Profit shifting and tax arbitrage are only possible because countries
rely on a sovereignty-preserving approach to international taxation. Only because every government is free to design its own rules of national taxation
can some letterbox company in a tax haven be treated as an independent
entity for which the government is free to levy a national tax
rate of zero. In addition, many of the techniques of tax avoidance rely
directly on the legal constructs laid down in the regime. The manipulation
of transfer prices under the ALS is an example. The application of the
ALS is difficult and gives firms the opportunity tominimize taxes, because
comparable, uncontrolled prices, agreed on by independent market participants,
are often hard to find. This problem is particularly pronounced
in the case of intangible assets. Ironically, MNEs exist because of the absence
or imperfections of an arm’s length market, yet the ALS is used to
determine transfer prices for tax purposes (Eden, 1998: 565). If different
branches of one company are treated as if they were separate entities,
then there is a natural incentive for MNEs to use this leeway. While the
rules deny the ‘unity of the subject’, the real subjects remain whole and
‘take advantage of the fiction of their fragmentation’ (Palan, 2003: 105,
108).