MITT and Other CAP Recalibration Frequently Asked Questions

 

Compliance Assurance Process (CAP)
Frequently Asked Questions (FAQ)
As of December 13, 2018

 

For the CAP 2019 transition year, entering into an APA is not mandatory but will be strongly encouraged for transfer pricing issues that cannot be resolved in pre-filing and may result in the Taxpayer having multiple open years going forward.  For the 2020 CAP year and subsequent years, the requirement to apply for an APA, when requested by the CAP team and the taxpayer fails to comply, may affect suitability for remaining in CAP going forward and could also lead to termination from CAP during that year.

For the 2019 transition year, a “material” intercompany transaction is any new or recurring intercompany transaction for which the amount reported in Column J of the MITT is greater than the last agreed upon permanent materiality threshold.

No. Transactions should generally be listed individually. To the extent the transfer pricing documentation aggregates similar transactions using the same method, aggregation is allowed.

Disregarded entity transactions should be reported with the Controlled Foreign Corporation (CFC) that owns the disregarded entity. Concerning disregarded entities owned directly by the US, please refer to FAQ #20.

Transactions with related foreign partnerships should be reported separately from their CFC owners.

IRS CAP teams will decide on case-by-case basis.  The Account Coordinator (AC) should elevate this question to the case manager.

No.  The MITT was created to enable quick and efficient risk assessment of related party transactions given CAP's time constraints.

After the initial MITT is prepared, the taxpayer only needs to update it (thus, much less work going forward). The page numbers are very important to save exam time in locating the analysis in the study.

201705, per the instructions.  The risk assessment will probably be delayed, since the CAP opening conference for this particular case won’t happen until August 2019.  By then, taxpayer can update the MITT with the 201805 data, so that the IRS risk assessment team can take it into account.

The tested party operating margin helps Transfer Pricing Risk Assessment (TPRA) understand how the related party transactions contribute to the overall profitability of the company. Column r request the PLI used for the taxpayer's analysis.

The 2018 should be removed as it was from a prior version of the MITT.  For the application the actual results should be the results of 2017.  For future MITT's the actual results should be the actual results of the transaction for time period for which the MITT is prepared.

The MITT should be updated if there is a change to a transaction, such as a change in method, PLI, or tested party.  The MITT should also be updated if the amount reported for a new transaction, or the change in the amount reported for a recurring transaction, is greater than the last agreed upon permanent materiality threshold.

LB&I is evaluating different treatment streams and alternative resolution paths for a variety of issues and various compliance programs such as CAP and is committed to allocating resources where the most strategic issues have been identified.  As this is a new process and the focus is to shift resources from the post-filing to a pre-filing environment, we will monitor the process and assess the impact on resources.  The Advance Pricing and Mutual Agreement (APMA) program will welcome CAP taxpayers’ applications to enter the APA program, and will provide the same customer service and attention that it provides to all taxpayers. 

For CAP cases, transfer pricing issues continuously provide challenges to both the Service and Taxpayers in a pre-file environment. Historically, significant, complex transfer pricing issues are resolved in post-file, either in Appeals or a post-file examination.  In some instances, this resource intensive process can result in multiple tax years being unresolved and opened long after the tax return has been filed.  The goal of CAP is to review and resolve issues during the pre-file phase prior to the filing of the tax return and we strive to achieve this goal, but certain issues such as transfer pricing may require longer to develop and resolve.  Where we can identify these instances, we can have an upfront discussion with the taxpayer early in the CAP year to decide the most efficient way to work and resolve significant, complex transfer pricing issues.  

Yes, in principle.  It would be a “unilateral APA.”  APMA has many of these in its program.

An APA in 2019 would typically cover five years (2019-2023).  A concluded Bilateral APA gives the Taxpayer certainty that its covered transfer pricing will not be challenged by the IRS or the foreign tax authority, for the period of the covered years. This is an effective resolution tool and can provide CAP taxpayers with certainty for several tax years once completed rather than having the local CAP team resources deployed on a year-by-year basis.  In addition, the covered years are not counted against the CAP taxpayer while the APA is in process and the years are in APMA’s jurisdiction.

Yes. These transactions have the potential to be transfer pricing and foreign tax credit issues see CCA 201349015. These related party transactions are not required to be disclosed on a Schedule M per Form 8858 instructions but the IRS would like to see these transactions listed on the MITT for risk assessment purposes. Include the transfer pricing policy, method, PLI, etc. and reference to any transfer pricing study completed for the foreign jurisdiction if one was not completed for the US.

Yes.  An attachment to the MITT with a short explanation as to why the transaction no longer exists or has been replaced would be helpful and may avoid a request for additional information.

If a policy is in place, list the PLI and benchmark range. If no policy exists then the taxpayer should place an "N" in the PLI and Benchmark range.  If the transaction is material the IRS may request additional information and or request that a study be prepared in a subsequent years.

Yes.  The taxpayer should be prepared to provide an English translation upon request.

 The PLI/rate may be what is prescribed in the policy but may not be the actual result of the transaction result for various reasons.

BEAT does not apply to 2017, but to the extent the taxpayer expects BEAT to apply to the transaction in 2018-forward please indicate with an "X" that BEAT applies on the application MITT.

The sale of debt and securities should be reported on the MITT. Aggregation is permitted, see FAQ #3. In the case of debt and securities only, the taxpayer should indicate in column q the OM % of the foreign related party.

The taxpayer may attach any relevant information to the MITT that they believe would help exam perform a risk analysis.  A brief description accompanied by pertinent documents would be very useful and result in time savings for both the taxpayer and exam.

The taxpayer has a transfer pricing policy for a transaction e.g. cost plus 5%.  In column v exam would like the actual amount charged for the year which may be different from  the policy e.g. cost plus 4.7%.

Yes. APA user fees are required to be paid at the time of the APA application.  The IRS announced scheduled increases in the user fees earlier this year, as follows.  The fee for APA requests submitted through December 31, 2018 is $86,750.  The fee for APA requests submitted on or after January 1, 2019 is $113,500.  A lower fee structure exists for renewal APAs and for small case APAs.  A small case user fee applies if the controlled group has sales revenues of less than $500 million in each of its most recent three back years, and meets other criteria.

While there are some exceptions that could result in an earlier or later date, generally a complete APA application must be received by the Advance Pricing and Mutual Agreement (APMA) program no later than the date on which the 2019 U.S. return is timely filed.

Please see Revenue Procedure 2015-41 (PDF), or you may contact your case Account Coordinator or Charles Larson of the APMA program at (312) 292-3663, Charles.r.larson@irs.gov.

Yes , all CAP applicants must complete the CRCQ and submit it as part of their CAP application, even if they have not had research credit in a prior year or expect to have it in the current CAP year.

Section A of the form requests the relevant information that is already known (the last filed tax year) while Section B pertains to the CAP Application year. The taxpayer would go back to the most recent prior year in which the research credit was known. Note also, that the CRCQ is expected to be completed contemporaneously (suggestion is no less than quarterly) during the CAP Year as additional information becomes available or changes.

Question B.2. asks if there is a change in methodology for identifying respective business components (usually identified as projects or processes). Question B.5. asks if there is a change in methodology for identifying qualified research activities. Question B.5.’s focus is on any change in the way qualified research activities, as they would relate to specific business components, are identified. Because qualified research activities are performed under each discrete business component they are thereby a subset of the business component.

We plan to send letters to taxpayers informing them of their acceptance into the program and phase (CAP, CM, or Bridge), along with the MOU, from now through January 15, 2019.  If an application was submitted incomplete, taxpayers may be asked to complete before issuance of an acceptance letter.   The signed MOU is due on January 31, 2019. 

Bridge phase is reserved for taxpayers whose risk of noncompliance does not support the continued use of LB&I compliance resources.  Generally, these are taxpayers who have completed at least one CAP phase, have few, if any, material issues, are expected to receive a Full Acceptance Letter in their most recent CAP phase, and continue to satisfy the CAP eligibility and suitability requirements.

During the Bridge phase, the IRS will not accept any disclosures, conduct any reviews, or provide any assurances.  If there are specific issues a Taxpayer wants the IRS to consider, they may submit a request for a pre-filing agreement for that issue provided that the issue meets the requirements for a pre-filing agreement.

Our intent is to not open a Bridge year for examination.  However, there may be some limited circumstances where a Bridge year could be opened for examination. The items listed below may require consideration but do not automatically necessitate an examination:

  • Any evidence of fraud, malfeasance, collusion, concealment or misrepresentation of a material fact
  • Any new material issue not previously reviewed
  • Any material change to a previously reviewed issue
  • Any material issue that was reserved for or reported on Schedule UTP during the Bridge year
  • Any material Campaign issue
  • Any other circumstance where a failure to open an examination would be a serious administrative omission   

For 2019, Bridge phase participation is limited to one year, so if a Taxpayer is in the Bridge phase for 2019, they will be in the Compliance Maintenance or CAP phase for 2020, assuming the Taxpayer is approved for the CAP program in 2020. For future years, a Taxpayer may be in the Bridge phase for consecutive years, but the maximum number of consecutive years has yet to be determined.

No.  A Taxpayer in the Bridge phase remains part of the CAP program for the Bridge phase year and will be considered as a returning CAP Taxpayer if applying for CAP for the subsequent year.