| Abstract [eng] |
This master thesis examines the legal nature of the transfer pricing concept in international tax law, a fundamental question that determines proportionality standards, judicial interpretation methods, and the scope of tax authorities' discretionary powers. The thesis aims to investigate whether transfer pricing today functions as a coordination principle of international taxation, as a special anti-avoidance rule, or as a combination of both. The first chapter analyses the historical genesis of the arm's length principle from the 1927 League of Nations Model Convention and the Carroll Report to Article 9 of the OECD Model Convention. It is established that transfer pricing was conceptualised from the outset as a coordination rather than a sanctions tool: states are invited to agree, not compelled. The second chapter examines the causes of transfer pricing's functional transformation after the BEPS project: the aggressive tax planning problem, tightened documentation requirements, and the shift of the burden of proof to the taxpayer. These changes are found to have substantially transformed the practical function of transfer pricing. The third chapter analyses transfer pricing as a special anti-avoidance rule. It assesses the DEMPE model as a de facto economic substance test, examines CJEU jurisprudence in Fiat (2022), Amazon (2023) and Apple (2024), and compares transfer pricing with GAAR, CFC rules and interest limitation rules. The BEPS 2.0 Amount B formulaic model and its impact on the individual comparability analysis principle are also analysed. The thesis conclusion confirms the hypothesis: transfer pricing today is a hybrid instrument whose legal nature is neither a pure coordination principle nor a pure anti-avoidance rule. This hybrid nature creates real legal consequences, unequal burden of proof allocation, different proportionality standards, and the risk of double taxation. The priority for international tax law should be the conceptual codification of the legal nature of transfer pricing. |
