Tax Management Transfer Pricing Report

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1 Tax Management Transfer Pricing Report Source: Transfer Pricing Report: News Archive > 2015 > 10/01/2015 > BNA Insights > Rev. Proc : A Needed Reboot of the IRS Advance Pricing Agreement Process 24 Transfer Pricing Report 708 The authors explore the most significant changes in the final IRS revenue procedure on advance pricing agreements which include more information required from companies as well as higher user fees and offer practical suggestions for taxpayers filing new APA requests. Rev. Proc : A Needed Reboot of the IRS Advance Pricing Agreement Process By Elizabeth Yablonicky and Barbara Mantegani, Baker & McKenzie Elizabeth Yablonicky is a partner with Baker & McKenzie in Chicago. Barbara Mantegani is counsel with the firm's office in Washington, D.C. The Internal Revenue Service's final version of the revenue procedure on advance pricing agreements, released Aug. 12, 1 clarifies and makes explicit many of the IRS's formerly unwritten APA policies and practices. The new procedure, Rev. Proc , modifies guidance issued in December 2013, 2 imposing several new requirements and creating some new decision points for companies potentially interested in obtaining APAs. 3 1 Available at 24 Transfer Pricing Report 506, 9/3/15; also see story at 24 Transfer Pricing Report 426, 9/3/15. 2 Notice , I.R.B Rev. Proc , I.R.B., replaces Rev. Proc , C.B. 278, as modified by Rev. Proc , I.R.B Importantly, the final guidance reflects the significant evolution in approach to transfer pricing disputes that has occurred at the IRS and around the world, particularly in the last two years as the Organization for Economic Cooperation and Development and participating countries have worked through the international project to combat base erosion and profit shifting (BEPS). Part of the IRS evolution since 2006 was the creation in 2011 of the Transfer Pricing Operations office (TPO) as part of the Large Business and International Division, followed in 2012 by the merger of the APA Program previously part of the Office of Associate Chief Counsel (International) with that portion of the Office of the U.S. Competent Authority that resolves transfer pricing cases. The merged office, known as the Advance Pricing and Mutual Agreement Program (APMA), is part of TPO, and handles unilateral, bilateral and multilateral APAs as well as transfer pricing and other allocation cases arising under U.S. tax treaties. The global evolution includes the work on BEPS, especially the public discussion draft and comments under Action 14 of the OECD's 15-point plan, the action on making dispute resolutions more effective. 4 The IRS recognizes that, following BEPS, transfer pricing controversies are certain to increase and U.S. companies will want to take proactive steps to resolve them through APAs. 4 Draft available at 23 Transfer Pricing Report 1170, 1/8/15; comments at Also see the Insight article at 23 Transfer Pricing Report 1399, 3/5/15. In Rev. Proc , the IRS refreshed the procedural instructions of Rev. Proc based on APMA's experience since 2006 and communications and discussions with both taxpayers and treaty partners over those years. Among other changes, there are changes to filing deadlines and increased user fees, an expanded and more rigid list of contents and modifications to the pre-filing conference process. This article explores the most significant changes and offers practical suggestions for companies filing new APA requests under Rev. Proc

2 Significant Elements of APA Guidance Effective date, filing deadlines Rev. Proc has an effective date of August 31, It includes a transition rule, under which a substantially complete APA request filed after Aug. 31, 2015, and on or before Dec. 29, 2015, may be filed under Rev. Proc However, requests filed during the transition period may not take advantage of the 120-day allowance provided in section 4.07(2) of Rev. Proc That section stated that a taxable year could be covered as an APA year (rather than as a rollback year) if the APA user fee was paid on or before the due date, with extensions, of the federal income tax return for that year, provided that the substantially complete APA request was filed within 120 days after the user fee was paid (a dollar file request). Thus, under Rev. Proc , a company wanting to have Rev. Proc govern its APA request needs to file a substantially complete request, not just pay the old user fee, on or before Dec. 29, APA requests filed during the transition period must clearly state under which revenue procedure they are being filed. Rev. Proc retains the historic deadline for filing (that is, by the due date, with extensions, of the tax return for the first APA year), but adds a special deadline for bilateral or multilateral requests in section 3.03(b). A company that files a bilateral or multilateral request in a foreign jurisdiction must file the corresponding U.S. request no later than 60 days after the foreign request is filed. The procedure states that this rule is intended to better coordinate the timing of discussions on bilateral and multilateral APAs with foreign competent authorities. The authors believe that the rule is the result of APMA's experience with bilateral requests with Japan, which requires an APA request to be filed before the first day of the first APA year. India also has an early filing date, so the rule will apply to bilateral India-U.S. APA requests when the IRS agrees to begin accepting those APA requests. In the absence of this new rule, a company could file its APA request in Japan before the first day of the Japanese affiliate's taxable year, and in the U.S. on or before the tax return filing date for the U.S. taxpayer. This could be a difference of as much as two years, depending on the respective fiscal year ends of the two affiliates and whether the company took advantage of the dollar file option. Where companies delayed filing the request in the U.S. for a significant period after the Japan request was filed, this created challenges for personnel in both countries: Japan might be ready to discuss a case that the U.S. had just received into inventory, and the U.S. often had more up-to-date information than Japan. This new rule is reasonable and well designed to achieve the intended purpose of allowing the tax authorities to work the cases in a similar time frame, and to facilitate taxpayer participation in, for example, a joint presentation to both tax authorities regarding particularly difficult or complex issues. Expanding to interrelated issues Unlike Rev. Proc , which was silent on interrelated issues, Rev. Proc at section 2.02(4)(a) gives APMA broad authority to consider additional, interrelated issues, additional taxable years or additional treaty countries (collectively called interrelated matters ) in order to reach a principled resolution of the proposed APA. In some cases, interrelated matters might cause APMA to expand the scope of the APA. APMA may condition its acceptance or continued consideration of an APA request on the taxpayer's agreement to expand the scope of the APA. Several examples of interrelated matters are set forth in section 2.02(4)(b) of the procedure, as summarized below.?intercompany license of intangible property that was sold by the licensee to the licensor in an earlier year: APMA may believe the license should be evaluated consistent with the analysis performed for the earlier sale.?compensation for services provided by one company for the benefit of a related party when the services use intangible property that had been transferred from the service provider to the service recipient as part of a business restructuring: APMA may require the services to be valued the same way they were in connection with the restructuring.?value of a platform contribution transaction in a cost sharing arrangement: APMA may ask whether the intangible development costs under the arrangement are being properly shared.?price to be paid by a U.S. distributor to a controlled foreign manufacturer for tangible goods the U.S. distributor resells to another controlled distributor in a third country: APMA may need to evaluate the price the foreign distributor pays to the U.S. distributor before agreeing to an APA on the price paid by the U.S. distributor to the foreign manufacturer.?other transactions that involve interrelated matters, such as global trading arrangements or transactions involving hybrid or disregarded entities. Interrelated matters may be identified at the pre-filing stage, at the opening conference or thereafter in the APA process; APMA will endeavor to communicate to the company any concerns about interrelated matters as early as possible in the APA process. Section 2.02(4)(d) states that if APMA identifies interrelated issues and the company refuses to expand the scope of the APA, APMA reserves the right to decline to consider a subsequent mutual agreement procedure (MAP) request with respect to that second treaty country, jeopardizing foreign tax credits. It should come as no surprise to companies or their representatives that APMA is sensitive to and wants to protect the IRS from whipsaw in each of the above examples of interrelated matters. The revenue procedure's description of the process in these cases should prepare companies to address these matters and be open to expanding the scope of the

3 proposed APA or risk rejection of their APA requests. One may question, however, whether the use of examples rather than stated criteria and the open-ended timing for identifying interrelated matters would lend these new provisions to unpredictable and selective tax administration practices that could lessen interest in APAs with the U.S. Rev. Proc also defines ancillary issues those such as repatriation of funds, interest on refunds and deficiencies and penalties on U.S.-initiated adjustments that arise out of the resolution of underlying issues covered in the APA and, as such, sometimes can be covered in the APA. The procedure makes clear that ancillary issues may be resolved in APMA, but only to the extent to which APMA has authority under the Code or under a U.S. tax treaty to resolve the issues. This is a helpful clarification, as far as it goes, for companies that face these common issues. It also is consistent with the best practices for MAP cases set out in the OECD's Manual on Effective Mutual Agreement Procedures, or MEMAP. 5 It should be noted that the IRS has the authority to waive interest and penalties in the treaty context, as described in the technical explanation of the 2006 U.S. Model Treaty, but not all treaty partners might have such authority or choose to exercise it. Nevertheless, the authors suggest that in the interest of consistent treatment, both treaty partners should be encouraged to consider interest and penalty waivers where appropriate. 5 Available at Cost of obtaining agreement APA user fees are set forth in section 3 of the appendix to Rev. Proc In general, the user fee for a new APA request is $60,000, and for a renewal APA that does not expand the scope or change the transfer pricing method under a prior APA, $35,000. A reduced user fee of $30,000 applies to small case APAs, and the price for an amendment to an existing APA is $12,500. A special group rate applies to multiple APA requests filed by the same controlled group within a 60-day period: the user fee in such cases is $60,000 total, plus $30,000 for each foreign competent authority involved beyond the first two. All user fees must be paid via the Pay.gov website. The IRS has indicated that the prior user fee schedule covered about 50 percent of the IRS's costs of completing an APA, and that the IRS has determined companies should bear the full cost of obtaining an APA. Additional user fee increases are expected each year until they cover the full costs, in Based on current estimates, the new APA user fee would top out at $117,000, but the IRS periodically will recalculate its costs and may revise the target in the coming years. Given these higher fees, taxpayers may hope that APMA no longer will have to forgo travel to company sites or to face-to-face negotiations, as some of the nuance and context important to those meetings is lost when APMA has to participate by phone or video conference. The user fees, however, likely will not be paid to a designated fund for APMA use, meaning that despite higher user fees, companies may see no appreciable change to APMA's historic budget constraints. Not to be overlooked are less obvious costs of obtaining an APA, such as the cost of covering interrelated issues. For example, a company seeking a U.S.-U.K. APA for a U.K. manufacturer that licenses intellectual property from its U.S. parent may be asked about the U.K. company's related-party transactions with the German distributor. Due diligence on these transactions certainly will cost the U.S. company additional time and resources, and if APMA recommends that the company also seek a U.K.-Germany APA, or expand the U.S.-U.K. APA to a multilateral U.S.-U.K.-Germany APA to establish the arm's-length price for the German distribution transaction, the taxpayer's anticipated costs of obtaining the bilateral APA could double, or more. As explained in the next section, the number of items of information required to be included in an APA request has grown compared to the requirements under Rev. Proc ; however, the authors anticipate that, in many cases, these expanded requirements will not increase a taxpayer's total costs of obtaining an APA, but will front-load those costs into the APA request preparation phase rather than requiring them during the due diligence and fact gathering phase. Expanded list of items to be included in requests Section 1 of the appendix to Rev. Proc sets forth the form and content of an APA request. The APA request itself must be in the form of a letter organized into five parts, in this order: (1)?executive summary; (2)?administrative information; (3)?proposed covered issues; (4)?proposed covered methods; and (5)?proposed APA terms and conditions. Each part includes between one and seven sub-parts, each of which must be addressed in the request. Nothing may be left blank. The request also must include 22 exhibits, ordered and labeled as stated in section 1.03 of the appendix to the revenue procedure. The exhibits include administrative documents, such as consents to extend the period of limitations for APA years and the user fee receipt obtained from the Pay.gov website. Also required are covered issue diagrams, which were not required under Rev. Proc but were proposed in the December 2013 draft procedure. Covered issue

4 diagrams are diagrams, charts or other depictions of the group's legal and tax structures, the business unit organizational structure and how it reconciles to legal entities, the value chain, and managerial organization charts with names, showing the functional roles and head count for the business units or legal entities in the covered group. Taxpayers must include a draft APA (following the form of APMA's model APA) in both clean and redline version against the model APA. Required financial information includes the APA template, income tax filings and financial statements. Both U.S. and foreign transfer pricing documentation must be included. The new revenue procedure is far more prescriptive than was the prior guidance regarding required information and format, and in many cases may raise the bar on information requirements. On the other hand, the new requirements are not significantly in excess of what some APMA team leaders would have demanded over the course of an APA processed under Rev. Proc APMA clearly anticipates that receiving this information up front and in a standardized format will help reduce the time required by APMA to complete its due diligence. Notably, the revenue procedure at section 3.10(3) mandates that all financial data produced in connection with the APA request be updated annually, and the proposed transfer pricing method be applied to the actual financial results each year while the APA request is pending. These updated data and analyses must be provided to APMA within 180 days of the close of the company's taxable year. This requirement that companies timely update the financial data relevant to the covered transactions is another effort by APMA to reduce the number of data requests that will have to be issued while the APA position is being developed, in an effort to accelerate the process. Sharing information As always, seeking an APA is a voluntary process whereby the IRS and taxpayers may resolve transfer pricing issues in a principled and cooperative manner on a prospective basis. Companies entering the program are expected to present all the facts necessary for a proper evaluation of their proposed covered issues and to work toward a resolution in a spirit of openness and cooperation. The voluntary and prospective nature of the APA process, as the procedure states, lessens the burden of compliance by giving companies greater certainty regarding covered issues and promotes the principled resolution of these issues by allowing for their discussion and resolution in advance, before the consequences of such resolution are fully known to either taxpayers or the IRS. Unfortunately, Rev. Proc is far more formal, rigid and one-sided than was Rev. Proc The new procedure uses language like require or must when discussing companies' obligations, but rarely applies those terms to the APA team, who are given substantial discretion and unilateral decision-making authority. Also, the procedure states at section 3.09(2) that a company should be prepared to provide both (or all) competent authorities with any written responses, analyses, or other documents that it provides to one competent authority, whether the materials are provided in response to a request from a competent authority or are submitted voluntarily by the company in support of its APA request. Interestingly, Rev. Proc , the new competent authority revenue procedure, includes the same admonition to share information, documents and analyses, as well as a timing requirement to provide to each competent authority at approximately the same time. 6 Whether the absence of a timing requirement in Rev. Proc was intentional or an oversight, the authors' best practice is to share information with both (or all) competent authorities at approximately the same time. Delaying such sharing at best will lengthen the APA process and at worst will give the impression that the company is flouting the spirit of openness and cooperation underpinning the process. 6 See Rev. Proc , section 3.05(3). In that spirit of openness, the new APA procedure states at section 4.04(1) that APMA will consider requests by a company to make a joint presentation to two (or more) competent authorities, and may invite or require the taxpayer to make such a joint presentation. APMA recognizes that the provision of certain information simultaneously to all competent authorities could facilitate efficient case processing. On the other hand, Rev. Proc gives companies no right to review or comment on APMA's position paper before it is delivered to the foreign competent authority. Section 4.04(3) indicates that the APA team will convey the substance of its views to the taxpayer, generally but not necessarily in a written document. The APA team may, but is not obligated to, present the paper to the company for its comment before the APA team formally presents its views to the foreign competent authority. If taxpayer input is not sought in advance, the APA team may issue its position paper simultaneously to the company and to the foreign competent authority. The company would be invited to provide its comments to both the APA team and the foreign competent authority at the same time. In the authors' experience, a company's review of the draft U.S. position paper can be an important part of the APA process. Particularly in cases presenting novel facts or complex issues, companies can make clarifications and corrections to facts and propose helpful clarifications to the transfer pricing methods in the draft U.S. position paper. A company filing an APA request under Rev. Proc should urge the APA team to exercise its discretion to allow the company to review the draft U.S. position paper before it is submitted to the foreign competent authority. Rollbacks, coordination with competent authority procedure Section 5.02(1) of the procedure notes that taxpayers seeking new APAs often also seek a rollback of the APA transfer pricing method to closed years, usually to resolve a U.S.- or foreign-initiated adjustment in those earlier years. Section 5.02(4) states that APMA generally will accept rollback requests if it would accept competent authority requests for the years in question.

5 Companies in the competent authority process under new Rev. Proc also may seek to extend the competent authority resolution, by filing an APA request or an abbreviated APA request, if APMA agrees to the abbreviated process following its review of the taxpayer's mandatory APA pre-filing memorandum. Sections 5.01(2), 3.04(2). Consistent with its broad authority to expand an APA to cover interrelated matters, the procedure states at section 5.02(1) and (5) that APMA also may insist on a rollback even where the company has not requested one, if the facts and circumstances are the same in the prospective APA years and the open back years. A company that refuses to accept a rollback risks termination of the APA process. Pre-filing conference, memorandum requirements Pre-filing procedures are more rigid and formal under Rev. Proc than they were under Rev. Proc First, a company that wishes to hold a pre-filing conference must submit its request as part of a mandatory pre-filing memorandum, under section 3.02(4), or an optional pre-filing memorandum, under section 3.02(5). A pre-filing memorandum is mandatory for:?unilateral APA requests where the issue could be covered under a bilateral or multilateral APA;?abbreviated APA requests under section 3.04(2); or?apa requests where the proposed covered issue involves a global trading arrangement, a business restructuring, disregarded entities (branches, pass-through entities or hybrid entities) or intangibles transferred or developed under cost sharing. Companies have the option to file a pre-filing memorandum in cases other than those identified above, and pre-filing memoranda are recommended in section 3.02(5) for APA requests that present novel or complex substantive or procedural issues or that may present interrelated issues likely to concern APMA. Mandatory pre-filing memoranda must be in memorandum form supplemented by diagrams, slides or spreadsheets as appropriate, but optional pre-filing memoranda may be in a format chosen by the taxpayer, according to section 3.02(6). All pre-filing memoranda should have a length and content appropriate to the size and complexity of the proposed covered issues, and should state whether the company seeks a pre-filing conference. If a pre-filing conference is sought, the company must provide at least three possible dates that are at least two weeks after the pre-filing memorandum is submitted. APMA may refuse some taxpayer-requested pre-filing conferences, and may require a conference where the company did not request one, the revenue procedure states at section 3.02(8)(a). Anonymous pre-filing conferences still are available (if the taxpayer's pre-filing memorandum was anonymous), but are not recommended. If APMA declines to hold a pre-filing conference, it will invite the company to simply file its APA request. Section 3.02(9) notes that APMA's statements or advice in a pre-filing conference are not binding on the IRS. The authors believe that the new provisions on pre-filing conferences, while perhaps overly prescriptive, constitute a clarification of prior practice under Rev. Proc and not a wholesale change. Under Rev. Proc , companies often were advised to have a pre-filing conference in every case, certainly for new APAs and sometimes for renewal APAs. Rev. Proc helpfully identifies those cases that will require a pre-filing conference. The authors expect APMA rarely to reject companies' requests to hold pre-filing conferences, as the procedure indicates at section 2.02(5) that APMA is available for informal consultations with taxpayers within or outside of the APA process. Section 6662 documentation factor' Rev. Proc at section 3.07 states that the submission of a complete APA request, updated and supplemented in accordance with this section 3, will be a factor taken into account in determining whether the company has met the documentation requirements of Regs (d)(2)(iii) for the proposed APA years. An APA request also does not necessarily suspend IRS examination or enforcement proceedings, although APMA will coordinate within the IRS to minimize duplicative requests in conducting its due diligence. Given the comprehensive information now required in an APA request under Rev. Proc , and the mandatory updating requirements, APMA expects that most taxpayers with complete APA requests on file will meet the documentation requirements. As the APA request is only a factor in finding whether a company had sufficient transfer pricing documentation, however, companies are advised to review their APA request, as updated and supplemented, against the Section 6662 transfer pricing documentation requirements. To the extent that any regulatory requirements are not met by the APA request and supplemental submissions, companies should consider putting in place documentation that satisfies those requirements and maintaining that separate document in the event of an audit. Prudent companies already were doing this under Rev. Proc in case the APA process failed. Extending statute of limitations Rev. Proc requires that the company extend the U.S. statute of limitations on assessment of tax for each proposed APA year (both prospective and rollback). When the APA request is filed, the remaining period of limitations for each APA year must be at least two years; to the extent that this is not the case, the APA request must contain an executed general consent to extend the period of limitations to at least two years. This requirement persists throughout the APA process, and new consents must be executed at least 12 months before the expiration of the existing period of limitations. Each new consent must be for at least one year and, as a rule, they must be general consents. However, if

6 the APA issue is the only issue under examination by the IRS for an APA year, the company may request a restricted consent. Requests for a restricted consent must be made in writing, at least 15 months before the end of the existing period of limitations, and set forth the taxpayer's views on why a restricted consent is appropriate. Although this process will be unwelcome for companies, especially as an APA nears conclusion and the company realizes that it will have to keep old statutes open for two more years to allow the IRS to audit APA annual reports, it is not inconsistent with prior practice under Rev. Proc Certainly it is better to have the requirements and the process for obtaining restricted consents made explicit rather than applied as a matter of practice and perhaps applied inconsistently. Conclusion With the release of Rev. Proc , the IRS has provided a needed update and in some cases, a reboot of the process for obtaining an APA, which reflects the changes caused by the merger of the APA office and the U.S. competent authority office as well as transfer pricing developments around the world. This reboot provides multinational organizations with an enhanced dispute resolution mechanism that should be part of their toolkit for global management of transfer pricing risk. Contact us at or call ISSN Copyright 2015, The Bureau of National Affairs, Inc.. Reproduction or redistribution, in whole or in part, and in any form, without express written permission, is prohibited except as permitted by the BNA Copyright Policy.