Transfer pricing: legislation: rules: meaning of “provision” and “transaction”
What is meant by ‘provision’
The term ‘provision’ is not defined in the legislation. TIOPA10/S147(1)(a) requires that a provision is made or imposed between any two persons by means of a transaction or series of transactions. These terms are defined in TIOPA10/S150. The definition of ‘provision’ is wide and includes arrangements, understandings and mutual practices whether or not they are, or are intended to be, legally enforceable.
‘Provision’ is broadly equivalent to the phrase `conditions made or imposed` in Article 9 of the OECD Model Tax Convention, which is included in the OECD Transfer Pricing Guidelines. It embraces all the terms and conditions attaching to a transaction or series of transactions. This interpretation of ‘provision’ is supported by TIOPA10/S164 which requires interpretation to best accord with OECD Transfer Pricing Guidelines.
DSG Retail Ltd and others v HMRC (TC0001) provides useful guidance on the meaning of provision. The Special Commissioners found that there was a provision between two connected companies in an arrangement where the first company had a contract with an independent company which had a contract with the connected company. They found that the various entities knew that the different agreements would all take effect together, that they were planned and seen as interlocking and interdependent. The contract with the ‘fronter’ would not have been entered into unless the fronter would reinsure with the connected company. This brought the agreements within the meaning of a ‘series of transactions’ as set out at ICTA88/SCH28AA/PARA3 (now TIOPA10/S150). Hence the provision was something different to the transactions.
The actual provision
The actual provision is that which has been made between the two connected parties.
The arm’s length provision
The arm’s length provision is that which would have been made between independent enterprises. If no provision would have been made or imposed between independent persons then the legislation allows the advantaged person’s profits to be computed accordingly, thus reflecting the arm’s length position.
Meaning of ‘transaction’
Because TIOPA10/Part 4 refers to a provision made or imposed between two connected persons by means of a transaction or a series of transactions, it allows a wider perspective to be taken of arrangements put in place between connected parties, in line with the principles set down in the OECD Guidelines.
A transaction has a very wide definition (see TIOPA10/S150), including arrangements, understandings and mutual practices (whether or not they are legally enforceable). The term ‘series of transactions’ is defined so as to make it difficult to structure business arrangements in a way that will prevent there being transactions for transfer pricing purposes. The transfer pricing legislation can apply whether or not
- there is a transaction in the series to which both connected persons are party
- the arrangements by which the series of transactions are entered into are between the two connected persons
- there is a transaction in the series to which neither connected person is a party.
There can be a provision between two connected persons, even if one of those persons is not a party to any of the transactions in the series.