BEPS avseende internprissättning och förhållandet till EU-rätten

Sammanfattning: The international organization OECD has developed a comprehensive action plan, the BEPS project, which aims to prevent national tax bases to erode due to that multinational companies allocate taxable profits in countries with low tax rates. Cross-border intra-group transactions is a predominant method to achieve the desired profit allocation. Transfer pricing rules are therefore a central part of the BEPS project and the OECD has introduced a series of measures, featured in Action 8-10 and Action 13, which involve changes in the organization's transfer pricing guidelines. The actions are intended to create international harmonization and added transparency. This to assure profits to be taxed in the jurisdiction where the actual value creation, which is the source of the profits, is added. The thesis describes the changes that the BEPS project imply on transfer pricing, mainly focusing on Action 13 and the documentation requirements as these changes are thought to have the greatest practical importance in the near future. Furthermore, the thesis examine how the OECD transfer pricing guidelines relate to EU-law which has become a crucial part of the Member States' legal systems. The legal dogmatic method is used for this thesis and the selected source largely consist of reports from the OECD and the EU institutions as well as comments from scholars and legal practitioners. The essay is written from a lex ferenda perspective as it investigates which impacts the new transfer pricing rules may entail. Action 13 in The BEPS project will result in a new international standard for transfer pricing documentation by changing the previous OECD transfer pricing guidelines. The new guidelines will require more extensive documentation, containing three diffrent parts, in order to make it easier for tax authorities worldwide to check up on multinational corporations transfer pricing. According to the OECD these actions will protect the national tax bases from erosion. The inevitable prerequisite to protect the national tax bases from erosion is international collaboration and increased transparency. Despite this fact this thesis indicate that the new documentation requirements may rather lead to a redistribution among the various jurisdictions' tax bases, which implies that some states will actually see their tax revenue decline. While the OECD recognizes the arm's length principle as the internationally accepted principle for transfer pricing, the wide exchange of documentation may hollow out the principle in favor for formula based worldwide distrubution of corporation tax. Tha analysis of this thesis reveal that the taxpayers peril for double taxation increases with the new rules, while confidential information may be used in unjustified manners. The OECD however believes that any of the burdens that might affect the taxpayer due to new transfer pricing rules is in proportion to the benefits that can be achieved for the public. Moreover, a full international harmonization will mean that multinational corporations only need to comply with one transparent single regulatory framework for transfer pricing. Even so it is somewhat unclear how successful this harmonization and collaboration will be. It is interesting to examine how the transfer pricing rules relates to EU-law as the nationally regulated tax law has a complex relation to the rules which seeks to guarantee a free internal market. Applying certain rules for cross-border transactions between EU countries partly violates the free internal market, such violation can however be justified on specific grounds. EU-law will nevertheless defenetely have impact on transfer pricing within Europe. In order to protect and strenghten the single market, the European Commission has put forward several proposals for a consolidated corporate tax base where the distribution of taxes is applied by formula. At the same time the EU strive for the new OECD guidelines to be implemented in a harmonized way among the Member States which in contrast to the previous mentioned proposal advocates the arm's length principle. This strive has resulted in a proposed directive from the Commission which includes a further interpretation of the guidelines. Member States may therefore be obliged to consider yet another interpretation of the guide lines. The problems within the EU is basically the same as internationally, the supranational project collides with national sovereignty in terms of taxation law. It is uncertain whether the risks, caused by major legal as well as political differences between jurisdictions, is porportionate to the benefits of the BEPS project.