Advance pricing agreements (APAs) are a co-operative approach to addressing transfer pricing compliance. They produce significant time and cost savings and certainty of outcomes for both tax authorities and multinationals in comparison with adversarial audits. APAs encourage up-front taxpayer compliance and early resolution of potential disputes.
Domestic legislation allows a unilateral APA to be issued in the form of a binding ruling and bilateral/multilateral APAs may be entered into in accordance with New Zealand's double tax treaties. We have grown this activity progressively as the ultimate solution to complex cases with difficult facts and circumstances. The product is particularly suited to issues involving intangibles, which can result in a wide range of opinions as to pricing. Our APA inventory may be summarised as follows.
| Applications | Number |
|---|---|
|
Completed as at 30 June 2023 |
276 |
|
Completed in year ended 30 June 2024 |
21 |
|
Total |
297 |
Most of our bilateral APA work has been with Australia. We have also completed bilateral APAs with Belgium, Canada, China, Japan, Korea, Switzerland, the United Kingdom and the United States.
We have found unilateral APAs successful in both inbound and outbound transfer pricing scenarios. Although unilateral APAs are one-sided, should double taxation arise on transactions covered by a unilateral APA, we will enter into competent authority negotiations with the other jurisdiction on the basis of the unilateral APA position. Unilateral APAs are especially viable where the amounts at stake are small and/or where most of the transfer pricing risk lies in New Zealand.
Tailored to circumstances
Our approach to the completion of each APA is tailored to the taxpayer's specific facts and circumstances, specifically considering the transfer pricing risks being addressed. As each case will be different, we have not established a standardised formal process. Taxpayers wishing to pursue an APA, or to discuss our likely requirements, should refer to the addresses in our 'Formal application' section.
Potential applicants may also find it useful to understand the broad phases that are usually undertaken in completing APAs:
- Pre-application
- Formal application
- Reviewing an application
- Agreeing outcomes
- Annual compliance report.
Pre-application
We have found the pre-application phase especially useful for reducing the amount of work you have to undertake (and also the amount of paper we have to review). The pre-application phase typically involves:
- submitting a completed APA pre-application meeting form, which contains brief details of the proposed application including the business background, forecast financial information, the international associated party transactions in question and suggested transfer pricing methodology to be applied
- a pre-application meeting shortly afterwards to discuss the proposal informally
- depending on the complexity of issues being addressed, a series of targeted follow-up submissions and meetings.
You'll need to fill in the pre-application meeting form and send it to the relevant email address under 'Formal application' below.
Formal application
As a result of the pre-application meeting, the APA request will be formalised and submitted for consideration. The formal application should be neither difficult nor onerous where the pre-application phase is completed and assuming the company has good transfer pricing documentation in place.
This application should be kept as simple and straightforward as possible, with the following included:
- a full functional analysis
- analysis of key profit drivers and value added
- identification of the tested party
- the choice of methodology
- a study of comparables
- proposed application of methodology and comparables
- copies of all inter-company agreements.
Applicants for multilateral APAs should identify the following to assist competent authorities to discuss and find agreement:
- details of all associated parties and connected jurisdictions involved in the transactions
- details of all relevant transactions, including diagrammatical representation where possible
- details of all treaties that are relevant to the APA
- an analysis of the issue(s) sought to be resolved in all jurisdictions and related documentation
- details of other APA requests being submitted simultaneously on the same issue
- details of pending audits, domestic remedies initiated or decisions from such remedies in any of the jurisdictions in connection with the transactions.
Unilateral APAs are issued in the form of a binding ruling. Transfer pricing matters are not considered appropriate for short-process rulings. The application should be submitted along with a completed Application for Private Ruling - IR713 form and Application for Private Ruling on Transfer Pricing Arrangement - Additional Declaration - IR713A form.
These forms are to be provided to:
Team Manager
Technical Services
Tax Counsel Office
PO Box 2198
Wellington 6140
You can also send an email to:
Bilateral/multilateral APAs are entered into in accordance with New Zealand's double tax treaties. Applications are to be addressed to:
Competent Authority
International Revenue Strategy
PO Box 2198
Wellington 6140
[email protected]
Reviewing an application
A site visit may be required to look at the actual operations of your associated parties, especially where valuable intangibles are an issue and a residual profit split methodology is proposed.
Once we are familiar with your business, we will check whether the methodology is appropriate and carry out a review of the comparables. Frequently, we carry out our own search for comparables rather than simply accept the comparables offered in the application. We also like to do a cross-check using another methodology to see if the results are consistent and give an answer supportive of the proposed methodology.
Agreeing outcomes
When the review is completed, we sit down with the officers of the other jurisdiction (bilateral APA) or with you (unilateral APA) to discuss any differences of opinion and findings. There may be further exchanges of fact and opinion until an agreement is reached. In the case of bilateral APAs, we endeavour to keep in contact with the taxpayer throughout the process to ensure that the outcome agreed between the tax authorities will also satisfy the objectives of the taxpayer.
Annual compliance report
Taxpayers who are party to an APA are required to submit an annual report demonstrating their compliance with the terms of the agreement. The report's contents are based on the taxpayer’s specific facts and circumstances and are an agreed term of the APA. This provides the taxpayer with compliance cost savings. Indicatively, the content may include items such as:
- financial statements
- computations of the transfer pricing method reconciled to financial statements or underlying financial data, as appropriate
- confirmation of adherence to the terms of the agreement
- confirmation that no critical assumptions have been breached.
Annual compliance reports for unilateral APAs are to be provided to:
Annual compliance reports for bilateral/multilateral APAs are to be provided to:
Competent Authority
International Revenue Strategy
PO Box 2198
Wellington 6140
Timeframes
Our aim is to complete bilateral APAs with Australia and all unilateral APAs within six months of the date of acceptance of a formal application. We have largely met this timeframe and achieved sound practical outcomes. Negotiations with tax authorities beyond Australia generally take considerably longer to resolve.
Recovery of costs
If any overseas travel is involved in completing an APA, we will seek to recover 'out of pocket' costs (transport, accommodation and meals) on an actual and reasonable basis from the taxpayer. We will provide an estimate of such costs prior to travel being undertaken.
An initial application fee, as outlined in the Application for Private Ruling IR713 form, is payable on filing the formal application for a unilateral APA. Outside the recovery of costs, no further fees are applicable for the processing of unilateral APAs.
Exchange of details of unilateral APAs
An internationally agreed OECD standard requires the exchange of certain details of unilateral APAs to tax treaty partners. We have implemented this standard with application to unilateral APAs that have been issued on or after 1 January 2010 and were still in effect as from 1 January 2014.