Brian Wainwright • Robert S. Logan
The Protecting Americans from Tax Hikes Act of 2015 (the “PATH Act,” Division Q of the Consolidated Appropriations Act, 2016, P.L. 114-113, enacted December 18, 2015) made some important changes to the U.S. federal income tax treatment of U.S. real estate investments by non-U.S. persons under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”).
Increased Withholding
Happy new year, outsourcing industry!
In our last post, we posited that the new year brings an opportunity for a fresh start in structuring fundamental aspects of an outsourcing transaction. We pointed to the following mechanisms used to restrict a customer from an early exit from an IT outsourcing deal as being outdated, having originally been designed to protect a supplier’s significant capital investment in outsourcing deal, which has all but disappeared in today’s typical deals:
The advent of the new year provides an opportunity to contemplate a fresh start — and that’s just what is needed when it comes to structuring the fundamentals of an IT outsourcing transaction.
Early IT outsourcing transactions typically involved significant capital investments by suppliers, who would often purchase the customer’s existing assets and promise to deliver services inclusive of refreshed assets at defined refresh cycles. These “asset-heavy” transactions often included mechanisms to either prevent the customer from exiting early, or to compensate the supplier for significant unamortized capital investment where the customer terminated services early. Examples of these “exit-restricting” mechanisms are:
Of Silk and Services
As I listened to my wife, a custom wedding dress designer, talk a hysterical bride off the cliff this past weekend, I realized the conversation sounded eerily familiar. My wife was certain that the completed dress in front of them was exactly what had been ordered and she had emails, sketches and photos to prove it. The bride knew exactly what dress she had ordered, and this wasn’t it. She also had a set of texts, emails, and photos to support her expectation.
Sound familiar? This was nothing more than a failure to document a services solution. How can a “bride” to an outsourcing engagement avoid the same disaster?
In the first installment of this post, I posited that one factor contributing to disappointing results following a merger or acquisition is the flawed perception that transition services are not that important. I noted that this mindset may dilute the effectiveness of the post-deal enterprise(s) and result in unanticipated and unmitigated risks, lost or reduced revenues and/or interruptions of key business operations.
Let’s assume that you are sold on the importance of transition services. Even when transition is given appropriate attention, companies often suffer the perils of misguided implementation of the transition service regime, which may include:
This installment focuses on how best to avoid these issues by adhering to a practical set of informed best practices.
Transition Services “Value Imperative”
Although there is no single “right way” to devise and execute a transition services strategy, there is one guiding principle that should drive any transition service regime. For the sake of discussion, I’ll call it the “value imperative,” which should advance three primary objectives:
Put another way, the transition services should, at a minimum, “do no harm” to the value proposition being pursued, recognizing that the mechanisms for achieving this goal may differ depending on whether you are the seller or buyer (the recipient or provider of the transition services).
Implementing an effective transition services regime is as much about process as it is about substance. In this installment I explore the key attributes of an effective transition services process from the perspectives of both the provider and the recipient of these services.
The Court of Justice of the European Union (CJEU) has been very busy in recent weeks re-shaping EU privacy laws. In addition to the much-anticipated decision in “Schrems” (Case C-362/14), which essentially rules the US-EU Safe Harbor invalid, the CJEU has also considered the key issue of “establishment” in another landmark case, namely “Weltimmo” (Case C-230/14).
In particular, it has ruled that businesses with only very minimal operations in an EU Member State can nevertheless be subject to the data protection laws of that Member State, where they process personal data in the context of activities directed towards that Member State. This effectively widens the scope of “establishment” and creates additional headaches for those with European operations.
The action point for companies with a European footprint is therefore to review their European processing activities, re-think where they might be established and look to comply with local laws in those jurisdictions. Status quo is not an option for those who wish to avoid enforcement action in “foreign” jurisdictions they previously thought they could ignore.
Yesterday was a big day for the Court of Justice of the European Union! The fifteen-year-old regime governing EU-U.S. data transfers has been struck down. Specifically, the CJEU declared invalid the safe harbour framework (the “Safe Harbor Framework” or the “Framework”) that thousands of U.S. companies have relied upon to facilitate data transfers from the EU to the United States. To read the entire article published by our Pillsbury London and U.S. teams click here.
Global Sourcing attorney Sarah Atkinson, who are based in Pillsbury’s London office, have recently published the article, The payment services market under the eye of the regulator , in Banking Technology. The article considers criticisms of the payment services industry and how the new Payment Services Regulator is hoping to address these. In particular, they consider the issue of technical barriers (including technology barriers) and how these currently inhibit direct access to payment systems. To read the full article on the Banking Technology website click here.
These days it seems every supplier’s infrastructure pitch book is full of the virtues and potential benefits of their drive toward automation, the objective being to get the same work done for less. What’s not clear is whether the supplier will actually be able to achieve what they promise or how to allocate the benefits between buyer and seller.
The same for less is a well-travelled road; the same goal drove moving work to less expensive delivery locations over the last couple of decades. Along the way some algorithmic alchemy created an acceptable balance among costs, margins, prices and benefit to the buyer. While the arithmetic to ensure the benefits were reasonably distributed amongst buyers and sellers could be complex, the factors of production to drive economic verification models were pretty well known, or at least could be with a bit of research. Underlying it all was a basic assumption, that an FTE was an FTE, and many buyers used the number of proposed FTEs to validate a suppliers’ ability to actually perform the work.
Automation changes all that. Is an FTE still an FTE, or is an automation assisted FTE a 125% of an historical FTE or maybe it is 150%, or maybe even more? What if there is no FTE at all just some robotics doing what an FTE used to do? Since an automaton is likely to make fewer mistakes than a human FTE, and will do those error-reduced tasks faster than the human FTE, the promise of better and faster and cheaper seems attainable.
This blog is the second part of a two-part series on key contracting issues with technology service providers, and the focus is specifically geared toward companies doing business in the real estate industry.
As noted in Part 1, technology has infused every sector of society, and the real estate business is no different. Firms running large, complex real estate projects typically do not have the core competency to design, develop, implement, host, and/or maintain the technology applications and systems to run these innovative ideas, which is why these firms typically partner with third party technology service providers to design, develop, and implement their technology needs.
Entering into these partnerships with third party technology providers can come with risk and requires a contracting strategy. In Part 1, I discussed the issues of pricing and service performance. In this Part 2 below, I discuss data protection, infringement, and insurance.
