January 31, 2024
OECD publishes ICAP statistics
On 29 January 2024, the OECD released the first-published statistics on ICAP since the start of the program in 2018, covering all 20 cases completed by October 2023. The statistics provide information on the tax administrations that participated in the completed ICAP risk assessments, the average time taken to complete a risk assessment, the core risk areas covered and aggregated data on the risk assessment outcomes. The document also includes information on the relationship between ICAP and other routes to tax certainty, such as advance pricing arrangements (APAs) and mutual agreement procedures (MAPs).
ICAP is a voluntary risk assessment and assurance program. Under ICAP, multiple tax administrations come together to simultaneously risk-assess a multinational group (MNE). In return, the program offers MNEs a level of tax assurance that no new tax audits will be opened regarding the low-risk covered transactions for a specified period by the participating tax administrations.
The first ICAP pilot was launched in January 2018 with eight tax administrations. The second pilot began in March 2019 with 19 tax administrations. ICAP became a full program in September 2021. There currently are 23 jurisdictions participating in ICAP, with Portugal the latest to join the program in January 2024.
During the OECD's annual Tax Certainty Days, ICAP has been a focus of discussion, with various MNE groups describing their positive experiences and the benefits achieved with ICAP.1
Number of cases, tax administrations and time frames
Between 2018 and October 2023, 20 ICAP cases were completed and the statistics provide information on the conduct and outcomes of these cases.
The largest ICAP risk assessment involved nine tax administrations, while the smallest involved three tax administrations. The average number of tax administrations involved was five.
Each stage of an ICAP case has a specific target time frame. The statistics reflect an average completion time for each stage in comparison to the target time frame as shown in the table:
The statistics show that the average ICAP risk-assessment time significantly exceeded the target time frame. However, the OECD describes the time as still relatively short given that certainty is provided in multiple jurisdictions and across multiple risk areas.
Although ICAP involves participation from multiple tax administrations at one time, the statistics show no significant correlation between the number of tax administrations involved and the time it took to conclude an ICAP risk assessment. According to the OECD, the COVID-19 pandemic and newness of ICAP could have contributed to the average time frames having exceeded the targets.
Risk outcomes — general
In an ICAP assessment, tax administrations assess each covered transaction as low-risk or not low-risk. A transaction is low-risk where a tax administration does not anticipate that any further inquiries will be required for the periods covered by the risk assessment. A transaction's being considered "not low-risk," however, does not mean that further inquiries will be necessary.
The statistics show that none of the MNEs that participated in ICAP received outcomes that were not low-risk on all the risk areas covered. On the other hand, 40% of the MNEs received low-risk outcomes on transactions in all core risk areas covered by their risk assessment. Another 40% of the MNEs received low-risk outcomes on transactions in all but one or two core risk areas covered by their risk assessment.
Only 20% of the MNEs received not low-risk outcomes in more than two risk areas covered.
Risk outcomes — per transaction type
ICAP covers five main transaction types/areas: tangible goods, intangibles, services, financing and permanent establishments (PEs).
The statistics provide a summary of ICAP risk assessment outcomes by core risk area as follows:
Where steps can be taken to resolve an issue among tax administrations, the ICAP process allows for an "issue resolution" stage. The use of issue resolution can enable tax administrations to reach low-risk outcomes in a greater number of core risk areas and avoid the need for separate inquiries or MAP.
In 32% of the ICAP cases covered by the statistics, the issue resolution process was invoked. In addition, the OECD states that in some cases, the tax administrations and MNE decided to undertake issue resolution outside of ICAP by addressing one or more covered risks through an APA.
Comparing ICAP with other routes to tax certainty
The statistics include observations around how ICAP compares with APA and MAP. The OECD notes that it should be recognized that each of these approaches has an important role to play in providing certainty to MNEs in different contexts.
According to the OECD, ICAP provides an opportunity for multiple tax administrations to review a broad range of intercompany transactions and PE risks and to identify low-risk transactions relatively quickly, which then do not further constrain audit, APA and MAP resources. An APA or MAP typically focuses on a narrower range of transactions and jurisdictions but provides a high degree of legal certainty, with MAP generally being the only bilateral or multilateral tool to resolve existing disputes and relieve double taxation that has already arisen.
The OECD indicates that differences in the scope and requirements of ICAP, APA and MAP should be recognized when comparing time frames, but generally an APA, or an audit followed by MAP, is a more time-consuming process than ICAP. According to the OECD, the use of ICAP in conjunction with other tax-certainty tools to cover an MNE's full suite of transactions should achieve greater resource efficiency and ensure that each program is used for the transactions for which it is most appropriate.
The ICAP statistics provide useful insights on the evolution of ICAP to date. For MNEs, it is helpful to understand that ICAP, APA and MAP are complementary tools that can be used together to manage an MNE group's tax risk and increase tax certainty.
Tax certainty is critical in today's constantly changing environment and it is valuable for businesses to explore ways to manage tax risks while also utilizing the various available dispute prevention and resolution mechanisms. As the BEPS 2.0 project advances, tax certainty mechanisms will play an important role for taxpayers and tax administrations in both implementation and ongoing administration of the new rules being developed and implemented. See here for a recent EY article about how ICAP participation could help with BEPS 2.0 Pillar Two compliance.
The increased interest in tax-certainty tools such as APAs, MAPs and ICAP is evident from the recent EY International Tax and Transfer Pricing Survey. With respect to ICAP, 41% of survey respondents said that ICAP will be "very useful," which is up from 27% in the prior survey.