USA Law and Practice Contributed by: Devon M Bodoh, Joseph M. Pari and Blake D. Bitter, Weil, Gotshal & Manges LLP
ard to be satisfied (see 6.4 Taxation of Intangibles Developed by Local Corporations ). Accordingly, in the USA the consideration paid for an intangible asset (or use of an intangible asset) will be evaluated con - sistent with the statutory requirement that the con - sideration be commensurate with the income derived from exploitation of the intangible. For US transfer pricing purposes, the owner of legally protected intangibles is the legal owner. However, in the case of non-legally protected intangibles, the own - er is the party with “practical control” over the intangi - ble (ie, the party that possesses legal ownership under intellectual property law or that holds rights constitut - ing an intangible pursuant to contractual terms (such as a licence). When the legal ownership standard is inconsistent with “economic substance”, these rules may be dismissed, and the substance of the overall arrangement is given effect.
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