One of the first orders of business carried out by the
Organisation for Economic Cooperation and Development (OECD)
Working Party 6 (WP6) in the Base Erosion and Profit Shifting
(BEPS) OECD/G20 project Actions 8-10 was to reaffirm the use of
the arm's-length principle.
Formulary apportionment, on the other hand, remained
specifically rejected at paragraph 1.21, Chapter I, Section C.2
of the Transfer Pricing Guidelines for Multinational
Enterprises and Tax Administrations (TPG).
The arm's-length principle was then clarified with the 2010
provisions of Chapter I Section D of the TPG deleted in their
entirety, and replaced by new language. The clarification was
How the clarified provisions of Chapter I were to be
interpreted in specific types of transactions was the subject
of significant amendments to the guidance provided in Chapter
VI (intangible), Chapter VII (low-value adding services), and
Chapter VIII (cost contribution arrangements). The provisions
of all of these chapters were deleted in their entirety and
replaced with new ones.
Conforming adjustments to other chapters were introduced as
well, mainly in Chapter II (transfer pricing methods) and
Chapter IX (business restructuring).
Non-consensus changes to Chapter II (transfer pricing
methods) were proposed on December 16 2014, and subsequently on
July 4 2016; they are still in the works and not expected to
become consensus guidance until later in 2017.
This early reaffirmation of the arm's-length principle did,
however, contemplate the use of special measures that, in
certain limited specific circumstances perceived as highly
conducive to BEPS risks, could deviate from the arm's-length
Specifically, the non-consensus draft issued on December 16
2014, entitled Discussion Draft on Revisions to Chapter I of
the Transfer Pricing Guidelines (Including Risk,
Recharacterisation, and Special Measures) (the Risk and
Recharacterisation Draft) introduced five such options to
address the BEPS Action Plan mandate to examine the use of
special measures that are "either within or beyond the
The first option, called hard-to-value intangibles (HTVI),
addressed the informational asymmetry between taxpayer and tax
administrations, while the remaining four options addressed the
attribution of inappropriate returns for providing capital.
Only one out of the five options proposed in the Risk and
Recharacterisation Draft – the HTVI option –
made it to the October 5 2015, OECD/G20 BEPS final deliverable
(the final deliverable).
The other four options were dismissed without much
Since this final deliverable was adopted into the TPG in May
2016 (the 2016 TPG), it now controls the application of Article
9 of the OECD's Model Tax Convention on Income and on Capital.
Some tax administrations are taking the view that the revised
2016 TPG apply prior to their formal adoption in May 2016 by
the OECD Council by pointing that these revisions are merely
clarification of the arm's-length principle that has always
existed in nature, and therefore always applied.
The Risk and Recharacterization Draft stated (Part II at
paragraph 6) that "some of these measures could be seen as
within the arm's-length principle and others beyond. At
this stage, it is not critical to determine whether a potential
measure if on one side or the other of the boundary, but
the aim is to consider the effectiveness of the measure,"
[Emphasis added]. However, it is likely that the four options
were dismissed because they were perceived by some countries as
deviating too substantially from the arm's-length
Given public statements made by US Treasury officials
shortly after the Risk and Recharacterization Draft came out,
it is safe to conclude that the US was among those countries,
and feared that adopting any of these options would create
unmanageable daylight between US authorities (including
Treasury regulations and court decisions) and the OECD TPG, or
provide tax administrations with too much discretion to force
non-arm's length outcomes in too many situations resulting in
endless controversy. See, for example, Brian Jenn's comments at
the American Bar Association tax section conference in Houston
held January 30 2015. Jenn is an attorney advisor at U.S.
Treasury (Office of Tax Policy), and a US representative at the
OECD Working Party 6.
If the previous assumption turns out to be correct, then it
must be the case that the US representatives at WP6 felt that
the HTVI guidance was either close enough or entirely
consistent with the US authorities' interpretations of the
The remainder of this article will attempt to understand
where the concepts in the HTVI guidance came from, and explain
what the views of the US government have historically been in
connection with the arm's-length nature of such concepts. That
discussion will encompass a simple theoretical discussion of
the use of ex-post results to assess the arm's-length nature of
ex-ante pricing as a means to set up one commonly cited reason
to believe that the HTVI guidance may, in fact, go beyond the
arm's-length principle, as commonly understood or
Ultimately, our purpose is to provide useful insights as to
what to expect from the OECD HTVI guidance, based on lessons
learned from the US experience with the commensurate income
(CWI) standard and the periodic adjustment rules.
The inspiration for the HTVI guidance came from the periodic
adjustment rules of the US transfer pricing regulations. These
periodic adjustment rules were enacted as a result of the US
Tax Reform Act of 1986, and the introduction in the 482 statute
of the CWI standard that states: "In the case of any transfer
(or license) of intangible property (within the meaning of
section 936(h)(3)(B)), the income with respect to such transfer
or license shall be commensurate with the income
attributable to the intangible." [Emphasis added].
The periodic adjustment rules of the US transfer pricing
regulations and the HTVI guidance were designed to provide tax
administrations with a tool to address the informational
asymmetry occurring when taxpayers value intangible transfers
upfront, based on projections that tax administrations cannot
audit at the time, and typically have a very difficult time
auditing years after the fact. "For such intangibles,
information asymmetry between taxpayer and tax
administrations, including what information the taxpayer
took into account in determining the pricing of the
transaction, may be acute and may exacerbate the difficulty
encountered by tax administrations in verifying the
arm's-length basis on which pricing was determined for the
reasons discussed in paragraph 6.186." [Emphasis added] OECD
2016 TPG at paragraph 6.191.
There are several differences between the US periodic
adjustment rules and the OECD HTVI guidance. The US periodic
adjustment rules, for example, apply to any and all transfers
of intangible rights, while the OECD HTVI guidance applies only
to hard-to-value-intangibles within the meaning of paragraphs
6.189 and 6.190. To understand all these differences, see US
Treas. Reg. §1.482-4(f)(2) and paragraphs 6.192-6.194 of
the OECD TPG; such detailed understanding is not necessary for
the purpose of the present discussion.
The US periodic adjustment rules and the OECD HTVI guidance
generally provide that, in a transfer of intangible rights,
when the ex-post results are substantially different
from the ex-ante projections, tax administrations can
use the ex-post results as presumptive evidence of the
ex-ante projections. "In these circumstances, the tax
administration can consider ex post outcomes as presumptive
evidence about the appropriateness of the ex-ante
pricing arrangements." [Emphasis added] OECD 2016 TPG at
Under US rules, such presumptive evidence can be rebutted.
See Treas. Reg. §1.482-4(f)(2)(ii)(D) (or Treas. Reg.
§482-7(i)(6)(vi)(A)(2)(2011) for cost sharing
arrangements). Under OECD 2016 TPG, satisfactory evidence of
the adequacy and robustness of the ex-ante projections
actually used by the taxpayer to price the transfer may protect
from an HTVI adjustment initiated by a tax administration based
on ex-post results. See OECD 2016 TPG at paragraph
This is the sense in which US periodic adjustment rules and
OECD HTVI guidance are designed to address the informational
disadvantage of tax administrations vis-à-vis
Notwithstanding the aforementioned, the use of
ex-post evidence to challenge an ex-ante
valuation is conceptually problematic.
Perfectly arm's-length transactions could therefore easily
end up being adjusted without cause other than, for example,
the taxpayer's inability to (i) convincingly rebut the
presumptive evidence of non-arm's length pricing (US rules), or
(ii) satisfactorily demonstrate the adequacy and robustness of
the ex-ante projections actually used (OECD HTVI
Why is the use of ex-post evidence to
challenge an ex-ante valuation conceptually
problematic? Clearly, the ex-ante valuation will price
the possible upsides of the transaction, but also the possible
downsides. As such, financial projections are not designed to
predict the future outcome, they are designed to average all
possible future outcomes to ensure a fair exchange of
ex-ante value, in a probabilistic sense.
Ex-post outcomes, however, are not averages, they
are actual realisation of one out of all the possible risk
outcomes envisioned in the ex-ante average of all
possible risk outcomes.
The OECD 2016 TPG are much clearer than the US regulations
in prescribing financial projections used for valuation purpose
to be weighed on probability. For example, the first
exculpatory provision at paragraph 6.193 specifies that the
HTVI guidance will not apply to transactions involving the
transfer or use of HTVI when the taxpayer provides: "Details of
the ex-ante projections used at the time of the
transfer to determine the pricing arrangements, including how
risks were accounted for in calculations to determine the price
(e.g. probability-weighted), and the appropriateness of its
consideration of reasonably foreseeable events and other risks,
and the probability of occurrence…".
To illustrate the idea that ex-ante projections are
probability-weighted averages whereas ex-post results
are one-time actual realisation of risk, consider a simple game
of chance whereby a fair coin is tossed. If the coin lands on
heads, the player wins $1 million; if the coin lands on tails,
the player loses $1 million. The ex-ante expected
value of the game is thus:
The function v(.) captures the attitude of the
player towards risk – how cash translates into value
for the player. A risk-neutral player values a win of
$1 million equally to a loss of $1 million:
v($1,000,000) = $1,000,000 =
–v(–$1,000,000) . Therefore, for a
risk-neutral player, the value of this game is such that
The operator |.| takes the argument and returns the absolute
value of the argument. So if x < 0 then
–x = |x| > 0 while if x
> 0 then x = |x| > 0.
A risk-averse player, however, values the downside risk of
losing $1 million more than the upside risk of winning $1
million. Therefore, for a risk-averse player, the value of this
game is negative because |v(–$1,000,000)|
> |v($1,000,000)|. To induce such a player to play
the game, a payment of at least
|v($1,000,000)| is necessary to make the risk-averse
player at least indifferent between playing the game and not
playing the game, or better off.
A risk-loving player, finally, values the upside risk of
winning $1 million more than the downside risk of losing $1
million. Therefore, for a risk-loving player, the value of this
game is positive because |v($1,000,000)| >
|v(–$1,000,000)| . Such a risk-loving player
is therefore willing to pay up to |v($1,000,000)|
– |v(–$1,000,000)| to play the
This is why casinos exist and are profitable – the
odds are stacked against players in favor of the house;
therefore, the house will be profitable. Risk-averse and
risk-neutral players do not play, only risk-loving players are
willing to forgo fair odds for the sake of gambling. This is
the sense in which risk-loving players do pay-to-play; they do
not pay cash to the casino to play and face fair odds, they pay
by accepting unfair odds instead. The words "fair" and "unfair"
refer to whether or not the ex-ante value of the game
is zero or negative.
Regardless of the player's attitude toward risks, and thus
regardless of whether the game has positive, zero, or negative
expected value, the concept of "value" is clearly
ex-ante value, the probabilities of heads and tails do
appear in the definition of value.
Obviously, after the coin is tossed, either the
player will have won or lost $1 million, plus or minus the side
payment that was made. At that point, for a risk-neutral
player, the ex-post value of the game will be $1
million (if the player win) or minus $1 million (if the player
loses) – no side payment needs to be factored in. In
the coin toss game, the ex-post value of the game will
never be equal to the ex-ante value of the game.
The game of chance we described above is no different than
the game of chance a pharmaceutical company plays when engaging
in a research and development project. The technical risk of
success or failure of the project is captured by probabilities
of success or failure that appear in the ex-ante value
of the project (the financial projections), but not in the
ex-post value (the actual financial statements). There
is nothing nefarious or suspicious about it, and yet the US
periodic adjustments rules and the OECD HTVI guidance provide
tax administrations with the authority to perform adjustments,
under certain circumstances, when the difference between
ex-ante value and ex-post value is above a
It is generally accepted that at arm's length, once parties
have an ex-ante agreement as to their respective
rights and obligations, unless specifically contractually
allowed (and hence priced ex-ante), regardless of what
the ex-post result is, each party will have to perform
under the contract. What that means is that adjustments to
ex-ante pricing are not possible using the benefit of
hindsight. Forced renegotiation of the agreement is not
Those who argue that the US periodic adjustment rules and
OECD HTVI guidance are inconsistent with arm's-length pricing
rely on this principle to make their case. In addition, they
will argue that if the government has the authority to make
upwards adjustments based on the benefit of hindsight, then
taxpayers should have the authority to make downward
adjustments based on the benefit of hindsight – if one
can renegotiate one way (i.e. government favourable), one can
equally renegotiate the other way (i.e. taxpayer
These arguments are diametrically opposed to the arguments
the US government historically has put forth.
US government position
The issue of the consistency of the periodic adjustment
rules with the arm's-length standard of Treas. Reg.
§482-1(b)(1) is particularly important in light of the
Altera Corp. v. Commissioner, 145 T.C. No. 3 (2015)
In Altera Corp. v. Commissioner, the US Tax Court
invalidated the Treasury regulations requirement that
controlled participants in a cost sharing arrangement (CSA)
share stock-based compensation costs.
Although the basis for invalidating the aforementioned
regulatory requirement was grounded in administrative law and
the Administrative Procedure Act (APA), Judge Marvel's decision
(reviewed by the Tax Court) reaffirmed the decision by the
Court of Appeals for the 9th Circuit in Xilinx, Inc. v.
Commissioner, 598 F.3d 1191 (9th Cir. 2010) that the
Treasury's implementation of the arm's-length standard to a
transaction must be performed by reference to empirical
evidence as to how uncontrolled participants in such a
transaction actually price it.
This empirical view of the arm's-length standard could
therefore suggest potential challenges to the periodic
adjustment rules of Treas. Reg. §482-1(f)(2) insofar as a
taxpayer adjusted under that rule could proffer empirical
evidence that uncontrolled parties do not use ex-post
evidence to modify an ex-ante deal, unless
specifically authorised by their written agreement and priced
The position of the IRS and Treasury in connection with the
Xilinx decision is articulated in the Action on
Decision 2010-03 issued July 16 2010: "The majority, however,
mistakenly interprets the arm's-length standard to limit the
behaviour of controlled taxpayers, or the transactions into
which they may enter, based on the behaviour or transactions
into which uncontrolled taxpayers may or may not enter. To the
contrary, the regulations accept the controlled taxpayers'
actual transaction, provided it has economic substance. The
regulatory arm's-length standard asks what would have been the
pricing that uncontrolled taxpayers would have adopted, had
they entered into the same transaction in which the controlled
taxpayers actually engaged." [Footnotes omitted].
Despite the government's nonacquiescence with the decision
of the Court of Appeals for the 9th Circuit, judges decide the
outcome of disputes between the IRS and taxpayers, not IRS
Chief Counsel. It is therefore particularly instructive to
understand what the starting position of the IRS and Treasury
is, insofar as the arm's-length nature of the periodic
adjustment rules is concerned.
Note that the mere finding by a court that Treas. Reg.
§482-4(f)(2) conflicts with the arm's-length standard of
Treas. Reg. §482-1(b)(1) does not automatically and
necessarily invalidate the periodic adjustment rules of Treas.
Reg. §482-4(f)(2). Even when the IRS maintains its
position that the periodic adjustment rules of Treas. Reg.
§482-4(f)(2) are consistent with the arm's-length
standard, Chevron deference by the court would avoid
invalidation of the periodic adjustment rules.
Xilinx and Altera, however, have made that
scenario much less likely to occur.
The words "fair" and "unfair" refer to whether or not the
ex-ante value of the game is zero or negative.
RS will follow a significant non-appealed adverse
opinion by the court. An action on decision alerts IRS
personnel to the Chief Counsel's current litigation position,
and it is issued to enhance IRS consistency for future
litigation or dispute resolution. Although actions on decision
are published in the Internal Revenue Bulletin, they are not
intended to serve as statements of IRS positions that can be
relied on by the public, and they are not to be cited as
precedent. An action on decision is issued by the Office of
Associate Chief Counsel with subject matter jurisdiction over
the substantive issue addressed in that action on decision.
The white paper
In addition to adding the CWI standard to the 482 statute,
and still in the context of the Tax Reform Act of 1986,
Congress instructed the IRS to perform a comprehensive study of
the Internal Revenue Code (IRC) Section 482 intercompany
transfer pricing rules to assess whether those rules ought to
be amended. H.R. Conf. Rep. No. 841, 99th Cong., 2d Sess.
The IRS complied with Congress's request by issuing in 1988
Notice 88-123, "A Study of Intercompany Pricing under Section
482 of the Code", 1988-2 CB 458, colloquially referred
to as the "white paper".
"Congress intended the commensurate with income standard to
be consistent with the arm's-length standard. And it will be so
interpreted and applied by the Internal Revenue Service and the
Treasury," the white paper states at page 458.
Since the interpretation by the IRS and Treasury of the CWI
standard can be found in the periodic adjustment rules of the
Treasury regulations, the white paper makes it clear that the
periodic adjustment rules, as written in Treas. Reg.
§482-4(f)(2), were intended to be consistent with the
arm's length standard of Treas. Reg. §482-1(b)(1).
The periodic adjustment rules of Treas.
The second sentence of Treas. Reg. §1.482-4(f)(2)(i)
mandates that adjustments made pursuant to the periodic
adjustment rules should be consistent with the arm's-length
standard and the provisions of Treas. Reg. §1.482-1:
"Adjustments made pursuant to this paragraph (f)(2)
shall be consistent with the arm's length standard and
the provisions of § 1.482-1." [Emphasis
The generic legal advice memorandum 2007-007
Remember that the second sentence of the IRC Section 482
statute (added in 1986) reads: "In the case of any transfer (or
license) of intangible property (within the meaning of section
936(h)(3)(B)), the income with respect to such transfer or
license shall be commensurate with the income attributable
to the intangible." [Emphasis added].
A possible interpretation of "income attributable to the
intangible" can be found in Treas. Reg.
§1.482-4(c)(2)(iii)(B)(1)(ii). According to that guidance,
it is the net present value of the benefits to be realised
based on prospective profits to be realised or costs to be
saved through the use or subsequent transfer of the
Consistent with that definition of "income attributable to
the intangible," the Generic Legal Advice Memorandum 2007-007
(GLAM 2007-007) provides a detailed discussion of how the use
of ex-post results envisioned in the periodic
adjustment rules fits within the arm's-length standard of
Treas. Reg. §1.482-1(b)(1).
More specifically, GLAM 2007-007 states that the IRS
must exercise its periodic adjustment authority
consistent with what would have been a conscientious upfront
In other words, "income attributable to the intangible" must
be construed to mean the reasonably anticipated net present
value of the benefits to be realised by the exploitation or
subsequent transfer of the intangible measured at the time the
transaction is entered into – i.e. the upfront
Bringing it all together
Many taxpayers tend to view the periodic adjustment rules as
providing the IRS with the authority to unilaterally obtain an
ex-post renegotiation of the upfront deal when the US
taxpayer faces an adverse realisation of risk – for
example, the outbound license of a US intangible
turned out to be more profitable than the US licensor and
foreign licensee envisioned at the time of the transfer; hence,
the price paid by the licensee to the licensor is less than it
would have been had the parties known how profitable the
intangible was going to be.
These taxpayers see the periodic adjustment rules as
inconsistent with the arm's-length standard.
The US government, on the other hand, tends to view the
periodic adjustment rules as providing the IRS with the
authority to challenge the financial projections used by the
taxpayer in the ex-ante valuation by performing an
alternative ex-ante valuation using a different set of
financial projections (the ex-post financial results).
Despite the fact that such exercise is carried out on an
ex-post basis, it is still an ex-ante
valuation, or a conscientious upfront valuation in the parlance
of GLAM 2007-007, because other than the different set of
financial projections used, no information that was not
available at the time of the upfront valuation can be used
– see GLAM 2007-007.
Because the government has no meaningful way to audit the
ex-ante financial projections used at the time the
transaction was entered into, it reserves the right through the
periodic adjustment rules to perform the ex-ante
valuation using the ex-post financial results as
presumptive evidence of the ex-ante financial
In the US government's view, this has nothing to do with
using the benefit of hindsight to renegotiate a
Thus, the US government sees the periodic adjustment rules
as consistent with the arm's-length standard.
The language used by WP6 in drafting the HTVI guidance
strongly suggests that it benefitted from lessons learned in
the US regarding the lack of a common understanding between
taxpayers and the government as to the ultimate purpose of CWI
and periodic adjustments discussed herein.
There is no ambiguity left in the HTVI guidance that its
purpose is to resolve information asymmetries between taxpayers
and tax administrations. It also very clearly articulates that
taxpayers have the opportunity to resolve information
asymmetries by providing tax administrations with details of
the ex-ante projections used at the time of the
transfer to determine the pricing arrangements, and reliable
evidence that any significant difference between the financial
projections and actual outcomes is either due to unforeseeable
events, or to the playing out of reliable probabilities used in
the financial projections.
In other words, if taxpayers volunteer reliable
ex-ante information to proactively eliminate the
information asymmetry tax administrations suffer from, then
there is no reason left to authorise tax administrations to use
ex-post information to adjust the ex-ante
deal – that would be inconsistent with the
As a practical matter, though, tax administrations will have
great latitude in determining whether the exculpatory
provisions of paragraph 6.193 are met or not; this
determination involves a level of subjectivity that may not be
particularly reassuring to taxpayers.
HTVI is a blunt tool that can easily be abused. As noted in
this article, ex-post results will always be different
from ex-ante projections because ex-post
outcomes reflect a single realisation of all possible risk
outcomes, while the ex-ante projections reflect the
average of all possible risk outcomes. Thus, authorising tax
administrations to perform an HTVI adjustment solely based on
the size of the spread between the average risk outcome and the
actual risk outcome could easily and often result in large
adjustments that may be difficult for taxpayers to contest.
This issue will be particularly salient in industries that
require risky intangible development activities, when the
actual realisation of risk outcomes may be far away from their
ex-ante average just because of the level of risk
In the US, it is no secret that the IRS has been extremely
restrained in its reliance on the periodic adjustment rules as
its sole reason to adjust taxpayers. One possible explanation
of that extreme restraint is the way the periodic rules are
written, and especially the exculpatory provision (rebuttal) of
Treas. Reg. §1.482-4(f)(2)(ii)(D).
Once a taxpayer rebuts the presumptive evidence of the
inappropriateness of the ex-ante pricing based on
ex-post results, it is unclear what information the
government would have, at that point, to actually
rebut the taxpayer's rebuttal when the whole premise and reason
for being of the periodic adjustment rules is that the
government is at such a severe information disadvantage in the
The irony of the rebuttal provision of Treas. Reg.
§1.482-4(f)(2)(ii)(D) is that it relies on private
information that a taxpayer has, but that the IRS almost
certainly does not have. The information asymmetries between
taxpayers and tax administrations go much deeper than just
Once an IRS-initiated proposed periodic adjustment has been
rebutted by a taxpayer, short of a smoking gun hinting at
fraud, or some other clear evidence of nefarious behaviour by
the taxpayer, the US periodic adjustment rules may well be
ineffective in achieving their intended goal, because of the
way they are written – the exception has swallowed the
This, however, may not be the case with the HTVI guidance.
And because the HTVI guidance was written very differently from
the US periodic adjustment rules, we may currently be in a
world where tax administrations are endowed with a very blunt
tool they will be able to use with few safeguards protecting
taxpayers from abusive use.
WP6 should keep that in mind when issuing the HTVI
implementation guidance expected in 2017.
Managing principal, Washington
Transfer Pricing Service Line
Deloitte Tax LLP
Tel: +1 213 220 2601
Philippe Penelle is the managing principal of
Deloitte Tax LLP's Washington National Tax Transfer
Pricing Service Line. He specialises in designing,
valuing, and defending transactions that involve the
transfer of intellectual property rights. Philippe
brings 18 years of professional transfer pricing
experience assisting his multinational clients set-up,
maintain, document and defend transfers of intellectual
property rights through cost sharing arrangements,
contributions to international partnerships,
contributions to CFCs, and licensing arrangements
involving specific allocations of fixed cost funding
commitments. His practice includes advising and
representing clients in high profile cost sharing
controversy cases involving billions of dollars of
Philippe has published a number of articles
developing valuation methodologies relevant to various
intellectual property structures consistent with the
OECD Transfer Pricing Guidelines, the Internal Revenue
Code and the Treasury regulations promulgated
Philippe currently serves as the co-chair of the US
Council for International Business (USCIB) Transfer
Pricing Subcommittee. He is actively involved in the
Base Erosion and Profit Shifting (BEPS) conversations
with the OECD, the US Treasury Department, and with the
international business community. His involvement has
included the drafting of comments submitted on behalf
of Deloitte to the OECD, providing input to the USCIB
and to the Business and Industry Advisory Committee to
the OECD (BIAC), as well as being an invited speaker at
the OECD public consultations in Paris, France.
Philippe is a frequent guest speaker at
international conferences including at the OECD
International Tax Conference held annually in
Washington, DC. He is regularly cited and quoted in the
In addition, Philippe is currently recognised by
Euromoney Legal Media Group as one of the world's
leading transfer pricing advisers.
All opinions expressed in Philippe's
publications and in the comments submitted by USCIB and
BIAC to the OECD represent the views of the author and
of these organisations, respectively, and should in no
way be construed as representing those of Deloitte Tax
LLP, or of any of the Deloitte Touche Tohmatsu Limited