Apa Tax Agreement
In October 1999, the OECD published an update of the 1995 OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (hereinafter referred to as the “Guidelines”). This update takes the form of a new annex to the Guidelines, which contains 91 guidelines for the implementation of prior consent agreements under the mutual agreement procedure (ASOP). The Annex is an integral part of the Guidelines, as set out in the DECISION of the OECD Council of 28 October of 28 October to amend its original Recommendation on the 1995 Guidelines to include the new Guidelines in that Annex. It therefore has the same status as the eight existing chapters of the Guidelines. 20. APA information is subject to the confidentiality rules provided for in Article 34 of the Law on General Provisions and Tax Procedures (Law No. 6 year 1983). Information exchanged with contracting parties, for example in the framework of an agreement on bilateral APAs, is also protected against disclosure by the provisions of the article on the exchange of information within the DBA concerned. In addition, not all information obtained during the APP process is used for tax audit purposes. 36. In the absence of an agreement with the taxable person on the terms of an APA, the DGT issues a formal letter expressing that disagreement.
The DGT does not consider it obliged to continue the discussion beyond the date on which it found that no agreement could be reached. Bilateral and multilateral SAAs are generally bilateral or multilateral, i.e. they also include agreements between the taxable person and one or more foreign tax administrations, under the control of the cartel procedure (POP) established in income tax treaties.  The taxable person benefits from such agreements, as it is certain that the income related to the covered transactions is not subject to double taxation by the IRS and the competent foreign tax authorities. Irs policy is to “encourage” taxpayers to seek bilateral or multilateral APAs where there are provisions of the relevant authorities. 48. As mentioned above, ABS should be a cooperative process in which transfer pricing issues are discussed openly and access to relevant information and supporting documents is made available. According to the APA`s assessment, the DGT can therefore terminate the agreement in the APA if it is finally known that the APA was not concluded in good faith, i.e.
21. An ABS will enter into force for a specified period of time from the date of entry into force of the agreement. The taxpayer will not participate in the BAPA negotiations unless the two CAs mutually agree that the taxpayer may be present during the hearing to explain the issues under discussion. . . .