GILTI Conscience

The Evolution and Impact of the CWI Standard

Wed, 25 Mar 2026 12:45:00 -0400

In this episode of "GILTI Conscience," Mike McDonald, one of the architects of Internal Revenue Code Section 482, joins Skadden’s Nate Carden, David Farhat, Eman Cuyler and Stefane Victor for an in-depth discussion of the "commensurate with income" (CWI) standard. The panel explores the legislative history and intent behind CWI, its complex relationship with the arm’s length principle and the evolution of regulatory approaches.

💡 Featured Guests 💡

Name: Mike McDonald

What he does: Mike spent 16 years at the U.S. Department of the Treasury in the business and international tax division, followed by a career as managing director of international tax and transactions, transfer pricing at Ernst & Young. He was a drafter of the Section 482 transfer pricing regulations, including 482-7.

Words of Wisdom: "The fact that, to the extent that a ‘pure hindsight rule’ is going to be applied, then there is going to be wicked double taxation, because the other side doesn't have to respect it.”

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GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. The insights and views presented in GILTI Conscience are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney, nor does tuning into this podcast constitute an attorney-client relationship of any kind.

Navigating Pillar Two: Side-by-Side, Safe Harbors and the Future of Global Tax Cooperation

Thu, 26 Feb 2026 14:30:00 -0400

Dive into the complexities of international tax reform as Skadden’s David Farhat, Patrick O'Gara, Loren Ponds and Stefane Victor, along with Pascal Saint-Amans — former director of the OECD’s Centre for Tax Policy and Administration — unpack the latest developments in Pillar Two and the Side-by-Side framework. This episode explores how new safe harbors, QDMTTs and evolving global agreements are reshaping the landscape for U.S. and multinational corporations and the practical challenges ahead. Whether you’re a tax professional or just curious about global policy shifts, this discussion offers a front-row seat to the debates shaping tomorrow’s tax world.

💡 Featured Guests 💡

Name: Pascal Saint-Amans

What he does: Pascal served as director of the Centre for Tax Policy and Administration at the OECD, where he played an instrumental role in promoting transparency. He is CEO of Saint-Amans Global Advisory, which supports governments, international organizations and business on economic and fiscal issues.

Organization: Saint-Amans Global Advisory (SAGA)

Words of wisdom: “What really matters in the long game – if you're in the long game – is trying to reduce the tax competition, keeping the infrastructure and surviving maybe for a few more months until November where there may be an election in the. U.S, or later on, where you may have changes and people are more sympathetic to the approach.”

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From GILTI to NCTI: Unpacking the 2025 Tax Overhaul

Thu, 13 Nov 2025 03:00:00 -0400

This podcast’s title hasn’t changed, but on the international tax stage GILTI is converting to the new CFC-tested income (NCTI) regime.That’s just one shift brought about by the One Big Beautiful Bill that Congress passed on July 4. Skadden colleagues Loren Ponds, Eric Sensenbrenner and Paul Oosterhuis break down the bill’s implications in this conversation with David Farhat and Stefane Victor. The panel explores the legislative process, the impact of dropped provisions such as Section 899 and key planning considerations. Tune in for their insights about how corporate stakeholders can navigate the new landscape.

💡 Featured Guests 💡

Name: Eric Sensenbrenner

What he does: Eric represents clients on a broad range of U.S. and international tax matters, with a particular emphasis on transactional tax planning in the international context.

Organization: Skadden

Words of wisdom: “FDII is now becoming a much more interesting and much more robust tool for attracting investment, both for multinationals thinking about bringing assets back as well as perhaps for inbound investment as well.”

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Name: Loren Ponds

What she does: Loren leverages her extensive tax policy experience to provide strategic counsel to clients across industries on a variety of legislative and regulatory issues.

Organization: Skadden

Words of wisdom: “I can speak from experience working on the Hill: When you think you're gifting taxpayers something in a provision, and all you get is pushback, it becomes very easy for that provision to disappear from the final bill, particularly when we're talking about the cost, in addition to the poor reception.”

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Name: Paul Oosterhuis

What he does: Paul is an internationally recognized senior tax practitioner with extensive experience in cross-border mergers and acquisitions, post-acquisition integration, spin-offs, internal restructurings and joint ventures.

Organization: Skadden

Words of wisdom: “From my perspective, maybe the Trump administration should be talking to those countries about being more lenient in allowing U.S. companies to bring back their IP. Maybe they could get breaks on their tariffs, for example, if they decided to suspend their rules on U.S. companies bringing back their IP.”

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GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. The insights and views presented in GILTI Conscience are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney, nor does tuning into this podcast constitute an attorney-client relationship of any kind.

Adapting to Tariff Volatility in International Business

Tue, 28 Oct 2025 15:15:00 -0400

The stakes are high. That’s how Skadden national security partner Brooks Allen sets the stage for the U.S. Supreme Court case surrounding President Trump’s tariff policy. And that case is just one dynamic in today’s “revolutionary” tariff environment. Brooks joins Skadden tax partner Jonathan Welbel and Ryan principal Rodrigo Fernandez to break down key issues affecting tariffs and transfer pricing. Hosts David Farhat and Stefane Victor moderate the discussion, which includes a look at scenario modeling and analysis, intercompany agreements and the need for coordinated tax and customs planning in today's trade landscape.

🗝️ Key Points 🗝️

Top takeaways from this episode

Revolutionary Change: Brooks explains that the tariff landscape has shifted in the last nine months, from a situation where the United States had an average tariff rate around 2.4% to well over 10% applied tariffs.
Valuing IP Rights: Tariffs can significantly impact IP valuations. Rodrigo emphasizes that fluctuations in IP valuation due to tariffs can create significant uncertainty and potential disputes.
Intercompany Agreements: These will become critical because they govern consequences on both the tax side and the customs side. “For whatever planning is being put in place from a customs perspective, one of the key components is getting the legal agreements in place,” Jonathan observes.

💡 Featured Guests 💡

Name: Rodrigo Fernandez

What he does: Rodrigo specializes in providing transfer pricing, business and intangible property valuation, and other valuation-related projects to clients in a variety of industries, including energy, aerospace, telecommunications and software.

Organization: Ryan

Words of wisdom: “The other thing is thinking about recovery options. So, there's a whole little cottage industry now being set up on customs duty recoveries… So, you applied this tariff, it got reversed, now we're going to go recover it. There's a whole industry around that.”

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Name: Jonathan Welbel

What he does: Jonathan has extensive experience counseling on tax controversy, transfer pricing and other international tax issues.

Organization: Skadden

Words of wisdom: “What we really need is a customs and tax competent authority proceeding. There's no system in place right now, and that is going to be a big problem down the line.”

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Name: Brooks Allen

What he does: Brooks is lead coordinator of Skadden’s international trade practice. He focuses his practice on reviews by the Committee on Foreign Investment in the United States (CFIUS) and international trade issues, including trade policy, customs, trade remedy and export control issues.

Organization: Skadden

Words of wisdom: “Uncertainty has been the name of the game here for us over the past nine months. And constant change. Well, it's been fun for us who like trade; it keeps us on our toes. But, I think from a perspective of our clients and from the perspective of companies operating in this environment, it's made it incredibly challenging because things change so rapidly.”

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Taxing Intelligence: AI's Role in Modern Tax Administration

Wed, 06 Aug 2025 03:00:00 -0400

For tax authorities and even taxpayers, AI promises to make lives easier. At the same time, it carries risks that “cannot be taken out of the system.” Dr. Stephen Daly, reader in tax law at King's College London, describes this dynamic in a conversation with Skadden partners David Farhat and Eric Sensenbrenner, associate Stefane Victor and senior advisor De Lon Harris. The panel explores the best and worst of the impact of AI in the tax world. Tune in for insights about what AI means for taxpayers and tax authorities alike.

💡 Featured Guest 💡

Name: Dr. Stephen Daly

What he does: Dr. Daly teaches tax law to undergraduate students (International and Corporate Taxation) and postgraduate students (Tax Administration, Procedure and Dispute Resolution and EU Tax Law). His research focuses on administrative law, technical tax law and EU law.

Organization: Kings College London

Words of wisdom: “To embrace the capabilities of AI, you need to accept that mistakes will be made. So in the case of a chatbot, if a chatbot gets the answer wrong and a taxpayer ends up underpaying their taxes, well then you just leave them off the hook.”

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Beyond the Runway: Navigating Tax, Tariffs and Transfer Pricing in Luxury Fashion

Thu, 10 Jul 2025 03:00:00 -0400

Changes in the luxury fashion industry are reshaping transfer pricing considerations, says Giuseppe Abatista vice president at Banca Popolare di Puglia e Basilicata. In this conversation with Skadden tax partner David Farhat and associate Stefane Victor, Giuseppe shares his insights about how price increases, supply chain centralization and tariff uncertainties are creating new transfer pricing complexities in an industry known for high profitability and strong IP.

💡 Featured Guest 💡

Name: Giuseppe Abatista

What he does: Giuseppe is a tax lawyer and vice president at Banca Popolare di Puglia e Basilicata, a bank founded in the 19th century and present in 10 Italian regions. He is also a group tax consultant for luxury fashion brand Salvatore Ferragamo.

Organization: Banca Popolare di Puglia e Basilicata

Words of Wisdom: “The main markets are high-taxing jurisdictions. U.S. usually is the first market for all brands. China tends to be the second one. Japan, by the way, is very strong right now basically due to an explosion in tourism, also driven by currency, because the yen is not strong.”

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Navigating Brazil's New Transfer Pricing Landscape: A Shift to OECD Standards

Wed, 04 Jun 2025 03:00:00 -0400

Machado Meyer tax partner Fernando Colucci joins Skadden’s David Farhat, Loren Ponds, Eman Cuyler and Stefane Victor to explore Brazil's historic shift from a 27-year formulaic transfer pricing system to full OECD compliance. As he explains, “We moved from a very strict, very formulaic approach to a simple, a direct import of the arm's-length principle.” Tune in for his insights on dramatic changes facing multinational enterprises and Brazil's notorious 75% penalty system that raises the stakes on compliance decisions.

🗝️ Key Points 🗝️

Top takeaways from this episode

The Formula-to-Function Flip: Brazil abandoned 27 years of fixed profit margins in favor of the full OECD arm's-length principle, requiring companies to conduct detailed functional analyses for the first time.
All-or-Nothing Penalties: Brazil's unique 75% penalty system creates stark choices: Accept the tax authority's adjustment with no penalty or challenge it and face penalties on any sustained portion.
Intangibles Enter the Game: Previously excluded from transfer pricing rules, intangible transactions are now subject to OECD guidelines, creating new compliance challenges.
Limited Relief Mechanisms: While Brazil introduced its first APA program, it operates more like a written consultation process than traditional APAs, and the country has never executed a MAP case despite having treaty provisions.

💡 Featured Guest💡

Name: Fernando Colucci

What he does: Fernando provides legal and tax assistance in M&A operations, restructurings, international taxation, international treaties, transfer pricing, tax planning, international investments taxation, asset and succession planning.

Organization: Machado Meyer

Words of wisdom: “My recommendation here is to start with a thorough risk assessment. So, understand your intercompany transactions, identify potential areas of concern. Getting prepared, that's the motive.”

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Navigating Permanent Establishments in International Tax Law

Tue, 25 Mar 2025 03:00:00 -0400

When goods, services and rights go back and forth within a company, how do you attribute profit or loss to one part of the company versus another? Former OECD head of tax treaties and transfer pricing Mary Bennett and EY’s Mike McDonald join this episode of “GILTI Conscience” for a detailed discussion on the attribution of profits to permanent establishments. Skadden tax partners David Farhat and Nate Carden and associate Stefane Victor host the discussion, which explores, among other topics, critical differences between Articles 7 and 9 of the OECD Model Tax Convention and why these distinctions matter for multinational businesses.

💡 Featured Guests 💡

Name: Mary Bennett

What she does: Mary worked in private practice before joining the Office of International Tax Council at Treasury. She spent six years as the head of tax treaties and transfer pricing at the OECD in between two stints as a partner at Baker McKenzie before retiring in 2022.

Organization: Formerly OECD and Baker McKenzie

Words of wisdom: "The AOA recommends that companies create internal documentation of how their situations should be characterized, and countries should follow that documentation unless it clearly doesn't reflect reality.”

Connect: LinkedIn

Name: Mike McDonald

What he does: Mike spent multiple stints at Treasury and EY, currently serving as managing director of International Tax and Transactions,Transfer Pricing at EY.

Organization: EY

Words of Wisdom: “I think the best primer on profit attribution in general is Chapter One, or Part One, of the AOA.”

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The Ongoing Journey of Amount B

Wed, 04 Sep 2024 03:00:00 -0400

Amount B is designed to streamline transfer pricing for baseline distribution and marketing companies worldwide, but “we’re apparently in a world of complexity and controversy,” says Jessie Coleman..

A principal at KPMG, Jessie joins Skadden attorneys Nate Carden, David Farhat, Eman Cuyler and Stefane Victor to discuss everything there is to know about the current and future status of Amount B. Together, they explore questions of scoping – will jurisdictions agree that an entity is in-scope? – and who’s signing on to Amount B, as well as tensions that may arise over how to handle disputes.

For companies that would likely be in-scope when implementation launches, Jessie suggests they prepare by monitoring their assets-to-sales, which will drive where they fit in the Amount B matrix. “I think knowing the unknown right now is really important,” she observes.

💡 Featured Guests 💡

Name: Jessie Coleman

What she does: Jessie provides services related to transfer pricing planning, documentation, and controversy and international tax policy.

Organization: KPMG

Words of wisdom: “It's pretty important that companies look at where they are right now and also make sure that there's no misclassifications, I would say, or confusions. I think knowing the unknown right now is really important.”

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GILTI Conscience Spotlight Series: Embracing Diversity

Wed, 17 Jul 2024 03:00:00 -0400

In our second episode in our spotlight series focused on celebrating diversity, GILTI Conscience’s David Farhat and Stefane Victor are joined by colleagues Brian Breheny and Jordan Schwartz for an earnest dialogue on DEI in big law. The guests discuss some of the challenges they faced as gay professionals, including their experiences coming out at work and questions they faced, as well as their efforts to advocate for diversity in the workplace and embrace its importance.

💡 Featured Guests 💡

Name: Brian Breheny

What he does: Brian Breheny is a partner and co-head of Skadden’s SEC Reporting and Compliance practice. Brian formerly held numerous leadership positions at the SEC leader and now concentrates his practice on mergers and acquisitions, corporate governance, and general corporate and securities matters.

Organization: Skadden

Words of wisdom: “Keep in mind what you think people are thinking of you and be careful to address that — not to fix your personality to meet what you think they need.”

Connect: LinkedIn

Name: Jordan Schwartz

What he does: As counsel in Skadden’s Mass Torts, Insurance and Consumer Litigation Group, Jordan Schwartz represents clients in purported class actions, multidistrict litigation and mass tort proceedings in federal and state courts.

Organization: Skadden

Words of wisdom: “I think it's really incumbent on us to highlight how enjoyable [DEI efforts are], how enriching the experience is. That’s why we have a Diversity Committee.”

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Spotlight Series: A Celebration of Pride Month With IRS Veteran De Lon Harris

Wed, 26 Jun 2024 03:00:00 -0400

“You want people to be themselves. You're going to get the most productivity, the most career longevity from somebody that's happy about being where they are,” says De Lon Harris.

In celebration of Pride Month, Skadden tax senior advisor De Lon Harris joins Eman Cuyler and Stefane Victor on “GILTI Conscience,” where he discusses his life and career as a gay professional. De Lon talks about his 30-plus years at the IRS and the different roles he took on, as well as his experience as a gay person working in government service. He also touches on mentorship, including the importance of seeking diversity in mentors.

💡 Featured Guests 💡

Name: De Lon Harris

What he does: De Lon Harris is the Senior Advisor for Tax Resolution Strategies at Skadden. With more than three decades of experience at the IRS, De Lon Harris counsels clients on a wide range of tax controversy matters.

Organization: Skadden

Words of wisdom: “You can't truly be happy if you're not comfortable in the workplace or you're not being exactly who you need to be.”

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Dissecting Cross-Border Transfer Pricing Resolutions with Clark Armitage

Tue, 07 May 2024 09:00:00 -0400

“Transfer pricing, itself, is more of an art than a science. There's a lot of gray area in many, many aspects of transfer pricing,” says Clark Armitage.

In this episode of the “GILTI Conscience” podcast, Skadden attorneys Nate Carden, David Farhat, Eman Cuyler and Stefane Victor, are joined by guest Clark Armitage of Caplin & Drysdale. The group dives into a comprehensive discussion about the intricacies of ICAP, MAP and APA in cross-border transfer pricing issues. They consider the application of each as a tool, debating their benefits and potential drawbacks in aiding taxpayers.

The panel also discusses how a Pillar Two-world could bring additional questions to already complex pricing practices.

💡 Featured Guests 💡

Name: J. Clark Armitage

What he does: Clark Armitage is a member at Caplin & Drysdale with vast experience in international tax lawyer with a focus on transfer pricing.

Mr. Armitage's core practice is advising multinational corporations from a wide range of industries on transfer pricing matters, including planning, audits and appeals, advance pricing agreements (APAs) and mutual agreement procedures (MAPs). He has a particularly strong background in APAs, having served eight years in the IRS Advance Pricing Agreement Program, including as deputy director from 2008-10.

Mr. Armitage also advises clients on other U.S. international tax issues. He is well versed with issues arising under the Tax Cuts and Jobs Act of 2017, including GILTI, FDII, BEAT and foreign tax credit basketing. He represents clients with residency issues before the IRS Treaty Assistance and Interpretation Team (TAIT), helps clients navigate the U.S. federal income tax implications of bona fide Puerto Rican residency and status under Puerto Rico Act 20, Act 22, Act 60 and Act 73, and advises on permanent establishment and similar exposures.

Organization: Caplin & Drysdale

Words of wisdom: “The MAP process is based on bilateral treaties, for the most part bilateral, between two countries that allow for two competent authorities to come together to resolve a transfer pricing dispute.”

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GILTI Conscience Spotlight Series: A Conversation With Women Trailblazers in Tax

Thu, 11 Apr 2024 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Skadden attorneys Eman Cuyler and Stefane Victor are joined by Jessica Hough, tax partner and head of Skadden’s Washington, D.C. office, and Pam Olson, a tax policy consultant at PwC, both of whom have significant experience advising on issues related to tax policy.

Tune in to this special episode in which two very distinguished women leaders within the tax community share their insights, experience and strategies for success, as well as how to lead with purpose.

💡 Featured Guests 💡

Name: Pam Olson

What she does: Pam is a tax policy consultant at PwC. She previously served as the U.S. deputy tax leader and Washington National Tax Services (WNTS) practice leader of PwC. Before joining PwC, Pam served as assistant secretary for Tax Policy at the U.S. Department of the Treasury and head of Skadden’s Washington, D.C. Tax Group.

Organization: PwC

Words of wisdom: “We learn so much from people with different backgrounds than our own and different experiences than our own. And so, it's really important to surround yourself with people who aren't all cut from the same cloth.’

Connect: LinkedIn

Name: Jessica Hough

What she does: Jessica is a partner in Skadden’s tax practice and head of the firm’s Washington, D.C. office, where she represents clients on a wide range of tax matters, with particular emphasis on mergers, acquisitions and divestiture transactions, including spin-offs, debt and equity offerings, corporate and partnership restructurings, and joint ventures.

Organization: Skadden

Words of wisdom: “The key to developing a mentor-mentee relationship is to be yourself because the whole point of cultivating or forming that relationship is that you're finding some kind of commonality.”

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Inside the IRS: A Conversation With Former Agency Officials

Thu, 04 Jan 2024 03:00:00 -0400

On this episode of the “GILTI Conscience” podcast, Skadden attorneys David Farhat, Nate Carden, Eman Cuyler and Stefane Victor, are joined by colleagues Fred Goldberg and De Lon Harris, both of whom have had distinguished careers with the IRS.

Tune in to hear Fred and De Lon share their thoughts, insights and predictions on the latest IRS projects and initiatives, as they talk about what's going on at the agency, new funding, enforcement priorities and tips for a more successful interaction with the IRS.

Want more? Check out this prior episode with Fred Goldberg as he shares insights from his 50 years in tax law.

💡 Featured Guest 💡

Name: Fred Goldberg

What he does: Fred is of counsel in Skadden’s Tax Group. He represents business, tax-exempt and individual clients in all phases of dispute resolution with tax authorities. A primary focus of his practice has been to resolve large and complex tax controversies related to a wide range of issues across all industries. Fred is a former IRS chief counsel, IRS commissioner and Department of the Treasury assistant secretary for tax policy.

Organization: Skadden

Words of wisdom: “This is the first time ever the IRS has had serious long-term funding. … But it didn't take Congress long to start taking it back.”

Connect: LinkedIn

Name: De Lon Harris

What he does: De Lon is a senior advisor for tax resolution strategies in Skadden’s Tax Group, where he counsels clients on a wide range of tax controversy matters. De Lon has over three decades of experience at the IRS, including serving in numerous executive positions. Earlier in his career, De Lon also participated in a one-year fellowship with the U.S. House of Representatives Ways and Means Oversight Subcommittee.

Organization: Skadden

Words of wisdom: “I want to talk about what these folks that fall within that large partnership and large corporate categories should be thinking about, especially if they haven't been audited before. And the one thing they should be thinking about is they are eligible, under Revenue Procedure 2022-39, they're an eligible taxpayer that they can disclose issues that need to be adjusted without penalties, instead of having to file a qualified amended return.”

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Pillar Two Analysis: An Asia-Pacific Viewpoint

Thu, 07 Dec 2023 03:00:00 -0400

The evolving landscape of tax reforms in Japan and the broader Asia Pacific region presents a complex tapestry of challenges and strategic shifts.

On this episode of the “GILTI Conscience” podcast, Skadden partners Nate Carden and David Farhat are joined by Samuel Gordon, an international tax partner at Deloitte in Japan to dissect tax implications, reform and concerns in this part of the globe.

The discussion delves into the viewpoint of Pillar Two in Japan, as well as in the larger Asia Pacific region. The conversation also includes how Pillar Two is coming into play in other areas across the continent, including transfer pricing, training and knowledge base, and enforcement, as well as the effects on multinationals doing business throughout the region.

💡 Featured Guest 💡

Name: Samuel Gordon

What he does: Samuel is a bilingual transfer pricing partner at Deloitte, advising firms in Japan and the Asia Pacific region. He has experience in planning, documentation, risk assessments, advance pricing arrangements, transfer pricing governance, and M&A and restructuring.

Organization: Deloitte

Words of wisdom: “I'm an American who's lived in Japan a long time. My observation is the U.S. is always close to the OECD, but very concerned about maintaining … that sovereign perspective. We don't have that as much in Japan. … [T]here may be some interpretive differences, but I don't think that you're going to see any differences with respect to the rulemaking per se.”

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Insuring Transfer Pricing Risk

Tue, 31 Oct 2023 03:00:00 -0400

While tax insurance can be used in a variety of contexts, from M&A deals to regular tax planning scenarios, it is also relevant when it comes to transfer pricing. Recent developments have expanded the scope of tax insurance to cover multiple years of transfer pricing in returns in M&A deals, and the potential of seeing more transfer pricing insurance in the future is a strong possibility.

On this episode of the “GILTI Conscience” podcast, hosts Nate Carden and David Farhat are joined by Skadden’s Eman Cuyler and Stefane Victor and Yoav Shans of McGill and Partners to discuss the ins and outs of tax insurance including how it relates to transfer pricing, how a claim is initiated and insuring a position.

💡 Featured Guest 💡

Name: Yoav Shans

What he does: Yoav is a partner and tax lead in McGill and Partner’s M&A team, leading the global specialty tax insurance practice. Yoav’s industry experience includes diversified industrial products, consumer products, IT solutions and energy.

Organization: McGill and Partners

Words of wisdom: “Tax insurance essentially is a risk mitigation tool.”

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Gearing Up for Pillar Two

Tue, 03 Oct 2023 03:00:00 -0400

Pillar Two is no longer hypothetical. It’s now time for Pillar Two “readiness.”

In this episode of the “GILTI Conscience” podcast, hosts David Farhat, Nate Carden, Eman Cuyler and Stefane Victor discuss Pillar Two with Eric Sensenbrenner and Paul Oosterhuis. The group delves into the current state of Pillar Two, which has shifted from a source of concern to a challenge being actively addressed. Companies will have to remain nimble as changes and adjustments are likely during the implementation process.

💡 Featured Guests 💡

Name: Eric Sensenbrenner

What he does: Eric is the head of Skadden’s Global Tax Group and represents clients on a broad range of U.S. and international tax matters, with a particular emphasis on transactional tax planning in the international context.

Organization: Skadden

Words of wisdom: “You've got to think more about systemic and operational changes.”

Connect: LinkedIn

Name: Paul Oosterhuis

What he does: Paul is an internationally recognized senior practitioner in the area of international tax. He has extensive experience in mergers and acquisitions, post-acquisition integration, spin-offs, internal restructuring and joint ventures. He also represents multinational companies in non-transactional international tax planning and assists clients in resolving high-stakes, complex tax controversies.

Organization: Skadden

Words of wisdom: “ I think we all need to just kind of keep our seat belts tight until we see the outcome of the 2024 election to see if we're going to be part of the Pillar two community or if we're gonna be bucking the Pillar two community.”

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Spotlight Series: Utilizing Tax Knowledge for the Greater Good

Mon, 28 Aug 2023 03:00:00 -0400

Pro bono projects provide unique flexibility and opportunities for skill development, benefiting both the professional who takes on the work and the client.

In this episode of “GILTI Conscience,” hosts David Farhat, Stefane Victor and Nate Carden present the next installment of the podcast’s Spotlight Series, which includes a discussion with associates Jared Binstock and Sanessa Griffiths about the role pro bono work plays in tax and their experiences and motivations behind taking on this type of work.

Both Sanessa and Jared provide examples of how to find pro bono projects that are a good fit for their practices. For Sanessa, finding causes that are aligned with her values and interests motivate her to say yes. Jared explains, "If I have time to work on it, I usually just say yes. I'm not picky because you never really know what issues are going to come up. It's always a learning experience."

💡 Featured Guests 💡

Name: Sanessa Griffiths

What she does: Sanessa advises clients on a broad range of tax controversy matters and transactional situations. Her practice focuses on matters related to high-stakes and complex tax controversies involving transfer pricing, economic substance and business purpose doctrines, and tax treaty interpretation.

Organization: Skadden

Words of wisdom: “There are so many things you can do in pro bono, even within just the realm of tax pro bono, that'll make you a better lawyer while contributing to society.”

Connect: LinkedIn

Name: Jared Binstock

What he does: Jared advises on the tax aspects of debt and equity financings, initial public offerings, bankruptcy restructurings, and internal integration and restructuring transactions. In addition to his broad-based M&A tax practice, he counsels clients in the financial services sector on insurance-related corporate transactions, including capital raising, reinsurance transactions and restructurings.

Organization: Skadden

Words of wisdom: “One of my favorite parts about practicing tax has been the experience that I've had in pro bono.”

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☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Tax Insurance 101

Mon, 24 Jul 2023 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, David Farhat, Nate Carden and Stefane Victor are joined by Mike Gaffney of Atlantic Global Risk to talk about tax insurance and its role in addressing uncertainty in tax laws.

Mike describes the workings of tax insurance, including the length of a typical policy, particularly surrounding a deal, and explored ideas such as deciding what covered tax position to insure and how various jurisdictions come into play.

The conversation takes listeners through the impact that evolving international tax law has had on tax insurance; what multinationals need to consider when exploring a policy; recognizing risk, particularly surrounding BEPS; and tax insurance in an M&A transaction.

💡 Featured Guest 💡

Name: Michael Gaffney

What he does: Mike is a director and a member of Atlantic Global Risk’s tax team responsible for tax liability insurance products. Prior to joining Atlantic, Mike most recently was PwC’s global tax leader for the banking and capital markets practice and advised financial institutions on complex tax matters. He has authored several articles on international tax, financial products and transfer pricing.

Organization: Atlantic Global Risk

Words of wisdom: “The way I think of the product is it’s a tool for advisors to have and for taxpayers to know about.”

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Spotlight Series: An Evolution of Workplace Diversity and Acceptance

Wed, 28 Jun 2023 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, hosts David Farhat and Nate Carden are joined by associates Stefane Victor and Eman Cuyler, and Howard Sacarob, head of U.S. tax for the Royal Bank of Canada (RBC). Mr. Sacarob is also a member of RBC’s diversity leadership council and an executive sponsor of the Pride Employee Resource Group (ERG) at RBC, where he works to make diversity and inclusion central to the firm’s culture.

The participants reflected on obstacles they’ve faced in the professional world as individuals with diverse perspectives and identities.They discussed the strides that companies are making to prioritize DEI and bring everyone into the conversation while also acknowledging the difficulties that diverse individuals still experience in the workplace. Tune in for this special DEI spotlight on “GILTI Conscience.”

💡 Featured Guest 💡

Name: Howard Sacarob

What he does: Howard Sacarob is the head of U.S. tax for the Royal Bank of Canada. As both an attorney and a CPA, he brings extensive and diverse experience to the capital markets and wealth management units at RBC. He is also a member of the company’s diversity leadership council and is an executive sponsor of the Pride Employee Resource Group (ERG).

Organization: Royal Bank of Canada (RBC) - Capital Markets Unit

Words of wisdom: “ERGs give people an opportunity to meet others who are in other parts of the firm that they might not otherwise meet or interact with and learn something, learn something about themselves, have a nice time, establish a rapport with people they wouldn't otherwise get to know, help foster a sense of community.”

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Amount B Back in the Spotlight

Tue, 20 Jun 2023 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Skadden partners David Farhat and Nate Carden, along with associates Eman Cuyler and Stefane Victor, discuss Pillar One’s Amount B with Jessie Coleman of KPMG.

In December 2022, the OECD issued documentation providing a much anticipated outline of Amount B, however, many uncertainties still remain surrounding scoping requirements and pricing.There is still much work to be done to address concerns around the drafted Amount B documentation and ensure the new framework will work for both developed and developing countries. However, many countries seem committed to making Amount B a success, including the U.S., as the Treasury has stated it’s very open to input.

💡 Featured Guest 💡

Name: Jessie Coleman

What she does: As a transfer pricing principal of the Washington National Tax Group of

KPMG US, Jessie provides services related to transfer pricing planning, documentation and controversy, and international tax policy.

Organization: KPMG

Words of wisdom: “I think we have a lot of countries, and our own Treasury has been very clear on this, that are very committed to making Amount B a success.”

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Update on Pillar Two: Where it Stands Today and What To Expect

Wed, 24 May 2023 03:00:00 -0400

After a slow start, the Pillar Two initiative has gained momentum across the globe.“GILTI Conscience” hosts David Farhat, Nate Carden, Stefane Victor and Eman Cuyler spoke with Vikram Chand, a professor at the University of Lausanne, to discuss the latest Pillar Two developments and implications for international taxation.

The conversation delves into the widespread adoption of Pillar Two, including in Europe, Asia and low-tax jurisdictions. They explore how the European directive has played a significant role in triggering the implementation of these rules by various countries, as well as the objectives and complexities of Pillar Two. Tune in to gain valuable insights into the evolving landscape of international taxation.

💡 Featured Guest💡

Name: Vikram Chand

What he does: Dr. Vikram Chand is an associate professor of law at the University of Lausanne (UNIL) Switzerland. He also serves as the program director of UNIL’s Executive Program in Transfer Pricing, the managing editor of the Kluwer International Tax Law Blog and an international tax trainer for the OECD.

Organization: University of Lausanne

Words of wisdom: "We could expect Pillar Two to come into the legislation of a lot of European member states in 2024 at maximum by 2025. … Historically all the low tax countries like Switzerland or Hong Kong or even Jersey, they have announced adoption of the Pillar Two initiative."

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Spotlight Series: Carving Your Path in Transfer Pricing

Wed, 19 Apr 2023 09:00:00 -0400

Though many opportunities exist for students interested in a career in tax law, there has been no clear environment for cultivating talent in the area of transfer pricing. Now, an ABA program offers up-and-coming professionals the opportunity to learn directly from leaders in this niche field.

Launched in the midst of the pandemic in 2020, “Transfer Pricing: From Classroom to Boardroom” (TP C2B) seeks to provide students interested in pursuing transfer pricing careers with a multi-disciplinary “insider” look into how transfer pricing policies are designed and administered. With the help of mentors and enthusiastic volunteers, the program culminates in a capstone project at the end of each year-long session.

Co-founders Elizabeth Stevens and Niraja Srinivasan joined the “GILTI Conscience” podcast to discuss why they started the program, how it has evolved and potential opportunities for expansion.

Interested in volunteering? TP C2B is seeking mentors from all backgrounds who can help organize the capstone and take on other duties to help mentor the next generation of transfer pricing professionals. Send an email to abatpmentoring@gmail.com to see how you can get involved.

💡 Featured Guests 💡

Name: Elizabeth Stevens

What she does: Elizabeth is an international tax attorney, experienced in international tax planning and advocacy for multinational corporations. She is the former chair of the ABA Transfer Pricing Committee and co-founder of TP C2B.

Organization: Caplin & Drysdale

Connect: LinkedIn

Name: Niraja Srinivasan

What she does: Niraja assists law firms, multinational companies and tax authorities with expert economic analysis to resolve transfer pricing disputes. She has 25 years of corporate and consulting leadership experience and is the current chair of the ABA Transfer Pricing Committee.

Organization: NERA

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Spotlight Series: Beyond the Technical Side of Tax Law

Tue, 14 Mar 2023 03:00:00 -0400

In this episode of GILTI Conscience, Skadden’s Nate Carden, David Farhat and Stefane Victor continue the podcast’s spotlight series with tax associate Katy Stone, who discusses the impact tax-related pro bono work has had not only on the lives of other but also on her career.

Katy describes how pro bono matters — which she was introduced to early — frequently have a deeply human element and providing tax assistance often has a tangible influence on people’s lives. “I think there's relief from some of these taxpayers in getting someone to explain the world of tax to them and build confidence on a go-forward basis that they're going to be able to handle this differently into the future,” Katy says.

They also discuss how new associates can become involved in pro bono opportunities and how the work can help them expand their skill-set beyond their main practice.

💡 Featured Guest 💡

Name: Katy Stone

What she does: Katy is a tax associate in Skadden’s Palo Alto office. She handles the tax aspects of high-profile capital markets, M&A and other corporate transactions, with a strong focus on the technology and energy sectors. Katy regularly represents companies and individuals in tax controversy matters and is admitted to practice before the U.S. Tax Court.

Organization: Skadden

Words of wisdom: “I think it's deeply impactful to do this kind of work and protect those very valuable dollars for low-income taxpayers.”

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

An In-Depth Look at International Tax in Africa: Part 2

Thu, 26 Jan 2023 03:00:00 -0400

In the second of this two-part GILTI Conscience series, our Skadden tax attorneys continue their conversation with Lolade Ososami, a partner and head of the tax team at Udo Udoma & Belo-Osagie, and Zach Pouga, a partner in the International Tax Group at Ernst & Young, on the myriad tax issues faced by Africa-based companies, companies with a presence in Africa and those doing business on the continent.

Among other topics, the conversation touches on treaty networks, the role of taxation in general, implementation of tax laws in the various countries and the potential for a unified approach to tax across the African Union.

Tune in to this second part of the discussion to hear our hosts and their guests discuss a wide array of topics on the rapidly evolving tax issues throughout the continent.

💡 Featured Guests 💡

Name: Lolade Ososami

What she does: Lolade heads the taxation and mining and metals teams at Udo Udoma & Belo-Osagi. Her years of experience as a commercial lawyer in Nigeria, the largest emerging market in Sub-Saharan Africa, has equipped her with a vast knowledge of the legal and regulatory framework for international investment in the region.

Organization: Udo Udoma & Belo-Osagie

Words of wisdom: “When [African countries] start to see that there's enough to go around, and if we can come together and be a unified force, then perhaps our place at the table when it comes to international tax issues would gain more respect.”

Connect: LinkedIn

Name: Zach Pouga

What he does: As a partner in the International Tax Group at Ernst & Young, Zach focuses on U.S. companies with a presence in Africa and Africa-based companies looking to expand to the U.S., often working in tandem with the African Union and regional governments.

Organization: Ernst & Young

Words of wisdom: “The thing I usually try to push is you don't have to go against the rules necessarily, or you don't have to be on the side. Sometimes being in the rules and understanding them and applying them to your context can actually be more beneficial than being against the rules or being on the sidelines.”

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

An In-Depth Look at International Tax in Africa: Part 1

Wed, 18 Jan 2023 03:00:00 -0400

Conversations surrounding transfer pricing practices rarely span to include the myriad regulations throughout Africa. However, across the continent, there are vast distinctions between countries that are thriving under new international tax rules and others that are struggling to keep up.

Lolade Ososami, a partner and head of the tax team at Udo Udoma & Belo-Osagie, says that transfer pricing has grown and evolved in Africa over the last decade. When the OECD released the BEPS action plans in 2018, it had a huge impact on tax practitioners, particularly in Nigeria.

Zach Pouga, a partner in the International Tax Group at Ernst & Young, encounters transfer pricing in nearly every aspect of his work. He frequently deals with BEPS 2.0, Pillar One and Pillar Two when advising his clients regarding their presence in Africa, as well as helping governments across Africa understand the complexity of new tax rules.

In this episode of the GILTI Conscience podcast, Lolade and Zach join our hosts to dive into the evolving world of international tax throughout Africa. From how U.S. multinationals operating in Africa approach transfer pricing to how Africa-based companies and regional governments are branching out, Lolade and Zach explore the complexities of transfer pricing and international tax.

💡 Featured Guests 💡

Name: Lolade Ososami

Organization: Udo Udoma & Belo-Osagie

Words of wisdom: “Success is relative. It depends on which side of the fence you're standing. You have all these audits, all this controversy. The taxpayer is spending a lot more money trying to resolve disputes. So is tax really being collected, even? I don't know if that looks like success.”

Connect: LinkedIn

Name: Zach Pouga

Organization: Ernst & Young

Words of wisdom: “The thing I hear a lot is that the government doesn’t have the manpower to apply the rules they don’t understand, and the effectiveness of which they are not sure of. So it’s a very deliberate governmental decision to try to allocate resources to understand these complex policies that are coming out when they have no assurance of the effectiveness in actually raising funds for them.

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

The UK Tackles Pillars One and Two

Wed, 30 Nov 2022 03:00:00 -0400

In an effort to address tax issues surrounding the ever-growing digitalization of the global economy, the OECD proposed blueprint plans called Pillar One and Pillar Two. Though they were introduced in October 2020, implementation remains a challenge.

In this episode of the GILTI Conscience podcast, Europe tax head James Anderson and London tax partner Alex Jupp join our hosts to discuss how the U.K. may be the first out of the gate in Europe to see some traction with potentially carrying out the Pillars.

From international M&A compliance to political challenges and technical hurdles, James and Alex detail many of the uncertainties the Pillars face in today’s climate, both in the U.K. and across the EU.

Tune in to find out more about the future of Pillars One and Two in the international market.

💡 Featured Guests 💡

Name: James Anderson

What he does: As head of Skadden’s European tax practice, James Anderson counsels on the full range of public capital markets transactions. Under his leadership, the firm’s European tax team has received numerous accolades for their work across numerous transactions.

Organization: Skadden

Words of wisdom: “We're at the beginning of a formation of a new universe, and […] it's a chance for [newcomers] to shine if you can get out ahead of the curve knowing the rules better.”

Connect: LinkedIn

Name: Alex Jupp

What he does: Mr. Jupp is a London tax partner who advises a wide variety of clients in transactional and non-transactional matters on U.K. and cross-border tax matters.

Organization: Skadden

Words of wisdom: “I would love for there to be a huge lobbying effort to say, ‘If you bring in Pillar One, can you get rid of DPT?’ That would be fantastic.”

Connect: LinkedIn

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Spotlight Series: Pro Bono Opportunities in the Tax World

Thu, 06 Oct 2022 03:00:00 -0400

For many low-income individuals, filing taxes may be a daunting task, and many may even choose to avoid interacting with the IRS altogether due to negative experiences. However, not filing taxes may mean missing out on crucial refunds and benefits..

From low-income taxpayer clinics in communities to organizations and initiatives such as VITA, GetYourRefund and Code For America, there are a multitude of pro bono opportunities for tax attorneys to get involved in to ensure taxpayers receive the benefits they deserve.

According to Jaclyn Roeing, an attorney at Skadden who volunteers with Community Tax Aid in Washington, D.C., “One of the key benefits of pro bono work is the opportunity to give back to your community and to use the skills you develop as a lawyer for clients that would otherwise not have representation at all, and that you might never get to engage with.”

Don’t miss this Spotlight Series episode of GILTI Conscience as we sit down with Jaclyn to discuss how engaging in pro bono work as a tax attorney benefits both communities and attorneys, and how you can get involved.

💡 Featured Guest 💡

Name: Jaclyn Roeing

What she does: Jaclyn is a lawyer at Skadden whose work focuses on tax controversy and litigation. She dedicates a significant amount of her time to pro bono work, representing the interests of low-income individuals and volunteering her time with Community Tax Aid in Washington, D.C.

Organization: Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates

Words of wisdom: “One of the key benefits of pro bono work is the opportunity to give back to your community and to use the skills you develop as a lawyer for clients that would otherwise not have representation at all, and that you might never get to engage with. And there are plenty of those opportunities in tax.”

Connect with Skadden

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Talking Transfer Pricing and the Arm’s Length Principle With Mike McDonald

Tue, 30 Aug 2022 03:00:00 -0400

The OECD transfer pricing guidelines include DEMPE — the development, enhancement, maintenance, protection and exploitation of intangibles — as part of their efforts to deal with the legal status of both IP and economic ownership. Originally, the regulations stated that only legal ownership existed; DEMPE was incorporated to accommodate contributions made by entities other than the legal owner.

But how dependable and comprehensive are the DEMPE guidelines?

In this episode of “GILTI Conscience,” Mike McDonald, an executive director in the National Tax Department at Ernst & Young, joins our hosts to discuss whether DEMPE is supportable and more efficient than a traditional review of functions, assets and risks.

Mike also shares his perspective on recent developments in transfer pricing. Mike and the “GILTI Conscience” team look at varying approaches to the accounting practice — while some professionals believe that “functions, functions, functions” is the only sustainable tactic, others contend that the arm’s length guideline is backed by sufficient valuations to outperform the alternatives. Mike delves deeply into the arguments for the arm’s length approach. “I always thought one of the strengths of the arm's length principle, if done properly, is its inherent neutrality compared to all alternatives,” he says.

What do these developments and perspectives tell us about the future of DEMPE and transfer pricing? And what patterns has an expert like Mike seen over the past two decades? Tune in to find out!

💡 Featured Guest 💡

Name: Mike McDonald

What he does: An executive director of the National Tax Department at Ernst & Young and a former senior economist at the U.S. Department of the Treasury, Mike is an expert on developments in transfer pricing over the past 20 years.

Organization: Ernst & Young

Words of wisdom: ”Realistic alternative is a tool that allows countries or taxpayers to take a step back and say, Hold on a second, does this pass the smell test? Because if something doesn't pass the smell test, odds are a realistic alternative framework can identify that.”

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

Blockchain for Beginners: Basic Tax Issues for Digital Assets

Wed, 27 Jul 2022 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Roger Brown, global head of Tax Strategy at Chainalysis, joins our hosts Nate Carden and David Farhat to talk about the basics of blockchain. Roger explains what blockchain is, how tax rules apply to crypto and the field’s potential benefits.

Roger says that people regularly approach him with questions about blockchain and crypto — although the sector began forming many years ago, substantial uncertainty remains, especially regarding tax rules and policies. Roger therefore begins this overview with the basics. He notes that buzzwords like “bitcoin” and “blockchain” are commonly thrown around, but he emphasizes that they’re only interconnected, not interchangeable. Bitcoin, which uses blockchain technology to secure transactions, is intended to be a peer-to-peer payment network, while blockchain is utilized for recordkeeping, tracking the movement of a digital asset (such as bitcoin) from virtual wallet to virtual wallet.

Roger also notes that the crypto space is more expansive and potentially beneficial than most people realize. “Crypto” refers to more than just payment applications. Technologies like Filecoin, a blockchain-based cooperative digital storage system, are focused on replacing business functions. Individuals and businesses alike can take advantage of such advances. But what important tax rules and policies should you understand before diving into this space?

From a technical tax perspective, Roger says, the rules are nothing new. When you own cryptocurrency or any other digital asset, it’s your property and, therefore, property rights still apply. If you’re worried about taxation on cryptocurrencies as trading becomes more commonplace, Roger suggests investing in a partner company. These experts can help you understand how tax rules apply to crypto and ensure the IRS doesn’t come knocking on your door for an audit.

💡 Featured Guest 💡

Name: Roger Brown

What he does: Roger is the global head of Tax Strategy at Chainalysis. He has 30 years of international tax experience for multinational enterprises in financial services, technology, blockchain and other industries. Roger has worked with law firms, accounting firms and the national office of the IRS.

Organization: Chainalysis Inc.

Words of wisdom: “There are all these [technologies] now that are leaning into these traditional business processes, that are far more than just payments.

Connect: LinkedIn

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Tax Legend Fred Goldberg Shares Insights From His 50 Years in Tax Law

Wed, 22 Jun 2022 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, longtime Skadden tax partner Fred Goldberg joins our hosts Nate Carden and David Farhat to discuss his one-of-a-kind journey through the public and private tax sectors. Fred details the changes he’s seen, his hopes for the future of the field and his advice for those looking to begin a career in tax law.

As Fred notes, the tax system is the one set of regulations that every individual, family, business and nonprofit in the country must contend with each year. And for each, the challenge is the same: When you get your taxes right, everything is fine, but when you get them wrong, havoc ensues.

Many people who might consider a career in tax law are driven away by misconceptions about the work — e.g., a tax attorney can’t be altruistic or give back to society. However, Fred believes tax is not just transactional — it’s also relational: The field presents opportunities to collaborate, chase your passion and connect with others. The profession also needs a wide range of personalities and perspectives — you don’t have to change yourself to fit some preconceived notion of an ideal tax attorney. A career in the tax field requires only creativity, listening skills and authenticity.

Fred hopes that mentorship, education and a willingness to shift perspectives can enable tax law to become more diverse and inclusive. He regularly shares the same advice with aspiring lawyers, young professionals already in the tax sector and people on the street: Tax law can make for an outstanding career.

💡 Featured Guest 💡

Name: Fred Goldberg

What he does: Fred is of counsel in Skadden’s Tax Group. He represents business, tax-exempt, and individual clients in all phases of dispute resolution with tax authorities. A primary focus of his practice has been to resolve large and complex tax controversies related to a wide range of issues across all industries. Fred is a former IRS chief counsel, IRS commissioner and Department of the Treasury assistant secretary for tax policy.

Words of wisdom: “Saying it's easy, doing it's hard, but that's why the career is so wonderful. No matter who you are, how you think, what you care about, whether you go into it hammer and tong in a big fight, or whether you like three-dimensional chess, whatever turns you on, it is a spectacular profession.”

Connect with Skadden

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☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

The Issue Behind 'Almost All' Transfer Pricing Cases: Ex Ante or Ex Post Basis

Wed, 18 May 2022 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Bram Isgur, principal at Keystone Strategy, joins our hosts Nate Carden and David Farhat to talk about transfer pricing on an ex ante and ex post basis. They discuss the use cases for each method, how these methods differ across industries and why it’s important to think about the bigger picture in preparing for unimaginable events and changes.

So, should you take an ex ante approach, where you look forward and try to figure out your pricing for events that have not yet occurred? Or do you take an ex post approach, where you wait to see what happens and work your way backward? Because there are pros and cons to each, it’s difficult to give a definitive answer. However, Bram has some advice for companies grappling with these choices.

For example, many companies in the tech space either boom or bust, which often leads to tax controversy years later. On the ex ante front, when you’re undertaking a transaction that involves risk, you have to write down what the risks entail — you can't rely solely on the statements put together by people who believed the company would succeed. In particular, you should have someone from the business side and someone from the tax side looking at your documentation. The ex ante approach allows you to talk through your strategy before risks come to pass.

On the ex post side, it’s helpful to take a look at businesses that already failed. Instead of wondering if your company’s success was inevitable, take a look at other companies that existed around the same time and would have been viewed as competitors. Examine their model and look at what happened to them. The ex post approach is often more convenient and accurate in certain cases.

No matter which approach you take, it’s vital to assess your situation, determine what’s best for your business and stick to a plan of action. There are no perfect solutions, but consistency gives you a better position to deal with possible tax controversy down the road.

💡 Featured Guest 💡

Name: Bram Isgur

What he does: Bram is a Principal at Keystone Strategy, an economics consulting firm for Fortune Global 500 companies, top law firms, and government agencies. An economist, Bram advises law firms, multinational companies, and banks on diverse issues, including tax and regulatory compliance, transfer pricing controversy, antitrust, and securities law.

Bram’s specialty areas include negotiation of multilateral Advance Pricing Agreements with the IRS and other tax authorities, transfer pricing relating to financial transactions, risk, banking and global dealing, and economic analysis to support Regulation W compliance.

Organization: Keystone Strategy

Words of wisdom: “Instead of thinking about this particular time in this particular instance, [you] should think more about long term industry trends. It's absolutely true that like there's going to be another black swan event and I don't know what it will be and nobody else knows what it will be either.”

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Connect with Skadden

☑️ Follow us on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Navigating the Once-Obscure German Nonresident Withholding Tax

Fri, 29 Apr 2022 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Kroll directors Ryan Lange and Kerim Keser and Skadden partner Johannes Frey join our hosts Nate Carden and David Farhat to explore the details of the German nonresident IP withholding tax. They discuss taxation questions that are still up in the air, how the rule could affect multinational corporations, the valuation of intellectual property (IP) registration and the best steps to take if you owe taxes under this law.

Originally implemented in 1925, the German nonresident IP withholding tax is coming back into the public eye after years of inactivity. The tax law states that if a foreign resident company has an IP registered in Germany, it may be subject to German nonresident taxation. However, uncertainty remains around authorities’ ruling on the tax, the process for determining tax requirements and to whom the tax applies.

At present, it remains unclear which types of multinationals are affected by this tax law. However, tax experts advise that companies with an IP registered in Germany cover their bases in order to avoid an audit, interest risk, liability risk and even corporate risk. This means companies should disclose their situation to German authorities.

💡 Featured Guests 💡

Name: Ryan Lange

What he does: Ryan is a Director in Kroll’s Chicago Transfer Pricing practice, and he advises clients’ senior management on a variety of issues related to transfer pricing, economics, and valuation. He has over 12 years of experience providing advice to companies spanning all sizes and industries. Ryan is a leader within the Chicago Tax Club and has chaired the international tax committee for the past five years. Additionally, he has co-authored various articles and frequently speaks on transfer pricing topics at both domestic and international conferences.

Organization: Kroll

Connect: LinkedIn

Name: Kerim Keser

What he does: Kerim is a Managing Director in Kroll’s Munich office and leads Kroll German, Swiss, and Austrian transfer pricing activities. He has 15 years of transfer pricing experience in consulting firms and at the Australian Taxation Office. He has extensive experience developing transfer pricing solutions for companies and advising across industries, including automotive, consumer products, pharmaceuticals, technology, and financial services.

Organization: Kroll

Connect: LinkedIn

Name: Johannes Frey

What he does: Johannes is a Partner in Skadden’s tax division. He has a broad transaction-oriented tax practice with an emphasis on corporate restructurings, acquisitions, spin-offs, joint ventures, and transactions involving cross-border tax planning. Johannes is named a leading lawyer in JUVE Wirtschaftskanzleien, Chambers Global, and Chambers Europe. He also was previously named by Wirtschaftswoche as one of the top 25 corporate tax lawyers in Germany and has repeatedly been named by Handelsblatt/Best Lawyers on its list of Germany’s Best Lawyers.

Organization: Skadden

Connect: LinkedIn

Connect with Skadden

☑️ Follow us on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

New Regulation: Statutes, Pillars and the Build Back Better Act

Wed, 30 Mar 2022 03:00:00 -0400

In this episode of the “GILTI Conscience” podcast, Skadden international tax attorney Paul Oosterhuis and associate Huzefa Mun join our hosts Nate Carden and David Farhat to discuss legislation, new regulations and the Build Back Better Act. They examine possible outcomes if the Build Back Better Act is not adopted, including changes in other tax regulations that could arise, as well as the potential impact of the “Two-Pillar Solution” on global taxation.

The Build Back Better Act has received a great deal of recent attention, but it doesn’t look like we’re going to see any movement on it in the near future. Many analysts therefore are focusing on what is likely to happen on the regulatory and pillars front were the bill not to pass. Paul suggests there would be a fair amount that the Treasury Department would want to consider with respect to the treatment of interest expense for U.S. multinationals. Possible changes include increased foreign tax rates, new check-the-box regulations and alterations in foreign tax credit regulations.

Next, the guests discuss whether the OECD’s two-pillar method will shift taxation away from standard international tax rules and bring about a global minimum level of taxation. Pillar One requires a physical presence in a country before that country can tax, and Pillar Two sets a minimum tax at a 15% rate. However, what happens if these pillars are enacted by other countries but not the U.S.? Paul and Hufeza expect that Pillar Two will not be difficult to enact in the EU, the U.K., Japan, Australia and many of the other major countries with multinationals. However, without Pillar Two, the U.S. would likely encounter problems for several years, unless major reform takes place. In addition, absent Pillar One, the U.S. is likely to face a period of chaos, unless it can “beta test” and see if a large group will adopt the pillar.

Finally, the group discusses a few other statutes and regulations you should be aware of relating to the Build Back Better Act and international taxation.

💡 Featured Guests 💡

Name: Paul Oosterhuis

What he does: Paul is Of Counsel in Skadden’s international tax sector. He has extensive experience in mergers and acquisitions, post-acquisition integration, internal restructurings, and joint ventures. He has been ranked in the top tier of Chambers USA each year since the guide was first released in 2003 and has been selected for inclusion in Chambers Global, Tax Directors Handbook, The Legal 500 U.S., Who’s Who Legal: Corporate Tax, IFLR1000 and The Best Lawyers in America. He also was named a 2017 BTI Client Service All-Star.

Organization: Skadden

Words of wisdom: “The final thing that is regulatory in nature that comes into play in all of this is the new foreign tax credit regs. The regulations have been like a tsunami coming through the international tax community since they became final.”

Connect: LinkedIn

Name: Huzefa Mun

What he does: Huzefa is an associate at Skadden, where he advises clients on US and international tax matters. He has particular experience advising multinational companies on IP structuring, transfer pricing audits and dispute resolutions, supply chain and operational tax planning, joint ventures, and real estate and REIT transactional and operational planning.

Organization: Skadden

Words of wisdom: “It's a really interesting time now because we're following up with tax law in the same way that we're following up with the 24-hour news cycle because everything is changing so rapidly. It's a very interesting time and there are so many different moving parts and there's so much complication going on. Trying to make sense of it is going to be, I think, the task for a lot of tax practitioners going forward.”

Connect: LinkedIn

Connect with Skadden

☑️ Follow us on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

The Tax Legislation Process and What to Expect in 2022

Wed, 16 Mar 2022 03:00:00 -0400

In this episode of the GILTI Conscience podcast, Loren Ponds, Member at Miller & Chevalier in Washington, D.C., joins our hosts to share an overview of the tax legislative process. She discusses the outlook for current tax bills moving through the house and how changes and feedback are incorporated.

Over the past two decades, most of the major tax legislation has gone through a reconciliation process where the bills start in the house. The review procedure includes a scoring process to ensure the bill will not increase the deficit before it can be passed.

Feedback also plays an important role in shaping the final version of a tax bill. Bills can be improved by inviting taxpayers to share the real-world implications of a change. In addition, asking the advisor taxpayer community to share critical feedback, with a clearly defined scope can be very helpful.

Predicting all of the fact patterns that might apply to a certain bill is impossible, but collecting feedback can help anticipate more of them, making a bill more comprehensive before it is passed.

Tax bills are gaining in popularity and controversy thanks to increased coverage from the media. This means more attention is given to how politicians approach tax legislation. This attention often focuses on how both sides of the aisle collaborate on tax policies that are easier to agree on, such as international tax provisions.

So how does this affect current legislation and how will Congress review the Build Back Better Act amongst the many pressing issues on their agenda?

Episode guest Loren explains, “There are a lot of other things that are on Congress's agenda besides tax. That said, the Build Back Better Act has some spending provisions that are a very high priority to the current administration.”

💡 Featured Guest 💡

Name: Loren Ponds

What she does: As a Tax Member at Miller & Chevalier, Loren centers her practice on providing strategic counsel to clients on legislative, regulatory, and other tax policy issues, as well as advising on technical tax matters related to transfer pricing and other international tax topics. She also co-hosts the podcast tax break with her colleague, Steve Dixon.

Organization: Miller & Chevalier

Words of wisdom: “When there's legislation on tap, if you are adversely impacted by the provision, make your position known. It may not change the outcome, but at least you're participating in the process.”

Connect: LinkedIn

Connect with Skadden

☑️ Follow us on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Spotlight Series: The Importance of Diversity, Equity & Inclusion in Tax Law

Wed, 23 Feb 2022 03:00:00 -0400

Diversity, equity and inclusion (DEI) make business sense for every professional community. For the tax practice, where creativity is essential, diversity elevates the practice, benefitting everyone from clients to the government and practitioners themselves.

The tax community, however, lacks DEI for a host of reasons. At the heart of the problem is the ubiquity of whiteness and a pervasive insensitivity to otherness, whereby "others" must learn to navigate whiteness to survive. Maleness and whiteness often are used as synonyms for competence, which leaves women, people of color and LGBTQ+ attorneys constantly feeling compelled to prove themselves.

These issues widen the inequality gap in the tax practice and further a discriminatory system. Such a system places undue pressure on diverse attorneys to succeed, not only for themselves but also to keep the gate open for those who follow. This burden makes the already-challenging practice of tax law even harder.

How can you contribute to changing this reality and promoting diversity in the tax community?

In this episode of the GILTI Conscience podcast, Skadden partners David Farhat and Nate Carden kick start The Spotlight Series by talking with associates Eman Cuyler and Stefane Victor about both the challenges to and opportunities for promoting diversity within the tax law community.

Click here for the full show notes, transcript, and video.

🗝️ Key Takeaways 🗝️

★ The ubiquity of whiteness and maleness in the tax practice. The need for diverse attorneys to learn to navigate whiteness to survive in corporate America, with no reciprocal requirement for white attorneys, contributes to an uneven playing field. Maleness also has become synonymous with competence and success.

★ The fate of a diverse attorney. The diverse attorney often must do the "shrug of resignation" and say to themselves, "This is the world I live in. This is what I've chosen. I just have to deal with it." They also live with the undue pressure to succeed for the next diverse attorney's sake. This background level of stress makes a challenging legal discipline even harder.

★ How can you contribute to promoting DEI in the tax community? You can start with encouraging diversity in mentoring, being vulnerable and doing some research. Attorneys also should strive to be sensitive to cultural differences and how they impact work and relationships.

Connect with Skadden

☑️ Join the Conversation on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Arm’s Length Principle Vs. Implicit Support: What’s The Way Forward?

Thu, 17 Feb 2022 03:00:00 -0400

Understanding the 2022 OECD Transfer Pricing Guidelines and how it applies to guarantees and other financial transactions is essential for multinationals trying to manage intercompany lending and get their transfer pricing right.

Granted, these companies have to fund themselves, whether through intercompany debt or guaranteed loans. They have to move money across borders, but how they do that, how the rules apply in different tax jurisdictions, and how everyone gets their appropriate piece of the pie can become very complicated.

Profound transfer pricing questions tend to arise when deciding which credit rating applies to a subsidiary of a multinational because that can make a big difference on interest rates and tax implications. Another concern is that if a subsidiary has to get the stand-alone treatment because of the arm's length principle, what is the value of implicit support?

Dealing with these issues opens a can of worms that questions the core of transfer pricing as we know it. For one, why should implicit support be a borrower-only analysis when a lender can also be a part of a group? Since implicit support applies to 'important subsidiaries,' are there non-important subsidiaries?

The new guidelines attempt to address some of these issues related to the arm's length standard for cross-border transactions between associated enterprises. However, these guidelines don't apply equally across different jurisdictions. For instance, which rules should multinationals that have operations in the U.S consider, and in what scenarios do the new OECD guidelines come into effect?

In this episode of The GILTI Conscience podcast, hosts, Skadden Partners David Farhat and Nate Carden, Associate Eman Cuyler, and Clerk Stefane Victor sit down with Abraham (Bram) Isgur, Principal at Keystone Strategy. They discuss transfer pricing for cross-border intercompany loans and guarantees, the OECD guidelines, the controversies to expect and prepare for, ideas for engaging with tax authorities, and more.

💡 Featured Guest💡

Name: Bram Isgur

What He Does: Bram is a Principal at Keystone Strategy, an economics consulting firm for Fortune Global 500 companies, top law firms, and government agencies. An economist, Bram advises law firms, multinational companies, and banks on diverse issues, including tax and regulatory compliance, transfer pricing controversy, antitrust, and securities law.

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☑️ Listen to this episode and view the full show notes on our Website.

☑️ Join the Conversation on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Musings on Multinational Tax: What to Expect From GILTI Conscience

Mon, 10 Jan 2022 03:00:00 -0400

The team at Skadden, Arps, Slate, Meagher & Flom LLP is always happy to debate multinational tax issues. And with the way things have been changing in the last two years, it’s never been a better time to hit "record" on those conversations, and share them with fellow self-proclaimed tax nerds and those just getting started in the field.

“Five years ago, we had a radically different international tax system from what we have today, which may change again significantly in the next year or two," says Skadden partner Nate Carden. “You have to constantly be thinking, How do the planning I'm doing and the structures I'm creating align with my business objectives? Are they nimble enough to deal with tax rules that may evolve faster than my business?”

Two major factors created this dynamic moment:

COVID-19 prompted multinationals to rethink their tax strategies. And in the nearly two years since the World Health Organization (WHO) confirmed the pandemic, governments that poured money into enormous public funding initiatives are looking for ways to make back some of those expenses through taxes.

Meanwhile, the public and lawmakers are paying more attention than ever to how multinationals are being taxed and using tax laws.

In this introductory episode of GILTI Conscience, you’ll meet your hosts: Skadden partners David Farhat and Nate Carden, associate Eman Cuyler, and clerk Stefane Victor, who is about to be admitted to the D.C. bar.

Learn their backgrounds, specific areas of focus, and why they chose tax law. And get a sneak peek of what to expect from GILTI Conscience, including interviews, debates, and of course unapologetic nerding out.

Click HERE to read the full blog post for this episode or visit https://www.skadden.com/insights/podcasts/gilti-conscience

💡 Meet Your Hosts 💡

Name: David Farhat

Title: Partner at Skadden

Specialty: Formerly with the IRS and a major global accounting firm, David is experienced in all phases of international tax planning and dispute resolution, including transfer pricing, multi-country controversy, competent authority matters, and advance pricing agreements (APAs).

Connect: LinkedIn

Name: Nate Carden

Title: Partner at Skadden

Specialty: Nate focuses on advising large multinationals on both operational planning and controversies arising in connection with transfer pricing and related international tax issues.

Connect: LinkedIn

Name: Eman Cuyler

Title: Associate at Skadden

Specialty: Eman represents large U.S. and multinational companies in a wide range of tax planning and tax controversy matters, including transfer pricing cases.

Connect: LinkedIn

Name: Stefane Victor

Title: Clerk at Skadden

Specialty: Stefane graduated from Harvard Law School in 2021 and is a first-year associate in Skadden’s Tax Group. Mr. Victor focuses his practice on federal tax controversy matters involving multinational corporations in all stages of tax disputes, including audits, administrative appeals and litigation. He will soon be admitted to practice in D.C.

Connect: LinkedIn

Connect with Skadden

☑️ Join the Conversation on Twitter & LinkedIn.

☑️ Subscribe to GILTI Conscience on Apple Podcasts, Spotify, Google Podcasts, or your favorite podcast app.

☑️ Let us know what topics you would like to hear about on GILTI Conscience by emailing our executive producer at eman.cuyler@skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.

Introducing GILTI Conscience: Casual Discussions on Transfer Pricing, Tax Treaties, and Related Topics

Tue, 04 Jan 2022 03:00:00 -0400

This is GILTI Conscience: Casual Discussions on Transfer Pricing, Tax Treaties, and Related Topics, a podcast from Skadden that invites thought leaders and industry experts to discuss pressing transfer pricing issues, international tax reform efforts, and tax administration trends. We also dig into the innovative approaches companies are using to navigate the international tax environment and address the obligation everyone loves to hate.

If you like what you’re hearing, be sure to subscribe in your favorite podcast app so you don’t miss any future conversations. Skadden's tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. Additional information about Skadden can be found at skadden.com.

GILTI Conscience is a podcast by Skadden, Arps, Slate, Meagher & Flom LLP, and Affiliates. Skadden’s tax team is recognized globally for providing clients with creative and innovative solutions to their most pressing transactional, planning, and controversy challenges. This podcast is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This podcast is considered advertising under applicable state laws.