Einde inhoudsopgave
Treaty Application for Companies in a Group (FM nr. 178) 2022/2.2.2
2.2.2 General aspects of the theory of the firm
L.C. van Hulten, datum 06-07-2022
- Datum
06-07-2022
- Auteur
L.C. van Hulten
- JCDI
JCDI:ADS657731:1
- Vakgebied(en)
Europees belastingrecht / Richtlijnen EU
Vennootschapsbelasting / Fiscale eenheid
Internationaal belastingrecht / Belastingverdragen
Vennootschapsbelasting / Belastingplichtige
Voetnoten
Voetnoten
For example, by purchasing products jointly within a group, a cost saving can be achieved.
R.H. Coase, ‘The Nature of the Firm’, Economica 1987, vol. 4, no. 16, p. 386-405. Both in economic literature (recently in, e.g., A.A. Singer, Form of the Firm: A Normative Political Theory of the Corporation, Oxford: Oxford University Press 2018 and J. Kay, ‘Theories of the firm’, International Journal of the Economics of Business, 2018, vol. 25, no. 1) as well as tax literature (e.g., R.J. Vann, ‘Taxing International Business Income: Hard-Boiled Wonderland and the End of the World’, World Tax Journal 2010, vol. 2, no. 3, par. 1, W. Schön, ‘International Tax Coordination for a Second-Best World (Part III)’, World Tax Journal 2010, vol. 2, no. 3, par. 4.7.1, R.J.S. Tavares, ‘Multinational Firm Theory and International Tax Law: Seeking Coherence’, World Tax Journal 2016, vol. 8, no. 2, par. 1 and M.F. de Wilde, ‘Sharing the Pie’; Taxing Multinationals in a global market, Amsterdam: IBFD 2017, par. 4.2.1) this theory is often cited. For completeness, Coase’s article responds to an earlier theory of the firm by Knight (F.H. Knight, Risk, Uncertainty and profit, Boston and New York: Houghton Mifflin Company1921).
R.H. Coase, ‘The Nature of the Firm’, Economica 1987, vol. 4, no. 16, p. 389.
R.H. Coase, ‘The Nature of the Firm’, Economica 1987, vol. 4, no. 16, p. 390.
Those transaction costs consist of, e.g., search and information costs, bargaining costs and costs related to keeping trade secrets.
E.g., bargaining costs can be reduced via internal allocation and pricing systems, as well as managerial decision making (D.F. Spulber, The Theory of the Firm: Microeconomics with Endogenous Entrepreneurs, Firms, Markets, and Organizations, New York: Cambridge University Press 2009, par. 2.3.3). If activities take place within a firm, instead of between independent entities, there is no longer a conflicting of interest between the entities involved (J.T. van Egdom, Verrekenprijzen; de verdeling van de winst van een multinational (Fiscale monografieën, nr. 115), Deventer: Wolters Kluwer 2020, par. 3.2).
R.H. Coase, ‘The Nature of the Firm’, Economica 1987, vol. 4, no. 16, p. 395.
E.g., O.E. Williamson, ‘Transaction-Cost Economics: The Governance of Contractual Relations’, Journal of Law and Economics 1979, vol. 22, no. 2, p. 233.
J. van der Meer-Kooistra, ‘A Model for Making Qualitative Transfer Pricing Adjustments’, International Transfer Pricing Journal 2004, vol. 11, no. 5, par. 2.
The theory of the firm as explained by Coase falls within the ‘classical’ firm theories. In those theories the firm has a production function, which is personified by an entrepreneur. There are various other theories of the firm. See, e.g., Gibbons who distinguishes four variants (R. Gibbons, ‘Four formal(izable) theories of the firm?’, Journal of Economic Behavior & Organization 2015, vol. 58, no. 2). Mäntysaari distinguishes, next to the classical theory, the institutional and resource-based theory of the firm (P. Mäntysaari, Organising the firm: theories of commercial law, corporate governance and corporate law, Dordrecht: Springer 2012, par. 2.1). According to the institutional theory of the firm, the firm is autonomous in relation to its members (see, e.g., A. Styhre, The Institutional Theory of the Firm, New York: Routledge 2020). The resource-based theory views a firm mainly as a collection of capabilities (e.g., E.T. Penrose, The Theory of the Growth of the Firm, Oxford: Oxford University Press 1959). Those theories will not be discussed further.
P. Mäntysaari, Organising the firm: theories of commercial law, corporate governance and corporate law, Dordrecht: Springer 2012, par. 2.2.
E.g., R.S. Avi-Yonah, ‘Between Formulary Apportionment and the OECD Guidelines: A Proposal for Reconciliation’, World Tax Journal 2010, vol. 2, no. 1, par. 2 and K. Sadiq, ‘Unitary taxation – The Case for Global Formulary Apportionment’, Bulletin for International Taxation 2001, vol. 55, no. 7, par. 2.
Additionally, a firm has, inter alia, longevity: it is not restricted by the finite lifetimes of its owners. Moreover, the firm has a name (brand) and reputation that is known to its customers, partners, suppliers and investors (D.F. Spulber, The Theory of the Firm: Microeconomics with Endogenous Entrepreneurs, Firms, Markets, and Organizations, New York: Cambridge University Press 2009, par. 2.1.6-2.1.7). Another reason companies in a group and independent entities are not equal is the fact that certain restrictive covenants could be agreed upon between group companies, while similar covenants would not be agreed upon between unrelated entities.
M.F. de Wilde, ‘Sharing the Pie’; Taxing Multinationals in a global market, Amsterdam: IBFD 2017, par. 4.2.2.
Group companies and independent entities are not equal. Group companies can benefit from synergy benefits, resulting in lower transaction costs within a group.1 This widely known theory of the firm is based on an article written by Coase.2 In this article, Coase aims to fill the gap in economic theory between the assumption that resources are allocated by the price mechanism and the assumption that this allocation depends upon entrepreneur co-ordination.3 In essence, the author aims to answer the question: why are some activities directed by market forces, while others are directed by firms? As there is a cost of using markets (i.e., the price mechanism), it may be more profitable to establish a firm.4 Costs of using markets are for example related to negotiation and concluding a separate contract for each transaction.5 If activities are carried on in a coordinated manner, transaction costs can be reduced.6 Firms are thus in essence a response to the high costs of using markets.
If firms can lead to a cost reduction, the question arises why there are market transactions to start with; why does not all production take place within one big firm? If firms get bigger, the costs of organizing additional intra-firm activities may rise. Additionally, a bigger firm might fail to use the production factors in the best possible manner. The supply price of production factors may rise, as ‘other advantages’ of a small firm exceed the advantages of a large firm.7 In other words, the benefits from economies of scale can be outweighed by the additional costs of bureaucracy. The optimal size of a firm is therefore determined by the most favourable combination of productivity and transaction costs.
Transaction cost economics8 stipulates that the level of transaction costs is influenced by three dimensions: (1) the degree of asset specificity, (2) the degree of uncertainty, and (3) the volume and frequency of transactions. Asset specificity concerns investments made specially for the transactions under review. The degree of uncertainty includes the extent to which the parties can foresee the future and the effect of the future on the relevant transactions. The volume and frequency of transactions is an indicator for how close the connection between the transacting parties is. If the degree of asset specificity, the degree of uncertainty, and the volume and frequency of the transactions are all high, the transactions will more likely take place within the firm.9
The main underlying assumption of the theory of the firm by Coase10 is that it is often more efficient to organize production within the firm, than through contracts with independent parties.11 The existence of multinational groups can thus be explained by the internalization theory: multinational companies can gain efficiency from economic integration.12 Profit is generated partially via internalizing transactions within the firm. The firm is seen as a single economic unit. Because multinational firms organize their global business activities in an integrated manner, they are able to produce above-normal investment returns.13 These ‘additional’ returns are referred to as economic rents: the additional investment return compared to the normal return on the production factors labour and capital.14