OECD releases revised methodology for BEPS Action 14 peer reviews and updates on reporting of MAP and APA statistics

Executive summary

On 24 January 2023, the OECD and G20 Inclusive Framework on BEPS released: (i) a New Assessment Methodology for continuing the peer review process with respect to BEPS Action 14 on improving the MAP that seeks to increase efficiencies and improve dispute resolution timelines; (ii) new data points to be reported in the annual MAP Statistics; and (iii) the creation of a new annual framework for reporting APA Statistics.

Detailed discussion

Background

The BEPS Action 14 Report released in 2015 contained a minimum standard and best practices with respect to improving MAP. Jurisdictions participating in the Inclusive Framework have committed to the implementation of this minimum standard to ensure that they resolve treaty-related disputes in a timely, effective and efficient manner and have agreed to have their compliance with the minimum standard reviewed through a peer review process (i.e., the other members of the Inclusive Framework).

In October 2016, the OECD released the Terms of Reference and Assessment Methodology for Action 14. The Terms of Reference translated the Action 14 minimum standard into 21 elements and the best practices into 12 items. The Assessment Methodology provided procedures for undertaking peer review and monitoring in two stages, aimed at assessing a jurisdiction’s legal and administrative framework, including the practical implementation of such framework, to determine how its MAP regime performs relative to the 21 elements.

On 18 November 2020, the OECD released a Consultation Document seeking stakeholder input on proposals for the review of the Action 14 minimum standard, and on 1 February 2021 the OECD held a public consultation on this topic.1 Some of the proposals and recommendations discussed in the public consultation are addressed in the New Assessment Methodology that was just released by the OECD.

During the OECD’s Tax Certainty Day 2022,2 it was reported that the MAP Forum continued work in 2022 reviewing the Action 14 minimum standard, with a focus on enhancing the Assessment Methodology for conducting peer reviews and the collection of statistics. This has now been formalized with the OECD’s new releases.

New Assessment Methodology for Peer Reviews

The peer review process established under Action 14 allows jurisdictions to provide and receive constructive feedback to and from peers on dispute resolution mechanisms. The Assessment Methodology (pdf) contains detailed procedures and guidelines for a two-stage approach to peer review and monitoring of the implementation of the minimum standard:

• Stage 1 Peer Review involves the review of the assessed jurisdiction’s implementation of the minimum standard based on the jurisdiction’s legal framework for MAP and the application of this framework in practice.                                               

• Stage 2 Peer Monitoring involves the review of the measures taken by the assessed jurisdiction to address any shortcomings identified in its Stage 1 Peer Review. In 2022, the MAP Forum completed the Stage 2 Peer Monitoring Reports with a total of 82 jurisdictions peer reviewed.

The New Assessment Methodology sets out how monitoring of the Action 14 minimum standard is to be conducted from 2023 onward (the Continued Monitoring Process). While the original Assessment Methodology allowed for the deferral of the peer review of certain jurisdictions, such deferral is not provided for under the Continued Monitoring Process. Therefore, all Inclusive Framework member jurisdictions (whether previously peer reviewed or otherwise) will be subject to monitoring, under a full or simplified peer review process.

Full peer review process

The full peer review process will generally follow the process in the original Assessment Methodology. It would be limited to jurisdictions that have “meaningful MAP experience” or that choose to be subject to this process. A jurisdiction would be considered to have “meaningful MAP experience” based on the following conditions: (i) a threshold of 10 MAP cases in its MAP year-end inventory as reported in its MAP Statistics over the three previous years on average; or (ii) feedback is received from other members of the FTA MAP Forum indicating that the jurisdiction’s policy or practice concerning MAP requires improvement.

While there will be no formal mechanism for taxpayer input into the process, taxpayers that face difficulties in their interactions with one Competent Authority can approach the other Competent Authority concerned, which can in turn include the input provided by the taxpayer in its peer review input for the relevant jurisdiction.

This process will start from January 2024 onward, with each qualifying jurisdiction being reviewed once every four years. The assessment schedule for the full peer review process is expected to be released by the end of 2023.

Simplified peer review process

A simplified process will be available for jurisdictions that are considered not to have “meaningful MAP experience” and that do not choose to undergo the full peer review process.

The simplified process is limited to reviewing a jurisdiction’s tax treaty network, MAP profile, MAP guidance, compliance with the MAP Statistics Reporting Framework and practical application of the minimum standard (where applicable). The aim is to assist the jurisdictions in developing a more robust MAP program for future MAP cases. The simplified process will be conducted, and peer review reports will be published, in the two stages outlined in the original Assessment Methodology: Stage 1 Peer Review and Stage 2 Peer Monitoring. Following the approval of the Stage 2 Peer Monitoring report, where any recommendations connected to elements of the Terms of Reference (other than those connected to changing existing tax treaties) have not yet been actioned, the assessed jurisdiction shall continue to provide update reports.

This process will start from January 2023 onward and will be carried out according to the new assessment schedule (pdf).

MAP Statistics Reporting Framework

The Action 14 Terms of Reference require jurisdictions to provide timely and complete reporting of MAP statistics pursuant to an agreed template and reporting framework. As part of the 2020 review of the Action 14 minimum standard, the Inclusive Framework reviewed this reporting framework with a view to collecting additional data.

The Terms of Reference requires that jurisdictions seek to resolve MAP cases within an average time frame of 24 months. Competent Authorities of different jurisdictions should ensure that they have common data points for purposes of MAP Statistics reporting and computing average time taken to resolve MAP cases. The data points for each MAP request include (i) the start date; (ii) the date of the position paper (if applicable); (iii) the end date; and (iv) the number of MAP cases involved in a MAP request. To facilitate a more in-depth review of jurisdictions’ MAP practices, it is now agreed that jurisdictions will report the following additional data points as part of their annually reported MAP Statistics: (v) breakdown of the average time taken to resolve post-2015 MAP cases into two further groups: MAP cases closed under the unilateral stage and MAP cases closed under the bilateral stage; and (vi) identification of the age of pending post-2015 MAP cases.

These data points will be reported by all Inclusive Framework member jurisdictions for the 2023 MAP Statistics reporting year (expected to be available in 2024) onward.

APA Statistics Reporting Framework

The number of transfer pricing MAP cases continues to increase year on year as indicated by the MAP Statistics. Accordingly, being able to prevent these disputes is a key tenet of an effective and efficient tax administration. APAs give taxpayers and jurisdictions advance tax certainty in relation to the tax treatment of the relevant covered transactions for fiscal years within a defined period. Therefore, APAs play a significant part in the improvement of the tax certainty landscape in general through the prevention of transfer pricing disputes that may otherwise account for a significant portion of MAP cases.

The OECD published its Bilateral Advance Pricing Arrangement Manual (BAPAM) in September 2022.3 The BAPAM provides tax administrations and taxpayers with information on the operation of bilateral APAs and identifies 29 best practices. As part of the BAPAM’s development, tax administrations committed to assessing whether their implementation of these best practices is appropriate, considering the circumstances of their own bilateral APA program (to the extent they have one) and the unique features of each application, so that the best practices are applied appropriately and with enough flexibility to improve current bilateral APA processes. The BAPAM also indicates what tax administrations expect from taxpayers in the bilateral APA process to facilitate a cooperative and collaborative process.

The Inclusive Framework has now agreed that all Inclusive Framework members should start reporting annual APA statistics with respect to the previous reporting year or the latest available data, from 2024 onward. These Statistics will be published on the OECD website in a common format and the objective is to provide more transparency on jurisdictions’ efforts with respect to dispute prevention. Each jurisdiction that already has a bilateral/multilateral APA program or can enter into such APAs under domestic law and/or tax treaties should report annual APA statistics, based on the criteria described in the new APA Statistics Reporting Framework (pdf):

• APA inventory at the start of the reporting period                                                                                                                            

• Number of APA applications filed during the reporting period                                                                                                                

• Number of APAs granted during the reporting period                                                                                                                                           

• Number of APA applications rejected during the reporting period                                                                                                  

• Number of APA cases closed for other reasons                                                                                                                                 

• APA inventory at the end of the reporting period                                                                                                                              

• Average time taken in months to grant APAs during the reporting period

Implications

The BEPS Action 14 update provides valuable improvements with respect to the tax dispute prevention and resolution agenda being advanced by the OECD together with participating jurisdictions. It is important that the peer review process continues, and the reporting of more MAP and APA statistics will provide greater transparency to taxpayers in assessing their options for dispute prevention and resolution. Tax certainty is critical in today’s constantly changing environment and businesses should continue exploring the various available dispute prevention and resolution mechanisms. As the work on the BEPS 2.0 project advances, dispute prevention through advance certainty may be more important than ever.

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

Ernst & Young Belastingadviseurs LLP (Netherlands)

• Ronald van den Brekel                                                                                                                                                                              

• Marlies de Ruiter

Ernst & Young Solutions LLP (Singapore)

• Luis Coronado

Ernst & Young LLP (United Kingdom)

• Joel Cooper                                                                                                                                                                                                    

• Astrid Vroom                                                                                                                                                                                                  

• Emma Lobo

Ernst & Young LLP (United States)

• Barbara M. Angus                                                                                                                                                                                      

• Tracee Fultz

For a full listing of contacts and email addresses, please click on the Tax News Update: Global Edition (GTNU) version of this Alert.