In this edition: the U.S. Internal Revenue Service Large Business and International division issued several new directives establishing procedural changes; the OECD launched the International Compliance Assurance Program; the U.S. Tax Cuts and Jobs Act has several provisions that will have an impact on the practice of transfer pricing; the Taiwan Ministry of Finance announced amendments to the Assessment Rules for Non-Arm’s Length Transfer Pricing of Profit-Seeking Enterprise; Australia released guidance documents on diverted profits tax and issued finalized risk framework for evaluating intercompany loans; and Spanish tax authorities announced the Tax Control Plan for FY2018.
View our transfer pricing times articles.
IRS Issues New LB&I Directives
On January 12, 2018, the U.S. Internal Revenue Service (“IRS”) Large Business and International (“LB&I”) Division issued several new directives establishing procedural changes aimed at enabling the IRS to manage resources in transfer pricing audits. Specifically, the new directives include:
- Interim Instructions on Issuance of Mandatory Transfer Pricing Information Document Request (“IDR”) in LB&I Examinations
There is no longer a mandatory requirement to issue an IDR for all exam cases when the taxpayer filed Form 5471 or 5472, or when the taxpayer engaged in cross-border transactions. Going forward, a mandatory IDR will only be issued when a resource from the Transfer Pricing Practice and/or Cross Border Activity Area has been assigned. A mandatory IDR may also be issued in situations where the taxpayer’s audit arose under one of LB&I’s campaigns (e.g., the inbound distribution campaign) depending on the campaign’s guidance for Mandatory Transfer Pricing IDR issuance. However, this guidance may not have much impact for many LB&I taxpayers with significant cross-border flows as they may fall under categories where an IDR would still be issued
- Instructions for LB&I on Transfer Pricing Selection and Scope of Analysis - Best Method Selection
This directive places a higher burden on the IRS examination team when arguing for a change in transfer pricing method. Specifically, it directs the exam team to obtain approval from a review board, the Treaties and Transfer Pricing Operations (“TTPO”) Transfer Pricing Review Panel, before making a change in the taxpayer’s selected best method under Treas. Reg. § 1.482 in contemporaneous transfer pricing documentation or an Advanced Pricing Agreement (“APA”) application. This guidance does not apply when a taxpayer fails to maintain documentation that clearly designates a best method and contains an analysis to support the best method conclusion. Furthermore, this guidance is written to apply to changes in method and not changes in the application of a method (e.g., the selection of different comparable)
- Instructions for LB&I on Transfer Pricing Issue Selection - Reasonably Anticipated Benefits (“RAB”) in Cost Sharing Arrangements
This directive mandates that examination teams stop developing alternatives to a taxpayer’s calculated multiple RAB shares to a single RAB share when subsequent platform contribution transactions (“PCTs”) are added to an existing cost-sharing arrangement (“CSA”) until a Service-wide position is finalized.
Some examination teams have taken the position that the RAB share regulations under Treas. Reg. § 1.482-7 require use of a single RAB share for such subsequent PCTs based on guidance under Treas. Reg. § 1.482-7(g)(5)(v). In some situations, taxpayers have taken positions that different RAB shares may apply to certain acquisitions being integrated into an existing tax structure when the acquired IP is expected to generate incremental profits to the participants in proportions that are substantially different from the RAB shares of the pre-existing CSA. This memorandum indicates that the IRS is continuing to develop its position on this point and that the adjustments should not be automatically assessed based on a position that only single RAB shares are acceptable.
- Instructions for Examiners on Transfer Pricing Issue Selection - Cost-Sharing Arrangement Stock Based Compensation
No new examinations related to stock-based compensation (“SBC”) included in CSA Intangible Development Costs (“IDCs”) will start until the Ninth Circuit issues an opinion in the Altera case on appeal. Once the outcome of the Altera appeal is known, LB&I will issue further instructions on inclusion of SBCs at that time.
- Instructions for Examiners on Transfer Pricing Issue Examination Scope - Appropriate Application of IRC §6662(e) Penalties
This directive guides exam teams to be sure to consider whether taxpayers actually meet penalty protection requirements when deciding whether to apply penalties under IRC 6662 - particularly when a taxpayer fails to create or to timely provide reasonable transfer pricing documentation (i.e., when the documentation provided is unreasonable or inadequate), assuming the net adjustment penalty thresholds are met. Unlike the other directives, which generally call for examiners to practice greater restraint, this instruction seems to imply that penalties should be asserted more often than they are currently. This directive should give taxpayers something to consider when evaluating the level of resources they want to commit to documentation, as the IRS may assert more penalties going forward. This is because taxpayers with inadequate documentation may be more likely to face penalties than in the past.
ICAP: The Introduction of Value Chain Analysis by the Back Door?
Hot on the heels of the filing of the first year of Country-by-Country (“CbC”) reports, on January 23, 2018, at an event in Washington, DC the OECD has launched a pilot programme indicating the use that tax administrations hope to make of the new layers of transfer pricing documentation at their disposal. Named the International Compliance Assurance Programme (“ICAP"), it is aimed at large MNE groups and will involve multilateral risk assessment across several jurisdictions.
Voluntary in nature, the programme is described by the OECD as using “CbC reports and other information to facilitate open and cooperative multilateral engagements between MNE groups and tax administrations, with a view to providing early tax certainty and assurance.”
The pilot for ICAP includes eight participating tax administrations: Australia, Canada, Italy, Japan, the Netherlands, Spain, the UK and the U.S. A multilateral assessment of specific international tax risks posed by the MNE groups volunteering for the pilot programme will commence in the first half of 2018 and is expected to be completed within one year.
The intention is that the programme should see more effective use of transfer pricing information (including the CbC report, master file and local file), a more efficient use of resources by multinational groups and tax administrations and fewer cases entering MAP, through coordinated conversations between the MNE group and tax administrations in several jurisdictions.
The OECD has published a handbook providing more detail on ICAP and the procedure for the pilot programme, which is available online on the OECD website. Participating MNE groups, a number of which have already been identified with headquarters in one of the participating eight countries, are invited to provide a package of documentation either to the lead tax administration for that MNE group, which will then share the documentation package with the other tax administrations, or direct to all of the relevant tax administrations. The international tax risks to be covered as part of the pilot programme are transfer pricing risk and permanent establishment (“PE”) risk. The tax periods covered are 2016 and 2017, but in addition, the tax authorities aim to provide the MNE group with assurance for the following two periods, provided there are no significant changes.
The Annex to the Handbook provides a checklist of the documents and information to be provided to the tax administrations as part of the pilot documentation package. In addition to the expected CbC report, master file and local files and information that might otherwise be expected to be readily available if a group master file has been prepared to OECD specifications, the Handbook specifies submission of a “value chain analysis” as well as PE documentation.
Does this represent an indication of the possible future introduction of a value chain analysis as a formal part of a group’s transfer pricing documentation package? Former members of the OECD’s Working Party 6, responsible for the drafting of the OECD’s Transfer Pricing Guidelines, have previously been at pains to stress that a value chain analysis was not an expected part of the master file or the three-tiered documentation structure introduced by the OECD for transfer pricing purposes. Yet it is now made explicit by the OECD in this pilot programme that, to the extent that the expected contents of a value chain analysis are not already included in the master file, a much more expansive analysis is to be included, going well beyond the requirements of the OECD master file. While this remains merely a pilot programme of limited application, it could possibly be an indication that the OECD is still at least considering some required role for value chain analyses.
Tax Reform: A Summary of Several Provisions Relating to Transfer Pricing
The 2017 Tax Cuts and Jobs Act, H.R.1, (“the Act”) became effective as of December 22, 2017 and has several provisions which will have an impact on the practice of transfer pricing. Of particular relevance are the provisions relating to 1) Global Intangible Low-Taxed Income, 2) the Base Erosion Anti-Abuse tax, 3) Foreign Derived Intangible Income, and 4) Redefined definition of Intangible Assets in Section 936(h)(3)(B).
Global Intangible Low-Taxed Income (“GILTI”): This provision applies the corporate U.S. tax rate to the GILTI of U.S. companies. At a high level, GILTI is calculated as aggregate net controlled foreign corporation (“CFC”) income less net deemed tangible income, with net deemed tangible income calculated as a 10% return on the aggregate CFC tangible assets.
Deductions are allowed against the GILTI in the amount of 50% of the amount of GILTI that is included in the U.S. corporation’s gross income in addition to 80% of applicable foreign tax credits. It should be noted that the GILTI deduction rate of 50% is reduced to 37.5% for taxable years beginning after December 31, 2025. While GILTI may reduce incentives for U.S. companies to move IP outside of the U.S., many taxpayers may still benefit from offshore IP structures given the complex interplay between existing tax rate differentials between jurisdictions, tax attributes (e.g., amortization), and deductions allowed within the GILTI framework.
Base erosion anti-abuse tax (“BEAT”): The BEAT requires U.S. taxpayers to pay a tax equal to the base erosion minimum tax amount for the taxable year, with the base erosion minimum tax equal to the excess (if any) of 10% of modified taxable income less regular tax liability on a worldwide basis, with modified taxable income calculated as taxable income excluding certain “base erosion payments”. Base erosion payments are defined as payments made to a foreign related party and explicitly do not include amounts relating to cost of goods sold. The applicable tax rate is 5% for one year for taxable years beginning after December 31, 2017 and subsequently increases to the 10% rate previously mentioned. The BEAT rate increases to 12.5% for taxable years beginning after December 31, 2025. The BEAT would only apply to taxpayers with $500 million in average annual gross receipts for the three-year period ending with the preceding taxable year and a base erosion percentage of 3% or higher for the taxable year.
Foreign Derived Intangible Income (“FDII”): The Act allows for a deduction for a percentage of FDII, which at a high level is the U.S. company’s taxable income earned from exploiting IP outside of the U.S. FDII is calculated as deemed intangible income (which is deduction eligible income less a 10% return on tangible assets) multiplied by the ratio of the foreign derived deduction eligible income over deduction eligible income. It should be noted that deduction eligible income excludes certain types of income (such as GILTI income and Section 951 Subpart F income). The applicable deduction percentage for FDII is 37.5% for taxable years beginning after December 31, 2017 and before January 1, 2026, and 21.875% for taxable years beginning after December 31, 2025. At a high level, the FDII rules aim to encourage exports of products and services by domestic corporations where embedded IP may be generating a higher level of profits than the “routine” return on fixed assets.
Redefined definition of Intangible Assets in Section 936(h)(3)(B): Under the Act, the statutory definition of IP in section 936(h)(3)(B) is revised to include workforce in place, goodwill (both foreign and domestic), and going concern value and the residual category of “any similar item” the value of which is not attributable to tangible property or the services of an individual. The Act also codified the use of an aggregation approach for the valuation of the IP being transferred when this approach achieves a more reliable result than an asset by asset approach.
Taiwan Adopts OECD's Three-tiered Transfer Pricing Documentation
On November 13, 2017, Taiwan Ministry of Finance (“MoF”) announced amendments to the Assessment Rules for Non-Arm’s Length Transfer Pricing of Profit-Seeking Enterprise (“Revised TP Assessment Rules”) to implement the OECD recommended three-tiered transfer pricing documentation practice (i.e., Master File, Local File, and Country-by-Country (“CbC) reporting”), effective from financial year 2017. Subsequently, through a news alert published on 11 December 2017, the MoF announced safe harbor thresholds for the preparation of Master File and CbCR.
According to the news alert released by the MoF, a Taiwan entity is required to prepare and submit the Master File when the total operating and non-operating revenue exceeds NTD 3 billion (around USD 100 million) or the total cross-border related party transactions exceeds NTD 1.5 billion (around USD 50 million). If there are two or more operating entities in a multinational (“MNE”) group located in Taiwan and both entities reach the threshold to submit the Master File, the MNE group can appoint one-member entity to submit the Master File.
However, note that even if the Taiwan taxpayer is exempt from submitting a Master File, the Taiwan tax authority can still request the Master File if any of the overseas members of the MNE group are required to submit the Master File.
The Master File should be prepared when the corporate income tax return is filed, and should be submitted within one year after the fiscal year ends. For example, for companies with fiscal year-end on 31 December 2017, the Master File should be prepared before May 30, 2018 and should be submitted to the local tax authority before December 31, 2018. Further, if the Master File is prepared in English, the Taiwan entity can submit the English version first, but the tax authority may request a Chinese translation, and the Chinese translation should be submitted within one month from the tax authority’s notification. However, if the Master File is prepared in another foreign language, a Chinese translation should be submitted together with the original Master File to the local tax authority.
The CbC reporting threshold follows the recommendations from BEPS Action Plan 13. Taiwan taxpayers are required to submit a CbC report if the preceding year’s consolidated group revenue exceeds NTD 27 billion (equivalent to EUR 750 million). The CbC report shall be submitted within one year after the fiscal year-end (e.g. December 31, 2018 for calendar year-end) and shall be filed electronically. However, note that even when the Taiwan entity is exempt from filing the CbC report, Taiwan tax authority can still request the CbC report if another member of the MNE group is required to submit a CbC report.
For the guidance on the submission of CbC report, if the Ultimate Parent Entity is located in Taiwan, the Taiwan Entity (the Ultimate Parent Entity or its member entity of the group) is responsible to prepare and file the CbC report. However, when the Ultimate Parent Entity is overseas and the reporting entity is located in a country which is under the information exchange framework with Taiwan, the Taiwan tax authority may obtain the CbC report through the information exchange procedures. On the other hand, if Taiwan tax authority cannot obtain the CbC report through information exchange procedure, the member entity in Taiwan is required to submit the CbC report to the tax authority.
Local File and tax return disclosures
The threshold for the preparation of Local File / transfer pricing report remain the same as the existing threshold, i.e. annual net revenue and non-operating income exceeds NTD 300 million (around USD 10 million) and the annual amount of all the related party transactions exceeds NTD 200 million (around USD 7 million). Further, the Revised TP Assessment Rules require additional information in the Local File to align with recommendations from BEPS Action Plan 13. The Local File should be prepared when the corporate tax return is filed, e.g. before May 31, 2018 for calendar year-end, and submitted to the tax authority within one month upon request.
Further, Taiwan taxpayers are required to disclose additional information in the corporate income tax return, e.g. the location of the Ultimate Parent Company and which entity is responsible for submitting the CbC report.
The transfer pricing regime in Taiwan is now aligning closely with the recommendations from BEPS Action Plan 13. Therefore, the MNE group should consider and ensure the transfer pricing compliance requirements in Taiwan. Since Taiwan has been participating actively in the exchange of information framework, it is important for MNE group to maintain consistent transfer pricing policies and prepare the required transfer pricing documentation according to local Taiwan transfer pricing rules.
Australia Releases Guidance Documents on Diverted Profits Tax
The Diverted Profits Tax (“DPT”) applies to income years starting on after July 1, 2017. Where it applies, it imposes tax at the rate of 40% on the amount of the diverted profit. The primary condition for the DPT to apply to an arrangement is that it is reasonable to conclude that there is a ‘Principal Purpose’ of obtaining either an Australian or foreign tax benefit.
If the ‘Principal Purpose’ test is met, the DPT will apply if the following requirements are satisfied:
- The arrangement with a related party has given rise to an effective mismatch (tax paid on profits generated in Australia is taxed in a foreign jurisdiction at a rate of less than 80 percent of what the tax would have been in Australia);
- The arrangement has insufficient economic substance (where it is reasonable for the ATO to conclude based on the information available at the time that the arrangement is designed to secure a tax reduction); and
- The Australian taxpayer’s total income exceeds A$25 million.
On December 18, 2017, almost 6 months after the DPT law was introduced, the ATO has released the following two guidance documents:
- Draft Law Companion Guideline LCG 2017/D7 (LCG), for consultation, which when finalised, will apply the law as described in it, and it will constitute a public ruling; and
- Law Administration Practice Statement PSLA 2017/2 which outlines the ATO processes for initiating and implementing a DPT assessment.
Draft Law Companion Guideline LCG 2017/D7
Some of the issues considered in the LCG are as follows:
- Losses / foreign tax credits and ‘sufficient foreign tax’ test: this test does not simply look at the headline tax rate in a foreign jurisdiction but rather, the amount of foreign tax paid, having regard to foreign tax losses, foreign tax credits or other foreign tax attributes;
- The sufficient economic substance test: this test requires consideration not only of the functions, assets and risks of all the relevant entities connected with the scheme (including whether they are appropriately remunerated), but the economic/commercial context of the activities, and their object and effect from a practical/business point of view;
- Quantifiable non-tax financial benefits: Not much guidance is provided in the LCG in this regard. However, it is important to note that even if significant commercial (or non-tax) benefits arise, this is just one factor in considering whether the principal purpose test is satisfied; and
- Interaction of the DPT and the thin capitalization rules: The Commissioner may use the DPT to adjust the rate of the actual debt issued, but may not adjust the actual quantum of debt as is permitted under the thin capitalisation rules.
Clearly, multinationals would have appreciated more specific guidance in relation to the types of arrangements impacted by the DPT, to be able to deal with any potential uncertainty. Unfortunately, however, they will have to wait until the ATO publishes its practical compliance guideline, which is expected to provide practical examples on the relative risk of adopting certain types of arrangements covering different industry sectors.
ATO process for issuing DPT assessments (PSLA 2017/2)
The PSLA provides guidance to ATO personnel about approvals required to conduct a DPT analysis, and how DPT assessments are to be raised.
An ATO officer must obtain approval from the ATO DPT specialist team prior to commencing a DPT analysis. Once approved, the ATO officer is required to engage with the Tax Counsel Network in undertaking the DPT analysis.
A typical process to issue a DPT assessment will include the following:
- Obtaining confirmation from the DPT Review Committee.
- A General Anti-Avoidance Rules (GAAR) Panel initial hearing (with at least one non-ATO member).
- Deputy Commissioner endorsement on the decision to make a DPT assessment.
Once a DPT assessment has been issued, the taxpayer has the 12-month review period to make written and oral submissions. On finalization of a DPT assessment the taxpayer’s right of appeal will be to the Federal Court.
PCG 2017/D7 is available here.
Law administration practice statement (PSLA) is available here.
Australia Issues Finalized Risk Framework for Evaluating Intercompany Loans
On December 18, 2017, the Australian Taxation Office (“ATO”) released its finalized Practical Compliance Guideline (“PCG”) 2017/4 in relation to the pricing of cross-border related party financing arrangements. The PCG provides a risk assessment framework for taxpayers to self-assess the transfer pricing risk level of their intercompany loan transactions and understand the compliance approach the ATO is likely to adopt when reviewing such arrangements. The PCG has effect from July 1, 2017, and applies to all new and existing loan arrangements.
It is intended that over time additional schedules will be added to the PCG for other types of financial transactions, with schedules addressing related party derivative arrangements and interest free loans currently under development, and an additional schedule on financial guarantees expected to follow.
Our Transfer Pricing Times May 2017 edition provides a discussion of the draft PCG. The key changes from the draft PCG are summarized below.
- The risk framework continues to be made up of six color-coded ‘risk zones’ (white, green, blue, yellow, amber, red); however, the risk zone is now determined by combining outcomes under ‘Pricing’ and ‘Motivational’ risk scoring tables.
- Any of the following features will automatically result in a risk rating in the red zone - very high risk:
• Interest rate more than 200bps over cost of ‘referable debt;
• Lender entity jurisdiction has a 0% tax rate;
• or Hybrid arrangements.
Under the draft PCG, the presence of any one of the above factors could have resulted in an overall risk rating in the yellow zone - moderate risk.
- The range of interest coverage ratios has been reduced. The PCG also recognizes that the interest coverage ratio may be less relevant in certain circumstances, for example, capital intensive projects in start-up phase. In these cases, where this interest coverage ratio is the only indicator causing the taxpayer to fall outside the green zone, they may request a white zone risk assessment from the ATO.
- The PCG clarifies that the mere presence of subordination or exotic features, or the lack of collateral, can be ignored if these terms have not been taken into account in pricing the loan.
The ATO has indicated that it will not apply compliance resources to review finance transactions with self-assessed risk ratings in the white or green zones, beyond fact-checking the taxpayer’s assessment. However, the ATO will review finance transactions in the amber and red categories as a matter of priority. A high-risk rating is not necessarily interpreted by the ATO as indicative of incorrect transfer pricing, but will in most cases attract scrutiny and the case might proceed to audit.
Companies affected by the PCG should review their existing (and proposed) loan arrangements against the risk criteria set out in the PCG to assess their risk profile. Companies rated as higher risk wishing to avoid scrutiny from the ATO may choose to modify the terms or pricing of their intercompany loan arrangements in order to qualify as lower-risk. Alternatively, companies which choose not to restructure should bolster existing evidence to support their pricing approach, and be prepared to defend or engage with the ATO, or explore the possibility of an Advance Pricing Arrangement (APA) to obtain certainty.
PCG 2017/4 is available here.
Spanish Tax Authorities Announce the Tax Control Plan for FY2018
On January 23, 2018, the Spanish Tax Authority announced the Tax Control Plan for FY2018. The Resolution was originally published on January 8, 2018 by the Directorate General of the State Administration Agency.
The Tax Control Plan’s primary objectives are to increase tax fraud prevention and control. Transfer Pricing topics are a key component of this Plan, which outlines the following specific risk areas:
- Related party transactions: The assessment of intercompany transactions in order to prevent tax evasion through transfer pricing will be prioritized.
- Aggressive Tax Planning: The main objective is to pursue the assessment of operations, entity structures, or financial instruments that may result in tax evasion practices.
- Permanent Establishments: Specific efforts will be devoted to detect and control Permanent Establishments.
- Tax Havens: New controls and efforts will be implemented to ensure appropriate assessments of transactions executed with entities located in tax havens or non-cooperative jurisdictions.
Additionally, the Spanish Tax Authority will focus its efforts on the following areas:
- Country-by-Country Reporting (“CbCR”): Starting from June 2018, the Spanish Tax Authority is looking to leverage available global CbCR information in order to optimize its risk assessment models. As a result, the Spanish Tax Authority is expecting to improve control, detection, and prevention of tax evasion practices.
- Joint International Efforts: The Spanish Tax Authority is expecting to increase international cooperation with tax authorities worldwide and participate in joint efforts as needed.
In addition, the tax control plan focuses on developing capabilities that will allow the Spanish Tax Authority to improve its assessment of new business models by assigning resources to investigate topics related to the digital economy, gig economy, innovative data management technology, blockchain and cryptocurrencies.
Intragroup Transactions – Transfer Pricing
The Spanish Tax Authority will control tax evasion practices by multinational enterprises in accordance with the local and international regulations (BEPS).
In addition, the plan specifies that it will prioritize the evaluation of intercompany transactions related to high-value intangibles, intercompany services, business restructures and intercompany financing operations.
Aggressive Tax Planning
The Spanish Tax Authority recognizes that entity structures that lack economic substance may be used to facilitate tax evasion. Its aim is to tackle this issue by focusing specifically on investigating inconsistencies with regards to value creation and economic substance.
Resources will be allocated to improve the identification of entity structures or financial instruments that may be utilized to reduce taxable income.
The Spanish Tax Authority will address specific efforts that will be employed to identify structures or schemes that may be intended to reduce taxable income, such as hybrid entity structures. In addition, it will focus on improving the enforcement of anti-abuse rules and bilateral treaties that aim to reduce treaty shopping.
Permanent Establishments and Tax Havens
There will also be a focus on improving detection and control of permanent establishments of non-resident entities in Spain. The Spanish Tax Authority will improve the detection and control of permanent establishments by allocating resources to investigate and identify these permanent establishments through their interaction with Spanish operating entities.
Additionally, resources will be allocated to keep track of structures associated with high-risk and non-cooperative tax jurisdictions. Specific control efforts will target the identification and evaluation of transactions executed with entities located in tax havens.
New Business Models – Digital Economy
The technology used in the digital economy is resulting in significant changes to commercial models and work organization. In response to this, tax authorities must update and adapt to this new way of doing business. The plan intends to improve the Spanish Tax Authority's use of new technology in order to implement new data management techniques and accurately assess fraudulent activities associated with big data.
The New Distribution Models will be analyzed to ensure that new e-commerce models associated with sales, distribution and warehousing are taxed properly. Additionally, special attention will be paid to Internet-Based Service Providers who operate exclusively through internet websites.
The increasing use of credit card and electronic transactions, such as wallet and wire transfers, requires that the Tax Authority adapts and updates its information systems in order to control tax fraud.
The Spanish Tax Authority will study the tax implications of new technology, such as blockchain or cryptocurrencies.