Skip to content

Menu

LexBlog, Inc. logo
NetworkSub-MenuBrowse by SubjectBrowse by PublisherBrowse by ChannelAbout the NetworkJoin the NetworkProductsSub-MenuProducts OverviewBlog ProBlog PlusBlog PremierMicrositeSyndication PortalsAbout UsContactSubscribeSupport
Book a Demo
Search
Close

Less than Meets the Eye: The IRS Practice Unit on CbC Reports

By John T. Hildy & Anthony D. Pastore on May 3, 2022
Email this postTweet this postLike this postShare this post on LinkedIn

In April, the IRS released a practice unit on country-by-country (or “CbC”) reporting. The purpose of the document is twofold: (i) describe the background of CbC reporting and (ii) provide guidance to IRS personnel on the use of CbC reports “in the IRS high-level transfer pricing risk assessment process.” Although the practice unit repeatedly stresses that the IRS will not audit CbC reports, there is potentially less to this claim than meets the eye.

Background on CbC Reports. Country-by-country reporting is a concept that arose from the OECD’s BEPS project and was incorporated into US law. BEPS Action 13 introduced three tiers of transfer-pricing documentation: a master file, a local file, and a CbC report. The US declined to require the first two types of documentation on the theory that similar information is already required under IRC section 6662. (That said, the practice unit does say that the IRS may obtain master files and local files from foreign taxing authorities.) But CbC reports were incorporated into US law in 2016 (see Treas. Reg. § 1.6038-4).

Under current law, US taxpayers that are the ultimate parents of multinational groups with annual revenues of $850 million or more must file a Form 8975 and accompanying Schedules A. These documents—which are, collectively, the CbC report—require aggregate tax information relating to the global allocation of income, taxes paid, and the location of economic activity.

Although the practice unit focuses on CbC reports required by US law (i.e., for US parents), the IRS also receives the CbC reports of certain large foreign parented multinationals with US subsidiaries through the “exchange of information” process in tax treaties. How the IRS reviews and uses these reports is beyond the scope of this practice unit.

The CbC Risk Assessment. According to the practice unit, the CbC report “is a tool [for the IRS] to identify potential transfer pricing risk.” Before an audit, the IRS may use the report to determine whether a tax return has indicators of transfer pricing risk such that an audit is warranted. Once an audit begins, the IRS may also use the report “to evaluate the transfer pricing risk of related party transactions in general or to further evaluate a significant related party transaction already identified.”

The practice unit says that IRS personnel might be able to evaluate the following risk factors from the CbC report:

  • There is a high value of related party revenues in a particular jurisdiction,
  • There is significant revenue but little substantial activities in a particular jurisdiction,
  • Intellectual property is separated from related activities within a group, and
  • A group has activities in a jurisdiction that poses a BEPS risk.

The practice unit contains some specific information about these risk factors that will help taxpayers perform a self-assessment of their audit risk (a concept we discussed in a prior post).

An Audit of the CbC Report? The practice unit emphasizes that “examiners should not audit” the CbC report. It also explains that examiners should not ask the taxpayer to reconcile the amounts in the CbC report to the tax return.

Despite that comforting language, there are reasons for skepticism. To begin, the practice unit observes that the taxpayer is required to maintain records to support the information in the CbC report, and the practice unit tells examiners that they can (and presumably should) request that information. What is more, the practice unit reminds examiners to consider whether penalties apply for filing a materially inaccurate CbC report. It is unclear how the examiner could determine whether such a penalty applies without an audit of the report.

Given the ambiguity, taxpayers would be well-advised to consider getting out ahead of the issue. It is worth considering whether to include a slide in the transfer pricing overview presentation at the beginning of the audit on how the CbC report is compiled. That approach could head off any misguided attempt by the IRS to audit the taxpayer’s CbC reporting.

Photo of John T. Hildy John T. Hildy

John is an experienced advocate in federal tax disputes faced by multi-national corporations. He has represented clients in some of the most complex tax litigation in the country. The amounts at stake in federal tax disputes can often be staggering. So big, in…

John is an experienced advocate in federal tax disputes faced by multi-national corporations. He has represented clients in some of the most complex tax litigation in the country. The amounts at stake in federal tax disputes can often be staggering. So big, in fact, that it often seems cases become “too big to settle,” as the positions of the tax authorities and taxpayers are separated by hundreds of millions, and even billions, of dollars. John is adept at bridging this gap, having participated in multiple settlements of multiple disputes in which the dollars at stake reached into ten digits.

Continue Reading

Read more about John T. HildyEmail
Show more Show less
Photo of Anthony D. Pastore Anthony D. Pastore

Anthony Pastore is a partner in Mayer Brown’s Chicago office and a member of the Tax Controversy & Transfer Pricing practice.

Since joining the firm in 2013, Anthony has represented corporate, partnership, and individual taxpayers in all stages of tax controversy, including examination…

Anthony Pastore is a partner in Mayer Brown’s Chicago office and a member of the Tax Controversy & Transfer Pricing practice.

Since joining the firm in 2013, Anthony has represented corporate, partnership, and individual taxpayers in all stages of tax controversy, including examination, administrative appeal, litigation, and trial. He has experience with transfer pricing allocations, debt-equity characterization, valuations, accounting method changes, substance-over-form arguments, and penalties.

Read full bio.

Read more about Anthony D. PastoreEmail
Show more Show less
  • Posted in:
    Tax
  • Blog:
    Best Methods
  • Organization:
    Mayer Brown
  • Article: View Original Source

LexBlog, Inc. logo
Facebook LinkedIn Twitter RSS
Real Lawyers
99 Park Row
  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service
  • Products
  • Blog Pro
  • Blog Plus
  • Blog Premier
  • Microsite
  • Syndication Portals
  • LexBlog Community
  • Resource Center
  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center
  • Blogging 101

New to the Network

  • Tennessee Insurance Litigation Blog
  • Claims & Sustains
  • New Jersey Restraining Order Lawyers
  • New Jersey Gun Lawyers
  • Blog of Reason
Copyright © 2025, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo