IRS Announcement 2005-27
March 31, 2005
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, and 2003. This sixth report describes the experience, structure and activities of the APA Program during calendar year 2004. 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 2004, the IRS and taxpayers executed 65 APAs and amended 4 APAs.
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.
On July 1, 2004, the IRS updated the procedural rules for obtaining, processing, and administering APAs with the issuance of Rev. Proc. 2004-40, 2004-29 I.R.B. 50 (July 19, 2004). Rev. Proc. 2004-40 supersedes Rev. Proc. 96-53 and Notice 98-65 and is effective for all APA requests (including requests for renewals) filed on or after August 19, 2004. Rev. Proc. 96-53 continues to apply to APA requests filed before August 19, 2004, although a taxpayer with an APA request pending on that date may ask to apply Rev. Proc. 2004-40 to the pending APA.
Also in 2004, the APA Program published IRS Announcement 2004-98, 2004-50 I.R.B. 983 (December 13, 2004), announcing its intention to hold public hearings in early 2005 requesting comments on the state of, and ideas for improving, the APA Program.
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 6 of Rev. Proc. 2004-40, 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 § 6.07 of Rev. Proc. 2004-40, 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, 2004, 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, 2004, 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. 2004-40, § 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 of Rev. Proc. 2004-40.
The APA application can be a relatively modest document for small businesses. Section 8 of Rev. Proc. 2004-40 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.
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.
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 versions of this language are found in Attachment A, with “Model 1” based on Rev. Proc. 96-53 and “Model 2” based on Rev. Proc. 2004-40. 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.
Attachment A contains the current versions of the model APA language. As part of its continuing effort to improve its work product, the APA Program has revised the model language to reflect the program’s collective experience with substantive and drafting issues.
In 2004, 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 an economist.
Overall, the APA staff declined in 2004 from 36 to 32. The number of APA team leaders fell from 18 to 17, the number of APA economists fell from seven to five, and a temporary vacancy reduced the number of APA branch chiefs from four to three.
As of December 31, 2004, the APA staff was as follows:
| Director’s Office 1 Director 1 Special Counsel to the Director 1 Secretary to the Director | |||
|---|---|---|---|
| Branch 1 | Branch 2 | Branch 3 | Branch 4 |
| 1 Branch Chief | 1 Acting Branch Chief (also | 1 Branch Chief | 1 Branch Chief |
| 1 Secretary | Special Counsel) | 1 Secretary | 1 Secretary |
| 7 Team Leaders | 1 Paralegal | 7 Team Leaders | 3 Team Leaders |
| 4 Economists | 1 Economist | ||
In 2004, the APA office continued to emphasize training as a priority. 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.
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:
| Unilateral | Bilateral | Multilateral | Year Total | Cumulative Total | |||
|---|---|---|---|---|---|---|---|
| APA applications filed during year 2004 | 35 | 45 | 80 | 846 | |||
| APAs executed[a] | |||||||
| Year 2004 | 27 | 37 | 1 | 65 | 557 | ||
| 1991-2003 | 227 | 258 | 7 | 492 | |||
| APA renewals executed during year 2004 | 8 | 13 | 21 | 129 | |||
| Revised or Amended APAs executed during year 2004 | 4 | 0 | 4 | 29 | |||
| Pending requests for APAs | 63 | 163 | 226 | ||||
| Pending requests for new APAs | 40 | 112 | 152 | ||||
| Pending requests for renewal APAs | 23 | 51 | 74 | ||||
| APAs canceled or revoked | 0 | 0 | 0 | 5 | |||
| APAs withdrawn | 5 | 6 | 11 | 94 | |||
|
[a] Consistent with past practice, the “APAs executed” figures in this table include APA renewals, but exclude revised or amended APAs. |
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TABLE 2: MONTHS TO COMPLETE APAs[1]
| Months to Complete Advance Pricing Agreements in Year 2004 | |||||
|---|---|---|---|---|---|
| All New | All Renewals | All Combined | |||
| Average | 44.1 | Average | 30.1 | Average | 39.9 |
| Median | 36.4 | Median | 33.9 | Median | 33.9 |
| Unilateral New | Unilateral Renewals | Unilateral Combined | |||
| Average | 25.7 | Average | 13.3 | Average | 22.3 |
| Median | 21.0 | Median | 12.1 | Median | 18.4 |
| Bilateral/Multilateral New | Bilateral/Multilateral Renewals | Bilateral/Multilateral Combined | |||
| Average | 56.4 | Average | 40.4 | Average | 51.2 |
| Median | 48.0 | Median | 35.0 | Median | 43.0 |
| Months | Number of APAs | Months | Number of APAs | Months | Number of APAs | Months | Number of APAs |
|---|---|---|---|---|---|---|---|
| 1 | 31 | 1 | 61 | 91 | |||
| 2 | 32 | 1 | 62 | 1 | 92 | ||
| 3 | 33 | 63 | 93 | ||||
| 4 | 34 | 4 | 64 | 94 | |||
| 5 | 35 | 2 | 65 | 95 | |||
| 6 | 1 | 36 | 1 | 66 | 1 | 96 | 1 |
| 7 | 37 | 3 | 67 | 1 | 97 | ||
| 8 | 1 | 38 | 68 | 98 | |||
| 9 | 39 | 1 | 69 | 99 | |||
| 10 | 1 | 40 | 70 | 1 | 100 | 1 | |
| 11 | 1 | 41 | 71 | 101 | |||
| 12 | 2 | 42 | 2 | 72 | 102 | ||
| 13 | 1 | 43 | 73 | 103 | |||
| 14 | 3 | 44 | 1 | 74 | 1 | 104 | |
| 15 | 2 | 45 | 75 | 105 | |||
| 16 | 1 | 46 | 2 | 76 | 106 | ||
| 17 | 1 | 47 | 77 | 107 | |||
| 18 | 1 | 48 | 2 | 78 | 108 | ||
| 19 | 49 | 1 | 79 | 1 | 109 | ||
| 20 | 3 | 50 | 80 | 110 | |||
| 21 | 2 | 51 | 81 | 1 | 111 | ||
| 22 | 1 | 52 | 1 | 82 | 112 | ||
| 23 | 1 | 53 | 83 | 1 | 113 | 1 | |
| 24 | 54 | 84 | 114 | ||||
| 25 | 55 | 85 | 115 | ||||
| 26 | 2 | 56 | 86 | 116 | |||
| 27 | 1 | 57 | 2 | 87 | 117 | ||
| 28 | 58 | 88 | 118 | ||||
| 29 | 1 | 59 | 89 | 119 | 1 | ||
| 30 | 2 | 60 | 90 | 1 | 120 |
| Recommended Negotiating Positions Completed in Year 2004 | 25 |
| New | Renewal | Combined | |||
| Average | 18.20 | Average | 14.71 | Average | 16.80 |
| Median | 16.60 | Median | 15.31 | Median | 15.90 |
| Months | Number | Months | Number | Months | Number | Months | Number |
|---|---|---|---|---|---|---|---|
| 1 | 1 | 11 | 2 | 21 | 31 | ||
| 2 | 12 | 22 | 32 | 1 | |||
| 3 | 13 | 2 | 23 | 33 | |||
| 4 | 14 | 24 | 2 | 34 | |||
| 5 | 15 | 3 | 25 | 1 | 35 | ||
| 6 | 16 | 4 | 26 | 36 | |||
| 7 | 1 | 17 | 2 | 27 | 37 | ||
| 8 | 18 | 28 | 38 | ||||
| 9 | 19 | 2 | 29 | 2 | 39 | ||
| 10 | 2 | 20 | 30 | 40 |
Tables 7 and 8 below are new from previous annual reports and show how long each APA request pending at the end of 2004 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.)