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|
|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|
[a] Consistent with past practice, the “APAs executed” figures in this table include APA renewals, but exclude revised or amended APAs.
|Months to Complete Advance Pricing Agreements in Year 2004|
|All New||All Renewals||All Combined|
|Unilateral New||Unilateral Renewals||Unilateral Combined|
|Bilateral/Multilateral New||Bilateral/Multilateral Renewals||Bilateral/Multilateral Combined|
|Months||Number of APAs||Months||Number of APAs||Months||Number of APAs||Months||Number of APAs|
|Recommended Negotiating Positions Completed in Year 2004||25|
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.)
|Months||Number of APAs||Months||Number of APAs||Months||Number of APAs||Months||Number of APAs|
|Months||Number of APAs||Months||Number of APAs||Months||Number of APAs||Months||Number of APAs|
|Small Business Taxpayer APAs Completed in Year 2004||9|
|Months to Complete Small Business Taxpayer APAs in Year 2004|
|Industry Involved - NAICS Codes||Number|
|Computer and electronic product manufacturing - 334||10-12|
|Wholesale trade, durable goods - 421||7-9|
|Securities, commodity contracts and other intermediary and related activities - 523||7-9|
|Machinery manufacturing - 333||4-6|
|Transportation equipment manufacturing - 336||4-6|
|Electronic equipment, appliance and component manufacturing - 335||1-3|
|Wholesale trade, nondurable goods - 422||1-3|
|Chemical manufacturing - 325||1-3|
|Broadcasting and telecommunications - 513||1-3|
|Information service and data processing services - 514||1-3|
|Motor vehicle and parts dealers - 441||1-3|
|Food manufacturing - 311||1-3|
|Apparel manufacturing - 315||1-3|
|Plastics and rubber products manufacturing - 326||1-3|
|Miscellaneous manufacturing - 339||1-3|
|Air transportation - 481||1-3|
|Heavy construction - 234||1-3|
|Mining (except oil and gas) - 211||1-3|
|Beverage and tobacco manufacturing - 312||1-3|
|Health and personal care stores - 446||1-3|
|Clothing and clothing accessories stores - 448||1-3|
|Insurance carriers and related activities - 524||1-3|
|Professional, scientific and technical services - 545||1-3|
The nature of the relationships between the related organizations, trades, or businesses covered by APAs executed in 2004 is set forth in Table 12 below:
The controlled transactions covered by APAs executed in 2004 are set forth in Table 13 and Table 14 below:
|Sale of tangible property into the U.S.||42|
|Performance of services by U.S. entity||28|
|Sale of tangible property from the U.S.||11|
|Use of intangible property by Non-U.S. entity||10|
|Performance of services by Non-U.S. entity||10|
|Use of intangible property by U.S. entity||6|
|Financial products - Non-U.S. parent||5|
|Financial products - U.S. branch of foreign company||5|
|R&D cost sharing||≤ 3|
|Commodity trading on globally integrated basis||≤ 3|
|Intercompany Services Involved in the Covered Transactions||Number|
|Technical support services||11|
|Contract research & development||4|
|Communication services||≤ 3|
|Research and development||≤ 3|
|Testing and installation services||≤ 3|
|Manufacturing services||≤ 3|
|License administration services||≤ 3|
|Warranty services||≤ 3|
The general descriptions of the business functions performed and risks assumed by the organizations, trades, or businesses whose results are tested in the Covered Transactions in the APAs executed in 2004 are set forth in Tables 15 and 16 below:
|Managerial, legal, accounting, finance, personnel, and other support services||29|
|Transportation and warehousing||18|
|Purchasing and materials management||16|
|Research and development||16|
|Product design and engineering||15|
|Product assembly and/or packaging||14|
|Product testing and quality control||13|
|Product services (repairs, etc.)||11|
|Trading and risk management of financial products||10|
|Technical training and tech support for sales staff (including sub-distributors)||9|
|Engineering and construction related services||7|
|Licensing of intangibles||7|
|Telecom services||≤ 3|
|Market risks, including fluctuations in costs, demand, pricing, & inventory||91|
|General business risks (e.g., related to ownership of PP&E)||78|
|Credit and collection risks||63|
|Financial risks, including interest rates & currency||48|
|Product liability risks||23|
The vast majority of APAs have Covered Transactions that involve numerous business functions and risks. For instance, with respect to functions, companies that manufacture products have typically conducted research and development, engaged in product design and engineering, manufactured the product, marketed and distributed the product, and performed support functions such as legal, finance, and human resources services. Regarding risks, companies have been subject to market risks, R&D risks, financial risks, credit and collection risks, product liability risks, and general business risks. In the APA evaluation process, a significant amount of time and effort is devoted to understanding how the functions and risks are allocated among the controlled group of companies that are party to the Covered Transactions.
In its APA submission, the taxpayer must provide a functional analysis. The functional analysis identifies the economic activities performed, the assets employed, the economic costs incurred, and the risks assumed by each of the controlled parties. The importance of the functional analysis derives from the fact that economic theory posits that there is a positive relationship between risk and expected return and that different functions provide different value and have different opportunity costs associated with them. It is important that the functional analysis go beyond simply categorizing the tested party as, say, a distributor. It should provide more specific information because, in the example of distributors, not all distributors undertake similar functions and risks.
Thus, the functional analysis is critical in determining the TPM (including the selection of comparables). Although functional comparability is an essential factor in evaluating the reliability of the TPM (including the selection of comparables), the APA evaluation process also involves consideration of economic conditions such as the economic condition of the particular industry.
In evaluating the functional analysis, the APA Program considers contractual terms between the controlled parties and the consistency of the conduct of the parties with respect to the allocation of risk. In accordance with the section 482 regulations, the APA Program also gives consideration to the ability of controlled parties to fund losses that might be expected to occur as a result of the assumption of risk. Another relevant factor considered in evaluating the functional analysis is the extent to which a controlled party exercises managerial or operational control over the business activities that directly influence the amount of income or loss realized. The section 482 regulations posit that parties at arm’s length will ordinarily bear a greater share of those risks over which they have relatively more control.
The related organizations, trades, or businesses whose prices or results are tested to determine compliance with TPMs prescribed in APAs executed in 2004 are set forth in Table 17 below:
|Type of Organization||Number|
|Multiple tested parties||19|
|U.S. provider of services||19|
|Non-U.S. provider of services||6|
|Non-U.S. dealer in financial products||5|
|Non-U.S. licensee of intangible property||≤ 3|
|Non-U.S. manufacturer||≤ 3|
|U.S. licensor of intangible property||≤ 3|
|U.S. dealer in financial products||≤ 3|
|Non-U.S. licensor of intangible property||≤ 3|
|U.S. licensee of intangible property||≤ 3|
The TPMs used in APAs executed in 2004 are set forth in Tables 18-20 below:
|CPM: PLI is operating margin||20|
|CPM: PLI is gross margin||15|
|CPM: PLI is Berry ratio||14|
|Resale Price Method (tangibles only)||11|
|CUT (intangibles only)||8|
|CPM: PLI is markup on total costs||5|
|Residual profit split||≤ 3|
|Cost Plus Method (tangibles only)||≤ 3|
|CPM: PLI is other PLI||≤ 3|
|CPM: PLI is return on assets or capital employed||≤ 3|
|Comparable profit split||≤ 3|
|CPM: PLI is markup on total costs||10|
|Cost plus a markup||10|
|Cost with no markup||5|
|CPM: PLI is operating margin||≤ 3|
|CPM: PLI is return on assets||≤ 3|
|CPM: PLI is Berry ratio||≤ 3|
|Resale Price Method||≤ 3|
|Profit split||≤ 3|
The TPMs used in APAs completed during 2004 were based on the section 482 regulations. Under Treas. Reg. § 1.482-3, the arm’s length amount for controlled transfers of tangible property may be determined using the Comparable Uncontrolled Price (CUP) method, the Resale Price Method, the Cost Plus Method, the Comparable Profits Method (CPM), or the Profit Split Method. Under Treas. Reg. § 1.482-4, the arm’s length amount for controlled transfers of intangible property may be determined using the Comparable Uncontrolled Transaction (CUT) method, CPM, or the Profit Split Method. An “Unspecified Method” may be used for both tangible and intangible property if it provides a more reliable result than the enumerated methods under the best method rule of Treas. Reg. § 1.482-1(c). For transfers involving the provision of services, Treas. Reg. § 1.482-2(b) provides that services performed for the benefit of another member of a controlled group should bear an arm’s length charge, either deemed to be equal to the cost of providing the services (when non-integral, see Treas. Reg. § 1.482-2(b)(3)) or which should be an amount that would have been charged between independent parties.
In addition, Treas. Reg. § 1.482-2(a) provides rules concerning the proper treatment of loans or advances, and Treas. Reg. § 1.482-7 provides rules for qualified cost sharing arrangements under which the parties agree to share the costs of development of intangibles in proportion to their shares of reasonably anticipated benefits. APAs involving cost sharing arrangements generally address both the method of allocating costs among the parties as well as determining the appropriate amount of the “buy-in” payment due for the transfer of pre-existing intangibles to the controlled participants.
In reviewing the TPMs applicable to transfers of tangible and intangible property reflected in Table 18, the majority of the APAs followed the specified methods. However, several points should be made. The § 482 regulations note that for transfers of tangible property, the Comparable Uncontrolled Price (CUP) method will generally be the most direct and reliable measure of an arm’s length price for the Controlled Transaction if sufficiently reliable comparable transactions can be identified. Treas. Reg. § 1.482-3(b)(2)(ii)(A). It was the experience of the APA Program in 2003, that in the cases that came into the APA Program, sufficiently reliable CUP transactions were difficult to find. In APAs executed in 2004, no Covered Transaction used the CUP method.
Similar to the CUP method, for transfers of intangible property, the CUT method will generally provide the most reliable measure of an arm’s length result if sufficiently reliable comparables may be found. Treas. Reg. § 1.482-4(c)(2)(ii). It has generally been difficult to identify external comparables, and APAs using the CUT method tend to rely on internal transactions between the taxpayer and unrelated parties. In 2004, eight Covered Transactions utilized the CUT TPM.
The Cost Plus Method (tangibles only) and Resale Price Method were applied in 2004 in three or fewer APAs and 11 APAs, respectively. See Treas. Reg. § 1.482-3(c), (d).
The CPM is frequently applied in APAs. This is because reliable public data on comparable business activities of independent companies may be more readily available than potential CUP data, and comparability of resources employed, functions, risks, and other relevant considerations are more likely to exist than comparability of product. The CPM also tends to be less sensitive than other methods to differences in accounting practices between the tested party and comparable companies, e.g., classification of expenses as cost of goods sold or operating expenses. Treas. Reg. § 1.482-3(c)(3)(iii)(B), and -3(d)(3)(iii)(B). In addition, the degree of functional comparability required to obtain a reliable result under the CPM is generally less than required under the Resale Price or Cost Plus methods, because differences in functions performed often are reflected in operating expenses, and thus taxpayers performing different functions may have very different gross profit margins but earn similar levels of operating profit. Treas. Reg. § 1.482-5(c)(2).
Table 18 reflects more than 54 uses of the CPM (with varying PLIs) in Covered Transactions involving tangible or intangible property. In some APAs, the CPM was also used concurrently with other methods.
The CPM has proven to be versatile in part because of the various PLIs that can be used in connection with the method. Reaching agreement on the appropriate PLI has been the subject of much discussion in many of the cases, and it depends heavily on the facts and circumstances. Some APAs have called for different PLIs to apply to different parts of the Covered Transactions or with one PLI used as a check against the primary PLI.
The CPM was also used regularly with services as the Covered Transactions in APAs executed in 2004. There were at least 13 services Covered Transactions using the CPM method with various PLIs according to the specific facts of the taxpayers involved. Table 19 reflects the methods used to determine the arm’s length results for APAs involving services transactions.
In 2004, three or fewer APAs involving tangible or intangible property used the Residual Profit Split Method, Treas. Reg. § 1.482-6(c)(3). In residual profit split cases, routine contributions by the controlled parties are allocated routine market returns, and the residual income is allocated among the controlled taxpayers based upon the relative value of their contributions of non-routine intangible property to the relevant business activity.
Profit splits have also been used in a number of financial product APAs in which the primary income-producing functions are performed in more than one jurisdiction. Nine APAs executed in 2004 applied a profit split method.
Critical Assumptions used in APAs executed in 2004 are described in Table 21 below:
|Critical Assumptions involving the following:||Number of APAs|
|Material changes to the business||65|
|Material changes to tax and/or financial accounting practices||65|
|Other financial ratio||5|
|Changes in affiliated companies||4|
|Material sales fluctuations||4|
|Income and expense allocation and apportionment methods materially same||4|
|Use of Mark-to-Market method||≤ 3|
|Assets will remain substantially same||≤ 3|
|Catastrophic events||≤ 3|
|Major regulatory changes||≤ 3|
|Marketing conditions substantially same||≤ 3|
|Contracting practices to remain the same||≤ 3|
|Minimum and maximum sales volume||≤ 3|
|Interdesk and interbranch transactions/allocations done on arm’s length basis||≤ 3|
|Responsibility of trading locations will not change materially||≤ 3|
APAs include critical assumptions upon which their respective TPMs depend. A critical assumption is any fact (whether or not within the control of the taxpayer) related to the taxpayer, a third party, an industry, or business and economic conditions, the continued existence of which is material to the taxpayer’s proposed TPM. Critical assumptions might include, for example, a particular mode of conducting business operations, a particular corporate or business structure, or a range of expected business volume. Rev. Proc. 2004-40, § 4.05. Failure to meet a critical assumption may render an APA inappropriate or unworkable.
A critical assumption may change (and/or fail to materialize) due to uncontrollable changes in economic circumstances, such as a fundamental and dramatic change in the economic conditions of a particular industry. In addition, a critical assumption may change (and/or fail to materialize) due to a taxpayer’s actions that are initiated for good faith business reasons, such as a change in business strategy, mode of conducting operations, or the cessation or transfer of a business segment or entity covered by the APA.
If a critical assumption has not been met, the APA may be revised by agreement of the parties. If such an agreement cannot be achieved, the APA may be canceled. If a critical assumption has not been met, it requires taxpayer’s notice to and discussion with the Service, and, in the case of a bilateral APA, competent authority consideration. Rev. Proc. 2004-40, § 10.05.
The sources of comparables, selection criteria, and rationale used in determining the selection criteria for APAs executed in 2004 are described in Tables 22 through 24 below. Various formulas for making adjustments to comparables are included as Attachment B.
|Comparable Sources||Number of Times This Source Used|
|Bureau Van Dijk’s JADE (Japan)||≤ 3|
|Global Vantage||≤ 3|
|Japan Company Handbook||≤ 3|
|Global Researcher’s SEC (database)||≤ 3|
|Selection Criteria Considered||Number of Times This Criterion Used|
|Adjustment||Number of Times Used|
|Balance sheet adjustments|
|Property, plant, equipment||7|
|Other non-interest bearing liabilities||7|
|LIFO to FIFO inventory accounting||22|
|Accounting reclassifications (e.g., from COGS to operating expenses)||≤ 3|
|Profit level indicator adjustments (used to “back into” one PLI from another)|
|Return on investment backed into cost-plus||≤ 3|
|Berry ratio backed into operating margin||≤ 3|
|Goodwill value or amortization||≤ 3|
|Working capital adjustment||≤ 3|
|Research & development||≤ 3|
|Sales shock||≤ 3|
At the core of most APAs are comparables. The APA Program works closely with taxpayers to find the best and most reliable comparables for each Covered Transaction. In some cases, CUPs or CUTs can be identified. In other cases, comparable business activities of independent companies are utilized in applying the CPM or a profit split method. Generally, in the APA Program’s experience since 1991, CUPs and CUTs have been most often derived from the internal transactions of the taxpayer.
For profit-based methods in which comparable business activities or functions of independent companies are sought, the APA Program typically has applied a three-part process. First, a pool of potential comparables has been identified through broad searches. From this pool, companies having transactions that are clearly not comparable to those of the tested party have been eliminated through the use of quantitative and qualitative analyses, i.e., quantitative screens and business descriptions. Then, based on a review of available descriptive and financial data, a set of comparable transactions or business activities of independent companies has been finalized. The comparability of the finalized set has then been enhanced through the application of adjustments.
Comparables used in APAs can be U.S. or foreign, depending on the relevant market, the type of transaction being evaluated, and the results of the functional and risk analyses. In general, comparables have been located by searching a variety of databases that provide data on U.S. publicly traded companies and on a combination of public and private non-U.S. companies. Table 22 shows the various databases and other sources used in selecting comparables for the APAs executed in 2004.
Although comparables were most often identified from the databases cited in Table 22, in some cases comparables were found from other sources, such as comparables derived internally from taxpayer transactions with third parties.
Initial pools of potential comparables generally are derived from the databases using a combination of industry and keyword identifiers. Then, the pool is refined using a variety of selection criteria specific to the transaction or business activity being tested and the TPM being used.
The listed databases allow for searches by industrial classification, by keywords, or by both. These searches can yield a number of companies whose business activities may or may not be comparable to those of the entity being tested. Therefore, comparables based solely on industry classification or keyword searches are rarely used in APAs. Instead, the pool of comparables is examined closely, and companies are selected based on a combination of screens, business descriptions, and other information found in the companies’ Annual Reports to shareholders and filings with the U.S. Securities and Exchange Commission (SEC).
Business activities are required to meet certain basic comparability criteria to be considered comparables. Functions, risks, economic conditions, and the property (product or intangible) and services associated with the transaction must be comparable. Determining comparability can be difficult - the goal has been to use comparability criteria restrictive enough to eliminate business activities that are not comparable, but yet not so restrictive as to have no comparables remaining. The APA Program normally has begun with relatively strict comparability criteria and then has relaxed them slightly if necessary to derive a pool of reliable comparables. A determination on the appropriate size of the comparables set, as well as the business activities that comprise the set, is highly fact specific and depends on the reliability of the results.
In addition, the APA Program, consistent with the section 482 regulations, generally has looked at the results of comparables over a multi-year period. Sometimes this has been a three-year period, but it has been more or less, depending on the circumstances of the controlled transaction. Using a shorter period might result in the inclusion of comparables in different stages of economic development or use of atypical years of a comparable due to cyclical fluctuations in business conditions.
Many Covered Transactions have been tested with comparables that have been chosen using additional criteria and/or screens. These include sales level criteria and tests for financial distress and product comparability. These common selection criteria and screens have been used to increase the overall comparability of a group of companies and as a basis for further research. The sales level screen, for example, has been used to remove companies that, due to their size, might face fundamentally different economic conditions from those of the transaction or business activities being tested. In addition, APA analyses have incorporated selection criteria related to removing companies experiencing “financial distress” due to concerns that companies in financial distress often have experienced unusual circumstances that render them not comparable to the business activity being tested. These criteria include an unfavorable auditor’s opinion, bankruptcy, and, in certain circumstances, operating losses in a given number of years.
An additional important class of selection criteria is the development and ownership of intangible property. In some cases in which the business activity being tested is a manufacturer, several criteria have been used to ensure, for example, that if the controlled entity does not own significant manufacturing intangibles or conduct research and development (R&D), then neither will the comparables. These selection criteria have included determining the importance of patents to a company or screening for R&D expenditures as a percentage of sales. Again, quantitative screens related to identifying comparables with significant intangible property generally have been used in conjunction with an understanding of the comparable derived from publicly available business information.
Selection criteria relating to asset comparability and operating expense comparability have also been used at times. A screen of property, plant, and equipment (PP&E) as a percentage of sales or assets, combined with a reading of a company’s SEC filings, has been used to help ensure that distributors (generally lower PP&E) were not compared with manufacturers (generally higher PP&E), regardless of their industry classification. Similarly, a test involving the ratio of operating expenses to sales has helped to determine whether a company undertakes a significant marketing and distribution function.
Table 25 shows the number of times various screens were used in APAs executed in 2004:
|Comparability/Financial Distress Screen||Times Used|
|Comparability screens used|
|Foreign sales/ total sales||8|
|Operating expenses/ sales||6|
|Advertising/ sales||≤ 3|
|Non-startup or start-up||≤ 3|
|PP&E/ sales||≤ 3|
|Losses in one or more years||17|
|Unfavorable auditor’s opinion||9|
After the comparables have been selected, the regulations require that “[i]f there are material differences between the controlled and uncontrolled transactions, adjustments must be made if the effect of such differences on prices or profits can be ascertained with sufficient accuracy to improve the reliability of the results.” Treas. Reg. § 1.482-1(d)(2). In almost all cases involving income-statement-based PLIs, certain “asset intensity” or “balance sheet” adjustments for factors that have generally agreed-upon effects on profits are calculated. In addition, in specific cases, additional adjustments are performed to improve reliability.
The most common balance sheet adjustments used in APAs are adjustments for differences in accounts receivable, inventories, and accounts payable. The APA Program generally has required adjustments for receivables, inventory, and payables based on the principle that there is an opportunity cost for holding assets. For these assets, it is generally assumed that the cost is a short-term debt interest rate.
To compare the profits of two business activities with different relative levels of receivables, inventory, or payables, the APA Program estimates the carrying costs of each item and adjusts profits accordingly. Although different formulas have been used in specific APA cases, Attachment B presents one set of formulas used in many APAs. Underlying these formulas are the notions that (1) balance sheet items should be expressed as mid-year averages, (2) formulas should try to avoid using data items that are being tested by the TPM (for example, if sales are controlled, then the denominator of the balance sheet ratio should not be sales), (3) a short term interest rate should be used, and (4) an interest factor should recognize the average holding period of the relevant asset.
The APA Program also requires that data be compared on a consistent accounting basis. For example, although financial statements may be prepared on a first-in first-out (FIFO) basis, cross-company comparisons are less meaningful if one or more of the comparables use last-in first-out (LIFO) inventory accounting methods. This adjustment directly affects costs of goods sold and inventories, and therefore affects both profitability measures and inventory adjustments.
Still important in some cases is the adjustment for differences in relative levels of PP&E between a tested business activity and the comparables. Ideally, comparables and the business activity being tested will have fairly similar relative levels of PP&E, since major differences can be a sign of fundamentally different functions and risks. Typically, the PP&E adjustment is made using a medium term interest rate.
Additional adjustments used less frequently include those for differences in other balance sheet items, operating expenses, R&D, or currency risk. Accounting adjustments, such as reclassifying items from cost of goods sold to operating expenses, are also made when warranted to increase reliability. Often, data is not available for both the controlled and uncontrolled transactions in sufficient detail to allow for these types of adjustments.
The adjustments made to comparables or tested parties in APAs executed in 2004 are reflected in Table 24 above.
The types of ranges and adjustment mechanisms used in APAs executed in 2004 are described in Table 26 and 27 below.
|Type of Range||Number|
|Specific point (royalty)||9|
|Specific point within CPM range (not floor or ceiling)||9|
|Other specific point||7|
|Floor (i.e., result must be no less than x)||≤ 3|
|Financial products - statistical confidence interval to test against internal CUPs||≤ 3|
|Specific point (CUT)||≤ 3|
|Taxpayer makes an adjustment: to closest edge of single year||25|
|Taxpayer makes an adjustment: to closest edge of multi-year average||24|
|Taxpayer makes an adjustment: to specified point||24|
|Taxpayer makes an adjustment: to median of multi-year average||8|
|Taxpayer makes an adjustment: to median of current year||7|
|Taxpayer makes an adjustment: to other||4|
Treas. Reg. § 1.482-1(e)(1) states that sometimes a pricing method will yield “a single result that is the most reliable measure of an arm’s length result.” Sometimes, however, a method may yield “a range of reliable results,” called the “arm’s length range.” A taxpayer whose results fall within the arm’s length range will not be subject to adjustment.
Under Treas. Reg. § 1.482-1(e)(2)(i), such a range is normally derived by considering a set of more than one comparable uncontrolled transaction of similar comparability and reliability. If these comparables are of very high quality, as defined in the § 482 regulations, then under Treas. Reg. § 1.482-1(e)(2)(iii)(A), the arm’s length range includes the results of all of the comparables (from the least to the greatest). However, the APA Program has only rarely identified cases meeting the requirements for the full range. If the comparables are of lesser quality, then under Treas. Reg. § 1.482-1(e)(2)(iii)(B), “the reliability of the analysis must be increased, when it is possible to do so, by adjusting the range through application of a valid statistical method to the results of all of the uncontrolled comparables.” One such method, the “interquartile range,” is ordinarily acceptable, although a different statistical method “may be applied if it provides a more reliable measure.” The “interquartile range” is defined as, roughly, the range from the 25th to the 75th percentile of the comparables’ results. See Treas. Reg. § 1.482-1(e)(2)(iii)(C). The interquartile range was used 58 times in 2004.
More than twenty-five Covered Transactions reflected on Table 26 specified a single, specific result. Nine of these Covered Transactions involved a CPM in which the taxpayer agreed to a “point.” Some APAs specify not a point or a range, but a “floor” or a “ceiling”. When a floor is used, the tested party’s result must be greater than or equal to some particular value. When a ceiling is used, the tested party’s result must be less than or equal to some particular value. Three or fewer APAs executed in 2004 used a floor and none used a ceiling.
Some APAs look to a tested party’s results over a period of years (multi-year averaging) to determine whether a taxpayer has complied with the APA. In 2004, rolling multi-year averaging was used for 14 Covered Transactions. Twelve of those used three-year averages and the other two used five-year averages. Five Covered Transactions used cumulative multi-year averages, while 26 other Covered Transactions used term averages.
Under Treas. Reg. § 1.482-1(e)(3), if a taxpayer’s results fall outside the arm’s length range, the Service may adjust the result “to any point within the arm’s length range.” Accordingly, an APA may permit or require a taxpayer and its related parties to make an adjustment after the year’s end to put the year’s results within the range, or at the point specified by the APA. Similarly, to enforce the terms of an APA, the Service may make such an adjustment. When the APA specifies a range, the adjustment is sometimes to the closest edge of the range, and sometimes to another point such as the median of the interquartile range. Depending on the facts of each case, automatic adjustments are not always permitted. APAs may specify that in such a case there will be a negotiation between the competent authorities involved to determine whether and to what extent an adjustment should be made. APAs may permit automatic adjustments unless the result is far outside the range specified in the APA. Thus, APAs provide flexibility and efficiency, permitting adjustments when normal business fluctuations and uncertainties push the result somewhat outside the range.
Where a taxpayer’s actual transactions do not comply with the TPM, a taxpayer must nonetheless report its taxable income in an amount consistent with the TPM (an APA primary adjustment), as further discussed in § 10.02 of Rev. Proc. 2004-40.
The various term lengths for APAs executed in 2004 are set forth in Table 28 below:
|APA Term in Years||Number of APAs|
The number of rollback years to which an APA TPM was applied in 2004 is set forth in Table 29 below:
APAs executed in 2004 required that taxpayers provide various documents with their annual reports. These documents are described in Table 30 below:
|Documentation||Number of Times Required|
|Description of any failure to meet Critical Assumptions or, if there have been none, a statement to that effect||65|
|Statement identifying all material differences between Taxpayer’s business operations during APA Year and description of Taxpayer’s business operations contained in Taxpayer’s request for APA, or if there have been no such material differences, a statement to that effect||64|
|Statement identifying all material changes in Taxpayer’s accounting methods and classifications, and methods of estimation, from those described or used in Taxpayer’s request for APA, or if there have been none, statement to that effect||64|
|Financial analysis demonstrating Taxpayer’s compliance with TPM||64|
|Description of, reason for, and financial analysis of, any Compensating Adjustments with respect to APA Year, including means by which any Compensating Adjustment has been or will be satisfied||62|
|Financial statements as prepared in accordance with US GAAP||56|
|Certified public accountant’s opinion that financial statements present fairly financial position of Taxpayer and the results of its operations, in accordance with US GAAP||56|
|Financial statements as prepared in accordance with a foreign GAAP||12|
|Various work papers||9|
|Book to tax reconciliations||8|
|Certified public accountant’s opinion that financial statements present fairly financial position of Taxpayer and the results of its operations, in accordance with a foreign GAAP||8|
|Schedule of costs and expenses (e.g., intercompany allocations)||5|
|Description of any changes in entity classification||4|
|Description of any changes in Taxpayer’s financial accounting methods that were made to conform to US GAAP||4|
|Description of differences between foreign GAAP and US GAAP and their impact on the financial statements||4|
During 2004, there were 48 tested parties that faced financial risks, including interest rate and currency risks. In appropriate cases, APAs may provide specific approaches for dealing with currency risk, such as adjustment mechanisms and/or critical assumptions.
As described in Rev. Proc. 2004-40, § 10.01, APA taxpayers are required to file annual reports to demonstrate compliance with the terms and conditions of the APA. The filing and review of annual reports is a critical part of the APA process. Through annual report review, the APA program monitors taxpayer compliance with the APA on a contemporaneous basis. Annual report review provides current information on the success or problems associated with the various TPMs adopted in the APA process.
All reports received by the APA office are tracked by one designated APA team leader who also has the primary responsibility for annual report review. Other APA team leaders and economists assist in this review, especially when the team leader who negotiated the case is available, since that person will already be familiar with the relevant facts and terms of the agreement. Once received by the APA office, the annual report is sent out to the district personnel with exam jurisdiction over the taxpayer.
The statistics for the review of APA annual reports are reflected in Table 31 below. As of December 31, 2004, there were 337 pending annual reports. In 2004, 143 reports were closed.
|Number of APA annual reports pending as of December 31, 2004||337|
|Number of APA annual reports closed in Year 2004||143|
|Number of APA annual reports requiring adjustment in Year 2004||5|
|Number of taxpayers involved in adjustments||1|
|Number of APA annual reports required to be filed in Year 2004||215|
|Number of APA annual reports actually filed in Year 2004||162|
|Number of APA annual report cases over one year old||101|
 The one multilateral APA was treated as a bilateral APA for purposes of these calculations.
 The categories in this table are drawn from the North American Industry Classification System (NAICS), which has replaced the U.S. Standard Industrial Classification (SIC) system. NAICS was developed jointly by the U.S., Canada, and Mexico to provide new comparability in statistics about business activity across North America.
 “Multiple tested parties” includes covered transactions that utilize profit splits, CUPs, and CUTs.
 Profit Level Indicators (PLIs) used with the Comparable Profit Method of Treas. Reg. § 1.482-5, and as used in these TPM tables, are as follows: (1) operating margin (ratio of operating profit to sales); (2) gross margin (ratio of gross profit to sales); (3) Berry ratio (gross profit to operating expenses); (4) markup on total costs (percentage markup on total costs); and (5) rate of return on assets or capital employed (ratio of operating profit to operating assets).
 The numbers do not include TPMs with cost or cost-plus methodologies.
 The first eight categories of documentation listed in this table were drawn from the standard APA language used in 2004. The facts and circumstances of some APAs may eliminate the need for some standard documentation requirements.