Transfer pricing: operational guidance: working a transfer pricing case: Exchange of information
Information from other states
The exchange of information between HMRC and tax authorities in other territories is an essential tool in enabling authorities both to administer and enforce their own taxes. This section outlines how and when it is appropriate to use exchange of information, and how to get the best from the facility.
Exchange of information may be relevant to an enquiry concerning transactions within a multinational enterprise, when information is in the power or possession of a person outside the UK. General information on this process may be found from INTM156000 onwards. Please refer to those pages to find out how to make a request. Note that INTM156020 requires that all requests for exchange of information relating to transfer pricing matters are dealt with by the Transfer Pricing Team at CTISA Business International.
There are some basic preliminaries to any exchange of information.
- A request for information may be considered where the UK and the country where the information lies have a tax treaty which includes an Exchange of Information Article that allows the UK to ask a treaty partner for information necessary to an enquiry into the tax affairs of a UK business.
- It is best to get the information from the UK business itself if at all possible. If the business does not provide the information voluntarily, consider formal information powers.
- Before invoking the Exchange of Information Article, exhaust other sources of information. Treaty partners should not be asked to commit resources unless absolutely necessary.
- It is good practice to tell the UK business that an exchange of information is being considered, unless in extreme circumstances this would prejudice the enquiry.
- Since two fiscal authorities need to interact, exchange of information requests may take time to obtain answers. This will take longer if the other treaty partner has to apply their own domestic powers to obtain information which they do not already hold. Further, any treaty partner will be bound by their own legislation - the model treaty makes it clear that a treaty partner is not obliged to obtain information which is not obtainable under its own laws or in the normal course of administration of the state.
Example of use of Exchange of Information in a transfer pricing case
If information essential to a transfer pricing enquiry is shown not to be within the power or possession of a UK business or its officers (this may sometimes be the case if the UK business is a subsidiary company of a foreign parent) the Exchange of Information Article may make it possible to approach another fiscal authority which could be expected to be able to provide this information: normally this will be the authority where the group parent is resident.
What to include in an exchange of information request
If a request is necessary, consider the exact information needed and place any request in context, explaining as much background as possible. The foreign fiscal authority will need to be absolutely clear what is being requested by the UK and why. Understanding the latter will help them supply the former. Remember that information may exist in a different form to the one requested: explaining the reasons for the request may allow someone to provide the answer in a more relevant way than was requested.
The best way of obtaining the required information is to be as exact as possible and draw up each part of the request as tightly as possible. It is acceptable to end a request, once the specific questions have been asked, by asking for anything else that the treaty partner thinks will be useful. But it is no use to rely only on a widely drawn question as the mainstay of a request.
In practice, all transfer pricing exchange of information requests must go though the UK competent authority, who can help with drafting the request. Case owners will need to show the UK competent authority (in the Business International Transfer Pricing Team) that the information requested will prove useful and that all other avenues of enquiry have already been exhausted. HMRC readers can find the names of competent authorities from the contact details on the Business International intranet pages.