Allocation of IP for TP Purposes

The ownership of an intangible asset is of particular importance for a transfer pricing analysis because ownership defines to a significant extent the allocation of profits of a multinational group to the individual companies and to the countries these companies are located in. According to national and international tax laws, different types of ownership exist that have to be considered. German tax law distinguishes between legal and economic ownership, which is mainly relevant for tax accounting. From an OECD and transfer pricing perspective, the notion of functional ownership is the main standard for the allocation of profits resulting from intangible assets. The functional owner of an intangible asset, who is entitled to the residual profits in connection with the asset, is determined on a functional approach that is based on the development, enhancement, maintenance, protection, and exploitation (“DEMPE”) of that asset. Any transfer pricing planning that involves intangible assets, therefore, has to start with the determination of the legal, economic, and functional owner of the intangible assets.