interest rate swaps, that they are exposed to recharacterisation
(111.) See Katanga Decision on Regulation 55, supra note 6, [paragraph] 26 ("The recharacterisation ...
(arguing that "in giving notice of their intention to consider a recharacterisation within the meaning of regulation 55," the Trial Chamber should "provide at the same time adequate information as to the factual and legal scope of that change").
Alternatively, does the PPSA, in its recharacterisation
of the transaction as a security interest, have the consequence that the transferor retains some form of interest in the account?
On February 6, 2015, TEI submitted comments to the OECD regarding its BEPS public discussion draft entitled BEPS Actions 8,9 and 10: Revisions to Chapter I of the Transfer Pricing Guidelines (Including Risk, Recharacterisation, and Special Measures).
Pursuant to Actions 8-10 of the Plan, on December 1, 2014 the OECD published a public discussion draft entitled BEPS Actions 8, 9, and 10: Discussion Draft on Revisions to Chapter I of the Transfer Pricing Guidelines (Including Risk, Recharacterisation, and Special Measures) (hereinafter the Discussion Draft or Draft).
We also note that the modifications proposed in Options I and J potentially go beyond the changes to the PE definition and reach into other areas, such as recharacterisation
of contracts and business structures that may be considered abusive and transfer pricing issues between related entities.
TEI commends the OECD for producing targeted rules that are generally precise, which is preferred to a recharacterisation
approach or an anti-abuse rule.
(15.) See, e.g., Henshall, Difficult questions around "recharacterisation
", Transfer Pricing International Journal (21 August 2013) ("Intellectual property is critically dependent on the legal arrangements that are established between the parties, because intellectual property is a monopoly established by law over the exploitation of an idea, be that a patent, copyright, a business secret or any other form of intellectual property.
Further, the OECD's Business Restructuring Project extensively addressed the question of recharacterisation
and resulted in paragraphs 9.161 through 9.164 of the Guidelines.
* fails to provide an analytical framework through which taxpayers may determine (and their financial statement auditors may confirm) whether the restructuring (or post-restructuring controlled transactions) will be safe from recharacterisation or adjustments; and
Recharacterisation or Non-Recognition of Restructuring Transactions