The Tax Cuts and Jobs Act (TCJA) has ushered in new rules related to the valuation of transferred intangible assets. What is clear is that companies planning an outbound transfer of intangible assets must include in their fair market value analysis not only a single asset, e.g. technology, but also goodwill, going concern, workforce, etc. This could bring significant changes in fair market values for many companies.
The question that companies should also consider is: For pre-2018 IP transfers, does the TCJA actually bolster the IRS' long-held position that the above-mentioned assets are not separable and thus should be valued in aggregate? At a minimum, companies who transferred IP prior to 2018 should consider this possibility. Furthermore, thought should be given as to whether or not a reserve may be warranted in the event the fair market value of the transferred IP is found to be higher than reported.
U.S. tax reform will shut down many of the “legalistic” arguments multinationals have been successfully making about their global tax planning schemes—leading the IRS to believe it can win more intercompany pricing cases, an official said. Instead of arguing about the language of its regulations, the Internal Revenue Service will be able to argue in court “the really hard debate about facts and economics” that should be the fundamentals of a transfer pricing case, said Chris Bello, a branch chief at the IRS Office of International Tax Counsel.