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Published byKyleigh Mustain Modified over 9 years ago
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Squeezing IP commercialization strategies within the tax and excon framework Anthony van Zantwijk (BSc (Civil) Eng, LLB, LLM (Tax), Patent attorney)
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TransactionExcon Outgoing licence Even if not at market-value Intermediary licensee Incoming licence?Only for payment of royalties Software development?Evaluation Assign ZA IP Assign foreign IP NDA R&D?If assigning / sharing IP
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Assignment?
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TransactionTax Outgoing licenceRelationship Incoming licenceRelationship Origin of IP Economic ownership License fee (25yr)) Withholdings tax VAT Domestic licenceExclusivity premium DevelopmentR&D tax incentive Assign IPForeign: Relationship Domestic: know-how, TM
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Questionable clauses Licensee assigns improvements Licencee will not challenge validity of IP Licensor carves-up territories within the EC Royalty is net of withholdings tax Licence restricts use in non-patented territories
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Combine supply with licence
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Substance Perpetual, exclusive licence for license fee Assignment with revision clauses
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Funding Composite transaction Value of an interest free loan repayable out of profits? Value of the shares received by the inventor?
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Para (g(iii)) GI Defn Gross Income means, g) any amount received or accrued from another person, as premium or like consideration-- … iii) for the use or right of use of any patent, design, trade mark, copyright, model, pattern, plan, formula or process or any other property or right of a similar nature;
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Funding Can the shares be valued? Is funder receiving value for his loan? (income) Is the transfer of IP a CGT trigger?
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Withholdings tax (CFC?)
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CFC Where does further (regular and direct) development occur? Software royalties?
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