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.
- Obtaining tax insurance. A broker can help advocate for the client's interests by packaging the risk and taking it to market, engaging with 20-plus insurance providers to create competition. This approach is aimed at securing the best possible terms and the broadest coverage for the client's specific position.
- There's a hair trigger for a claim. Any questioning by a tax authority about any position in a return that includes a position that was insured will initiate a claim, providing immediate protection. The process is collaborative, with the insurer working with the taxpayer and their advisors to defend the position. Tax insurance indicates the position is supportable and can deter the tax authority from pursuing it.
- Insurance policies can deal with changes in business operations. If market conditions change due to factors like natural disasters, war, new technologies or health issues, the transfer pricing analysis can be refined. Having insurance allows businesses to seek the insurer's approval for any changes made during the year, ensuring coverage even if tax authorities challenge the transfer pricing for a specific year.
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. Now your hosts, Skadden Partners, David Farhat and Nate Carden.
Nate Carden (00:36):
Hi everyone. This is Nate Carden, as always here with David Farhat, Eman Cuyler and Stefane Victor. This is GILTI Conscience. Today we are joined by Yoav Shans of McGill and Partners. He’s the M&A tax lead there and we’re going to have an interesting conversation about tax insurance specifically as it relates to transfer pricing issues. Yoav, welcome to the show.
Yoav Shans (00:59):
Thank you. Thanks for having me.
Nate Carden (01:00):
Very glad to have you. Why don’t you start a little bit with perspective on tax insurance, generally what it can do and where you think it’s appropriate and inappropriate and we’ll take it from there.
Yoav Shans (01:10):
Sure. So just to level set, again, I know you guys already talked about tax insurance. In one of your prior episodes, you had one of my colleagues from the industry talk about the basics. So just to level set, tax insurance essentially is a risk medication tool. Here, the risk that we’re talking about is tax. So in a situation where a tax authority, whether federal, state, local, or even foreign challenges a tax position and is successful in challenging that position, then there’s an incremental tax liability. An insurance policy will respond by making the taxpayer whole for that tax liability. It would also pay for any interest penalties, costs in defending that position before it’s ultimately settled or decided in favor of the tax authority.
And then there’s a gross up for any tax due on the receipt of insurance proceeds. There’s a policy period typically is seven years. We could structure it for longer if necessary, but typically it covers the entire statute of limitations. It is a claims made policy, meaning that you have to make the claim within the policy term. So you have seven years to make the claim. The claim could be settled in year 20 and you’re still covered. All of that is typically provided for a one-time premium. So the punchline from my perspective is that tax insurance provides taxpayers with financial certainty for position that inherently has risk. It is not a narrow tax tool. It is a broad business solution the way I always say, and it enables multinational corporations partnerships, high net worth individuals, family offices, even non-for-profit corporations, or I should say organizations achieve their business objectives, those objectives that they otherwise would not have been able to achieve because a tax risk would’ve been too high.
So we see tax insurance in a variety of settings. Obviously M&A is the typical one where you have a buyer and a seller who might not necessarily agree on a particular historical position. So whether it’s a diligence issue or a structuring issue, think like spins, reorgs, treaty positions or what have you. But we’re also seeing it more in ordinary course tax planning. So think granted trust or worthless stock deductions. We see trust in estate planning, even immigration. Positions that are currently under audit are also insurable. And then of course, last but not least, transfer pricing, which is the topic we’re here to talk about.
David Farhat (03:27):
And if you can unpack that a little bit, I think for a long time folks saw transfer pricing and they said, how do I ensure transfer pricing? I’ve got risk on several sides, is it even worth it there? We’ve talked about on the show before several times, MAP and APA and other ways to handle transfer pricing risk. Can you talk specifically about tax insurance and transfer pricing? What are you seeing? What are you advising? What’s typical things of that nature?
Yoav Shans (03:51):
Sure. So let me start off by saying that in my mind, transfer pricing is really, really broad. There’s a lot that falls under transfer pricing. It’s not just what is the appropriate price for a particular transfer between related parties across two jurisdictions, treaty positions, substance. There’s a whole host of issues that all fall together with under transfer pricing. You could have one isolated closed transaction, you could have a whole web of transactions on a go forward basis where you would otherwise get an APA. So there’s a vast population of positions that all fall under transfer pricing.
Historically in the tax insurance space, we have seen tax insurance applied more on that narrow side of the spectrum. So whether it was a single historical transaction, think about a transfer of IP among two related parties, but it’s one single transaction. More recently we’ve seen a position... So we actually saw two, three years worth of historical returns and the transfer pricing on those returns be insured. But that was in the M&A context. So you had a buyer who didn’t agree with the targets, a transfer pricing position for historical years. So then that was insured. I think where I would like to focus the rest of this conversation is more on the more broad, on the more complex on let’s not do an APA, let’s get an insurance policy. I think there are a lot of benefits there.
David Farhat (05:13):
Got you. So I want to go back on to something you were talking about. I know we’re going to focus on the broad. I like how you said you look at transfer pricing and it’s not just that pricing piece. There are a lot of elements in that. So it sounds like someone can either ensure the entire transaction or pieces of it. So if I’m looking at my pricing or my pricing plan and I’ve got valuation in there or as you mentioned an IP transfer, I can focus on specific pieces in that if I want to ensure one part of that or I can ensure the full.
Yoav Shans (05:45):
Yeah. That’s exactly right. So it’s a la carte so you could insure a particular issue, you could insure multiple issues, you can insure both sides of that same issue. If one jurisdiction says, “You know what, there’s too much of a deduction in my jurisdiction.” And then the other one could say, “Wait, there’s not enough income.” So you could insure both sides of it or you could insure one. Like I said, every single tax insurance policy is bespoke. We start with a blank page and we start from there. It is not like an auto policy, you pull it off a shelf and that’s it.
Nate Carden (06:14):
Maybe take the listeners through that process. So I’m sitting out there, I hear tax insurance for transfer pricing, that sounds like a good idea. I have this position or this collection of positions. What happens from there? What’s the diligence process, et cetera?
Yoav Shans (06:30):
Sure. So the first thing that you want to do is call a broker such as McGill and Partners. We would be the ones advocating for your position and we’ll first work with you and your advisors to understand the position and not just the support for it, but also what are the risks. We will then prepare what’s called the submission. We will package that risk, the best possible light advocating for the client principally. We’re not going to just try to sneak anything behind any insurer, but we will go out there and we will advocate and we will take the risk to market if you will, and put competitive pressure on a market with about 25, 26 participants or insurance providers to get the best possible terms, the broadest possible coverage for that particular position. There’s no cost, there’s no obligation to sign the policy and like I said, there’s no cost until we move into the underwriting phase.
Stefane Victor (07:21):
Are policies generally restricted to claims in one jurisdiction?
Yoav Shans (07:25):
No. So that’s what I was saying before, you could structure the policy and should structure the policy such that it covers both sides of the transaction. So if it’s too little income in jurisdiction A or too much of a deduction jurisdiction, B, if either of those positions is challenged, there’s a tax cost in either of those jurisdictions and so the policy should cover both sides.
Eman Cuyler (07:48):
Following up on that, you guys usually have standard insurable risks. Can you just discuss what transactions that insurance companies usually recover and have that conversation?
Yoav Shans (08:02):
Sure. So on the one hand of the spectrum, we have tax equity. We’re moving away from transfer pricing for a second, but we have tax equity and now after the Inflation Reduction Act, we have the transferability. So this is taxpayers effectively transferring tax credits that come from investments in renewable energy. Those tax credits either are being sold to third parties or there are partnership transactions that are entered into when party is benefiting from those credits where the other party is really not. That whole industry makes up today 50% if not more of the tax insurance market. Now that number from my perspective, needs to be in the 20% range. So what that means is that there’s a whole host of other tax positions, whether they’re US or non-US or state and local, whether it’s tax-free structuring transactions, whether they’re treaty positions, withholding positions, trust and estate planning, what have you, all of that. There’s just so much more of anything that isn’t tax equity that needs to make up 80% of the market.
David Farhat (09:12):
So let me ask you a quick question around tax insurance. One of the things that has been said about transfer pricing, transfer pricing is a combination of art and science. How does tax insurance deal with some of that nuance in transfer pricing? I think that’s where some folks would get nervous to say, “Can tax insurance really deal with the uncertainty that’s just inherent in transfer pricing?”
Yoav Shans (09:34):
Yeah. So I would say that that subjectivity isn’t only with respect to transfer pricing. I think there are other situations where you have the similar type of, you have to make subjective judgment calls and so that is exactly why tax insurance was created or that is why we have a market for tax insurance. The way that we deal with it is through the underwriting process. So we have an opinion, or I shouldn’t say opinion, we could have an analysis. So whether it’s a memo or transfer pricing report, a diligence report, what have you, it’s a tax analysis at least at a more likely than not level of comfort from an advisor.
And then that analysis as part of underwriting gets checked if you will, someone kicks the tires on it. Another advisor who has expertise within that particular set of rules is kicking the tires on that analysis, making sure that it is complete, that it is accurate, that no rock has been left unturned, that all different considerations were taken into account. So once you have an agreement of the mines with respect to a particular position, that’s when the insurance policy is basically available.
Nate Carden (10:40):
So it makes sense to think about the substantive analysis. Is this transfer pricing position sensible? Are you within the arm’s length range, whatever? To what extent does a particular taxpayer’s audit experience as well as the position of the government and behavior of the relevant government with respect to an issue matter in the underwriting process? In other words, how much of this is the merits and how much of this is the likelihood that the issue is pressed hard?
Yoav Shans (11:12):
That’s a really good question. Well, it’s a combination of all those things. So I have seen insurance companies ask who’s the taxpayer and then their look up into their audit history and whether they were in the news, whether they’re a front page of the journal for one reason or another, they do look at the motivation for why they’re even trying to get tax insurance. Is the transaction being motivated by a business purpose and is supported by economic analysis or are they just saying, listen, we’ll do this if you could get the insurance, if the insurance isn’t there, we’re not doing this transaction. That’s a completely different dynamic. So they do look at all those factors that you mentioned.
David Farhat (11:53):
So moving forward a little bit, so how does the process work once the risk comes to fruition?
Yoav Shans (11:59):
Putting together a claim, there’s a hairline trigger for a claim. So if you just get questioned by a tax authority on any position in your return and that return includes a position that was insured. So if they’re asking you about your interest deductions but you’re covering something else with a policy, even if they’re asking you about something else within the return, that is automatically a claim. So right off the bat you have to make a claim by the terms of the policy, you have to notify the insurer and that effectively stops that seven year clock. So you’re protected by the policy. Should that particular position that was insured ever get challenged, you’re already protected.
The second thing is this is a collaborative process. So an insurer puts its own capital at risk to protect the taxpayer’s position. They’re not there to say, “Go ahead and settle or go ahead and fold,” because they believe in the position. So they’re there to say, “Let’s together fight the tax authority and defend the position that we all believe is the right position.” So obviously two minds are better than one. That’s typically the case. So not only do you have the client and its advisors, you have the insurance company and their advisors working together collaboratively to get the best possible argument to defend the position. I would say this two anecdotes.
First is when I was, I was talking to one of my colleagues and he was telling me a story that one of his clients is undergoing an audit. They picked four different positions that the IRS is going after and they asked if any of those positions is backed by an insurance policy. It just so happens that one of them in fact was insured against. So the IRS just left that one alone. So I think that gets back to what we said earlier. You are not able to get an insurance policy if the position isn’t good, if it’s not a really supportable position. So I think right off the bat, that position was just let go. They stopped asking about it. So the punchline there is that tax insurance actually strengthens the position that is being insured.
David Farhat (14:09):
Let me stop you there for a second, Yoav, if you don’t mind. That’s an interesting position because I would think the government would say, “Okay. Taxpayers insured on this one, they’re not going to fight me as much. They’ll be more likely to give it up.” What’s the-
Nate Carden (14:20):
Have you ever fought with an insurance company?
Yoav Shans (14:23):
Yeah. I would say it’s the exact opposite. So I think there’s two points there. The first is, like I said, it actually strengthens the position. Someone, an unrelated third party with the interests of the insurance company at heart came in, looked at the position and agreed that it is right. But secondly, like you said, Nate, to your point, fighting with an insurance company with deep pockets, maybe the IRS just doesn’t want to do that. Knowing again that the position was taken on by the tax authority because all parties believe this is the right position. So again, that was an anecdote. I do think it speaks volumes to the power of tax insurance, but that’s one. The second one-
Stefane Victor (15:03):
Are you saying that the most conservative positions are those most likely to be insured?
Yoav Shans (15:09):
I think those are the most insurable, I don’t think that they’re the ones that are most likely. So if you have a conservative position, it’s easier to get that insured. Why would anyone not take a premium?
Nate Carden (15:20):
So that’s interesting because it suggests that if I’m thinking about the range of risks that I have, the ones that are probably, if I want to dip my toe in the tax insurance water, the ones that are probably the focus I would think would be ones where there’s high severity. If I lose, it’s a big risk, but I feel really good about it. It’s strong. Nothing certain. More likely than not is not should, should is not will, will is not etched in stone. But when I really look at it, I’m pretty sure I have the right answer. It’s just that losing would be really severe. Is that the right way to prioritize things?
Yoav Shans (15:59):
Yes. I mean that is definitely one situation. I mean of course if again the risk could be low, but the magnitude of the loss is so high to bear, of course that’s one situation. But of course you have situations where again you’re at more likely than not, so you have 49 or 40% risk if you will, and 40% risk is way more than five and still the magnitude is really high. The magnitude of the loss is really high. So it’s not just where the risk is low, but the magnitude is high. You could be high on both fronts and still I think that’s really where you do need insurance more than, let’s call it a spin issue or an S-corp issue. So
David Farhat (16:38):
To piggyback on that and something we see in transfer pricing, especially in this current environment, a transaction that may be more novel. So we’re comfortable with our position, but it’s something the particular government or governments haven’t seen before or something that you’re comfortable with, but a particular government may be a bit more aggressive. So that thing I think fits into Nate’s description as well.
Yoav Shans (17:03):
Correct. I think that’s exactly right. So again, in my experience when I was an advisor, again transfer pricing was one of those situations. That was always a soft target for any tax authority. So when we were doing diligence, we beat up transfer pricing pretty well. So we know that governments are going after transfer pricing, we know that there’s coordinated audits, they’re sharing information with one another, they’re really going after transfer pricing. And this is before we start talking about Pillar One, Pillar Two, and everything else that’s going on. So just getting back to what you were saying earlier, transfer pricing inherently is more an art than a science, therefore it is more soft. So long as you have an analysis supporting the position and you have another party that could agree with that analysis, tax insurance has a big role to play within the transfer pricing world.
Nate Carden (17:54):
What’s the accounting, if you know for when you have an insured position? Maybe it doesn’t matter because typically insured positions are not positions on which companies will have reserves. But I’m just wondering if I have this position out there, maybe I already have a reserve on it, but I would still be more likely than not. I think that there’s some need potentially to settle the thing. Then I come to you, you place a policy for me, now I have insurance. What happens from a financial statement standpoint?
Yoav Shans (18:26):
Yeah. So there’s nothing to say that you could get the reserve off your books. I think you still have to have the reserve. I think there’s some limited situations then the business combination space maybe, and I defer to your accountants in the business combination space, you might be able to not record the reserve. But I advise my clients the liability is to a tax authority, the receivable, which is a contingent receivable because again, there are conditions in the policy that you have to meet, that is from a different party that’s from the insured. So you would record your reserve, your contingent liability, you may record or contingent asset on a net basis. They mitigate each other, but there’s nothing to say that you get to take the reserve off your books. I think importantly, and this is interesting, when the insurance policy pays out in that year, you actually got an EBITDA benefit because it’s an above the line other income where-
Nate Carden (19:18):
Yeah. That’s what I was there thinking too. Exactly. So the balance sheet geography might work in your favor.
David Farhat (19:25):
Interesting. Pivoting a little bit to something you said earlier around treaties, APAs and tax insurance. Looking at tax insurance as a substitute for APA, hurts my heart to even say that. As much as I love the confident authority process.
Nate Carden (19:42):
I knew you were going to be hurt by that. Let him say his piece.
David Farhat (19:47):
I know I want to let him say his piece on it to see if it makes sense. I believe everything, even if it’s domestic, should have an APA slapped on it.
Yoav Shans (19:58):
So let’s think about it. Let’s go back to the point that I was making before. Tax insurance should be thought of not as a narrow tax thing from a tax perspective, it’s really broad, it’s a business issue. So we want to have certainty. One way to get certainty is through an APA. We are going to go in and negotiate with a tax authority or multiple tax authorities and say, “This is what we want to do for the next however many years. Give us certainty.” Now the downside there is that you’re going to do a lot of work. You’re going to give all that work and volunteer all that information to a tax authority to start negotiating. So you have no control where you’re going to end up. And even when you get that APA, I don’t think, and you correct me if I’m wrong, but I don’t think that you’re fully shielded from controversy later when 2, 3, 4 years later. So the tax authority could still come after you. So what I’m suggesting is do the same amount of work. Engage David Farhat to do your transfer pricing work.
David Farhat (21:01):
I like that part.
Yoav Shans (21:03):
So we’re still doing the same amount of work, but then instead of giving it to a tax authority, we’re giving it to one of your peers who would corroborate all the work that you did. And then essentially if a tax authority comes, great, you’re protected. And if they don’t come also great because they’re not knocking on your door. But the point is, if they do come knocking on your door, you’re protected by an insurance policy that will make you whole for interest, for penalties, for contest costs and for gross up. So talking, I was saying before, I had two anecdotes.
The second one was I was talking with one of the insurance companies about a claim that they recently had. I’m sure you’re going to ask this. Who controls an audit? The taxpayer controls the audit. An insurance company does not want to step into the shoes of a taxpayer. They’re not in the business of managing tax audits. They want the taxpayer to leverage its existing relationship with tax agents and let the taxpayer run the day-to-day. But of course it’s their capital on the line. So they want to be appraised of the process. When are you having calls? What information is being exchanged back and forth? They want to have input with respect to that.
So a lot of times, and this particular situation that I was referring to, the taxpayer prepared a response to the tax authority. They shared that response with the insurer because they had to. The insurer looked at the response that was prepared and now I don’t advocate that anyone do this, but it seemed like it was very quick and dirty, if you will. They didn’t put a lot of thought and effort and so that the insurance company with their advisors basically started from scratch, put together a completely different response that was much more robust, much more organized, framed the response better, that went over to the tax authority and the tax authority just went away. So the process having not just the taxpayer and its advisors, but also the insurance company and the insurance company’s advisors together against the tax authority actually works.
David Farhat (23:09):
That’s very interesting and I appreciate you putting it that way. And say for instance, I have a transaction and in jurisdiction A, but I do the transaction with jurisdiction B through F. F may be material but not as material as B, or I may not have a treaty in jurisdiction F. There could be several different reasons. I don’t want to do an APA with jurisdiction C forward, but I want to do an APA with jurisdiction B. Can I use tax insurance in a way where I negotiate an APA with jurisdiction B and then I get this protected further and would I have to wait until the APA is over or can I do it ahead of time? Something like that.
Yoav Shans (23:50):
That’s a really good question. To be honest with you, I think it ought to be possible. I think it hasn’t been done before. If you have a client, please let’s work on it together. But in all seriousness, it hasn’t been done before. But that’s not to say that it can’t be done. We’re all starting with a blank sheet of paper. We could structure this risk change for any way we want. We’re starting with a blank sheet of paper. I don’t see why that wouldn’t be the case. Of course, there ought to be some protections built in for the insurer.
So earlier on the call we talked about protecting both sides of a particular transaction. Obviously jurisdiction F and jurisdiction A, that transaction, you might not get the A side coverage if A is in an APA with B and C. So I think there’s some things to talk through, but there are a lot of very, very, very smart people here on the insurance front. Very really smart tax practitioners. They’re very well advised. I think that we’re very, very flexible and we ought to be able to come up with a solution for a situation such as what you just described.
Nate Carden (25:01):
I always get scared when people say, “Don’t do APAs.” It makes me nervous.
Yoav Shans (25:08):
Again, I just think from a practical perspective, it’s going to take you two years or three years and it does not give you the certainty that in my mind, an insurance policy does provide you with.
Eman Cuyler (25:19):
Earlier in the call you said that you usually see tax insurance for standard M&A deals, for example, like rep warranty, that stuff. So focusing specifically on transfer pricing, how many of these do you see say in a year? How common is it?
Yoav Shans (25:34):
It is not, but we all are waiting for the flood gates to open on transfer pricing. So it’s not common, but it hasn’t been-
Eman Cuyler (25:43):
Have you seen any?
Yoav Shans (25:44):
We have seen a couple. So like I said, we’ve seen that one that was historical in the M&A context, we’ve seen the one that was an IP transfer, I think 3/11 being in valuation, it was a distribution of IP from one jurisdiction to the other. So we’ve seen a couple of those, but it just comes up so often. And like I said, there’s practices now being built for this particular solution helping not just the insurance company but also the taxpayers. So it’s not just me saying this, it’s a whole lot of other people saying that this is going to be the future of tax insurance and of transfer pricing.
Nate Carden (26:18):
There are future positions insurable. David’s talking about an APA, that can potentially involve things that are going on today but also will take into account one way or the other with conditions changes in business operations. Can an insurance policy deal with that?
Yoav Shans (26:37):
Yes, I think it can. Absolutely. We’ve talked about it and theoretically the way that it will work is we’re talking about the future. So transactions that have not closed yet and who knows what’s going to happen, how market conditions are going to change in the future. Maybe there’s a natural disaster, maybe there’s a war, maybe there’s a new technology or some health issue. We all know the one that comes to mind that changes the market dynamics. So the way that it will work is we all agree on what the market dynamics are today and so we know where the dumpy functions are. We know who owns what, we know where the risks are and so on and so forth as of today. So we’re able to ensure this fact pattern.
Should the fact pattern change, we have to adopt and refine our transfer pricing analysis as you have to do anyway. Every year, you have to revisit your transfer pricing and make sure that it’s accurate. So the way that it would work is you would refine your transfer pricing or if you don’t need to, if nothing has changed, you don’t need to refine your transfer pricing. But at the end of the year you basically confirm with the insurance company and get their buy-in that either the changes that you made are appropriate or that no changes needed to be made. So long as you have that insurance, if a tax authority comes in to challenge the transfer pricing for a particular year, you’d still be covered.
Nate Carden (28:02):
Effectively, it acts like a pre-audit. You have a knowledgeable person helping you to steer the ship as you’re going along.
Yoav Shans (28:12):
It’s a pre-audit though it is much more streamlined, much more efficient. It’s not going to take three or four years. And also, like I said, you’re not volunteering everything to a tax authority. So there’s some things that are not necessarily relevant, but the government can ask you about whatever they want.
David Farhat (28:33):
Related question and harken them back to something you said bringing in BEPS 2.0 with Pillar One and Pillar Two. How does tax insurance deal with rule changes?
Yoav Shans (28:42):
So excellent question. Rule changes, so long as they are prospective, they are not going to be covered. If they are retroactive, so it’s a future change in law that is retroactive and therefore it impacts a position that you had already taken and that was insured, then you’re covered. So 15 year amortization for intangibles. In year six if the law changes and they say, “From now on amortization deductions are no longer deductible or should say amortization of IP is no longer deductible,” so year six through 15 you’re not getting covered for those lost deductions. If in year six they say, “From year five and forward the deductions are no longer valid,” you still get coverage for that year five because it’s retroactive to that prior year.
David Farhat (29:36):
So how do you see the BEPS 2.0 impacting the desire for transfer pricing insurance? Because I think transfer price certainty is going to be so much more important with Pillar One and Pillar Two because they sit on top of transfer pricing. So while it may be a rare bird now, I think it makes a whole heck of a lot more sense going forward.
Yoav Shans (29:58):
Yeah, I think not just because of BEPS 2.0, not just transfer pricing. We have seen tax insurance and the appetite for tax insurance, the prevalence of tax insurance, forget the awareness, like actual tax insurance policies become much more frequent, much more varied. The Inflation Reduction Act came into play, supercharged tax credits and provided for transferability. So we are seeing a big uptick in tax insurance policies in the renewable energy space. But everyone is anticipating once M&A volumes go back up. And again, as people fully digest and understand tax insurance, understand that it’s not taboo, understand how it works and that all that skepticism goes away, renewable energy is going to make up, call it 20% of the market. Everything else is going to be the remainder, that 80%. And a big chunk of that is going to be transfer pricing. And then you add on top of that, like you said, Pillar Two, it’s going to be even more. So
Nate Carden (30:57):
Do you think that growth is going to be on the day-to-day transfer pricing side or is it going to be in connection with corporate transactions? I’m big co. We’re buying a target. They were small. Maybe they’re compliance was so-so, I think ultimately their position’s okay, but I’m worried about it, so I insure it in connection with buying it or I tell them to go buy one prior to acquisition. Where’s the juice?
Yoav Shans (31:25):
That’s a really good question. Most of my practice has been in much larger prospective structuring issue rather than a historical diligence issue that in the context of the deal is kind of, it’s a $100 million deal. You have a $10 million issue or you have a billion dollar deal, you have a $100 million issue. We do and have done more of those larger issues. So my perspective I think is going to be skewed here, but I think both.
David Farhat (31:51):
This has been an amazing conversation. We’ve gone through quite a bit talking about transfer pricing and tax insurance. We’ve had a little bit of fun. Any last thoughts wrapping this up?
Yoav Shans (32:03):
Yes. I know we talked a lot about transfer pricing. My last point here is think about tax insurance, whether it’s transfer pricing or anything else, think about how to use it prospectively. I think that’s how you squeeze the most juice out of tax insurance. So pick up the phone, give us a call, talk to your broker, figure out if something’s insurable or not. There’s no reason why a position or a transaction or some planning opportunity should go by the wayside because there’s tax risk. So we’ve done, for example, we’ve been part of several situations where whether it was a planning opportunity or an M&A transaction that had a significant amount of tax risk. So when you’re considering commercial and legal and all the other considerations, financial, what have you, when you’re considering tax, it’s typically just the risk. What’s the downside?
If you take that downside off the table with an insurance policy, I think you’re able to make a more informed, better business decision. So thinking about a transaction, an upcoming transaction, an upcoming tax opportunity, you don’t need the opinion or the step plan or the memo or what have you don’t need that other party, you really don’t need anything. You are able to go to the insurance market, present them with the risk, get indicative terms, and with those indicative terms, you’re able to make a better business decision about that future objective that you want to achieve. So use tax insurance proactively. That would be my last comment here.
Nate Carden (33:40):
Don’t drive looking in the rear view mirror. Good advice.
Yoav Shans (33:44):
There you go. I’m going to write that one down.
David Farhat (33:46): Well, thanks very much, Yoav. This has been a pleasure. We’ve enjoyed having you in this. As usual has been a lot of fun and all this is, GILTI Conscience. Thank you for listening.
Thank you for joining us for today’s episode of GILTI Conscience. 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.