DEMPE, The Elephant In The Room For Multinationals

Background

At the 2012 G20 Summit in Los Cabos, participants raised concerns about multinational corporations (MNCs) using tax avoidance structures to exploit inconsistencies and gaps between different legal systems in order to shift profits to low-tax (or no-tax) jurisdictions. The G20  charged the OECD with the responsibility of coming up with an action plan to avoid Base Erosion and Profit Shifting (BEPS).

The resulting Action Plan was adopted at the 2105 G20 Summit in Antalya.

On June 7th 2017, ministers and officials from 76 countries and jurisdictions signed a multilateral instrument (MLI) that will allow rapid implementation of the BEPS actions into more than 1,100 bilateral tax treaties already in existence among the parties.

The only 3 OECD members to not yet sign are the USA, Brazil and Saudi Arabia.

What does this mean for IP owners?

Because IP accounts for the majority of enterprise value for MNCs, a simple shift in IP ownership can have a large impact in transferring profits (and therefore taxes) to other jurisdictions. The Action Plan paid special attention to the role of IP in base erosion and profit shifting.

The ramifications for IP ownership could be profound.

Multinational Subsidiaries - The Four Bridges

When you are running a multinational subsidiary, you start it, staff it and scale it. Day-to-day activities occupy the bulk of your attention. It is absolutely correct that you should concentrate on this – it is what you were tasked to do.

You can enhance this single-minded focus by addressing the other aspects that are crucial to the long-term sustainable success of your enterprise. I call them “The Four Bridges”.

Why the European Commission Apple decision IS significant for policy and behaviour

In August 2016, the European Commission issued a final decision in its investigation into the way Apple paid tax in Ireland. The sheer scale of the decision was dramatic and made headlines around the world. In the aftermath, analysts said that the ruling was limited to the specific facts around the Apple case and would not apply to other international companies in Ireland.

This may be true, but the reality is that this case is a significant wake-up call. It is an indication of a much larger issue.

Monetising the Internet of Things

A lot has been written about the Internet of Things (IoT) with Gartner predicting that the number of connected devices will grow to 20.8 billion by the year 2020. This figure compares with 2.1 billion smartphone users in 2016 and 3.4 billion internet users. I believe the actual number will far exceed those estimates.

Because of the term "Internet of Things", most of the focus to date has been around the “things” that make up IoT. Clearly there is a huge potential market for suppliers of the devices that are connected, switches, networks, cloud storage, etc.

Aside from that tangible value in hardware, the real potential of the IoT is how the “things” interact. As they exchange information, value is being created in the data. This is a new development. Among lawyers, it is just beginning to open new questions. Historically, the laws around data protection, privacy and ownership assumed that a human was doing something with the data. The laws were designed to regulate how those humans would behave and did not envisage scenarios where humans might not be involved at all.