DHL Corporation and Subsidiaries - Page 53

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               The applicable standard for determining an arm’s-length                
          royalty is the amount that would have been paid by an unrelated             
          party for the same intangible property or its use under the same            
          circumstances.  Sec. 1.482-2(d)(2)(ii), Income Tax Regs.  Under             
          that same regulation, the best indicator would be transfers by              
          the same transferor to unrelated parties involving the same or              
          similar intangible property under the same or similar                       
          circumstances.  If a sufficiently similar transaction involving             
          an unrelated party is not available, the arm’s-length amount is             
          determined under the facts and circumstances test of section                
          1.482-2(d)(2)(iii), Income Tax Regs.                                        
               Petitioners offered examples of independent agents who were            
          a part of the DHL network.  Those agents were allowed to use the            
          DHL name without payment or with a nominal payment (if local law            
          required some payment) regarding the use of the DHL name.                   
          Respondent contends that the arrangement with the agents is not             
          comparable because DHLI did not charge the agents a royalty in              
          order to avoid the agents’ countries’ withholding tax.  Whether             
          respondent’s contentions are correct or not, petitioners have not           
          shown that the circumstances with DHLI and certain agents were              
          sufficiently similar transactions and whether the agents were               
          sufficiently “unrelated” parties so as to be used as the                    
          preemptive means of setting an arm’s-length standard.  All                  
          petitioners have done is show that no royalties were charged                
          within the DHL network.  That does not mean that no royalty                 




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Last modified: May 25, 2011