THE SUPREME COURT'S JUDGEMENT
ruled Wednesday on 6. September 2023
Case BS-15265/2022-HJR
(1st section)
Ministry of Taxation (attorney Steffen Sværke)
mod
A.P. Møller - Mærsk A/S (attorney Jakob Krogsøe)
and
Case BS-16812/2022-HJR
(1st section)
Ministry of Taxation (attorney Steffen Sværke)
mod
TotalEnergies EP Denmark A/S (attorney Jakob Krogsøe)
In previous instance is given judgement by Østre Landsrets 22. section on 28. March 2022.
The judgement has participated five judges: Hanne Schmidt, Lars Hjortnæs, Lars Apostoli, Jørgen Steen Sørensen and Peter Mørk Thomsen.
Claims
The appellant, the Ministry of Taxation, has claimed against the respondent, A.P. Møller - Mærsk A/S, that A.P. Møller - Mærsk must recognise that the company's joint taxation income for the income years 2006-2008 is increased by DKK 506,431,000, DKK 327,562,000 and DKK 468,185,000 respectively. The Danish Ministry of Taxation has further claimed that A.P. Moller - Maersk must pay DKK 3,004,000 to the Danish Ministry of Taxation with interest from 21 April 2022.
Against for A.P. Møller - Maersk's alternative claim, 2nd indent, the Ministry of Taxation has claimed rejection, alternatively acquittal.
Against the respondent, TotalEnergies EP Danmark A/S, the Danish Ministry of Taxation has claimed that that TotalEnergies EP Denmark must recognise that the company's taxable income for the income years 2006-2008 is increased by DKK 506,431,000 DKK, 327.562,000 DKK and DKK 468,185,000 The Danish Ministry of Taxation has furthermore claimed that that TotalEnergies EP Denmark shall pay DKK 3,004,000 to the Danish Ministry of Taxation with interest from 21 April 2022.
The claims for payment against for both defendants concerns reimbursement of legal costs before the High Court.
A.P. Møller - Maersk and TotalEnergies EP Denmark have claimed acquittal or, in the alternative, confirmation. A.P. Moller - Maersk has, as the second part of its alternative claim , alleged that the employment of A.P. Moller - Maersk's A.P. Møller - Maersk's corporate taxable income, calculated in accordance with Chapter 2 of the Danish Hydrocarbon Tax Act, and hydrocarbon taxable income, calculated in accordance with Chapter 3 A of the Danish Hydrocarbon Tax Act, is remitted for reconsideration by the Danish Tax Administration.
Supplementary case presentation
The Ministry of Taxation has submitted to the Supreme Court a benchmark report of 29 August 2022, which contains a database study of royalty rates and licence fees in the oil and gas industry.
The report states among other things, that The Tax Agency on the basis of the database study concludes that the market royalty rate between independent parties for as far as concerns "gross sales" is minimum 2 %, that the median is 7.5 %, and that the maximum is 10 %.
Supplementary legal basis
The legislative history of the current section 3 B of the Tax Control Act, which is referred to in the High Court's judgement, states, in addition to what is reproduced in the judgement on the OECD guidelines , (Folketingstidende 1997-98, 2. saml., supplement A, bill no. L 84, p. 1901 ff:)
"Chapter I - Arm's length principle:
...
In transactions between two independent parties, the financial compensation will usually reflect the functions that each party undertakes, including what assets, assets are inserted and what risks are assumed. The functional analysis assesses how tasks and risks are distributed between the parties, i.e. it examines who of the parties performs the various functions such as design, production, assembly, research and development. design, production, assembly, research and development, service and warranty, purchasing, distribution, advertising and marketing, transport, financing and management. The comparability test must be carried out regardless of the method used for pricing.
The arm's length principle should ideally be applied to individual transactions. However, these individual transactions may be so closely related that they must be assessed together. If an agreement is concluded as a package that includes payment for the use of a patent, know-how, trademarks, etc. it may be necessary to unbundle it in order to assess the individual transactions. In such cases, however, a final overall assessment of whether the package is entered into on arm's length terms.
Transfer pricing is not an exact science and the application of the most appropriate method or methods may lead to the determination of a range of arm's length prices. Thus, the arm's length price is not a single price, and therefore a range of prices should be accepted, to which no correction should be made. However, if the price falls outside this price range, a correction of the pricing should be made to the point in the range that best reflects the conditions of the transaction.
...
Chapter II and III - Traditional transaction-based methods and other methods (profit-based methods)
Chapters II and III review methods that tax authorities and taxpayers are recommended to apply in determining whether the terms of commercial or financial transactions are in accordance with the arm's length principle.
Chapter II describes the so-called "traditional transaction-based methods". These methods are the free market price method (CUP method), the resale price method and the cost plus margin method.
The free market price method compares the price of goods and services with the price of similar goods or services, transferred between independent parties. For this comparison, it is necessary primarily to examine whether there are products that are sufficiently comparable. If this is not the case, adjustments must be made as far as possible to eliminate the existing differences. In addition, a number of other factors that may affect prices must be taken into account.
...
The free market price method is the most direct method and should be used in all cases where sufficiently comparable products are available. However, it is not always possible to find sufficiently comparable products, so it may be necessary to use one of the following methods.
The resale price method begins by determining the price at which a product, purchased from a related company, is resold to an independent company. This resale price is then reduced by a reasonable gross margin. After deduction of this , the remaining amount can be considered an arm's length price for the original transfer of the product.
...
The cost plus method is based on the costs that an entity incurs in connection with assets or services transferred or rendered to a related entity. This amount is grossed up by a reasonable gross margin (e.g. may be equal to the gross profit on sales to unrelated parties).
...
However, the complexity of the business world may mean that traditional methods cannot be used alone or, in exceptional cases, cannot be used at all. For example, there may be a highly integrated group that produces one or more unique products. In these cases, it may be very difficult or impossible to obtain external material that can be used as a basis for a comparability analysis.
For these situations, Chapter III sets out other methods that may be used as an approximation to arm's length conditions. These methods are referred to as "transactional profit methods", i.e. methods that examine the profits obtained by special transactions between related enterprises. According to the OECD guidelines, the only profit methods that fulfil the arm's length principle are those that comply with the "profit split method" and the "transactional net profit method".
The profit split method first identifies the total net profit to be allocated between related entities that arises from their internal transactions. Then allocates the profit between the related entities based on an analysis of the functions contributed by each entity. In determining the value of the functions performed, comparisons with similar functions performed by independentcompanies shall be made as far as possible.
The transactional net profit method examines the net profit that a company realises from an internal transaction. Ideally, the net profit realised by the company should be determined by comparing it to the net profit realised by the company in similar transactions with independent companies. Where this is not possible, the net profit of an unrelated entity in a comparable transaction may be used as guidance. It is stated that reliable comparative analyses are often difficult to make under this method.
The guidelines conclude that these two methods, the profit allocation method and the transactional net profit method, should only be used as "a last resort". So far, only a few countries have experience with the mark-up methods, so it is intended that the use of the different methods will be monitored by the OECD in the coming years.
The in the guidelines methods listed in the guidelines are not exhaustive. Other methods may also be applicable according to the guidelines, but only if they comply with the arm's length principle.
However, the Guidelines reject the application of the Global Formulary Apportionment as it is not considered to be in accordance with the arm's length principle. According to this method, the profits of a group of companies are allocated between the related companies in the different countries according to a predetermined and fixed formula."
From the tax authorities' guidance of 6. February 2006 on transfer pricing, controlled transactions and documentation requirements states, among other things:
"5.2.1 Identification of the taxpayer's controlled transactions
Controlled transactions are all relationships between the related parties, i.e. between related companies etc. and between head office and permanent establishments. This applies regardless of whether or not payment has been made or not.
...
Transactions that will be included as a part of the company's income statement:
-purchase/sale/transfer of goods and other current assets
-income and expenses from services, including management fees, and allocated costs
-rental and leasing income and expenses
-income and expenses (royalties, licences etc.) regarding intangible assets
-funding income and -expenses
...
5.2.2. Aggregation of transactions (§ 5, paragraph 2)
The pricing methodologies recommended by OECD pricing methodologies recommended by OECD are based on the fact that the transfer prices must be priced at the transaction level. With reference to this, the controlled transactions must also be described at transaction level.
However, this does not mean that each of the company's controlled transactions in during of a documentation period must be described and priced individually. It follows from section 5(2) of the Executive Order that similar transactions may be described as a whole (aggregated). It must be stated in the documentation which transactions are aggregated, and the aggregation should be justified.
The delimitation of which transactions can be described together is fluid and involves a concrete assessment.
...
OECD guidelines paragraphs 1.42 - 1.44 deal with the evaluation of separate and combined transactions. Paragraph 1.42 begins by stating that the arm's length assessment should ideally be made on a transaction-by-transaction basis. However, it goes on to recognise that transactions may be so closely related or continuous in their exchange that it is not appropriate to assess them separately. A number of examples are provided, including:
- Long-term contracts for the supply of raw materials and services
- Rights to utilise intangible assets
- Pricing of closely related products when it is impractical/difficult to price each individual product or transaction.
- Licence for production know-how and supply of vital components to connected manufacturer"
The OECD's Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations from July 2010, which is mentioned in the High Court's judgement, states, in addition to what is reproduced in the judgement, among other things
”D.2 Recognition of the actual transactions undertaken
…
1.65 However, there are two particular circumstances in which it may, exceptionally, be both appropriate and legitimate for a tax administration to consider disregarding the structure adopted by a taxpayer in entering into a controlled transaction. The first circumstance arises where the economic substance of a transaction differs from its form. In such a case the tax administration may disregard the parties’ characterisation of the transaction and re-characterise it in accordance with its substance. An example of this circumstance would be an investment in an associated enterprise in the form of interest-bearing debt when, at arm’s length, having regard to the economic circumstances of the borrowing company, the investment would not be expected to be structured in this way. In this case it might be appropriate for a tax administration to characterise the investment in accordance with its economic substance with the result that the loan may be treated as a subscription of capital. The second circumstance arises where, while the form and substance of the transaction are the same, the arrangements made in relation to the transaction, viewed in their totality, differ from those which would have been adopted by independent enterprises behaving in a commercially rational manner and the actual structure practically impedes the tax administration from determining an appropriate transfer price. An example of this circumstance would be a sale under a long-term contract, for a lump sum payment, of unlimited entitlement to the intellectual property rights arising as a result of future research for the term of the contract (as indicated in paragraph 1.11). While in this case it may be proper to respect the transaction as a transfer of commercial property, it would nevertheless be appropriate for a tax administration to conform the terms of that transfer in their entirety (and not simply by reference to pricing) to those that might reasonably have been expected had the transfer of property been the subject of a transaction involving independent enterprises. Thus, in the case described above it might be appropriate for the tax administration, for example, to adjust the conditions of the agreement in a commercially rational manner as a continuing research agreement.
...
Chapter VI
Special Considerations for Intangible Property
A.Introduction
6.1 This chapter discusses special considerations that arise in seeking to establish whether the conditions made or imposed in transactions between associated enterprises involving intangible property reflect arm’s length transactions. Particular attention to intangible property transactions is appropriate because the transactions are often difficult to evaluate for tax purposes. The chapter discusses the application of appropriate methods under the arm’s length principle for establishing transfer pricing for transactions involving intangible property used in commercial activities, including marketing activities. It also discusses specific difficulties that arise when the enterprises conducting marketing activities are not the legal owners of marketing intangibles such as trademarks and trade names. Cost contribution arrangements among associated enterprises for research and development expenditures that may result in intangible property are discussed in Chapter VIII.
6.2 For the purposes of this chapter, the term “intangible property” includes rights to use industrial assets such as patents, trademarks, trade names, designs or models. It also includes literary and artistic property rights, and intellectual property such as know-how and trade secrets. This chapter concentrates on business rights, that is intangible property associated with commercial activities, including marketing activities. These intangibles are assets that may have considerable value even though they may have no book value in the company’s balance sheet.
There also may be considerable risks associated with them (e.g. contract or product liability and environmental damages).
B. Commercial intangibles
B.1 In general
6.3 Commercial intangibles include patents, know-how, designs, and models that are used for the production of a good or the provision of a service, as well as intangible rights that are themselves business assets transferred to customers or used in the operation of business (e.g. computer software). Marketing intangibles are a special type of commercial intangible with a somewhat different nature, as discussed below. For purposes of clarity, commercial intangibles other than marketing intangibles are referred to as trade intangibles. Trade intangibles often are created through risky and costly research and development (R&D) activities, and the developer generally tries to recover the expenditures on these activities and obtain a return thereon through product sales, service contracts, or licence agreements. The developer may perform the research activity in its own name, i.e. with the intention of having legal and economic ownership of any resulting trade intangible, on behalf of one or more other group members under an arrangement of contract research where the beneficiary or beneficiaries have legal and economic ownership of the intangible, or on behalf of itself and one or more other group members under an arrangement in which the members involved are engaged in a joint activity and have economic ownership of the intangible (also discussed in Chapter VIII on cost contribution arrangements). Reciprocal licensing (cross-licensing) is not uncommon, and there may be other more complicated arrangements as well.
…
6.5 Intellectual property such as know-how and trade secrets can be trade intangibles or marketing intangibles. Know-how and trade secrets are proprietary information or knowledge that assists or improves a commercial activity, but that is not registered for protection in the manner of a patent or trademark. The term know-how is perhaps a less precise concept. Paragraph 11 of the Commentary on Article 12 of the OECD Model Tax Convention gives the following definition: “[Know- how] generally corresponds to undivulged information of an industrial, commercial or scientific nature arising from previous experience, which has practical application in the operation of an enterprise and from the disclosure of which an economic benefit can be derived”. Know-how thus may include secret processes or formulae or other secret information concerning industrial, commercial or scientific experience that is not covered by patent. Any disclosure of knowhow or a trade secret could substantially reduce the value of the property. Know-how and trade secrets frequently play a significant role in the commercial activities of MNE groups.”
Submissions
The Ministry of Taxation has supplementary stated in particular, that the benchmark report, which has been presented to the Supreme Court, proves that the tax authorities' estimates cannot be set aside, as the estimates are below the market price for the significant values that Maersk Oil contributed to the group.
The benchmark report is not a unilaterally obtained statement, as it has been prepared by The Tax Agency, which is a part of the Ministry of Taxation. The report has also been prepared in accordance with the usual principles for the preparation of benchmark reports in transfer pricing cases.
A.P. Moller - Maersk and TotalEnergies EP Denmark have further submitted, in particular, that the benchmark report is unilaterally prepared, and that it therefore has no evidential relevance for the assessment of the case.
The report relates to intangible assets, but it does not constitute evidence that Maersk Oil and Gas made intangible assets available to the subsidiaries. In addition, the methodology of the study is flawed.
Supreme Court's reasoning and result
The case background and problem
Maersk Olie and Gas A/S (MOGAS) was a 100 % owned subsidiary of A.P. Møller - Maersk A/S (APMM), until the company in 2018 was sold to Total S.A. MOGAS is today registered under the company name TotalEnergies EP Danmark A/S.
Until 2018, MOGAS' operations consisted of several activities. MOGAS was the operator on behalf of APMM in the Danish Underground Consortium (DUC). In addition, MOGAS conducted initial feasibility studies in various parts of the world with a view to finding new oil fields. The possible further exploration for oil and commencement of oil production took place in subsidiaries/affiliates, which were established in continuation of the feasibility studies, among others in Algeria and Qatar. Furthermore, MOGAS provided a number of technical and administrative services (so-called timewriting) to companies in the group, including APMM and its subsidiaries.
In Algeria, MOGAS' oil activities were initiated in 1990 after some preliminary studies. In connection with MOGAS' subsidiary, Mærsk Olie Algeriet A/S, acquiring a share of the rights and the obligations in under to a licence agreement with the Algerian state-owned company Sonatrach, , MOGAS issued a performance guarantee to Sonatrach. The guarantee states, among other things, that MOGAS "will support Mærsk Olie, Algeriet AS the full technical and financial capacities needed by Mærsk Olie, Algeriet AS in order to commit and comply with its share of obligations under the Sonatrach Agreement ...". Mærsk Olie Algeriet consisted of a branch office in Algeria without employees and did not perform operator tasks in connection with the oil project.
In Qatar, MOGAS' oil activities were initiated in 1992 after preliminary studies by the establishment of a local branch of MOGAS' subsidiary, Maersk Oil Qatar A/S, and the signing of an oil exploration and production sharing agreement (EPSA) between the subsidiary and the State of Qatar. MOGAS undertook a performance guarantee to Qatar. The guarantee states among other things, that MOGAS guarantees "the due and timely performance of all the obligations of the Subsidiary under and arising out of the EPSA" and that it would "provide the Subsidiary with all technology and specialist personnel necessary for the Subsidiary to fulfil its obligations under the EPSA." The subsidiary's branch in Qatar acted as operator in connection with the oil project.
MOGAS has not received payment from the subsidiaries for the preliminary studies or the performance guarantees. MOGAS has received payment from the subsidiaries corresponding to the cost price for the technical and administrative assistance (timewriting).
The case concerns the tax authorities' discretionary increase of MOGAS' taxable income for the years 2006-2008 and a consequential increase of the parent company APMM's joint taxation income for the same income years. The increases are based on a transfer pricing correction, which concerns MOGAS' trade with the two subsidiaries.
The parties agree that that MOGAS exercises a controlling influence over the subsidiaries in Algeria and Qatar, and that the relationship between MOGAS and the two subsidiaries is covered by the provision on trade at arm's length in section 2(1) of the Danish Tax Assessment Act. 1.
With regard to the feasibility studies and the performance guarantees, the parties disagree on whether there are transactions covered by section 2(1) of the Tax Assessment Act section 2(1). If such transactions are involved, the parties agree that the preliminary investigations have not been conducted in accordance with what could have been achieved if the transactions had been concluded between independent parties (at arm's length).
For so far as concerns timewriting the parties agree that there is transactions covered by section 2(1) of the Danish Tax Assessment Act . They disagree on whether MOGAS' transfer pricing documentation is sufficient and whether the transactions are at arm's length.
If adjustments are to be made for the transactions in question, the parties disagree on whether there is basis for overriding the tax authorities' estimates.
Finally, APMM and the Danish Ministry of Taxation disagree on whether - if a correction of timewriting for MOGAS is made - also should a correction of APMM's hydrocarbon taxable income relating to the operator tasks that MOGAS performed for APMM in the DUC co-operation.
The feasibility studies and performance guarantees
According to section 2(1) of the Assessment Act, taxpayers who exercise a controlling influence over legal persons shall, when calculating the taxable income , use prices and terms for commercial or economic transactions (controlled transactions) in accordance with what could have been achieved if the transactions had been concluded between independent parties.
It appears from the preparatory works of the provision that controlled transactions include all relations between the interested parties, e.g. the provision of services, loan relationships, transfer of assets, intangible assets, that is made available to etc. (Folketingstidende 1997-98, 2. saml, appendix A, bill no. L 101, p. 2460).
Prior to the subsidiaries' establishment and acquisition of licences in Algeria and Qatar , MOGAS carried out necessary feasibility studies for use for the assessment of whether oil exploration and possible subsequent oil or gas production should be established. MOGAS also played an important role in the conclusion of the contracts in these countries, as it must be assumed that the subsidiaries could only conclude the contracts because MOGAS undertook to guarantee all the subsidiaries' obligations and to make its technical and financial capacity available. It must also be assumed that MOGAS had special knowledge and experience (know-how) regarding, among other things, horizontal drilling, which MOGAS has made available to the subsidiaries on an ongoing basis.
The Supreme Court finds then, that the feasibility studies and the performance guarantees and the associated know-how have an economic value for the subsidiaries, for which an independent party would require ongoing payment in the form of profit share, royalty or the like. It is therefore irrelevant that, as stated by the High Court , preliminary studies, which were completed by MOGAS in 1990 and 1992, i.e. long before the income years in question. It is also not relevant that a potential oil recovery required the subsidiaries to incur significant exploration costs or that the occurrence of oil and its utilisation were uncertain.
According to the above, the feasibility studies and the performance guarantees constitute controlled transactions covered by section 2(1) of the Tax Assessment Act, also with regard to the income years 2006-2008. The tax authorities have therefore been able to assess the income relating to these transactions on a discretionary basis, cf. the current provisions of section 3B(8) of the Tax Assessment Act, cf. section 5(3).
Timewriting
For the reasons stated by the High Court, the Supreme Court agrees that MOGAS' income relating to the technical and administrative assistance (timewriting) could not, due to the lack of transfer pricing documentation, be estimated in pursuant of the current Tax Control Act § 3 B, paragraph 8, cf. § 5, paragraph 3.
For the reasons stated by the High Court, the Supreme Court also agrees that the Ministry of Taxation has established that MOGAS' supply of timewriting to the subsidiaries at cost price is outside the framework of what could have been achieved if the agreement had been entered into between independent parties, cf. section 2(1) of the Danish Tax Assessment Act. Since MOGAS thus has not received payment for timewriting on arm's length terms, the Supreme Court agrees that the tax authorities, for this reason, have rightly assessed the taxable income discretionarily also regarding this service.
The tax authorities' discretionary assessment
According to the stated , there was basis for discretionary assessment of MOGAS' taxable income in the income years 2006-2008 regarding feasibility studies, performance guarantees and timewriting.
The tax authorities' discretionary assessment in according to the current Tax Control Act § 3 B, paragraph 8, cf. § 5, paragraph 3, shall according to the legislative history be made on the best possible basis that the tax authorities can find, and in accordance with the principles of the OECD Guidelines. It follows from the aforementioned legislative history that the discretionary determination of the financial compensation on arm's length terms should ideally be carried out on individual transactions, but that these individual transactions may be so closely related that they must be assessed together.
SKAT has based its estimate on the profit that the group affiliated entities in Algeria and Qatar have realised. SKAT has then distributed the profit between the affiliated companies on the basis of an analysis of which functions the individual company has contributed. In doing so, SKAT has applied one of the models recognised in the OECD guidelines in situations where, due to the nature of the transactions and context of the transactions , it will not be possible to apply the more traditional methods.
The Danish National Tax Court's decision must be understood to mean that it has agreed to the method used by SKAT. The National Tax Tribunal has added that SKAT's increases correspond to a total royalty rate of 1.7% of the subsidiaries' turnover over the period 2006-2008.
The Supreme Court finds that the transactions in question are so closely related that they must be assessed together in the discretionary valuation of the financial compensation . The Supreme Court also finds that MOGAS, which has not submitted calculations, valuations or the like, has not demonstrated that there is a basis for setting aside the tax authorities' estimates for the income years in question. This is supported by the information in the benchmark report presented by the Ministry of Taxation to the Supreme Court.
As a consequence of the stated on the tax assessment for MOGAS , the Supreme Court finds that there is no basis for setting aside the tax authorities' discretionary increase of APMM's taxable joint taxation income in the income years 2006-2008.
Reopening of the hydrocarbon taxation for APMM
In the alternative, APMM has claimed that the case be remitted with a view to reducing the company's income subject to hydrocarbon tax (second part of the alternative claim). APMM has in support of this stated inter alia, that if there is not traded on arm's length terms between MOGAS and the subsidiaries in Algeria and Qatar regarding timewriting, the transfer pricing correction made must also apply to the intra-group transactions between MOGAS and APMM in the DUC co-operation.
The Supreme Court notes that the correction made by the tax authorities to MOGAS's taxable income as a result of its trade with its two subsidiaries in Algeria and Qatar does not concern MOGAS's transactions as part of the DUC co-operation. The Supreme Court finds that a possible reduction of APMM's hydrocarbon tax income already for that reason is not a direct consequence of the tax assessment of MOGAS in the present case. The Supreme Court therefore acquits the Ministry of Taxation of the second part of APMM's alternative claim, cf. section 27(1)(2) of the Danish Tax Administration Act.
The Supreme Court finds hereafter no reason to take a position on whether there is a new question as mentioned in section 48(2), second sentence, of the Tax Administration Act, and in given case whether there after this provision is basis for to grant permission for it to be included in the trial.
Conclusion and costs
The Supreme Court accepts the Ministry of Taxation's claims to follow, in that the Ministry of Taxation is acquitted of the second part of APMM's alternative claim.
Following the outcome of the cases APMM and MOGAS (now TotalEnergies EP Denmark) shall pay the costs of the cases before the High Court and the Supreme Court to the Danish Ministry of Taxation with DKK 4,008,500 each. Of this amount, DKK 4,000,000 is to cover legal fees and DKK 8,500 for coverage of court fees. in the determination of the amounts for legal fees has taken into account the value, nature, scope and interrelationship of the cases.
THOU SHALT BE JUDGED
A.P Møller - Mærsk A/S shall recognise that the company's joint taxation income for the income years 2006-2008 is increased by DKK 506,431,000, DKK 327,562,000 and DKK 468,185,000 respectively.
A.P. Møller - Mærsk A/S shall pay DKK 3,004,000 to Ministry of Taxation with process interest from 21 April 2022.
The Ministry of Taxation is acquitted of A.P. Møller - Mærsk A/S' alternative claim, 2. paragraph.
TotalEnergies EP Denmark A/S shall recognise that the company's taxable income for the income years 2006-2008 is increased by DKK 506,431,000, DKK 327,562,000 and DKK 468,185,000 respectively.
TotalEnergies EP Denmark A/S shall pay DKK 3,004,000 to The Danish Ministry of Taxation with interest from 21 April 2022.
In legal costs before the High Court and the Supreme Court A.P. Møller - Mærsk A/S shall pay DKK 4,008,500 to the Ministry of Taxation.
In legal costs before the High Court and the Supreme Court TotalEnergies EP Danmark A/S shall pay DKK 4,008,500 to the Danish Ministry of Taxation.
The sentenced amounts shall be paid within 14 days after this judgement of the Supreme Court.
The amounts for legal costs are subject to interest in accordance with section 8a of the Interest Act.