| Announcement 2006-22 |
April 17, 2006 |
Announcement and Report Concerning
Advance Pricing Agreements
This Announcement is issued pursuant to § 521(b) of Pub. L. 106-170,
the Ticket to Work and Work Incentives Improvement Act of 1999, which requires
the Secretary of the Treasury to report annually to the public concerning
Advance Pricing Agreements (APAs) and the APA Program. The first report covered
calendar years 1991 through 1999. Subsequent reports covered calendar years
2000, 2001, 2002, 2003 and 2004. This seventh report describes the experience,
structure and activities of the APA Program during calendar year 2005. It
does not provide guidance regarding the application of the arm’s length
standard.
Matthew W. Frank Director, Advance Pricing Agreement Program
Internal Revenue Code (IRC) § 482 provides that the Secretary may
distribute, apportion, or allocate gross income, deductions, credits, or allowances
between or among two or more commonly controlled businesses if necessary to
reflect clearly the income of such businesses. Under the § 482 regulations,
the standard to be applied in determining the true taxable income of a controlled
business is that of a business dealing at arm’s length with an unrelated
business. The arm’s length standard has also been adopted by the international
community and is incorporated into the transfer pricing guidelines issued
by the Organization for Economic Cooperation and Development (OECD). OECD,
TRANSFER PRICING GUIDELINES FOR MULTINATIONAL ENTERPRISES AND TAX ADMINISTRATORS
(1995). Transfer pricing issues by their nature are highly factual and have
traditionally been one of the largest issues identified by the IRS in its
audits of multinational corporations. The APA Program is designed to resolve
actual or potential transfer pricing disputes in a principled, cooperative
manner, as an alternative to the traditional examination process. An APA
is a binding contract between the IRS and a taxpayer by which the IRS agrees
not to seek a transfer pricing adjustment under IRC § 482 for a Covered
Transaction if the taxpayer files its tax return for a covered year consistent
with the agreed transfer pricing method (TPM). In 2005, the IRS and taxpayers
executed 53 APAs and amended 1 APA.
Since 1991, with the issuance of Rev. Proc. 91-22, 1991-1 C.B. 526,
the IRS has offered taxpayers, through the APA Program, the opportunity to
reach an agreement in advance of filing a tax return on the appropriate TPM
to be applied to related party transactions. In 1996, the IRS issued internal
procedures for processing APA requests. Chief Counsel Directives Manual (CCDM),
¶¶ 42.10.10 — 42.10.16 (November 15, 1996). Also in 1996,
the IRS updated Rev. Proc. 91-22 with the release of Rev. Proc. 96-53, 1996-2
C.B. 375. In 1998, the IRS published Notice 98-65, 1998-2 C.B. 803, which
set forth streamlined APA procedures for Small Business Taxpayers. Then
on July 1, 2004, the IRS updated and superseded both Rev. Proc. 96-53 and
Notice 98-65 by issuing Rev. Proc. 2004-40, 2004-2 C.B. 50 (July 19, 2004),
effective for all APA requests filed on or after August 19, 2004.
On December 19, 2005, the IRS again updated the procedural rules for
processing and administering APAs with the release of Rev. Proc. 2006-9, 2006-2
I.R.B. 278 (Jan. 9, 2006). Rev. Proc. 2006-9 supersedes Rev. Proc. 2004-40
and is effective for all APA requests filed on or after February 1, 2006.
Also in 2005, the Office of Chief Counsel held two days of public hearings
to solicit comments on the state of, and ideas for improving, the APA Program.
These hearings were announced in IRS Announcement 2004-98, 2004-2 C.B. 983
(December 13, 2004), and were held on February 1 and February 22, 2005. Twenty-three
persons representing corporations, taxpayer groups, and professional firms
spoke. Written comments from these and other persons are available on the
IRS website at http://www.irs.gov/businesses/corporations/article/
0,,id=134735,00.html.
Following these hearings, a number of steps were announced in May 2005
to strengthen APA Program operations. These steps include (i) new case management
procedures designed to minimize delays in case processing; (ii) the formation
of industry/issue coordination teams within the APA Office to promote efficiency,
quality, and consistency; (iii) enhancement of APA Office resources; and (iv)
improving the APA Program’s ability to monitor compliance by requiring
disclosure of standardized summary information as part of the annual report
process. These steps have been implemented or are being implemented currently.
Advance Pricing Agreements
An APA generally combines an agreement between a taxpayer and the IRS
on an appropriate TPM for the transactions at issue (Covered Transactions)
with an agreement between the U.S. and one or more foreign tax authorities
(under the authority of the mutual agreement process of our income tax treaties)
that the TPM is correct. With such a “bilateral” APA, the taxpayer
ordinarily is assured that the income associated with the Covered Transactions
will not be subject to double taxation by the IRS and the foreign tax authority.
It is the policy of the United States, as reflected in §§ 2.08
and 7 of Rev. Proc. 2006-9, to encourage taxpayers that enter the APA Program
to seek bilateral or multilateral APAs when competent authority procedures
are available with respect to the foreign country or countries involved.
However, the IRS may execute an APA with a taxpayer without reaching a competent
authority agreement (a “unilateral” APA).
A unilateral APA is an agreement between a taxpayer and the IRS establishing
an approved TPM for U.S. tax purposes. A unilateral APA binds the taxpayer
and the IRS, but does not prevent foreign tax administrations from taking
different positions on the appropriate TPM for a transaction. As stated in
§ 7.07 of Rev. Proc. 2006-9, should a transaction covered by a unilateral
APA be subject to double taxation as the result of an adjustment by a foreign
tax administration, the taxpayer may seek relief by requesting that the U.S.
Competent Authority consider initiating a mutual agreement proceeding, provided
there is an applicable income tax treaty in force with the other country.
When a unilateral APA involves taxpayers operating in a country that
is a treaty partner, information relevant to the APA (including a copy of
the APA and APA annual reports) may be provided to the treaty partner under
normal rules and principles governing the exchange of information under income
tax treaties.
An IRS team headed by an APA team leader is responsible for the consideration
of each APA. As of December 31, 2005, the APA Program had 17 team leaders.
The team leader is responsible for organizing the IRS APA team. The IRS
APA team leader arranges meetings with the taxpayer, secures whatever information
is necessary from the taxpayer to analyze the taxpayer’s related party
transactions and the available facts under the arm’s length standard
of IRC § 482 and the regulations thereunder (Treas. Reg.), and leads
the discussions with the taxpayer.
The APA team generally includes an economist, an international examiner,
LMSB field counsel, and, in a bilateral case, a U.S. Competent Authority analyst
who leads the discussions with the treaty partner. The economist may be from
the APA Program or the IRS field organization. As of December 31, 2005, the
APA Program had five economists. The APA team may also include an LMSB International
Technical Advisor, other LMSB exam personnel, and an Appeals Officer.
The APA process is voluntary. Taxpayers submit an application for an
APA, together with a user fee as set forth in Rev. Proc. 2006-9, § 4.12.
The APA process can be broken into five phases: (1) application; (2) due
diligence; (3) analysis; (4) discussion and agreement; and (5) drafting, review,
and execution.
In many APA cases, the taxpayer’s application is preceded by a
pre-file conference with the APA staff in which the taxpayer can solicit the
informal views of the APA Program. Pre-file conferences can occur on an anonymous
basis, although a taxpayer must disclose its identity when it applies for
an APA. Taxpayers must file the appropriate user fee on or before the due
date of the tax return for the first taxable year that the taxpayer proposes
to be covered by the APA. Many taxpayers file a user fee first and then follow
up with a full application later. The procedures for pre-file conferences,
user fees, and applications can be found in §§ 3 and 4 of Rev. Proc.
2006-9.
The APA application can be a relatively modest document for small businesses.
Section 9 of Rev. Proc. 2006-9 describes the special APA procedures for Small
Business Taxpayers. For most taxpayers, however, the APA application is a
substantial document filling several binders. The APA Program makes every
effort to reach an agreement on the basis of the information provided in the
taxpayer’s application.
The application is assigned to an APA team leader who is responsible
for the case. The APA team leader’s first responsibility is to organize
the APA team. This involves contacting the appropriate LMSB International
Territory Manager to secure the assignment of an international examiner to
the APA case and the LMSB Counsel’s office to secure a field counsel
lawyer. In a bilateral case, the U.S. Competent Authority will assign a
U.S. Competent Authority analyst to the team. In a large APA case, the international
examiner may invite his or her manager and other LMSB personnel familiar with
the taxpayer to join the team. When the APA may affect taxable years in Appeals,
the appropriate appellate conferee will be invited to join the team. In all
cases, the APA team leader contacts the Manager, LMSB International Technical
Advisors, to determine whether to include a technical advisor on the team.
The IRS APA team will generally include a technical advisor if the APA request
concerns cost sharing, intangibles, or services. The APA team leader then
distributes copies of the APA application to all team members and sets up
an opening conference with the taxpayer. The APA office strives to hold this
opening conference within 45 days of the assignment of the case to a team
leader. At the opening conference, the APA team leader proposes a case plan
designed, if feasible, to complete a unilateral APA or, in the case of a bilateral
APA, the recommended U.S. negotiating position within 12 months from the date
the full application is filed. The actual median and average times for completing
unilateral APAs, recommended negotiating positions for bilateral APAs, and
APAs for Small Business Taxpayers are shown below in Tables 2, 5, and 10,
respectively.
The APA team must satisfy itself that the relevant facts submitted by
the taxpayer are complete and accurate. This due diligence aspect of the
APA is vital to the process. It is because of this due diligence that the
IRS can reach advance agreements with taxpayers in the highly factual setting
of transfer pricing. Due diligence can proceed in a number of ways. Typically,
the taxpayer and the APA team will agree to dates for future meetings during
the opening conference. In advance of the opening conference, the APA team
leader will submit a list of questions to the taxpayer for discussion. The
opening conference may result in a second set of questions. These questions
are developed by the APA team and provided to the taxpayer through the APA
team leader. It is important to note that this due diligence is not an audit
and is focused on the transfer pricing issues associated with the transactions
in the taxpayer’s application, or such other transactions that the taxpayer
and the IRS may agree to add.
A significant part of the analytical work associated with an APA is
done typically by the APA economist and/or an IRS field economist assigned
to the case. The analysis may result in the need for additional information.
Once the IRS APA team has completed its due diligence and analysis, it begins
discussions with the taxpayer over the various aspects of the APA including
the selection of comparable transactions, asset intensity and other adjustments,
the TPM, which transactions to cover, the appropriate critical assumptions,
the APA term, and other key issues. The APA team leader will discuss particularly
difficult issues with his or her managers, but generally the APA team leader
is empowered to negotiate the APA.
(4) Discussion and Agreement
The discussion and agreement phase differs for bilateral and unilateral
cases. In a bilateral case, the discussions proceed in two parts and involve
two IRS offices — the APA Program and the U.S. Competent Authority.
In the first part, the APA team will attempt to reach a consensus with the
taxpayer regarding the recommended position that the U.S. Competent Authority
should take in negotiations with its treaty partner. This recommended U.S.
negotiating position is a paper drafted by the APA team leader and signed
by the APA Director that provides the APA Program’s view of the best
TPM for the Covered Transaction, taking into account IRC § 482 and the
regulations thereunder, the relevant tax treaty, and the U.S. Competent Authority’s
experience with the treaty partner.
The experience of the APA office and the U.S. Competent Authority is
that APA negotiations are likely to proceed more rapidly with a foreign competent
authority if the U.S. negotiating position is fully supported by the taxpayer.
Consequently, the APA office works together with the taxpayer in developing
the recommended U.S. negotiating position. On occasion, the APA team will
agree to disagree with a taxpayer. In these cases, the APA office will send
a recommended U.S. negotiating position to the U.S. Competent Authority that
includes elements with which the taxpayer does not agree. This disagreement
is noted in the paper. The APA team leader also solicits the views of the
field members of the APA team, and, in the vast majority of APA cases, the
international examiner, LMSB field counsel, and other IRS field team members
concur in the position prepared by the APA team leader.
Once the APA Program completes the recommended U.S. negotiating position,
the APA process shifts from the APA Program to the U.S. Competent Authority.
The U.S. Competent Authority analyst assigned to the APA takes the recommended
U.S. negotiating position and prepares the final U.S. negotiating position,
which is then transmitted to the foreign competent authority. The negotiations
with the foreign competent authority are conducted by the U.S. Competent Authority
analyst, most often in face-to-face negotiating sessions conducted periodically
throughout the year. At the request of the U.S. Competent Authority analyst,
the APA team leader may continue to assist the negotiations.
In unilateral APA cases, the discussions proceed solely between the
APA Program and the taxpayer. In a unilateral case, the taxpayer and the
APA Program must reach agreement to conclude an APA. Like the bilateral cases,
the APA team leader almost always will achieve a consensus with the IRS field
personnel assigned to the APA team regarding the final APA. The APA Program
has a procedure in which the IRS field personnel are solicited formally for
their concurrence in the final APA. This concurrence, or any item in disagreement,
is noted in a cover memorandum prepared by the APA team leader that accompanies
the final APA sent forward for review and execution.
(5) Drafting, Review, and Execution
Once the IRS and the taxpayer reach agreement, the drafting of the final
APA generally takes little time because the APA Program has developed standard
language that is incorporated into every APA. The current, recently revised
version of this language is found in Attachment A. APAs are reviewed by the
Branch Chief and the APA Director. In addition, the team leader prepares
a summary memorandum for the Associate Chief Counsel (International) (ACC(I)).
On March 1, 2001, the ACC(I) delegated to the APA Director the authority
to execute APAs on behalf of the IRS. See Chief Counsel
Notice CC-2001-016. The APA is executed for the taxpayer by an appropriate
corporate officer.
Model APA at Attachment A [§
521(b)(2)(B)]
Attachment A contains the current version of the model APA language.
As part of its continuing effort to improve its work product, the APA Program
recently revised the model language to reflect the program’s collective
experience with substantive and drafting issues. The most significant revisions
are designed primarily to clarify how TPMs typically employed in APAs, and
adjustments that may be necessary to conform to such TPMs, are to be applied
and reflected in the taxpayer’s tax returns. Other significant revisions
include those intended (a) to clarify that the common parent of a US consolidated
return group is the appropriate signatory for APAs covering members of the
group, (b) to establish more clearly the taxpayer’s obligation to file
returns, or otherwise report results, consistent with the APA, particularly
for APA years that close before or near the APA execution date; (c) to provide
fixed, identified dates for filing annual reports, and (d) to reflect the
new procedure requiring disclosure of standardized summary information as
part of the annual report process.
The Current APA Office Structure, Composition,
and Operation
In 2005, the APA office consisted of four branches with Branches 1 and
3 staffed with APA team leaders and Branch 2 staffed with economists and a
paralegal. Branch 4, the APA West Coast branch, is headquartered in Laguna
Niguel, California, with an additional office in San Francisco, and is presently
staffed with both team leaders and economists.
Overall, the APA staff increased by one, to 33 from 32, from the end
of 2004 to the end of 2005. A second Special Counsel was added to the Program,
while the number of APA team leaders stayed constant at 17, and the number
of APA economists stayed constant at five.
As of December 31, 2005, the APA staff was as follows:
In 2005, the APA office continued to emphasize training. Training sessions
addressed APA-related current developments, new APA office practices and procedures,
and international tax law issues. The APA New Hire Training materials were
updated, as necessary, throughout the year. The updated materials are available
to the public through the APA internet site at http://www.irs.gov/businesses/corporations/article/0,,id=96221,00.html.
These materials do not constitute guidance on the application of the arm’s
length standard.
APA Program Statistical Data [§
521(b)(2)(C) and (E)]
The statistical information required under § 521(b)(2)(C) is contained
in Tables 1 and 9 below; the information required under § 521(b)(2)(E)
is contained in Tables 2 and 3 below:
TABLE 1: APA APPLICATIONS, EXECUTED APAs, AND
PENDING APAs
TABLE 2: MONTHS TO COMPLETE APAs
TABLE 3: APA COMPLETION TIME - MONTHS PER APA
TABLE 4: RECOMMENDED NEGOTIATING POSITIONS
TABLE 5: MONTHS TO COMPLETE RECOMMENDED NEGOTIATING
POSITIONS
TABLE 6: RECOMMENDED NEGOTIATING POSITIONS COMPLETION
TIME - MONTHS PER APA
Tables 7 and 8 below show how long each APA request pending at the end
of 2005 has been in the system as measured from the filing date of the APA
submission. We believe that reporting the age of both completed cases and
pending cases reflects more accurately the APA Program’s success or
failure in moving cases and improves the public’s ability to evaluate
the current timeliness of the APA process. (The numbers in Tables 7 and 8
for pending unilateral and bilateral cases differ from the numbers in Table
1 because whereas Table 1 includes any case for which a user fee has been
paid, Tables 7 and 8 reflect only cases for which submissions have been received.)
TABLE 7: UNILATERAL APAs - TIME IN INVENTORY
- MONTHS PER APA
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