Intellectual Property

Transcription

1 Tax Reference Library No 46 Intellectual Property (7th Edition) Published in association with: Garrigues Ernst & Young Shinnihon Tax

2 Why transfer pricing matters in asset management By Emmanuel Llinares, Takefumi Suzuki and Sylvain Gilibert of NERA The asset management industry has gone through rough times recently with the turmoil in the financial markets. The press has reported a number of failures for hedge funds, with probably more than 10% already liquidated. In fact, because the vast majority of the remunerations of asset managers are stipulated as a percentage of assets under management, to which a performance fee may be added, a very large number of asset managers have seen their remuneration decline significantly over recent months. Indeed, 73% of the funds tracked by CSFB Tremont earned no performance fees last year. Background Industry value chain In a typical setup, the functions of an asset management multinational include core functions: that is, the day to day activities that characterise most asset management entities and that are at the heart of the value creation process, and support functions, which tend to be common to many industries (even though the skill sets required may be industry-specific). Both sets of functions rely on some form of intellectual property (in a broad sense), which is typically an integral part (albeit often invisible) of the value creation process. In fact, in the asset management industry, just as in any other industry, intangible assets are at the origin of large profits when the asset management company outperforms, and they often tend to have a direct relationship with the cause of losses incurred when the asset management company under-performs. The core functions include the following. Fund management The fund management function includes both portfolio management activities and supporting activities such as investment research and is one of the key drivers in the value chain. Fund managers are required to follow the investment objectives outlined in the investment prospectus for a particular fund. However, many funds do permit some discretion without violating portfolio guidelines, in some cases up to a third of total asset value. Fund design and marketing This function is predominantly demand-driven and includes all activities relating to the design of product offerings and the subsequent advertising and marketing of funds. Changing market conditions and increased competition have resulted in firms having to be more innovative and transparent with respect to product development and marketing. 3

3 Biography Emmanuel Llinares 28 av Victor Hugo Paris Cedex 16 France Tel: Fax: emmanuel.llinares@nera.com accounting. Support functions may include accounting and finance (which may include tax and legal departments), human resources and other types of similar transversal functions. We note in this respect that these functions typically require significant industry specific skill sets. As an example, it is not uncommon for a tax and legal department to extend well beyond the typical corporate function and cover operational issues. For example, both departments will be highly involved at a launch of a new fund to ensure that the fund is structured properly and efficiently. Emmanuel Llinares is an economist specialising in transfer pricing and intellectual property. For a number of years, he has advised multinational companies in terms of defining and implementing their transfer pricing policies and assisting them with documentation. Emmanuel also assists groups in the context of intellectual property-related litigation. In addition, Emmanuel has managed several advance pricing agreements for multinationals in the automotive, financial services, consumer electronics and consumer products industries. He has also managed the transfer pricing aspects of a large number of tax audits in France and in the UK. Before joining NERA, Emmanuel was an economist with Arthur Andersen s transfer pricing practice in London and Paris and the KPMG tax network in Paris. Emmanuel is a former lecturer at the economics department of the University of Delaware and at the Ecole Supérieure de Gestion, a business school in Paris. Emmanuel has a PhD in economics from the University of Lyon. Fund distribution Fund distribution relates to the structure that is being used to market the funds. Fund distribution may be direct (a business to consumer channel) or indirect (a business to business channel). In the direct channel, investors may contact invest in the fund by phone, internet or customer service centre. The indirect channel includes financial advisers (including advisers per se, banks, insurance providers and sales platforms), retirement plans (the distribution involves the employer of the investors) and institutions (non-personal accounts held by trusts, corporations, financial institutions, endowments, nonprofit organisations and other organisations). Back and middle office functions These functions include all operations related to support, such as transaction processing, settlement, custody and stock lending, performance measurement, investment accounting, regulatory compliance and customer service. A substantial proportion of the back and middle office functions tend to be outsourced, in particular with respect to custody, transaction processing and settlement, stock lending and investment Typical asset management firm set up in a cross-border organisation In a typical cross-border set up, one or several funds are located in jurisdictions generally chosen for their regulatory and administrative attractiveness, often offshore. In this context, there are then two fund management entities. One located offshore that may be in direct relation with the investors (it may collect the group s revenues from the amount invested by the investors, for example) and one located onshore, generally acting as a sub-manager and dealing with the offshore fund manager. The role of this entity may vary from being limited to the provision of research services to the actual management of the funds themselves. Therefore, the following points should be observed. The fund manager (the entity where the actual manager of the fund who takes the investment decisions) can be located offshore or onshore. When located onshore it is often, but not systematically, in a large city in a mature market. The portfolio manager, which we define for the purposes of this article as the key person in respect of the investment decisions or portfolio allocation decisions, may be located offshore or onshore. The portfolio managers and staff involved in those investment-related activities may be relying on know-how, processes and methods that can be described as intellectual property and are forming an intangible asset. Then, marketing and distribution-related activities (which may be located anywhere the funds are sold, or which may be centralised) are key in a number of setups. These activities themselves rely at times on a number of marketing intangibles developed by the group. We will describe those marketing intangibles and the intellectual property they relate to later in this article. Finally, the trade execution and other back and middle office functions that directly support the core portfolio management activities may be located in various jurisdictions or be centralised. The location of these functions may have important implications from an operational risk management perspective. When located in different jurisdictions, each of the activities involved in the asset management value chain within a 4

4 group gives rise to intra-group transactions and hence transfer prices: the remuneration of the group as a whole (which comprises the asset management fees, the performance fee when applicable and the potential other fees charged by the funds to the investors) is used to remunerate the various participants in the value chain. This remuneration should take into consideration their functions, assets and risks and most importantly their contribution to the overall value creation process. As with other industries, the transfer pricing issues have a number of tax and non-tax implications. On the tax side, the issue is the recognition of income and tax base in different countries. Non-tax consequences include the impact of transfer prices on the compensation of employees of the various entities (from the obvious and sometimes mandatory employee profit sharing schemes to the more subtle impact on the compensation structure of the group and its key persons). Nature and role of intellectual property Overview of intangible assets in the asset management industry Although interrelated, for purposes of this article we will distinguish between three categories of intellectual property: investment processes and related know-how; proprietary IT systems; and marketing intangibles. For each of these assets, we will provide an overview of what it may include and the key transfer pricing issues associated with it. Investment philosophy, investment processes and related know-how A key asset that drives the success of the firm is the investment selection and review process in place and related knowhow. In most asset management organisations, the investment selection and review process is formalised and drives the day to day activities of both analysts and portfolio managers. This can include internal procedures with a description of the deliverables for each phase of the investment selection: for example, related software, the organisation of the approvals and reviews and the risk management systems in place, among other things. Typically, these processes have been developed over time by the various asset managers and the management. It is generally materialised by some written procedures, IT systems and various levels of controls that are part of the risk management system. However, the visible part of this know-how is only the tip of the iceberg. An important part of this (technical) know-how may well be the corporate culture of the asset management group itself. This corporate culture is embedded not only in the various processes discussed above but also in the group s candidate selection process, the training systems, the career review and promotion processes and Biography Takefumi Suzuki The Imperial Hotel Tower 13F Uchisaiwai-cho Chiyoda-ku, Tokyo Japan Tel: Fax: takefumi.suzuki@nera.com Takefumi Suzuki provides economic consulting services to clients in Japan, with specialisations in transfer pricing and intellectual property in the health care and pharmaceutical industries. He has more than 10 years of management consulting experience, including operation and supply chain management, business strategy, business process reengineering and transfer pricing. Before joining NERA, he worked as a principal with AT Kearny in Tokyo, where he was a core member of the global operation practice group and actively developed and managed consulting projects for both Japanese and western clients, including transfer pricing projects for Japanese multinational companies, global logistics strategy development and implementation for a big US food company and a corporation-wide business process re-engineering (BPR) project for a Japanese oil and chemical company. Takefumi has also worked for a big medical equipment company, where he was responsible for purchasing, logistics operation and inventory management for Japanese operations. the variables that affect the compensation scheme, among other things. Finally, the investment process and related know-how also include the investment philosophy of the group. The investment philosophy may or may not be formalised. It corresponds to the underlying investment principles that guide the decisions of the personnel involved in the investment selection process. The categories of intellectual property we have described above are almost never recognised explicitly in the group s financial communication: it is rare that the pieces of intellectual property as defined above give rise to an intangible asset being recognised in the balance sheet and valued. Yet, these intangibles are at the heart of the value creation process. The value creation associated with the functions of the portfolio managers can be neither understood nor valued unless the group s know-how in terms of investments is identified. From a transfer pricing perspective, the first issue is to identify and recognise those intangibles. This may be particularly difficult to do in practice. In the context of its work on permanent establishment, the Organisation for Economic Co-operation and Development (OECD) has introduced the concept of the Key 5

5 Biography Sylvain Gilibert Sylvain Gilibert is a consultant at NERA, specialising in economic analysis applied to transfer pricing. Sylvain has supervised several transfer pricing planning and documentation projects in a range of industries including energy, transportation and pharmaceutical products. In particular, he assisted a leading European industrial group in determining its worldwide transfer pricing policy and conducted several large French and pan- European transfer pricing documentation projects in the transport and geophysics industries. Sylvain has also managed intangible property and company valuation projects and has been involved in complex tax audits. He notably assisted a leading pharmaceutical group in the defence of its transfer pricing policy in France. In the course of his career, he has developed knowledge of transfer pricing and valuation techniques. Before joining NERA, Sylvain was a transfer pricing specialist within the KPMG tax network in Paris. Sylvain has a master s degree in market finance from the CERAM Sophia- Antipolis business school and is a Level II applicant for the Chartered Financial Analyst (CFA) programme. Entrepreneurial Risk Taking (KERT) function, which may prove useful in this context. However, one should not forget, regarding such intangibles, that often their origins are at the roots of the organisation. Though the roles and responsibilities of the personnel in charge of KERT functions are important, intangibles often predate the current organisation and may not be completely apprehended by simply reviewing the location of current key personnel. Proprietary IT systems Like many financial services companies, the asset management industry has invested heavily in software. Typically, asset management companies acquire a number of off-theshelf packages and tailor them to their own needs. In general, software that is closely related to the investment selection process, reviews and risk management is highly tailored. From a transfer pricing perspective, the main issues in respect of IT-related intangibles relate to their funding. Typically, there are large investments associated with the development of such assets. As a result, it is tempting for an asset management group operating in several countries to have these developments funded by a number of entities. The result is joint economic ownership of the assets. That being said, however important they may be, IT investments are primarily designed to support decision makers and other investment-related functions. Marketing intangibles As mentioned above, asset management companies can operate in a business to consumer (B to C) context, in which case the asset management company is directly in contact with investors, or in a business to business (B to B) context, where the asset management company is in contact with agents (to be taken in a broad sense) that are responsible for promoting the product to investors. Unlike the know-how and processes described above, brands and trade marks are relatively easy to identify. Valuing them is another matter. We note, however, that their attributes are closely related to the investment philosophy, reputation and history of the asset management group. Marketing intangibles can be of a high value in both B to C and B to B contexts. Though the development and maintenance of marketing intangibles in a B to C context is likely to require significant and recurrent media and communication investments, developing and maintaining marketing intangibles in a B to B context will require or rely on a network of distributors that may be costly to build up and preserve. As described above, these intangible properties could be located in different countries, following the structures of asset management multinationals. Hence, defining the remuneration attributable to each of them might be problematic. OECD methods and applicability to the asset management industry The OECD, in assessing whether a transaction between related parties conforms to the arm s-length principle, prefers three methods. These are: the comparable uncontrolled price method (CUP); the cost plus method; and the resale price method (RPM). Additionally, where it is not possible to apply any of the recommended transactional methods listed above, because of concerns about the accuracy of results, the OECD makes reference to other methods that can be used, namely profit split methods and the transactional net margin method (TNMM). A description of these five OECD methods and their applicability to the asset management industry is given below. Comparable uncontrolled price method The CUP method compares prices charged on the transfer of goods (or provision of services) in group transactions with prices charged in uncontrolled transactions either between the controlled party and an independent third party (internal CUP) or between two independent third parties (external CUP). This method uses the most direct level of comparison and, if practicable, is regarded by the OECD as preferable to the other methods. The uncontrolled transactions should be in services of a similar type, quality and quantity to those 6

6 being tested. Other factors should also be comparable, for example the time at which the transactions took place (recent market conditions have made this obvious). In practice, it is often difficult to find exact comparables. However, if there are differences such that an adjustment to the CUP can be made with reasonable accuracy, it may still be possible to use this method. Where there are differences (such as in the nature of the services, the geographic markets, the level of the market or in the amount or type of intangible property) for which it is not possible to quantify adjustments, it will generally not be appropriate to use the CUP method. Typically, there are two categories of transactions or comparables that can be used to complete a CUP analysis. The first category, often referred to as internal CUP, relies on the analysis of transactions entered into by a group entity and a third party. The other category of transactions or comparables that can be used in the context of the application of the CUP method is referred to as external CUP, which typically relies on the use of publicly available data on third party to third party transactions. Though the internal CUP analysis can only be completed in some case, we note that, because the asset management industry is relatively fragmented, it facilitates the identification of relationship with third parties, which may mimic some of the intra-group transactions. This can be the case for distribution activities: for example, for some trade execution and other back office services and, in some circumstances, with the portfolio management activities themselves. In the application of the CUP analysis, it is essential to bear in mind the characteristics derived in the functional analysis: the analysis cannot ignore the comparability criteria (geography or regulation may be essential in some cases), as well as the answer to the key question of why is it that this transaction is externalised rather than performed in house. The asset management industry has also attracted a considerable number of studies, and there are a number of external data providers that can be a useful source of data. For these reasons, there are a number of transactions in the industry where we believe there to be scope for applying the external CUP method. In particular, there are external data on transactions for the provision of investment advisory services or portfolio management services. Those external sources of data may be an excellent starting point for a robust CUP analysis. Asset management is one of the few industries where the CUP method applies well. Furthermore, the method applies well to situations where there are intangibles, provided the strict comparability criteria are satisfied. In this respect, one should not underestimate the impact of a changing market environment on such data. For example, it is not unreasonable to expect both the levels of remunerations and the structure of the remunerations of independent sub-advisers or of sales agents to vary significantly following the recent sharp decline in financial markets. Cost plus and resale price methods These methods are gross margin-based. Given the difficulties associated with dealing with gross margins, these methods, though applicable in principle, are rarely applied in practice. However, we describe below their net margin equivalent, the transactional net margin method. Transactional net margin method This method compares the controlled company s net profitability on a transaction to the net profit obtained by broadly similar companies on similar transactions. The OECD Guidelines state that the TNMM may afford a practical solution to otherwise insoluble transfer pricing problems when used sensibly with appropriate adjustments to account for any material differences. Similar to the cost plus and resale price methods, the TNMM assesses the arm s-length nature of the transfer price in a controlled transaction by testing the profit results of one of the parties in the transaction. The OECD Guidelines state: The transactional net margin method examines the net profit margin relative to an appropriate base (for example, costs, sales and assets) that a taxpayer realises from a controlled transaction. There are two important requirements that must be met for using the TNMM. First, comparability standards go beyond product and functional similarity. In fact, the OECD Guidelines consider the threat of new entrants to the industry, competitive position, management efficiency and individual strategies, threat of substitute products, varying cost structures, differences in the cost of capital and the degree of business experience. Second, analysis under the TNMM should consider only the profits of the related enterprise that are attributable to particular controlled transactions. It would be inappropriate to apply the TNMM on a company-wide basis if the company engages in a variety of different controlled transactions that cannot be appropriately compared on an aggregate basis with those of the independent party. In the asset management industry, the TNMM may apply to various activities, from the traditional support functions (accounting and human resources) to some of the simpler back and middle office functions. It may also apply to some investment research services, provided that it is possible to identify functionally comparable companies that have similar risk profiles. Like the cost plus and the resale price methods, the TNMM cannot be reliably applied in order to determine the remuneration of entities that own or are involved in the development of intangibles. Profit split methods The OECD Guidelines describe the profit split as a method that seeks to eliminate the effect on profits of special conditions made or imposed in a controlled transaction by determining the division of profits that independent enterprises 7

7 would have expected to realise from engaging in the transaction or transactions. This method is particularly adapted where transactions are interrelated and/or where two or more entities provide significant contribution to the group operations and that it is not possible to reliably evaluate the transactions on a separate basis. Under the profit split method, three types of analyses can be conducted, as follows. Overall profit split method contribution analysis The combined profits (generally, the combined operating profits) are split among the participants in the value chain based on the relative value of the functions performed. In order to justify this split, the OECD Guidelines recommend the use of external market data. In practice, the determination may be based on an analysis of the relative value of each participant s contribution. This analysis can either be based on external data (such as data from joint ventures, for example) or internal data (including financial data). Comparable profit split method (CPSM) The combined operating profits of participants are divided among the participants in the value chain based on data from observed comparable transactions between third parties. Comparable transactions should refer to a division of profits and should satisfy comparability criteria (similar activities and circumstances). Residual profit split method (RPSM) This method relies on a characterisation of functions, risks and assets according to which simple functions are rewarded with a routine remuneration and are distinguished from entrepreneurial functions, which are rewarded with a nonroutine remuneration. In general, the routine remuneration is determined based on the application of the TNMM. On the other hand, entrepreneurial functions and/or risks involve financing the development of valuable intangibles and/or assuming substantial risks. Once arm s-length returns have been attributed to routine functions, residual profits (the profits left over once routine remuneration has been determined) are split between affiliates based on one or more split factors. As indicated in the OECD Transfer Pricing Guidelines, the profit split methods are used especially where transactions are highly interrelated and may not be evaluated on a separate basis and when both parties contribute significantly to the development of intangibles. The method can be applied to a number of transactions in the asset management industry. This method is particularly suitable, in the absence of CUPs or to back up a CUP analysis, to remunerate entities in different jurisdictions performing high value added activities such as portfolio management and significant sales and marketing efforts. It is clear that this method is likely to apply often in the presence of intangibles being developed in two (or more) jurisdictions. The application of this method will be affected by the market environment. For example, in a situation where a fund is managed by portfolio managers in different locations specialising in different asset classes, the relevance of the split factors in the profit split analyses may need to be assessed in light of the impact of market conditions. Intangibles play a key role in the asset management industry. Asset management firms know-how and processes are likely to make a big difference in the current dismal market environment and distinguish the successful firms (that survive) from those that fail. As with many other industries, the mere identification of the nature of the intellectual property is not a simple task. Many informal processes, know-how, systems and tools constitute the intellectual property of the group. Their contribution to value added is essential: intellectual property (and intangible assets) may go a long way towards enabling asset management firms, even small ones, to survive the departure of a key person. In terms of transfer pricing, once the relevant intellectual property has been recognised and located, we expect two methods to apply regularly: the CUP method can apply in many situations because there are multiple sources of data available to perform those analyses (the increased transparency in the industry should lead to further improvements in data availability) and the profit split methods, because these are commonly used when determining the remuneration of entities that own or develop intellectual property. 8