Transfer pricing operational guidance: Evidence gathering:: Searching for comparables: public information
Availability of information
Consideration of the arm’s length price should be based on the facts available to both HMRC and the business. In most cases this will be information in the public domain and information supplied to HMRC by the business or its advisers (including any provided in response to the use of formal information powers). In some cases, however, information may have been obtained from third parties, eg under formal information powers, under Exchange of Information (see INTM483060) or simply on request.
Case teams must not use information that is only available to HMRC. The OECD Transfer Pricing Guidelines (at paragraph 3.36) state that it would be unfair to apply a transfer pricing method on the basis of data that cannot be disclosed. The business would be unable to defend its position.
Confidentiality rules for HMRC
HMRC and its staff have a duty of confidentiality and must not disclose information about a customer without lawful authority. Information obtained about one business in connection with its own tax affairs cannot normally be disclosed to another business. See theInformation Disclosure Guidance Manual for more detail.