Transfer pricing: methodologies: Advance Pricing Agreements: types of agreement
Unilateral, bilateral or multilateral agreement
A binding agreement between a UK business and HMRC in accordance with TIOPA10/S218 is referred to as a “unilateral APA”. Although this agreement confirms the tax treatment in the UK, it does not determine how the issues are to be resolved in any other country involved. Consequently, it does not normally eliminate the risk of double taxation in relation to the transfer pricing issues it addresses. In order to achieve that comprehensively in the case of cross-border transfer pricing issues where a Double Taxation Agreement (“DTA”) exists between the UK and the other country containing a Mutual Agreement Procedure article, HMRC would have to reach agreement also with the Administration of the other country: this is referred to as a “bilateral APA”.
Businesses operating in several countries may wish to seek APAs that involve all the relevant Administrations affected by the transfer pricing issues. The term, “multilateral APA,” has been used to describe such agreements, but there is no discrete mechanism for reaching multilateral agreements, and multilateral APAs are strictly multiple and complementary bilateral APAs.
Multilateral agreements may be more appropriate where there is essentially only one activity, but several enterprises or parts of enterprises contribute to it. For example, where an enterprise of the UK is engaged in global financial trading through branches in countries X and Y, it may be appropriate for similar agreements to be reached between HMRC and country X and HMRC and country Y in order to determine how the profits from the activity are to be allocated to each of the three countries in order to eliminate double taxation. In such a situation HMRC will adapt the bilateral framework in order to reach agreement on a trilateral basis, subject to the acquiescence of the other Administrations and any constraints on exchanging information imposed by the relevant DTAs.
HMRC generally recommends that APA applications are bilateral rather than unilateral except where:
- Applicants are able to persuade HMRC that the extension to a bilateral APA would unnecessarily complicate and delay the process; or
- The other party to the transaction is resident in a jurisdiction with which HMRC has no treaty or where HMRC is aware that the treaty partner has no APA process; or
- There is considered to be little extra to be gained by seeking a bilateral agreement. For example where the UK is at the hub of arrangements with associated enterprises in many different countries and where the trade flows involved with any one particular country are relatively modest in scale.
Where there is an appropriate DTA in place, and HMRC considers that a bilateral APA would be more appropriate, HMRC may communicate with the other Administration if a unilateral is sought, to ascertain whether that Administration would consider entering into a bilateral APA process. Alternatively, (see TIOPA10/S229(2)), HMRC’s ability to give effect to a mutual agreement reached with a treaty partner to eliminate double taxation under the terms of a treaty will not be restricted by the terms of a unilateral APA.