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November 21, 2023
2023-1933

OECD holds Tax Certainty Day addressing MAP developments and updates on tax certainty efforts

  • On 14 November 2023 the Organisation for Economic Co-operation and Development (OECD) held its fifth annual OECD Tax Certainty Day.
  • During the event, the OECD released the 2022 statistics on Mutual Agreement Procedures (MAP) and presented the 2022 MAP awards. There were also updates on other activities of the MAP Forum, the International Compliance Assurance Programme (ICAP) and the ongoing work on tax certainty under Pillars One and Two of the OECD/G20 project on addressing the tax challenges of the digitalization of the economy (the BEPS 2.0 project).
  • Tax certainty is critical in today's constantly changing environment; businesses should monitor developments in this area and continue exploring the various available dispute prevention and resolution mechanisms.

Executive summary

On 14 November 2023, the OECD held its fifth annual OECD Tax Certainty Day. Speakers at the virtual meeting included members of the OECD Secretariat, the Chief of International Tax Cooperation and Trade of the United Nations, country delegates representing finance ministries and tax authorities and company tax executives. During the event, the OECD released the 2022 statistics on MAP and presented the 2022 MAP awards. The discussion also included updates and new statistics on ICAP, the ongoing work on tax certainty under Pillars One and Two of the BEPS 2.0 project and the tax certainty landscape around the world.

Detailed discussion

Introduction

The meeting began with an introductory session, with speakers from the OECD Centre for Tax Policy and Administration and the Business at OECD Tax Committee, who highlighted the continued importance of tax certainty and enhancing trust between taxpayers and tax administrations. The OECD speakers highlighted that commitment from the OECD and its members toward tax certainty remains strong and that tax certainty mechanisms seem to be gaining traction. On the dispute prevention side, the OECD speakers encouraged increased participation in ICAP, noting that companies that have been through ICAP see benefits from participation, and increased focus on bilateral and multilateral Advance Pricing Arrangements (APAs) especially with the OECD's publication of the Manual on Effective Mutual Agreement Procedures and the Bilateral APA Manual.1 They also noted increased use of other cooperative compliance programs and joint audits. On the dispute resolution side, they indicated that the 2022 MAP statistics show continued progress toward making MAP more efficient, effective and timely, especially where there is arbitration. Finally, they noted that with the implementation of new rules under the BEPS 2.0 project on the horizon, tax certainty remains a central design priority and will be critical for its successful implementation.

MAP statistics and update

This session began with the release of the 2022 MAP statistics and included discussion of the current landscape with respect to tax certainty.

2022 MAP statistics

Since 2016, the OECD has published annual MAP statistics as part of Action 14 (Making Dispute Resolution Mechanisms More Effective) of the Base Erosion and Profit Shifting (BEPS) project. Under Action 14, countries committed to a minimum standard to resolve treaty-related disputes in a timely, effective and efficient manner. This commitment included annual reporting of MAP statistics to provide transparency around dispute resolution efforts and progress. For 2022, the statistics include information for 133 jurisdictions. Key highlights in the 2022 statistics as presented by the speakers included:

MAP case inventory for new cases (post 2016) continues to rise

Last year (2022) saw increases in inventory of approximately 4% for new Transfer Pricing (TP) cases and 6% for new "Other" cases compared with 2021.2 There is a relatively even split between TP cases and Other cases. While slightly lower growth compared with previous years, the statistics still reflect the continued trend of increasing MAP inventory highlighting the importance of other tax certainty mechanisms to help manage the number of cases that enter into MAP. In 2022, a high number of old cases (pre-2016) were closed and, at the end of the year, old cases formed only 16% of total MAP inventory.

The number of new cases opened began rising again, with approximately 2500 cases started during 2022, following a slight drop in 2021 that was likely attributable to the COVID-19 pandemic.

MAP cases continue to take a long time to reach a resolution

Fewer MAP cases were closed in 2022 than in 2021 (approximately 250 cases). The time to close cases decreased from 32.3 months (2021) to 28.9 months for TP cases and increased from 20.7 months (2021) to 22.2 months for Other cases. The average time taken across all cases was 25.3 months, which is slightly above the 24-month target. In this regard, it was noted that when pre-2016 cases are excluded, the average timeframe falls below 24 months. From next year with the publication of the 2023 data, the MAP statistics will also include the age of cases in MAP inventory, which will be a helpful additional data point.

A continued high concentration of MAP cases

Approximately 70% of total MAP cases are concentrated in 10 countries3 and approximately 44% in five countries (Germany, France, Italy, Spain and Belgium). Each reporting jurisdiction's performance with respect to key indicators for MAP cases can be seen in separate breakdown reports and compared through the OECD's interactive tool.

From a broader perspective, collaboration and involvement of all countries impacts MAP, though it was noted that if the top 10 countries shortened their timeframe to resolve MAP cases this would have a significant impact on the overall global MAP picture.

MAP outcomes have remained generally positive

In 2022, 73% of total MAP cases closed and fully resolved the issue under dispute, either through:

  • Agreement to fully resolve the taxation not in accordance with the tax treaty (59%)
  • Grant of unilateral relief (8%)
  • Domestic remedy (6%)

No agreement was reached in only 3% of the MAP cases closed (including agreement to disagree), reflecting a slight increase from previous years and potentially linked to decisions around closing old cases (i.e., pre-2016). A higher proportion of Other cases (6.51%) were denied access to MAP compared to TP cases (0.38%). The speakers noted that this may be partly driven by a difference in the level of knowledge regarding the MAP requirements and time limits for those submitting TP cases, which are often businesses not individuals and involve higher amounts at stake.

Consolidated Information on MAP (CIM)

The OECD recognized that although it has published more information than ever before in relation to MAP (for example, MAP profiles, MAP statistics, Action 14 reports), the information is often published in different places and is not easily accessible. To address this, the OECD has published its first edition of the CIM, which provides an overview of all published information on MAP in each member jurisdiction of the OECD/G20 Inclusive Framework in one place and will be updated and released annually.

Overall, the Chair of the FTA MAP Forum recognized that the 2022 MAP statistics reflect mixed results. On the one hand, the statistics show increasing MAP inventories and average timeframes to close cases that remain above the 24-month target. On the other hand, the statistics show positive trends, such as the closure of a large number of cases. The Chair of the FTA MAP Forum noted the importance of not solely focusing on the statistics, but also considering the wider spectrum of efforts, initiatives and programs that the MAP Forum is undertaking to support its members (which are discussed below).

Update on MAP Forum work

Speakers provided a progress update on the various workstreams of the MAP Forum,4 including:

BEPS Action 14 minimum standard

In 2022, the MAP Forum completed the Stage 2 Peer Review with a total of 82 jurisdictions peer reviewed. The peer review process established under BEPS Action 14 allows countries to provide and receive constructive feedback to and from peers on dispute resolution mechanisms. Speakers indicated that this drives progress, encouraging countries to address recommendations and areas for improvement. In 2023, the MAP Forum's review has considered the enhancements and improvements to Action 14 and the assessment methodology, based on the experience of MAP Forum members and the MAP landscape over the past several years.

MAP training workshops

Speakers indicated that the OECD Secretariat has undertaken an important and broad program of MAP trainings during 2023. This has involved participation by experts from many Competent Authorities in training on baseline MAP concepts and practical applications and tutorials regarding MAPs and APAs. Speakers noted that these trainings are important not just for countries with low MAP caseloads, but also for countries with higher caseloads and larger competent authority functions that have high staff turnover levels.

Tax certainty and BEPS 2.0

Speakers noted that, during 2023, the MAP Forum continued its partnership with Working Party 6 (Transfer Pricing) in relation to Amount B of Pillar One, which they hope will be pushed forward toward completion and implementation by the end of January 2024.

ICAP update

Speakers indicated that the OECD continues to be highly supportive and invested in this voluntary risk assessment and assurance program, which has continued to grow following initial pilot programs in 2018. There are now 22 participating jurisdictions and more jurisdictions are in discussions to join.

ICAP involves collaboration between selected tax authorities to discuss and conclude whether certain covered transactions present low risk. A "low risk" outcome means the participating tax administrations do not expect to dedicate further resources to reviewing those transactions for the period covered by ICAP; the speakers noted that in practice this is being respected. A "non-low-risk" outcome could be due to various factors, such as materiality; however the OECD speakers emphasized that this does not imply these transactions are considered high risk, but rather indicates that the tax administrations could not reach a "low-risk" conclusion at that time.

ICAP statistics

For the first time, the OECD announced to-date ICAP results and statistics, which will be published on the OECD's website in the coming weeks:

  • Number of cases — 20 cases have been fully completed and several cases are ongoing.
  • Number of tax administrations in an ICAP risk assessment — The largest to date involved nine tax administrations, while the smallest involved three tax administrations. The average number of tax administrations involved is five and this has remained consistent since the first pilot.
  • Summary of ICAP risk assessment outcomes — ICAP covers five main transaction types/areas: tangible goods, intangibles, services, financing and permanent establishments (PEs). The proportion of reviewed transactions that were concluded as "low risk" were, by category: 90% for tangible goods, 75% for intangibles, 88% for services, 76% for financing and 95% for PEs.
  • Cases that included issue resolution within ICAP — 32% of cases involved the issue resolution process within ICAP, which is available on a case-by-case basis depending on the participating jurisdictions and has been very useful where it is available. Issue resolution refers to steps taken to resolve an issue within the ICAP process, avoiding the need for separate inquiries — for example, agreeing to a TP adjustment and corresponding adjustment in ICAP may avoid time spent in audit and MAP. In some cases, the tax administrations and the MNE decided to undertake issue resolution outside of ICAP, including addressing one or more covered risks through an APA.
  • Average time taken in each stage of ICAP — The average time to complete each stage was: Selection stage, 10.4 weeks; Risk Assessment stage, 42.4 weeks; and Outcome stage, 8.3 weeks. Although average timeframes to date for each stage exceeded the specific target for the stages, speakers indicated that this can be attributed to a number of factors, including ICAP's being a relatively new program, the need for concurrent participation from multiple tax administrations and the impact of the COVID-19 pandemic.
  • Timeframes in ICAP versus other routes to tax certainty — The total timeframe for ICAP on average was 61 weeks, in comparison to 166 weeks for APAs and 126 weeks for MAPs (in addition to time already incurred during an audit). However, speakers noted that the differences between the scope and requirements of the programs should be recognized because they impact timeframes.

Reflections on ICAP

The program included a panel discussion among tax administrations and company representatives. A United States (US) Internal Revenue Service (IRS) representative stated that although only a relatively small number of ICAP cases have been completed to date, the results are positive and demonstrate that a multilateral risk assessment approach can work. The IRS representative further indicated that publication of the ICAP statistics should help encourage taxpayers to consider utilizing ICAP as a tax-certainty mechanism going forward.

Companies that have participated in the ICAP program also shared their positive experiences and noted the benefits achieved. These included having practical certainty (i.e., not being subject to audit on ICAP-covered transactions) and savings from time, resource and money perspectives. They found it particularly valuable to have the opportunity to be a part of the discussion with tax authorities. They noted that this is in contrast to MAPs/APAs, where a taxpayer's role is more limited to providing information as opposed to actively participating in the discussions. They further indicated that the insight into understanding tax administrations' views obtained in ICAP discussions has helped to proactively identify potential challenges/tax disputes.

The OECD will publish the ICAP results and statistics on the OECD's website in the coming weeks. The OECD also plans to launch a survey regarding what companies expect from the ICAP process. The OECD speakers encouraged increased enrollment in ICAP and expressed hope that this publication will help dispel myths or concerns around the ICAP process.

Tax certainty under Pillar One of BEPS 2.0

The Director of the OECD's Centre for Tax Policy and Administration stated that tax certainty remains a central design priority in relation to the BEPS 2.0 project. A key part of Pillar One is the incorporation of binding dispute prevention and resolution mechanisms to secure certainty regarding the application and calculation of Amount A and related provisions. It has been a big step forward to gain acceptance of these types of mechanisms.5 For Pillar Two, members of the OECD Secretariat indicated that certainty regarding consistent application of the GloBE rules is achieved through drafting detailed model rules/commentary, issuing administrative guidance, determining qualified status of certain components of the rules and the ongoing peer review/monitoring process, and continuing to use the GloBE information return.

The members of the OECD Secretariat further provided a detailed overview of tax-certainty processes under Pillar One and Pillar Two. This was followed by country tax administrations and company representatives providing their perspectives on the design of the proposed tax certainty processes, the objectives of these processes and potential areas for further consideration.

Tax certainty around the world

Representatives of country tax administrations provided insights on their tax certainty efforts.

In developing countries, Competent Authority departments are often relatively small, have fewer MAP cases and often have relatively less experience with the process. Support and training provided by the OECD (e.g., through the Tax Inspectors Without Borders initiative and participation in the OECD MAP Forum and Action 14 peer review process) is valuable in helping these countries learn from more-experienced jurisdictions. In addition, efforts around developing domestic law related to MAP and the introduction of MAP guidance often increases taxpayers' interest and participation in MAP. These themes were reflected in the views shared by Colombia and Zambia tax administration representatives.

A US IRS representative shared insights into the positive efforts made by the US Competent Authority function to manage the MAP caseload, with the US now falling outside of the top five countries with the highest MAP inventories. Reasons for the reduced US MAP inventory include (i) resolving MAP cases efficiently across cases that share similar attributes rather than on a one-by-one basis, (ii) successfully closing older TP cases and Other cases (with a whole team dedicated to such cases) and (iii) encouraging audit teams to consult with the Competent Authority team to understand how a TP issue under review may be dealt with through MAP, while still keeping the two functions separate. A focus on dispute prevention mechanisms such as APAs and now ICAP has also positively contributed.

A representative of the Japan tax authority, which has a small MAP inventory and a very high number of APA cases (approximately 200 per year), noted that taxpayers in Japan typically request APA renewals upon expiration, contributing to the upward trend in the APA caseload. A representative of the Netherlands tax administration also highlighted an increase in the number of APA requests, with and without a roll-back to earlier periods, together with more instances of MAP requests with APA roll-forward.

2022 MAP awards

At the close of the meeting, the 2022 MAP awards were announced, recognizing the efforts of competent authorities across a range of metrics in five categories:

1. Average time to close MAP

The winners for the shortest time to close MAP cases are:

  • The Netherlands for TP cases (19.6 months)
  • New Zealand for Other cases (6.4 months)

2. Age of inventory

Canada held its title from last year, as the winner for the smallest portion of outstanding cases received before 1 January 2016 in ending inventory (1%).

3. Caseload management

The winners for the highest closing percentage taking into account case outcomes are:

  • Luxembourg for large inventory6 (57%)
  • Norway for medium inventory7 (54%)

4. Cooperation

The winners for the highest number of MAP cases fully resolved through agreement by a pair of jurisdictions as compared to their total MAP caseload are:

  • Denmark and Ireland for TP cases (83)
  • Germany and Ireland for Other cases (135)

5. Most-improved jurisdiction

The winner for the greatest increase in number of cases closed with unilateral relief or full agreement (2022 vs. 2021), reflecting an increase for both TP cases and Other cases, is The Netherlands with an increase by 102 cases closed (+31 for TP cases and +71 for Other cases).

Implications

The annual Tax Certainty Day provides useful insights with respect to the tax certainty agenda being advanced by the OECD through work with participating jurisdictions. It highlights the ongoing work focused on further improving dispute prevention and dispute resolution mechanisms, in particular the success to date of ICAP and the ever-increasing use of MAP. This year's meeting also provided interesting information on tax certainty efforts around the world.

Tax certainty is critical in today's constantly changing environment and businesses should seek to secure tax certainty at every opportunity, exploring ways to manage tax risks while also utilizing the various available dispute prevention and resolution mechanisms. With the expected introduction of new tax rules designed under the BEPS 2.0 project, tax certainty mechanisms will play an important role for taxpayers and tax administrations in both implementation and ongoing administration of the new rules.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young LLP (United Kingdom)

Ernst & Young LLP (United States)

Ernst & Young Belastingadviseurs LLP (Netherlands)

Ernst & Young Solutions LLP (Singapore)

Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor

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ENDNOTES

1 See EY Global Tax Alerts, OECD publishes Manual on Handling of Multilateral Mutual Agreement Procedures and Advance Pricing Arrangements, dated 23 February 2023 and OECD publishes Manual on Bilateral APAs, dated 5 October 2022

2 Total cases refer to both Transfer Pricing cases and Other cases. The OECD's reporting framework specifies that a Transfer Pricing case is a case involving attribution or allocation where the MAP request relates to either: (1) the attribution of profits to a permanent establishment (e.g., Article 7 of the OECD Model Tax Convention); or (2) the determination of profits between associated enterprises (e.g., Article 9 of the OECD Model Tax Convention). Any MAP case that is not a Transfer Pricing case is classified as an Other case.

3 Germany, France, Italy, Spain, Belgium, India, US, UK, Netherlands, Switzerland.

4 The MAP Forum consists of the competent authorities from member countries of the Forum on Tax Administration.

5 See EY Global Tax Alerts, OECD releases Multilateral Convention to implement Pillar One Amount A, dated 30 October 2023.

6 More than 100 cases left in end inventory.

7 More than 20 and fewer than 100 cases left in end inventory.

 
 

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