: Pricing of the transaction in accordance with risk allocation
analysis

4. Step 5: Interpretation and Risk Allocation
• “Control over risk”
• ¶ 1.65:
• “Capability to make decisions” regarding risk
• “Capability make decisions on whether and how to respond to risk”
• “Whether the party assuming risk has the capacity to absorb [risk]
consequences”
• ¶ 1.86:
• “Financial capacity to assume risk”

5. U.S. Tax Court Jurisprudence

6. !
"
!
"
!
"