Profit Shifting

Profit Shifting is a strategic practice employed by multinational enterprises (MNEs) to reduce their global tax liability by shifting profits from high-tax jurisdictions to low- or no-tax jurisdictions. The primary method involves transferring income-generating activities, intangible assets, or other high-value components within the group to countries with favourable tax regimes. Profit Shifting is a critical concern for tax authorities and governments, as it erodes the tax base and undermines national revenues. Addressing Profit Shifting has been central to global tax reforms, such as the OECD/G20 Base Erosion and Profit Shifting (BEPS) initiatives.

Profit Shifting strategies can be legitimate, depending on compliance with transfer pricing rules and tax laws. However, aggressive schemes that exploit mismatches between different tax jurisdictions often attract regulatory scrutiny and legal action. The OECD Transfer Pricing Guidelines and local tax regulations require that intercompany transactions be priced at arm’s length to prevent artificial profit allocation.


Examples of Profit Shifting in Practice

1. Use of Intellectual Property (IP) Holdings

A common Profit Shifting strategy involves the centralisation of valuable intellectual property, such as patents, trademarks, and software, in jurisdictions with minimal tax rates. For instance, suppose Company A, headquartered in a high-tax country, transfers ownership of its proprietary software to a subsidiary, Company B, located in a tax haven. Company A then pays substantial royalties to Company B for using the software, shifting its taxable income to the low-tax jurisdiction. The profits accumulated by Company B face negligible tax, while Company A reduces its taxable income in the high-tax jurisdiction. Such arrangements have prompted reforms like BEPS Action 8, which addresses the misuse of IP-related profit allocation.


2. Intragroup Financing Arrangements

Intragroup financing is another mechanism often utilised for Profit Shifting. For example, a parent company based in a high-tax country may establish a financing subsidiary in a low-tax jurisdiction. The subsidiary lends funds to other group entities at high interest rates, creating significant interest expenses for the borrowing entities and reducing their taxable income. Meanwhile, the financing subsidiary earns substantial interest income, taxed minimally or not at all. Tax authorities often scrutinise these transactions to ensure that the interest rates are at arm’s length and reflect genuine economic substance.


3. Supply Chain Restructuring

Restructuring supply chains to relocate profit-generating activities is a sophisticated form of Profit Shifting. Consider a multinational that manufactures products in Country X, a high-tax jurisdiction. By shifting its distribution and marketing functions to a low-tax jurisdiction, the company allocates substantial profits to this low-tax country. For instance, if the entity in the low-tax jurisdiction charges a high markup for distribution services, the manufacturing entity’s taxable profit in Country X will be significantly reduced. This scenario was evident in cases like the Coca-Cola Transfer Pricing dispute, where tax authorities contested the profit allocation within the supply chain.


Prominent Cases Involving Profit Shifting

  1. Apple vs. EU Commission
    In this landmark case, the European Commission accused Apple of using subsidiaries in Ireland to pay almost no tax on billions of euros of European sales. By attributing profits to “head offices” that existed only on paper, Apple allegedly shifted profits to Ireland, where tax rates were favourable. The dispute highlighted issues related to state aid and the need for transparent profit allocation.
  2. Amazon Luxembourg Ruling
    The European Commission also scrutinised Amazon’s tax arrangements, where it was alleged that Amazon shifted profits to a Luxembourg subsidiary. This entity was lightly taxed, while Amazon’s main business paid little or no tax in higher-tax jurisdictions. The case underscored the challenges in addressing digital economy profit allocation.
  3. Fiat Finance and Trade vs. EU Commission
    In this case, the EU Commission found that Fiat’s Luxembourg tax arrangement resulted in the company paying less tax on its profits. Fiat’s financing subsidiary was accused of being over-leveraged, with profits artificially reduced. The ruling emphasised that intragroup financing arrangements must reflect the arm’s length principle.