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International - Profit Allocation Based on Scarcity Value: A New Factor for Taxing Intra-Group Services Where They Create Value

N. Berndsen
World Tax Journal, 2020 (Volume 12), No 4
18 September 2020
In this article, it is argued that the principle of taxing where value is created is currently not applied in a way that actually results in taxation where value is created. In order to better adhere to this principle, the scarcity value of intra-group services provided cross-border should be taken into account. The scarcity value entails that the provision of a service in a jurisdiction where it is not possible to obtain that service due to scarcity in the market of that jurisdiction for that specific service gives rise to a relatively higher profit in that jurisdiction. This means that relatively more value is created in that jurisdiction. This additional value should be allocated there in order for that jurisdiction to tax the part of the profit that is created there.The proposal in this article goes beyond the traditional transfer pricing rules and the arm’s length principle, but it does not necessarily go against it, as it functions within the framework of the OECD’s Marketing Intangibles proposal and the Unified Approach under Pillar One. This means that only part of the residual profit is to be reallocated to scarcity value; the routine functions of the multinational enterprise will still be awarded the same routine return as under the transfer pricing rules that are currently in place.As this is (to the author’s knowledge) the first article on allocating profit based on scarcity value, there are a number of outstanding issues for further discussion. The main issues are the problems regarding establishing whether a certain service is scarce in a certain jurisdiction, reaching an agreement on which state should renounce part of its tax claim and the overlap of scarce services, marketing intangibles and value created due to factors that are unique to a specific multinational enterprise.
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