Our capabilities distinguish Alston & Bird from other firms that advise on transfer pricing matters. First, as lawyers, we are skilled in analyzing factual material, organizing that material to communicate the benefits of particular transfer pricing methodologies both to government representatives and courts, and negotiating settlements, agreements and similar documents that are needed to resolve transfer pricing disputes. Effective presentation of a taxpayer’s justification for selecting a transfer pricing method requires advocacy, drafting and the other skills that are associated with the legal profession, as does the negotiation of a document to protect the taxpayer’s transfer pricing on an ongoing basis.
In addition, we are committed as lawyers to representing our clients “zealously and diligently within the bounds of the law.” As a matter of professional responsibility, we are required to preserve the confidences of our clients. This professional obligation and the legal privilege accorded attorney-client communication and a lawyer’s work product exist to encourage candid and complete communication between client and attorney. The privilege afforded to communications between a lawyer and his client extends to communications among the client, the lawyer and professionals that the lawyer retains to assist the lawyer in the engagement. The protection afforded a lawyer’s work product also extends to work by professionals that the lawyer retains to assist the lawyer in the engagement.
On cross-border transfer pricing disputes that require coordinated responses in multiple jurisdictions, we have the flexibility to secure the assistance of the most qualified and experienced local transfer pricing advisors in each jurisdiction. Alston & Bird maintains a close working relationship with a network of tax experts in the major countries in which our clients do business. We have carefully developed and nurtured this network to ensure that our clients receive responsive and sound advice and effective presentation of their positions to the local tax authorities.
While our international tax lawyers have a near-perfect record in helping clients meet their transfer pricing goals through planning and administrative proceedings, we also have the capability to litigate these issues. In preparing submissions for the tax authorities and other transfer pricing documentation, we always consider the impact of such submissions and documentation in litigation in the event that the transfer pricing dispute were ultimately to be resolved through litigation.
We have unique expertise in securing IRS and foreign tax authority approval for transfer pricing methodologies that avoid double taxation and take advantage of operations in lower tax jurisdictions. Our International Tax Group has been among the leaders in creating innovative substantive and procedural solutions to resolve transfer pricing controversies. We helped to develop the advance pricing agreement program by filing a request for an advance pricing agreement eight months before the IRS released the Revenue Procedure that created the advance pricing agreement program. We have introduced a number of transfer pricing methodologies that were at the time quite novel but have since become widely accepted, and we continue to help our clients by crafting unique and novel methodologies that fit their particular circumstances and business objectives, while also satisfying the appropriate tax authorities.
Bringing Value to Our Clients
Our transfer pricing expertise and experience are unmatched and well recognized.
- Our lawyers have been successfully resolving Section 482 disputes since the 1970s. In the aggregate, we have over 75 years of experience addressing transfer pricing matters.
- We have been among the leaders in developing innovative methodologies to resolve transfer pricing disputes. Trade press accounts have confirmed that the IRS is using some transfer pricing methodologies that we developed to help our clients in transfer pricing disputes with other taxpayers. A former director of the APA Program acknowledged that he wanted to try to use a methodology we developed on behalf of a Japanese multinational group to resolve a significant number of the unresolved transfer pricing cases involving transactions between U.S. and Japanese affiliates.
- We have a reputation with the IRS for integrity and sophistication in analyzing transfer pricing disputes. The IRS respects the expertise we bring to the field of transfer pricing, and we have persuaded the IRS to employ transfer pricing approaches that it initially rejected. The IRS will listen and give careful consideration to the analyses and methodologies that we suggest, even when we are proposing approaches that are quite unconventional.
- A Section 482 dispute is ultimately a dispute about using economic data and analyses to prove that pricing is consistent with the arm’s length standard as interpreted by the Code and regulations. It is a process driven by practicality and economics. Not only do we bring an understanding of advocacy to our work with economic experts, we also bring our own understanding of economics and a proven ability to work with the economists to achieve a client’s objectives.
- We are comfortable with numbers. We know how to work with experts to get to the best answer for our clients. We also have the experience to be able to propose a variety of potential analyses and interpretations of data to reduce or eliminate the risk of transfer pricing adjustments.
- Our transfer pricing lawyers all have degrees in economics, including a Ph.D. in economics from Yale and an advanced degree from the London School of Economics.
- Henry Birnkrant was the sole private practitioner asked to be on a taskforce that the IRS formed to advise on jurisdiction within the IRS over the APA staff.
- Bob Cole and Jim Croker wrote the BNA Tax Management Portfolio on “Income Tax Treaties – Administrative and Competent Authority Aspects,” which is one of the primary references on using the competent authority process to resolve transfer pricing disputes.
- Henry Birnkrant chairs the Tax Treaty Subcommittee of the Tax Committee of the U.S. Council for International Business (USCIB). The USCIB advises the OECD on behalf of the U.S. business community on transfer pricing.
- Henry Birnkrant has also been an invited participant in the OECD Transfer Pricing Experts advisory meetings.
- Bob Cole is the grandfather of this practice. He is the editor and principal author, and Henry Birnkrant is a co-author, of a Practical Guide to U.S. Transfer Pricing, which is the premiere treatise on transfer pricing.
- Bob Cole, Henry Birnkrant and Brian Lebowitz are included in Euromoney’s Guide to the World’s Leading Transfer Pricing Advisors.