The Organisation for Economic Cooperation and Development (OECD) released two items of guidance that will help US multinationals with the processes necessary for tax certainty in transfer pricing transactions: (1) a revised methodology for Base Erosion and Profit Shifting (BEPS) Action 14 peer reviews and updates on reporting of Mutual Agreement Procedure (MAP) and Advance Pricing Agreement (APA) statistics; and (2) a manual on Multilateral Mutual Agreement Procedures and Advance Pricing Agreements (see Tax Alerts 2023-0322 and 2023-0355). The IRS has publicly stated that it is updating the MAP and APA guidance in its revenue procedures.

New assessment methodology for peer reviews

Action 14 enables jurisdictions to provide and receive feedback on dispute resolution mechanisms from peer jurisdictions. On January 24, 2023, the OECD released the Continued Monitoring Process, a revised methodology that details how monitoring Action 14 minimum standards will be conducted going forward.¹

The revised methodology sets forth a two-stage approach. The first stage is a peer review of the implementation of the minimum standard based on the assessed jurisdiction's legal framework for Mutual Agreement Procedures. The second stage, peer monitoring, reviews measures implemented by the assessed jurisdictions to address observations identified in the first stage.

Peer review cannot be deferred under the Continued Monitoring Process, so all members of the Inclusive Framework will be subject to monitoring, under either the full process or a simplified one.

MAP and APA statistics reporting framework

The OECD also increased the data it will collect for reporting MAP statistics to include: (1) the average time taken to resolve unilateral and multilateral post-2015 MAP cases, respectively, and (2) the age of pending post-2015 MAP cases.²

For APAs, the Inclusive Framework requires all members to report annual bilateral and multilateral APA statistics from 2024 onward, which will be published on the OECD website in a similar format to the MAP statistics.³ The required statistics include the: (1) APA inventory at the start and end of the reporting period; (2) number of APA applications filed, granted and rejected during the reporting period; (3) number of APA cases closed for other reasons; and (4) average time taken to close APAs during the reporting period.

Multilateral MAP and APA manual

The OECD recognized that multilateral MAPs and APAs provide greater tax certainty by bringing together multiple jurisdictions to determine the taxation of multinational enterprises' transactions; however, their benefits are hampered by tax administrations' limited experience coordinating a multilateral MAP or APA.⁴ The OECD said it is addressing this lack of knowledge and experience by gathering information from 19 tax administrations, which it used to create the manual on multilateral MAPs and APAs that it published on February 1, 2023.⁵

The manual consists of five sections:

• The first section addresses the project, including the challenges that arise in multilateral cases and taxpayers' and tax administrations' experience with multilateral MAPs and APAs
• The second section discusses the legal basis for multilateral cases, focusing on language contained in the OECD Model Tax Convention, and addresses how taxpayers should request a multilateral MAP or APA and when tax administrations should grant multilateral requests
• The third section addresses procedural concerns, covering topics such as coordinating procedural matters, discussions in multilateral cases and arbitration when tax administrations cannot reach a MAP agreement
• The fourth section provides examples of multilateral cases
• The fifth section discusses the ideal timeline for a multilateral case

The OECD intends for the manual to serve as an educational tool for tax administrations. Each jurisdiction should evaluate their existing APA and MAP programs in light of the OECD guidance and incorporate any guidance that would clarify their programs.⁶ Rather than a "one-size fits all" tool, the manual should be viewed as a distillation of cumulative experience with generalized principles.

US Implications

The IRS has publicly stated that it is updating the MAP and APA guidance currently found in Revenue Procedure 2015-40 and 2015-41, respectively.⁷ It is expected that these updated revenue procedures will be generally consistent with the manual on bilateral APAs and the manual on multilateral MAP and APA, given the US's involvement in the manuals (in 2022 the OECD released a manual on the operation of bilateral APAs and 29 best practices (see Tax Alert 2022-1508 for further details)). It seems to be clear that both the IRS and OECD see MAP and APA programs as crucial elements of a fully functioning international tax system.

Although the information included in the annual IRS APMA statutory reports currently address the main reporting requirements provided by the new OECD reporting framework, taxpayers will soon have more transparency of foreign jurisdictions' APA programs to assess the best multilateral or bilateral dispute resolution option. As the progress on BEPS 2.0 advances, this increased transparency will assist taxpayers in making dispute resolution decisions. The IRS has always encouraged certainty and transparency. It will be interesting to see whether the IRS will report APA statistics both (1) domestically as required by statute and (2) under the framework required by the OECD.⁸

The updated US and OECD guidance will increase transparency and help taxpayers evaluate their dispute resolution options for transfer pricing and other treaty issues. Taxpayers should continue to review the OECD guidance and statistics released to further understand the nuances inherent in other jurisdictions' MAP and APA programs.

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Published by NTD’s Tax Technical Knowledge Services group; Andrea Ben-Yosef, legal editor

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ENDNOTES

¹ OECD releases revised methodology for the BEPS Action 14 peer reviews, additional data points in the MAP Statistics and a new framework for APA Statistics, OECD (January 24, 2023).

² Id.

³ Id.

⁴ OECD releases manual on the handling of multilateral mutual agreement procedures and advance pricing arrangements pursuant to tax certainty agenda (OECD News Release), OECD (January 2, 2023).

⁵ Manual on the Handling of Multilateral Mutual Agreement Procedures and Advance Pricing Arrangements, p. 10, OECD, February 1, 2023).

⁶ OECD News Release.

⁷ Alexander F. Peter, Eaton Defeat Prompts IRS to Rewrite Underlying APA Guidance, Tax Notes Today (October 17, 2022).

⁸ Section 521 (b) of Public Law 106-170, "The Ticket to Work and Work Incentives Improvement Act" of 1999, requires that the Secretary of the Treasury report APA statistics annually.