This definition also brings up an extremely important question regarding ownership of intangibles and of what ‘being owned or controlled’ actually means. There is an ongoing debate about the distinction between economic and legal ownership of intangibles. As paragraph 6.32 of Section B of the final report of Action 8 published by OECD on 5th October 2015 under the BEPS initiative notes: ‘Although the legal owner of an intangible may receive the proceeds from exploitation of the intangible, other members of the legal owner’s multinational enterprise (MNE) group may have performed functions, used assets, or assumed risks that are expected to contribute to the value of the intangible’.
In this regard, it is considered that the companies of the group that perform such functions, use such assets, and assume such risks must be compensated for their contributions under the arm’s length principle. Consequently, it is derived that ‘the ultimate allocation of the returns derived by the MNE group from the exploitation of intangibles, and the ultimate allocation of costs and other burdens related to intangibles among members of the MNE group, is accomplished by compensating members of the MNE group for functions performed, assets used, and risks assumed in the development, enhancement, maintenance, protection and exploitation of intangibles’.