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Applying the Arm's Length Principle to Intra Group Financial Transactions: A Reference Guide

Edited by: Robert Danon, Vikram Chand, Guglielmo Maisto, Amanda Pletz

ISBN13: 9789403540238
Published: August 2023
Publisher: Kluwer Law International
Country of Publication: Netherlands
Format: Hardback
Price: £130.00

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Applying the Arm’s Length Principle to Intra-group Financial Transactions is a unique compendium comprising contributions by more than 50 leading global transfer pricing and international tax experts from law firms, multinational enterprises, academia, and tax administrations. This nonpareil book furnishes unparalleled insights into the application of the Arm’s Length Principle to different types of financial transactions, the application of anti-avoidance rules to various intra-group financial arrangements as well as the business value creation process and the dispute management landscape that underlie intra-group financial transactions.

Delving deep into the legislation and market developments that fuel the diverse range of financing options available to market participants – and replete with pragmatic examples and case studies that cover the legal and economic considerations arising when analysing intra-group finance – the contributors examine the following issues and topics:

  • national anti-abuse rules applicable to financial transactions;
  • tax treaty issues;
  • role of credit ratings and impact of implicit support;
  • loans, cash pooling, financial guarantees;
  • transfer pricing aspects of performance guarantees;
  • ‘mezzanine’ financing;
  • considerations for crypto financing;
  • impact of crises situations such as COVID-19;
  • how treasury operations can be structured in a group and the decision-making process involved;
  • how hedges offset or mitigate risks;
  • how to apply the arm’s length principle to factoring and captive insurance transactions; comparability analysis for various transactions;
  • special considerations for transactions carried out by a permanent establishment;
  • EU state aid and its interaction with transfer pricing rules;
  • dispute prevention and resolution tools under the OECD, UN, and EU frameworks; and
  • developing countries’ perspectives, focusing on Brazil, India, and South Africa.

Bearing in mind the challenges facing taxpayers and tax authorities alike, this book will prove an inestimably valuable reference guide to support tax practitioners, tax administrations, and tax scholars in developing standards and policies in dealing with intra-group financing issues.

Part I: Introduction
CHAPTER 1 Introduction
Vikram Chand & Amanda Pletz

Part II: The Interaction Between Selected Anti-Avoidance Rules and Transfer Pricing Rules with a Focus on Financing
CHAPTER 2 Do Tax Treaties Restrict Adjustments Made to Related Party Loans When the Tax Administration Applies the Sham Doctrine (Including Court-Based Rules) or Domestic GAARs?
Vikram Chand & Craig Elliffe
CHAPTER 3 The Interaction Between CFC Rules and TP Rules with a Focus on Financing
Aurelio Massimiano & Kinha Romanovska
CHAPTER 4 The Interaction of Interest Limitation Rules, Thin Cap Rules, ALP-Based Rules and the Pillar Two UTPR: What Comes First?
Chloe Burnett SC
CHAPTER 5 Critical Assessment of Interest Limitation Rules: Global Perspective
Sandra Martinho Fernandes
CHAPTER 6 Shadow Credit Ratings for Intercompany Transactions
Georg Dettmann & Diana Kabir
CHAPTER 7 The Issue of Implicit Support and Implications for a Transfer Pricing Analysis
Andrea Lee, Amanda Pletz & Ronald Bernstein
CHAPTER 8 Revisiting the GE Case: Key Lessons for the Current Transfer Pricing Landscape
J. Scott Wilkie
CHAPTER 9 Setting the Arm’s Length Framework for Intercompany Loans
Marta Pankiv
CHAPTER 10 Accurate Delineation of Intercompany Loans
Vikram Chand, Michael Kobetsky & Camille Vilaseca
CHAPTER 11 Options Realistically Available Vis-à-Vis Loans
Andreas Bullen*
CHAPTER 12 Data Available to Price Loans with a Focus on Loan and Bond Approach
Thomas Petrakos*
CHAPTER 13 Fixed Rate Loan Transactions: A Case Study
Ralph Meghames, Bernardo Danesi, Diana Kabir & Amanda Pletz
CHAPTER 14 Floating Rate Loan Transaction: A Case Study
Stefanie Perrella & Zachary Held
CHAPTER 15 Different Benchmarking Approaches for Convertible Bonds
Serena Picariello
CHAPTER 16 The Use of Other Methods for Loan Benchmarking: A Yield Build-Up Approach and Cost of Funds
Eugene Ng, Gary Lambert & Amanda Pletz
Chapter 17 Intercompany Loans for Real Estate Financing: A Case Study
Danny Beeton
CHAPTER 18 Transfer Pricing Considerations for Intercompany Cryptocurrency
Fabian A. Peters, Amanda Pletz & Mark L. Berenblut
CHAPTER 19 The Chevron Case: A Detailed Analysis
Niv Tadmore, Simon Bowden & Benjamin Lancaster
CHAPTER 20 Transfer Pricing Aspects of Loans: Focus on German Federal Tax Court Case Law—A Detailed Analysis
Sven-Eric Bärsch
CHAPTER 21 The Use of Safe Harbours for Intercompany Loans: Lenders’ and Borrowers’ Perspective
Alessandro Turina
CHAPTER 22 The Impact of Crisis Situations Such as COVID-19 on Transfer Pricing of Intercompany Financial Transactions and Comparability Considerations
Vispi T. Patel, Anwesha Bandyopadhyay & Rhea Wadia
CHAPTER 23 Intercompany Agreements Relating to Financial Transactions
Paul Sutton
CHAPTER 24 Setting the Arm’s Length Framework for Financial Guarantees
Marta Pankiv
CHAPTER 25 Accurate Delineation of Financial Guarantees
Natassia Burkhalter-Martinez*
CHAPTER 26 Options Realistically Available for Financial Guarantees
Denis Amici
Chapter 27 Using the Market Approach to Price Guarantees: A Case Study
Rachit Agarwal
CHAPTER 28 Using the Actuarial Approach to Price Guarantees
Gary Lambert
CHAPTER 29 The Use of CDSs When Pricing Debt Guarantees
Timothy McKenna
CHAPTER 30 Transfer Pricing Aspects of Performance Guarantees
Adam Kosmala
CHAPTER 31 Setting the ALP for Cash Pooling
Rani Peffer
CHAPTER 32 Transfer Pricing of Cash Pooling Transactions in the Post-BEPS Era
Melanie Appuhn-Schneider & Alexander Haller
CHAPTER 33 Options Realistically Available with Respect to Cash-Pooling Transactions
Ulf Andresen

Part IV: ALP Framework for Treasury Activities
Chapter 34 General Overview of Financing Operations Including Different Types of Structures Used Within an MNE
Alessandro Bucchieri & Benedetta Veneziano
Chapter 35 Allocation of Risks and Returns: Critical Issues for Financial Transactions
Andrew Hickman
CHAPTER 36 The Allocation of Risks and Returns to Treasury Entities
Richard Collier & Dan Pybus
CHAPTER 37 Hedging Options in Multinationals
Meindert de Vreeze, Robin Deutsch & Niraja Srinivasan

Part V: ALP Framework for Other Types of Activities
CHAPTER 38 Assessing Factoring Transactions Within the Arm’s Length Principle Framework
Emmanuel Llinares & Bernardo Danesi
CHAPTER 39 Factoring: Focus on Accurate Delineation
Vikram Chand, Aitor Navarro & Camille Vilaseca
CHAPTER 40 Pricing Factoring Transactions: A Case Study
Emmanuel Llinares & Bernardo Danesi
CHAPTER 41 The Use of Captives and How They Are Normally Organized
Stephen Hawkes
CHAPTER 42 Overview into Captive Structures
Andrea Grainger & Emilia Siravo
CHAPTER 43 Setting the ALP Framework for Captive Insurance
Louise Sykes, Amanda Pletz & Diana Kabir
CHAPTER 44 Accurate Delineation of Captive Insurance Transactions Including Options Realistically Available
Louise Sykes, Vikram Chand, Amanda Pletz & Camille Vilaseca
CHAPTER 45 Transfer Pricing Considerations on Captive (Re)insurance Companies: Overview and Case Studies Using CUP and TNMM
Andrea Grainger & Emilia Siravo
CHAPTER 46 Determining Arm’s Length Premium Rates Using Insurance Approach: A Case Study
Daniel F. Gibson

Part VI: Special Considerations for Transactions with Permanent Establishments
CHAPTER 47 Allocation of Profits to a Permanent Establishment with Treasury Activities: General Considerations
Céline Martin
CHAPTER 48 The Recognition of Financial Dealings Between Head Office and Permanent Establishments under the AOA: Focus on External and Internal Dealings
Xaver Ditz
CHAPTER 49 Allocating Financial Assets to a PE and Corresponding Income Using the AOA
Thomas Hug
Part VII: The EU Perspective
CHAPTER 50 The Impact of the State Aid Rules on the Transfer Pricing Aspects of Intercompany Loans: An Analysis of the Landmark Ruling of the CJEU in the Fiat Case
Jérôme Monsenego

Part VIII: Dispute Resolution under the OECD, UN and EU Framework
CHAPTER 51 MAP and Arbitration for Financial Transactions under the Current Tax Treaty Framework: OECD and UN Perspective
Jonathan Schwarz
CHAPTER 52 Application of the EU Dispute Resolution Mechanisms to Financial Transactions
Guglielmo Maisto

Part IX: A Developing Countries Perspective on Financial Transactions: Selected Issues
CHAPTER 53 Transfer Pricing Aspects of Financial Transactions: A South African Perspective
Michael Hewson
CHAPTER 54 Transfer Pricing Aspects of Financial Transactions: An Indian Perspective
Mukesh Butani & Seema Kerijwal
CHAPTER 55 Transfer Pricing Aspects of Financial Transactions: A Brazilian Perspective
Luís Eduardo Schoueri & Daniel Teixeira Prates