Structuring IP Ownership for Tax and Business Reasons: A Practitioner's Guide to Holding Companies, Migration, Royalties, and Documentation
By Casey Scott McKay ·
This guide sets out how to build and maintain an intellectual property ownership structure that the intellectual property file can actually support. It works through the business reasons for centralising ownership, the choice between a holding company and distributed ownership, the mechanics of transferring a portfolio between entities, the drafting of intercompany licences that can be priced and sourced, and the substance indicators that decide whether a structure survives examination. It covers the recordation programme that most migrations skip, the quality control obligation that protects both the marks and the functional analysis, and the contemporaneous documentation that has to exist before an examination rather than after one. It closes with the annual maintenance cycle, because the most common failure in this area is not a bad structure but a good structure nobody has looked at in six years.
IP and Technology > IP and IT in Corporate Transactions | Guide | Published 22 November 2023 - Updated 1 December 2024 | Casey Scott McKay - marksy.us
Summary. This guide sets out how to build and maintain an intellectual property ownership structure that the intellectual property file can actually support. It works through the business reasons for centralising ownership, the choice between a holding company and distributed ownership, the mechanics of transferring a portfolio between entities, the drafting of intercompany licences that can be priced and sourced, and the substance indicators that decide whether a structure survives examination. It closes with the annual maintenance cycle, because the most common failure here is not a bad structure but a good structure nobody has looked at in six years.
Keywords: IP holding company · intangible migration · transfer pricing documentation · section 482 · section 367(d) · intercompany licence · royalty rate · DEMPE substance · recordation · chain of title · cost sharing arrangement · withholding tax · state addback statutes · quality control · contemporaneous documentation
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