Fourth Issues Note: Sting in the Tail

On 19 September 2008, the OECD released its Discussion Draft on Transfer Pricing Aspects of Business Restructurings, which consists of four Issues Notes. This article considers Issues Note 4, discussing the meaning of various terms and definitions, and analysing questions such as whether Paras. 1.36 to 1.41 of the OECD Guidelines may be used by tax authorities for the non-recognition of transactions for purposes of making transfer pricing adjustments covered by Art. 9 of the OECD Model; which guidance is provided by the OECD in interpreting these paragraphs of the OECD Guidelines; and which issues might arise when these paragraphs are applied. Specific attention is paid to the link between domestic anti-avoidance rules and the OECD Model, and how certain countries might use domestic anti-avoidance rules with regard to business restructurings.