On January 29, 2024, the OECD released the results and statistics for its growing International Compliance Assurance Program (“ICAP”).[1] The data spans the life of the ICAP program, dating back to the first pilot program that began in January 2018, through its full program operations as of October 2023. In all, the statistics generally suggest that the program has been efficient and productive, with most participants receiving mostly low-risk outcomes from tax administrations.
Key highlights are:
- the average time to complete a case was 61 weeks;
- an average of five tax administrations took part in each risk assessment;
- all tax administrations concluded that a particular core area was low-risk in 68% of assessments;[2]
- at least one tax administration concluded that one core area was not low-risk in 60% of cases—which cover up to 5 core areas; and
- participants pursued issue resolution in 32% of cases.
Completion Times
The OECD set a target goal to complete ICAP assessments in 52 weeks. Early returns for the ICAP program came in slightly behind that goal, at 61 weeks, which the OECD attributed to several factors including the COVID-19 pandemic. Nevertheless, the 61-week average completion time is still considerably less time than it takes on average to complete an Advance Pricing Agreement (“APA”) or Mutual Agreement Procedure (“MAP”) transfer pricing case. Further, an average of five tax administrations—and up to nine—took part in each assessment. This is far more than the number of administrations involved in a typical MAP or APA, which are most often bilateral and even when multilateral, seldom involve more than three or four tax administrations. But here the statistics indicate that ICAP assessments with more tax administrations have not necessarily taken longer to conclude than assessments with fewer tax administrations:
- For assessments with 3-4 tax administrations, the average completion time was 63 weeks;
- For assessments with 5-6 tax administrations, the average completion time was 59 weeks;
- For assessments with 7-8 tax administrations, the average completion time was 68 weeks; and
- For the one assessment with 9 tax administrations, the completion time was 58 weeks,
One possible explanation is that unlike an APA or MAP, each tax administration in ICAP generally conducts their risk assessment separately and does not need to reach a mutual agreement on a common treatment. Nevertheless, ICAP does involve multilateral engagement and discussions among the tax administrations and between the tax administrations and the taxpayer throughout the process. We would further note that the reported completion times include time spent on optional issue resolution, which was pursued by 32% of participants.
In light of all the foregoing, for ICAP to have closed its first set of cases in an average of 61 weeks is a promising result. And as the tax administrations become more familiar with the process, it is likely that average times will only improve.
Risk Assessment Outcomes
The statistics reflect that the assessments were generally taxpayer favorable, where 68% of all core area assessments were found to be low-risk by all applicable tax administrations. But participants were not given a free pass. In fact, 60% of cases involved at least one tax administration that determined that a participant was “not low-risk” in at least one core area. Thus, taxpayers that are considering participating should be sure to prepare a thorough documentation package, and to be adequately prepared to present a compelling narrative during multilateral calls with tax administrations.
The statistics also provide a useful granular view into the risk assessment outcomes broken down by issue. Specifically, the statistics indicate that ICAP resulted in low risk outcomes for:
- 90% of tangibles goods risk assessments;
- 75% of intangibles risk assessments;
- 88% of services risk assessments;
- 76% of financing risk assessments; and
- 95% of permanent establishment (“PE”) risk assessments
It comes as no surprise that a higher percentage of assessments involving tangible goods and services resulted in a low risk outcome than assessments involving intangibles or financing issues. More noteworthy, nearly all PE risk assessments (95%) resulted in a low risk outcome. This suggests that ICAP could be a useful tool to mitigate PE risk, particularly since PE risk can be tedious for multinationals to effectively manage and often falls outside the scope of APAs and other existing processes to obtain certainty.
Optional Issue Resolution
One of the features of the ICAP program is the optional issue resolution process. Here, after a tax administration has completed its risk assessment, a taxpayer may have the opportunity to resolve issues within the ICAP process without the need for further proceedings. For example, the issue resolution process might result in the taxpayer “agreeing [to] a transfer pricing adjustment and a corresponding adjustment in ICAP, avoiding time spent in audit and MAP.” In all, 32% of all cases involved some form of issue resolution—and given that only 60% of the cases even involved an issue found to be “not low risk”—that suggests that more than half of the applicable cases reached an issue resolution within ICAP.
The prospect of binding bilateral or multilateral resolution in ICAP through a rapid process is a compelling proposition compared with alternative paths to certainty that take much, much more time. Still, the rapid, truncated nature of ICAP means that the issue resolution process will inevitably be less intensive than domestic administrative procedures, MAPs, or APAs. While there are obvious and significant upsides to a less-intensive process in terms of time, cost and limiting the scope of inquiry, the downsides are that it may not allow the same opportunities for full factual development and in-depth engagement with the tax administrations. This in turn will likely place a premium for participating taxpayers on advance preparation, robust but concise documentation and effective advocacy to make the most of the shorter timeframes and truncated process. Further, because the taxpayer lacks control over the ultimate outcome and may have fewer opportunities to challenge positions of first impression, the issue resolution procedure seems best suited for issues where the taxpayer has flexibility to the ultimate outcome.
Conclusion
The early results of ICAP are encouraging, and reflect that the program is likely beneficial for the right taxpayer that is properly prepared. While a key disadvantage of ICAP is that it provides only multilateral comfort, rather than legal certainty, the statistics indicate that it can often achieve such comfort for a wide range of issues and jurisdictions in a relatively short timeframe. Moreover, for certain taxpayers and issues, the optional issue resolution process can be used to identify and rapidly resolve potential disputes on terms that avoid double taxation. From this perspective, ICAP can fill an important gap for some multinationals and transactions for which APAs are not practicable due to time, cost, or the mere number of countries or transactions involved.
Applications for the program are on-going, and accepted at one of the two annual application deadlines, March 31st and September 30th.
[1] For more information about the ICAP program, see our prior post “ICAP, a New Tool in the Multiverse of Multinational Dispute Management” (May 2021).
[2] The core areas for assessment are transactions that involve: 1) tangible goods; 2) intangibles; 3) services; 4) financing; and 5) permanent establishment issues.