rp-06-9.pdf

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Rev. Proc. 2006-9

2006-2 I.R.B. ___

Internal Revenue Service (I.R.S.)

Revenue Procedure

Released: December 19, 2005

Published: January 9, 2006

Internal Revenue Code § 482: Allocation of income and deductions among
taxpayers

TABLE OF CONTENTS

Section 1: Purpose .................................................................................................

Section 2: Principles of the APA Program ..............................................................

Section 3: Prefiling Conferences ............................................................................

Section 4: Content of APA Requests......................................................................

Section 5: Taxpayer Disclosure Obligations................................................

Section 6: Processing of APA Requests ................................................................

Section 7: Competent Authority Consideration.......................................................

Section 8: Rollback of TPM ....................................................................................

Section 9: Small Business Taxpayer APAs ............................................................

Section 10: Legal Effect of the APA .......................................................................

Section 11: Administering the APA.........................................................................

Section 12: Renewing the APA..............................................................................

Section 13: Disclosure............................................................................................

Section 14: Effect on Other Documents .................................................................

Section 15: Effective Date ......................................................................................

Section 16: Paperwork Reduction Act ....................................................................

Drafting Information.................................................................................................

SECTION 1: PURPOSE

.01 This revenue procedure explains the manner in which taxpayers may
request an advance pricing agreement ("APA") from the APA Program within the Office
of the Associate Chief Counsel (International), the manner in which such a request will
be processed by the APA Program, and the effect and administration of APAs. This
revenue procedure updates and supersedes Revenue Procedure 2004-40, 2004-2 C.B.
50.

SECTION 2: PRINCIPLES OF THE APA PROGRAM

.01 The APA Program provides a voluntary process whereby the Internal
Revenue Service (“Service”) and taxpayers may resolve transfer pricing issues under §
482 of the Internal Revenue Code (“Code”), the Income Tax Regulations (“the
regulations”) thereunder, and relevant income tax treaties to which the United States is
a party in a principled and cooperative manner on a prospective basis. The APA
process increases the efficiency of tax administration by encouraging taxpayers to come
forward and present to the Service all the facts relevant to a proper transfer pricing
analysis and to work towards a mutual agreement in a spirit of openness and
cooperation. The prospective nature of APAs lessens the burden of compliance by
giving taxpayers greater certainty regarding their transfer pricing methods, and
promotes the principled resolution of these issues by allowing for their discussion and
resolution in advance before the consequences of such resolution are fully known to
taxpayers and the Service.

.02 The APA Program’s central goal is the prompt, proper, and fair resolution
of APA requests and renewals consistent with the principles of sound tax administration.

.03 The APA Program reserves the right not to accept an APA request or to
terminate consideration of an APA request if the request or the continued development
of the case is contrary to the principles of sound tax administration.

.04 An APA is an agreement between a taxpayer and the Service in which the
parties set forth, in advance of controlled transactions, the best transfer pricing method
(“TPM”) within the meaning of § 482 of the Code and the regulations. The agreement
specifies the controlled transactions or transfers (“covered transactions”), TPM, APA
term, operational and compliance provisions, appropriate adjustments, critical
assumptions regarding future events, required APA records, and annual reporting
responsibilities.

(1) APAs are intended to supplement traditional administrative, judicial, and
treaty mechanisms for resolving transfer pricing issues.

(2) Taxpayers formally initiate the process for APAs. Thereafter, APAs
require discussions among the taxpayer, one or more associated
enterprises, and one or more tax administrations, including the Service.

(3) Ordinarily, an APA is reached only on the proposed covered transactions.
In some cases, however, the APA Program may require that the scope of
the proposed covered transactions be expanded or contracted, or may
determine that the TPM proposed by the taxpayer is not appropriate for
some subset of the proposed covered transactions.

.05 The taxpayer’s participation in the APA process is entirely voluntary. In
some cases, the Service may approach a taxpayer to discuss the advantages of an
APA.

.06 The APA Program is under the immediate supervision of a Director (the
"APA Director") within the Office of the Associate Chief Counsel (International). The
APA Director reports to the Associate Chief Counsel (International) who exercises
general oversight over the APA Program. The APA Director, directly or by delegation,
may take any action – not contrary to statute, regulation, or treaty – necessary to carry
out the provisions of this revenue procedure. The APA Director may modify the
provisions contained in this revenue procedure (for example, time limits or content of an
APA request) if that modification would be consistent with sound tax administration.

.07 Under the APA request procedure, the taxpayer proposes a TPM and
provides data intended to show that the TPM constitutes the appropriate application of
the best method rule under the § 482 regulations. The Service, through an APA Team,
evaluates the APA request by analyzing all relevant data and information submitted with
the initial request and at any time thereafter.

.08 Taxpayers may request a bilateral, multilateral, or, if appropriate, a
unilateral APA. A bilateral or multilateral APA involves a request for an APA between
the taxpayer and the Service, accompanied by a request for a mutual agreement
between relevant competent authorities. A unilateral APA involves only an agreement
between the taxpayer and the Service. Where possible, in the interest of sound tax
administration and to ensure that no potential for double taxation results from an APA,
an APA should be concluded on a bilateral or multilateral basis between the competent
authorities through the mutual agreement procedure of the relevant income tax treaty or
treaties.

.09 The APA Policy Board establishes policy on matters of substantial genuine
importance pertaining to the APA Program. It consists of the Associate Chief Counsel
(International), the APA Director, the Director, International (Large and Mid-Size
Business (LMSB) Operating Division), Treasury’s International Tax Counsel, and other

senior officials.

.10 In a bilateral or multilateral case, the APA Program prepares a
recommended negotiating position for the U.S. Competent Authority. The negotiating
position serves as a basis for discussions with the relevant foreign competent authority
or authorities under the mutual agreement article of the applicable income tax treaty or
treaties. Prior to finalizing its recommendation, the APA Program, through the Team
Leader (see section 6.03), conveys the substance of the APA Team’s position to the
taxpayer to provide an opportunity for the taxpayer to comment. The Team Leader, in
coordination with other members of the APA Team, considers the merits of the
taxpayer’s timely received comments in finalizing the recommended position.

.11 If the U.S. Competent Authority and the relevant foreign competent
authority or authorities reach a mutual agreement, the taxpayer and the Service may
execute one or more APAs consistent with that mutual agreement.

.12 In appropriate cases, the TPM may be applied to tax years prior to those
covered by the APA ("rollback" of the TPM, see section 8). The Service’s policy is to
use rollbacks whenever feasible based on the consistency of the facts, law, and
available records for the prior years. This policy does not apply to unilateral APA
requests in which a rollback would decrease taxable income on a return filed for a
taxable year not covered by the APA (see § 1.482-1(a)(3)).

.13 Filing an APA request does not suspend any examination or other
enforcement proceedings. The APA Program will coordinate its activities with those of
other Service proceedings to avoid duplicative information requests to the taxpayer,
enhance the efficiency of Service operations, and reduce overall taxpayer compliance
burdens.

SECTION 3: PREFILING CONFERENCES

.01 General Principles

A taxpayer may request a prefiling conference (“PFC”) with the APA Program to discuss
informally the suitability of an APA.

.02 Discussion Topics

The taxpayer may use a PFC to clarify what information, documentation, and analyses
are likely to be necessary for the Service to consider an APA request. Among the areas
of discussion are the covered transactions, the potentially applicable TPMs, the
probability of agreement among the competent authorities, and the APA Program’s
schedule and method for coordinating and evaluating the request. To provide for the

efficient use of taxpayer resources, PFCs are recommended in order to ensure that the
APA request is appropriate and focuses on relevant issues.

.03 Scheduling

A taxpayer or its representative may contact the APA Program Office in Washington,
D.C. or California to schedule a PFC. The taxpayer or its representative should
propose three alternative dates, and should generally allow two weeks before the first
proposed date. The telephone and facsimile numbers are:

Washington, DC California
Voice: (202) 435-5220 (949) 360-3486
Facsimile: (202) 435-5238 (949) 360-3446

.04 PFC May be Named or Anonymous

The taxpayer may request a PFC either on an identified or anonymous basis.

.05 Participation

If a taxpayer identifies itself, representatives of the Service Operating Division with
responsibility for the taxpayer’s return normally will participate in the PFC.
Representatives from Appeals and the Division Counsel field offices may also attend.
In the case of a PFC regarding a bilateral APA request, a Competent Authority analyst
may attend. If a taxpayer initially requests a PFC on an anonymous basis but prior to
the meeting chooses to identify itself, the meeting may be rescheduled to permit
necessary Service personnel to attend. When requesting a PFC on an identified basis,
the taxpayer must inform the APA Program whether transactions similar or related to
those to be covered by the proposed APA are currently under consideration by a
Service Operating Division, an Appeals Office, a Division Counsel, or an Associate
Chief Counsel.

.06 Prefiling Submission

A taxpayer must send a brief prefiling submission to the relevant APA Program Office in
Washington, D.C. or California that lists the persons attending the PFC for the taxpayer
(first names only or job titles are sufficient if the PFC will be on an anonymous basis)
and that outlines and describes the issues to be discussed. This brief submission
should be provided at least one week in advance of the PFC. If the document is twenty
pages or less, it may be sent by facsimile; but if it exceeds twenty pages, eight copies
(or if anonymous, only three copies) and one original should be delivered.

SECTION 4: CONTENT OF APA REQUESTS

.01 Introduction

A complete APA request is essential to a timely and efficient APA process. In the APA
Program’s experience, a complete APA request may save many months of case
processing time and hundreds of hours of labor, as it allows the APA Team to narrow its
focus immediately to the core issue or issues and avoids delays caused by the need to
supplement the original APA request. The goal of completing a unilateral APA or a
recommended negotiating position within 12 months (see section 6.01) is predicated in
large part on the assumption that the taxpayer has submitted a complete APA request.

A complete APA request should provide the information specified below and all other
information reasonably necessary to permit the APA Program to evaluate fully the
taxpayer’s proposed TPM. The level of detail required will depend on the particular
facts and circumstances of each case and should be governed by relevancy and
materiality considerations (keeping in mind that the request should provide enough
information to allow the reader to concur that a matter is not relevant or material). The
detailed information supporting the APA request should be tailored to the specific facts
relating to the taxpayer, the proposed covered transactions, and relevant legal authority.
It should also take into account discussions with the APA Program in any PFC.

An APA request will normally be considered not “substantially complete” for purposes of
sections 4.08, 4.13, 6.01, and 6.03 unless the request contains the information required
below (as may be modified by agreement of the parties).

.02 General Principles

(1) For purposes of requesting an APA, each taxpayer that is a member of a
consolidated group (as defined in Treasury Regulations § 1.1502-1) must
comply with the provisions of § 1.1502-77.

(2) All materials submitted with the APA request become part of the APA
Program's case file and will not be returned. Therefore, taxpayers should
not submit original documents.

(3) The taxpayer must submit copies of any documents relating to the
proposed TPM. All materials submitted must be properly labeled,
indexed, and referenced in the request. Any previously submitted
documents that the taxpayer wishes to associate with the request must be
referenced.

(4) If the records or documents to be submitted are too voluminous for
transmittal with the request, the taxpayer must describe the contents of

such items in the request and confirm that the items will promptly be made
available upon request.

(5) All documents submitted in a foreign language must be accompanied by
an accurate English translation.

(6) All documents in the APA request that are available in electronic format
should be submitted, on either a CD-ROM or diskette, along with the
paper submission. Suitable formats include Microsoft Word, Excel,
PowerPoint, and Adobe Portable Document Format. Other formats may
be arranged on a case-by-case basis.

.03 Factual, Legal, and Analytical Items for All Proposed APAs

Unless otherwise agreed, each APA request must include an appropriate discussion of
the items set forth below.

(1) A comprehensive table of contents.

(2) The names, addresses, telephone and facsimile numbers, taxpayer
identification numbers (if applicable), and both the Standard Industrial
Classification (SIC) and the North American Industry Classification System
(NAICS) codes reported on the most recently filed federal tax returns (if
applicable) of (a) the organizations, trades, and businesses engaging in
the proposed covered transactions, and (b) the controlling taxpayer of the
parties, if the controlling taxpayer is not itself engaging in the proposed
covered transactions.

(3) The controlling taxpayer’s industry (for example, Heavy Manufacturing and
Transportation) within LMSB; or if the taxpayer files its tax returns with the
Small Business/Self-Employed (SB/SE) Operating Division, a statement to
that effect.

(4) A properly completed Form 2848 (Power of Attorney and Declaration of
Representative) for any person authorized to represent the taxpayer in
connection with the request, disregarding if appropriate the line 3
instruction limiting the authorization to three future tax periods. If the
taxpayer or the taxpayer’s authorized representative retains any other
person (for example, a law firm, accounting firm, or economic consulting
firm) to assist the taxpayer in pursuing the APA request, the taxpayer must
also provide a separate written authorization for disclosures to the person
and such person’s employees during the APA Program’s consideration of
the request, according to the instructions in § 301.6103(c)-1T (see also

T.D. 9011, 31 C.F.R. Part 10 (July 26, 2002)). Such written authorization
may be made by completing Form 8821 (Tax Information Authorization),
disregarding, if appropriate, the line 3 instruction limiting the authorization
to three future tax periods.

(5) A description of the general history of business operations, worldwide
organizational structure, ownership, capitalization, financial arrangements,
principal businesses, the place or places where such businesses are
conducted, and major transaction flows of the parties to the proposed
covered transactions. The description must also identify any branches or
entities disregarded for tax purposes (see § 301.7701-3) that are involved
in the proposed covered transactions.

(6) A description and analysis of the transactions covered by the APA
request, as well as the estimated dollar value of each proposed covered
transaction for each year of the proposed term of the APA. The
discussion must also describe how the proposed covered transactions
relate to other controlled transactions that the taxpayer does not propose
to cover.

(7) A statement addressing the extent to which the tested party has
transactions involving commission sales and ordinary distribution sales
(i.e., buying and reselling). If the APA request involves both kinds of
transactions, the taxpayer must propose a TPM and analyze the extent to
which it is appropriate under the facts and circumstances to (a) test both
kinds of transactions on an aggregated basis; (b) test the two kinds of
transactions separately; or (c) exclude one of the two kinds of transactions
from the APA.

(8) For each party to the proposed covered transactions, a detailed analysis
of:

(a) the functions and economic activities performed;

(b) the assets employed;

(d) the risks assumed;

(e) relevant contractual terms;

(f) relevant economic conditions; and

(g) relevant non-recognition transactions.

(9) Copies of the principal written agreement(s), if any, setting forth the
contractual terms for the covered transactions (within the meaning of §
1.482-1(d)(3)(ii), including without limitation the form of consideration
charged or paid); and an explanation of any significant discrepancy
between the applicable written agreement(s) and the economic substance
of the covered transactions (including payment form) to date and as
proposed for the APA.

(10) Representative financial and tax data of the parties to the proposed
covered transactions for the last three taxable years (or more years if
relevant to the proposed TPM), together with other pertinent data and
documents in support of the TPM. This item may include (but need not be
limited to) data from the following:

(a) Form 5471 (Information Return of U.S. Persons With Respect to
Certain Foreign Corporations);

(b) Form 5472 (Information Return of a 25% Foreign-Owned U.S.
Corporation or a Foreign Corporation Engaged in a U.S. Trade or
Business);

(d) financial statements;

(e) annual reports to stockholders;

(f) other pertinent U.S. and foreign government filings (for example,
customs reports or SEC filings);

(g) existing pricing, distribution, or licensing agreements;

(h) marketing and financial studies;

(i) documentation prepared in consideration of § 6662(e); and

(j) company-wide accounting procedures, budgets, projections,
business plans, and worldwide product line or business segment
profitability reports.

(11) The functional currency of the parties to the proposed covered
transactions and their respective foreign currency exchange risks.

(12) The taxable year of each party to the proposed covered transactions.

(13) A description of significant financial accounting methods employed by the
parties that have a bearing on any proposed TPM.

(14) An explanation of any relevant financial and tax accounting differences
between the U.S. and the foreign countries.

(15) A discussion of any relevant statutory provisions, tax treaties, court
decisions, regulations, revenue rulings, or revenue procedures that relate
to the appropriateness of the proposed TPM for the requested APA. For
cases in which the taxpayer requests a rollback, the discussion should
state whether the period of limitations for the rollback years has expired in
the U.S. or in foreign countries, and if not, when the periods of limitations
do expire.

(16) (a) A statement describing all previous and current issues at the
examination, Appeals, judicial, or competent authority levels that
relate to the proposed TPM, including an explanation of the
taxpayer’s and the government’s positions and any resolution of the
issues.

(b) If the taxpayer is requesting a rollback that involves any issues
relevant to the proposed covered transactions that are unresolved
and still under consideration by Appeals, the taxpayer must include
with its APA request a waiver of its right to be present during
communications between the Appeals Office and the APA Team
members (as described in section 6.04). See Rev. Proc. 2000-43,
2000-2 C.B. 404. The following language satisfies this
requirement:

Waiver of Ex Parte Communication: [Name of taxpayer(s)] agrees to the
participation of the Appeals Office in the consideration of this APA request,
and hereby waives its right to be present during, or participate in,
communications related to the APA request or the proposed covered
transactions between the Appeals Office and the APA Team members.

(17) A statement describing any APAs with, or rulings by, foreign tax
authorities relating to the proposed covered transactions (or any pending
requests for such APAs or rulings) and, if requested, copies of such APAs

or rulings.

(18) An economic analysis or study of the general industry pricing practices
and economic functions performed within the markets and geographical
areas covered by the APA request.

(19) A list of the taxpayer’s competitors and a discussion of any uncontrolled
transactions, lines of business or types of businesses comparable or
similar to those addressed in the request.

(20) An explanation of the proposed TPMs, including any method used to
convert results from one payment form to another (e.g., to convert from a
lump sum to a contingent payment such as a sales-based royalty),
and an
analysis of why each proposed TPM is the best method within the
meaning of § 1.482-1(c).

(21) A detailed presentation of the research efforts and criteria used to identify
and select possible independent comparables. This presentation should
include a list of potential comparables and an explanation of why each
was either accepted or rejected. The taxpayer may request an APA even
though no comparable uncontrolled prices, transactions, or companies
can be identified. In such cases, a taxpayer must demonstrate that the
proposed TPM otherwise satisfies the requirements of § 482 and this
revenue procedure.

(22) Detailed financial data (and licenses or other agreements, if applicable) on
the selected independent comparables in print and electronic formats. For
example, if the proposed TPM uses the comparable uncontrolled price
(CUP) method, the comparable pricing information should be included; if
the TPM uses the comparable uncontrolled transaction (CUT) method, the
comparable license agreements should be included; and if the TPM uses
the comparable profits method (CPM), the annual and multiple year period
results using the selected profit level indicator should be included. If
pertinent, the taxpayer should demonstrate consideration of alternative
measurements of profitability and return on investment (for example, gross
profit margin or markup, ratio of gross income to total operating expenses,
net operating profit margin, or return on assets).

(23) A detailed explanation of any adjustments to the selected comparables,
such as: accounting for product line segregations; differences in
accounting practices; differences relating to functions, assets employed,
risks assumed, and costs incurred; volume or scale differences; and
differing economic and market conditions.

(24) An illustration of the application of each proposed TPM by applying the
TPM, in a consistent format, to the prior three taxable years’ financial and
tax data of the parties to the covered transactions. If historical data
cannot be used to illustrate a TPM (for example, when the TPM applies to
a new product or business), the request should include an illustration
based on projected or hypothetical data, as well as a description of the
source of the data. If coverage of three taxable years is inappropriate for
any reason, the taxpayer should provide data for an appropriate period
and explain why the period was chosen.

.04 Specific Items for a Cost Sharing Arrangement

In addition to the items in section 4.03, an APA request related to a cost sharing
arrangement (“CSA”) must include:

(1) A copy of (a) the documents forming or revising the CSA, (b) the
documents relevant to the making available of any pre-existing intangible
property to the CSA), including the documents relevant to the acquisition
or licensing of any pre-existing intangible property that is made available
to the CSA, for purposes of research in the intangible development area,
and (c) a statement that the CSA conforms to the requirements of § 1.482-
7(b).

(2) A specific description of intangible development costs for all participants
under the CSA. Such description should include a description of the costs
included and excluded (for example, costs of technology acquired from
third parties; the treatment of stock-based compensation under the CSA;
non-product specific development costs; costs associated with abandoned
projects; costs associated with specific stages of product development;
relevant labor, material, and overhead costs; and support and
administrative costs); a description of any services performed for
participants that will be included in intangible development costs (for
example, contract research) and how those services would be taken into
account; and, for a representative period, a breakdown of total costs
incurred, and the costs borne by each participant, according to the CSA.
(3) The basis (as described in § 1.482-7(f)(3)(ii)) used to measure anticipated
benefits, the projections used to estimate benefits, and why such basis
and projections yield the most reliable estimate of reasonably anticipated
benefits.
(4) The method used to calculate each participant’s share of intangible
development costs; the reason why that method can reasonably be

expected to reflect that participant’s share of anticipated benefits; and a
statement of the circumstances under which the participants’ shares of
intangible development costs will be adjusted to account for changes in
economic conditions, business operations and practices, and the ongoing
development of intangibles under the CSA.

(5) The accounting method used to determine the costs and benefits of the
intangible development (including the method used to translate foreign
currencies).

(6) Each participant's sales, cost of sales, operating expenses, research and
development costs, and operating profit (historical for the five most
recently completed taxable years and projected for two taxable years) for
the product area covered by the CSA.

(7) A description of any amounts to be received from non-participants for the
use of covered intangibles (for example, as a royalty pursuant to a license
agreement) and how the participants would take into account such
amounts.

(8) Representative internal manuals, directives, guidelines, and similar
documents prepared for purposes of implementing or operating the CSA
(for example, research and development committee meeting minutes,
market studies, economic impact analyses, capital expenditure budgets,
engineering studies, reports and studies of trends and profitability in the
industry, and financial analyses for financing and cash flow purposes).

(9) A description of any prior research undertaken in the intangible
development area; the identification of any pre-existing intangible property
made available to the CSA; the amount of any buy-in or buy-out payment
(as defined in § 1.482-7(g)(2)); a complete economic analysis to support
the payment; the form of the payment, the method used to determine the
amount of the payment (that is, the method used to value the pre-existing
intangible property and to calculate any royalty, lump sum, or installment
payments, including, if applicable, any conversion between different
payment forms); and an explanation of any discrepancy between the
proposed payment form and the payment form established in the
documents listed in paragraph (1) above (see section 4.03(9)); and an
analysis demonstrating that the method used constitutes the best method
under § 1.482-1(c).

(10) The treatment of cost sharing and buy-in or buy-out payments for U.S.
income tax purposes (for example, the source and character of those
payments).

(11) Evidence of the participants' compliance with the reporting requirements
under § 1.482-7(j) of the cost sharing regulations.

(12) For taxpayers requesting an APA that covers a CSA but does not cover
the related buy-in transaction, or an APA that covers a buy-in transaction
but does not cover the related CSA, the reasons why an APA limited in
this manner is consistent with the principles of the APA process, as set
forth in this revenue procedure. The APA Program will evaluate the
requests to ensure their consistency with the principles of this revenue
procedure and sound tax administration. If an APA request is limited to
covering only buy-in payments, the APA must include a representation by
the taxpayer, as a term and condition of the APA, that the CSA to which
the buy-in payments relate meets the § 482 regulatory requirements for
CSAs.

.05 Critical Assumptions

The taxpayer should propose and describe any relevant critical assumptions. A critical
assumption is any fact the continued existence of which is material to the taxpayer's
proposed TPM, whether related to the taxpayer, a third party, an industry, or business
and economic conditions. Critical assumptions might include, for example, a particular
mode of conducting business operations, a particular corporate or business structure, a
range of expected business volume, or the relative value of foreign currencies.

.06 Contents of Annual Report

Section 11.01 provides that the taxpayer must file an annual report for each taxable
year covered by the APA. The taxpayer should propose in the request a list of items to
be included in each report. Consideration should be given to all items listed in Appendix
C to the APA Program’s current Model APA.

.07 Term and First Year of APA

(1) The taxpayer must propose a term for the APA appropriate to the industry,
products, and transactions involved. Although the appropriate APA term
is determined on a case-by-case basis, a request for an APA should
propose an APA term of at least five years unless the taxpayer states a
compelling reason for a shorter term. Additionally, the APA Program

strives to have at least three prospective years remaining in the term upon
the execution of an APA (in the case of a unilateral APA) or completion of
the APA Program’s recommended negotiating position for Competent
Authority (in the case of a bilateral or multilateral APA), except in unusual
circumstances. Accordingly, taxpayers should anticipate that the APA
Program may require their agreement to extend the proposed term of an
APA if necessary to ensure such prospectivity.

(2) The taxpayer must file its APA request within the time prescribed by
statute (including extensions) for filing its Federal income tax return for the
first proposed APA year. If the taxpayer receives an extension to file its
Federal income tax return, it must file its APA request no later than the
actual filing date of the return. An APA request will be considered filed on
the date the required user fee is paid (within the meaning of § 7502(a)),
provided that a substantially complete APA request is filed with the APA
Program within 120 days of the return due date (including extensions) for
the first proposed APA year. Because of the need to begin the processing
of the APA request in a manner that ensures appropriate prospectivity, the
APA Director will consider extending the 120-day period pursuant to
section 2.06 only in unusual circumstances. If the APA Program’s
evaluation of an APA request is delayed due to a lack of responsiveness
or timeliness by the taxpayer subsequent to the filing of its request, the
APA Director may deem the taxpayer’s APA request to have been filed for
purposes of this paragraph on a date subsequent to its actual filing.

.08 Request for Competent Authority Consideration

(1) The taxpayer must state whether any of the parties to the proposed
covered transactions are residents of or conduct activities in a treaty
partner country or U.S. possession, and whether the taxpayer proposes
an agreement among competent authorities (see section 7 for guidelines).
For purposes of this revenue procedure, "competent authority" includes
the Director, International (LMSB) and designated foreign competent
authorities under income tax treaties to which the U.S. is a party, and also
includes the Director, International (LMSB) acting as the U.S. Competent
Authority with respect to a possession tax agency described in Rev. Proc.
89-8, 1989-1 C.B. 778, as well as a designated possession tax official
within the meaning of that revenue procedure.

(2) If the APA request is unilateral and involves transactions with an entity in a
treaty jurisdiction, the taxpayer must provide an explanation of why the
request is not bilateral. See sections 2.08 and 7.06.

(3) If the taxpayer requests a bilateral or multilateral APA, the taxpayer's
request must include the information described in section 4.05(a) and (b)
and, in a separate document, section 4.05(n), of Rev. Proc. 2002-52,
2002-2 C.B. 242 (or its successor), or similar information pursuant to a
request for relief under Rev. Proc. 89-8. The following wording satisfies
section 4.05(n) of Rev. Proc. 2002-52:

[Name of taxpayer(s)] consents to the disclosure to the competent authority
of [name of foreign country] and the competent authority’s staff of any or all
of the items of information set forth or enclosed in the [bilateral/multilateral]
APA request for the taxable year(s) ______________ [and accompanying
rollback request for relief from economic double taxation of income for the
taxable years ______________], and any further submissions, within the
limits contained in the [name of treaty].

.09 Perjury Statement

(1) The taxpayer must include in any APA request and supplemental
submission a declaration in the following form:

Under penalties of perjury, I declare that I have examined this [APA request]
[supplemental submission relating to this APA request] including
accompanying documents, and, to the best of my knowledge and belief, the
[APA request] [supplemental submission] contains all the relevant facts
relating to the [APA request] [supplemental submission], and such facts are
true, correct, and complete.

(2) The declaration must be signed by the person or persons on whose behalf
the request is being made and not by the taxpayer's representative. The
person signing for a corporate taxpayer must be an authorized officer of
the taxpayer who has personal knowledge of the facts, whose duties are
not limited to obtaining letter rulings or determination letters from the
Service, or negotiating APAs, and who is authorized to sign the taxpayer’s
income tax return pursuant to § 6062. The person signing for any non-
corporate taxpayer must be an individual who has personal knowledge of
the facts, and who is authorized to sign in accordance with §§ 6061 or
6063, as applicable.

.10 Signatures

The taxpayer or the taxpayer's authorized representative must sign the APA request. If
an authorized representative is to sign, the taxpayer and representative must satisfy the
relevant instructions on signatures in Rev. Proc. 2005-1, 2005-1 I.R.B. 1 (or its

successor).

.11 Mailing, Deliveries, Copies, and Office Location

(1) User fees (accompanied by an identifying cover letter that includes a
justification of the fee amount) must be sent to:

Internal Revenue Service
Attn: CC:PA:LPD:DRU
P.O. Box 7604
Ben Franklin Station
Washington, D.C. 20044

The fee payment may also be hand delivered to the drop box at the 12th
Street entrance of 1111 Constitution Avenue, N.W., Washington, DC.

(2) All other communications must be mailed or delivered as follows to
(unless arranged otherwise, for example, mailing to the California office):

Office of Associate Chief Counsel (International)
Advance Pricing Agreement Program
Attn: CC:INTL:APA; MA2-266
1111 Constitution Avenue, N.W.
Washington, D.C. 20224

(3) The taxpayer must provide the original and eight copies of its APA request
and any supplemental materials submitted while the request is pending.

(4) The APA Program is located at:

799 9th Street, N.W.
Washington, D.C. 20001

.12 User Fees

(1) A separate user fee is required for each APA request. For this purpose,
an APA request means a substantially complete and timely-filed APA
submission, as required by section 4, and includes all such APA
submissions filed by the taxpayer within any single sixty-day period. The
taxpayer, for purposes of the preceding sentence, includes all members of
a controlled group as defined in Treasury Regulations § 1.482-1(i)(6).

(2) User fees shall be made payable to the United States Treasury.

(3) Except as provided in paragraphs (4), (5), and (7), the user fee for an APA
request is $50,000.

(4) Except as provided in paragraph (5), the user fee for an APA renewal
request is $35,000. For this purpose, an APA request will be considered
an APA renewal request if its subject matter is substantially the same as in
a previous APA request by the taxpayer.

(5) The user fee for a small business APA request is $22,500. For this
purpose, an APA request will be considered a small business APA request
if the taxpayer has gross income of less than $200 million or the
aggregate value of the covered transactions does not exceed (i) $50
million annually, and (ii) $10 million annually with respect to covered
transactions involving intangible property.

(6) For purposes of paragraph 5, the gross income of a taxpayer includes the
gross income of all organizations, trades, or businesses owned or
controlled directly or indirectly by the same interests controlling the
taxpayer. Gross income must be computed for the last full (12-month)
taxable year ending before the date the taxpayer filed the APA request. If
the information on the taxpayer’s gross income for the last full taxable year
is not available, the taxpayer must use its projected gross income for the
first twelve months of the APA term.

(7) The user fee to amend an APA request or to amend a completed APA is
$10,000. For this purpose, a request to amend will be deemed to occur if
a taxpayer requests changes to an APA request or to a completed APA
that requires substantial additional work by the APA Team. Generally, no
user fee will be imposed if substantial changes are requested by the
Service or by a foreign competent authority.

(8) The APA Director may require a corrected user fee after submission of an
APA request if the request does not meet the criteria for the user fee
amount initially paid by the taxpayer. The taxpayer may either pay the
corrected fee and continue the APA process or withdraw the request.

SECTION 5: TAXPAYER DISCLOSURE OBLIGATIONS

.01 Any information submitted by a taxpayer in connection with its APA
request must be true, correct, and accurate (see section 4.09). If the APA Program
determines that it needs additional information to analyze the APA request, the APA
Program may require the taxpayer to provide such information.

.02 A taxpayer has an obligation to update on a timely basis all material facts
and information that it submits in connection with its APA request. In addition, while an
APA request is pending and after an APA is executed, a taxpayer is under a continuing
duty to timely supplement its disclosures if the taxpayer discovers that information that it
provided in connection with an APA request was false, incorrect, or incomplete in some
material respect. If a taxpayer discovers such an error or omission after the APA is
executed, the taxpayer must disclose the error or omission in its next-filed annual report
(see section 11.01(1)).

.03 While the APA request is pending, the taxpayer should be prepared to
update the financial data for the selected comparables as new or revised data become
available.

.04 If a taxable year is completed while the APA request is pending, the
taxpayer should be prepared to update its APA submission following the close of the
taxable year by demonstrating the application of the proposed TPM to the taxpayer’s
actual financial results for that year.

.05 Failure by a taxpayer to provide all materials required by this revenue
procedure in its APA request (see section 4), or requested by the APA Program while
the request is pending, can cause significant delays in case processing and may result
in rejection of the APA under section 6.10.

SECTION 6: PROCESSING OF APA REQUESTS

.01 General

The processing of an APA request follows one of two paths, depending on whether the
request is for a bilateral or multilateral APA, or for a unilateral APA. The scheduling of
due diligence, analysis, discussion, agreement, and drafting is designed to complete the
recommended U.S. negotiating position (bilateral or multilateral APA request), or a
unilateral APA, within 12 months from the date the full request was filed. The filing of a
full APA request includes not only the payment of a user fee, but also the receipt by the
APA Program of the materials specified in sections 4.02 through 4.10. Significant
analysis of the APA request will not begin until a substantially complete request has
been filed.

.02 Initial Contact

After receiving an APA request, a representative of the APA Program will contact the
taxpayer or its representative to discuss any preliminary questions the APA Program
may have, or to ask for any additional information or documents necessary in order to

initiate processing of the request. The taxpayer must supply the additional information
and documents, accompanied by the perjury statement described in section 4.09, by the
date specified by the APA Program, as extended for good cause.

.03 Designation of Team Leader

Upon the receipt of a substantially complete APA request, the APA Director will
designate a Team Leader to oversee the APA Team’s activities in processing the
request. If a prefiling conference was held with the taxpayer, the Team Leader
generally will be designated from among the APA Program staff attending the prefiling
conference.

.04 Formation of APA Team

The Team Leader will organize the APA Team, which normally consists of the following
personnel: the Team Leader, an APA Program economist and/or a Service Operating
Division economist, an LMSB international examiner, a Division Counsel attorney, and,
in bilateral or multilateral cases, a competent authority analyst. In appropriate cases, an
LMSB international technical advisor, the international examiner’s manager, and other
Service Operating Division personnel familiar with the taxpayer may serve on the APA
Team. If the APA or a rollback of the APA affects taxable years in Appeals, the
appropriate Appeals Officer will be invited to participate. The APA Team Leader will
assure that copies of the APA request are distributed to all Team members for review.

.05 Function of APA Team

The function of the APA Team is the following: (1) for a bilateral or multilateral APA, to
develop, in consultation with the taxpayer and consistent with sound tax administration,
a competent authority negotiating position that it can recommend for approval, and (2)
for a unilateral APA, to make best efforts, consistent with sound tax administration, to
develop an APA that the APA Program can recommend for approval by the Associate
Chief Counsel (International). The Service Operating Division field office responsible for
the taxpayer's income tax return will be provided an opportunity to review and comment
on the recommended U.S. competent authority negotiating position in the case of a
bilateral or multilateral APA, and the proposed APA in the case of a unilateral APA.

.06 Due Diligence and Analysis

The APA Team will evaluate the taxpayer's APA request by discussing it with the
taxpayer, verifying the data supplied, and requesting additional supporting data if
necessary. The evaluation of the request will not constitute an examination or
inspection of the taxpayer's books and records under § 7605(b) or other provisions of
the Code.

.07 Schedule for Discussion and Drafting

(1) The APA Team will strive to arrange an initial meeting with the taxpayer to
take place within 45 days from the assignment of an APA Team Leader
(and following receipt of the substantially complete APA request). The
function of the initial meeting is to review the taxpayer’s facts, to discuss
and clarify issues, and to reach agreement on the scope and nature of the
APA Team’s due diligence.

(2) In connection with the initial meeting, the APA Team and the taxpayer will
agree on a Case Plan to which both Service and taxpayer personnel will
be expected to adhere. The Case Plan will be signed by both an APA
manager and an authorized official of the taxpayer (see section 4.09(2)).
The Case Plan may identify issues raised by the APA Team’s initial review
of the APA request. Firm dates should be agreed upon for resolving all
outstanding issues, and case milestones should be cited. Case
milestones include: (a) submission of any necessary additional information
by the taxpayer; (b) any planned site visits or interviews; (c) evaluation of
the information by the Service; (d) meeting dates; and (e) presentation of
the competent authority negotiating position or recommended agreement
to the APA Director. To minimize delays caused by the need to
coordinate different parties' schedules on short notice, the time and place
of future meetings required for any steps in the case should be agreed
upon at the initial meeting and established in the Case Plan.

(3) The time scheduled for completion of the case milestones will depend to
some extent on the scope and complexity of the particular case. In the
case of bilateral or multilateral requests, the Service will seek to work with
the competent authority of the treaty partner or partners, or the U.S.
possession involved to minimize the time needed for competent authority
resolution.

(4) Failures by either the taxpayer or the APA Team to meet case milestones
will be addressed promptly. The APA Director will assist in remedying any
difficulties to ensure a course of action to meet case milestones.
Substantial or persistent failure by the taxpayer to comply with the Case
Plan may be treated by the APA Program as a withdrawal of the APA
request. In this event, if the taxpayer wishes to continue to pursue the
APA, the taxpayer must re-file the request and pay a new user fee.

(5) In some circumstances, development of the case will suggest to both the
APA Team and the taxpayer that they adjust some milestone dates. To

preserve flexibility, the APA Team and the taxpayer may amend the Case
Plan by written mutual agreement, consistent with the need to complete
the case expeditiously.

(6) If a case is not completed by the date specified in the operative Case
Plan, the APA Team Leader and the taxpayer must submit to the APA
Director a joint status report (or separate status reports in the event of
disagreement) explaining the substantive or procedural matters causing
the delay and specifying how the parties propose to resolve the
outstanding issues and complete the case within a reasonable time. If the
case is not completed by the new target date, APA Program management
will hold a status conference. The purpose of the status conference is to
reach agreement on how the case will be resolved. The Associate Chief
Counsel (International) may participate in this or subsequent conferences
if the case is not resolved satisfactorily in a timely manner.

.08 Execution

Signature of an APA by the APA Director and the taxpayer will constitute agreement to
the APA. For purposes of executing the APA, each taxpayer that is a member of a
consolidated group (as defined in § 1.1502-1) must comply with the provisions of §
1.1502-77. The person signing the APA request on behalf of the taxpayer must satisfy
the requirements of section 4.09(2).

.09 Withdrawing the Request

The taxpayer may withdraw the request at any time before the execution of the APA.
The user fee generally will not be refunded if the taxpayer withdraws its APA request
after the due diligence process has been initiated.

.10 Rejecting the Request

The APA Program may decline either to accept any APA request or to execute any APA
after a request has been accepted. If the APA Program declines to execute an APA
after the due diligence process has been initiated, the Service normally will retain the
user fee, although the fee may be returned if the APA Program determines that such
action would be appropriate under the circumstances. If the APA Program proposes to
reject an APA request, the taxpayer will be granted one conference of right with the
APA Director. Other conferences may be granted at the APA Director's discretion.

SECTION 7: COMPETENT AUTHORITY CONSIDERATION

.01 When any of the parties to a request are entitled to obtain assistance

under the mutual agreement provision of a tax treaty between a foreign country and the
United States, or under Rev. Proc. 89-8, the competent authorities may enter into
agreements concerning the APA. Requests similar to APA requests that are initiated
through treaty partners or possession tax agencies and submitted to the U.S. competent
authority will be processed under this revenue procedure and Rev. Proc. 2002-52, as
appropriate. In order to provide timely clarification of factual issues, minimize the
potential for miscommunication, and assist in development of a multiple party
agreement on a timely basis, the Service will generally initiate coordination among the
taxpayer, the Service, and the competent authorities of treaty partners at the earliest
possible stage of consideration of an APA request, including, where possible, the
prefiling stage. In this manner, the U.S. and foreign competent authorities can develop
a joint understanding of the case, which should facilitate negotiation and resolution of
competent authority issues. The taxpayer should remain available throughout
consideration of the request to assist the Service in reaching agreement with the foreign
competent authority. Final agreement to the negotiated APA will be sought among the
taxpayer, the Service, and the foreign competent authority. As a general matter, the
taxpayer should submit APA requests and related correspondence simultaneously to
the Service and to foreign competent authorities involved in the requests.

.02 The purpose of a competent authority agreement is to avoid double
taxation or taxation not in accordance with the relevant income tax treaty or treaties. If
such an agreement is not acceptable to the taxpayer, the taxpayer may withdraw the
APA request (see section 6.09). If the competent authorities are unable to reach an
agreement, the taxpayer may withdraw its request or, at its discretion, the Service may
negotiate and enter into a unilateral APA with the taxpayer (see section 7.06).

.03 The taxpayer must cooperate with the Service and the U.S. competent
authority, pursuant to the standards set forth in Rev. Proc. 2002-52 and any other
applicable revenue procedures.

.04 Taxpayers have an affirmative obligation to identify relevant concerns that
may impact competent authority negotiation of an APA request. For example, it may be
necessary for the Service to request sensitive confidential data (including material that
may constitute a trade secret), which if disclosed, could harm the taxpayer's competitive
position. If the taxpayer identifies such sensitive information, the Service will work with
the taxpayer in developing a mechanism to permit consideration or verification by the
treaty partner or partners of the information while still preserving its confidentiality.

.05 When the competent authorities enter into an agreement covering an
APA, the Service will, to the extent appropriate, agree to a mutual exchange of
information with the foreign competent authority concerning any subsequent
modifications, cancellation, revocation, requests to renew, evaluation of annual reports,
or examination of the taxpayer's compliance with the terms and conditions of the APA.

Bilateral APAs may provide for simultaneous filing of the annual report with the Service
and with the foreign tax administration.

.06 To minimize taxpayer and governmental uncertainty and administrative
cost, bilateral or multilateral APAs are generally preferable to unilateral APAs when
competent authority procedures are available with respect to the foreign country or
countries involved. In appropriate circumstances, however, the Service may execute an
APA with a taxpayer without reaching a competent authority agreement. The taxpayer
must show sufficient justification for a unilateral APA. In some circumstances,
procedures agreed upon with particular foreign competent authorities, or the
requirements of proper relations with treaty partners, may preclude unilateral APAs.

.07 Section 7.05 of Rev. Proc. 2002-52 provides in part that, if a taxpayer
reaches a settlement on an issue pursuant to a written agreement, the U.S. competent
authority will endeavor only to obtain a correlative adjustment from a treaty country and
will not undertake any actions that would otherwise change such agreement. The
restrictions imposed under section 7.05 of Rev. Proc. 2002-52 with respect to the
discretion of the U.S. competent authority to negotiate correlative relief will not apply to
a unilateral APA. However, a unilateral APA may hinder the ability of the U.S.
competent authority to reach a mutual agreement that will provide relief from double
taxation, particularly when a contemporaneous bilateral or multilateral APA request
would have been both effective and practical (within the meaning of § 1.901-2(e)(5)(i))
to obtain consistent treatment of the APA matters in a treaty country. If there is a
settlement with respect to taxable years prior to the first year subject to a unilateral APA
based on rollback of the APA’s TPM (as discussed in sections 2.12 and 8 of this
revenue procedure), section 7.05 of Rev. Proc. 2002-52 will apply to the rollback years
in the regular manner.

SECTION 8: ROLLBACK OF TPM

.01 Application of the TPM to tax years prior to those covered by the APA
("rollback" of the TPM) may be an effective means of enhancing voluntary compliance
and of using available resources to address unresolved transfer pricing issues. The
taxpayer may request that the Service consider a rollback (a “rollback request”) in
connection with a particular APA request. Under regularly applicable procedures, the
Service may determine that the same or a similar TPM as that agreed to in an APA
should be applied to prior years even in the absence of a rollback request. When
applying the TPM to prior years, adjustments may be made to reflect differences in
facts, economic conditions, and applicable legal rules. Those adjustments may be
made regardless of whether the taxpayer or the Service initiated the rollback request.

.02 The taxpayer may make a rollback request in its APA request or at any

time prior to the execution of the APA. The principles set forth in section 2.12 generally
will govern the Service’s consideration of the request. The balance of prospectivity and
retroactivity of the total number of years covered by the proposed overall agreement,
and the status of any on-going examination, will also be given consideration in the
Service’s decision to entertain a rollback request. Rollbacks requested after submission
of the APA request must be in writing and addressed to the APA Director.

.03 If a rollback request is submitted in connection with a bilateral or
multilateral APA, the rollback request will be deemed to constitute an application for
accelerated competent authority consideration as described in section 7.06 of Rev.
Proc. 2002-52 (or its successor). The Office of Associate Chief Counsel (International),
the Service Operating Division field office involved, and the U.S. Competent Authority
will coordinate consideration of the request. The taxpayer's request must include all
information required for accelerated competent authority consideration under Rev. Proc.
2002-52 (or its successor), subject to the rules set forth therein. The taxpayer's request
can pertain to any years prior to the first year to be covered under the requested APA.
As necessary to reach a competent authority agreement, the Service may require that
the rollback be applied to one or more specified years if accelerated competent
authority is to be granted. In exercising its discretion over the conduct of accelerated
competent authority consideration, the U.S. Competent Authority will seek to implement
the policy concerning APA rollbacks stated in section 2.12.

.04 Rollback requests submitted in connection with a bilateral or multilateral
APA and involving a taxable year under the jurisdiction of Appeals will be deemed to
constitute an application for simultaneous Appeals and competent authority
consideration. That application is described in section 8 of Rev. Proc. 2002-52 and is
subject to the rules of that section. The Office of Associate Chief Counsel
(International), Appeals, and the U.S. Competent Authority will coordinate consideration
of the request. In exercising its discretion in a simultaneous Competent Authority-
Appeals proceeding, the U.S. Competent Authority will seek to implement the policy
concerning APA rollbacks stated in section 2.12. Taxpayers are encouraged to request
accelerated competent authority consideration under section 8.03 above, in conjunction
with an application for the simultaneous Appeals and competent authority process.

.05 Subject to the policy stated in section 2.12, the Service official with
jurisdiction over the taxable year subject to the rollback has discretion as to whether the
rollback is applied. That official may be either the Service Operating Division executive
responsible for the taxpayer’s income tax return, the National Chief of Appeals, the U.S.
Competent Authority (for matters subject to competent authority negotiations), or the
Division Counsel (for matters pending litigation). Except to the extent inconsistent with
this revenue procedure, APA rollbacks will be implemented using regularly applicable
procedures for resolving tax issues. Such procedures include but are not limited to
closing agreements and other settlement documents and Forms 870 and 870AD.

SECTION 9: SMALL BUSINESS TAXPAYER APAs

.01 Special Provisions Available to Small Business Taxpayers

At the request of a small business taxpayer (“SBT”), the APA Program may apply any or
all of the provisions in this section. A SBT is any U.S. taxpayer with total gross income
of $200 million or less, as determined under section 4.12(6). In addition, SBT
procedures will be available for APAs that cover small transactions described in section
4.12(5). Although transactions involving valuable intangible property or CSAs would not
ordinarily be appropriate for these SBT procedures (because of the complexity of
valuing such intangibles), the APA Program will consider employing special procedures
for such transactions on a case-by-case basis.

.02 PFC Procedures

(1) As set forth in the general rules above, a taxpayer contemplating an APA
may request a PFC with the APA Program (see section 3). If a PFC is
requested, the APA Program provides informal advice to the taxpayer
regarding the taxpayer's proposal, but ordinarily does not begin significant
due diligence until the taxpayer formally files an APA request and pays the
appropriate user fee (see section 6.01). In the case of an SBT, however,
the APA Program will commence its due diligence analysis earlier in the
process to accelerate the conclusion of the APA negotiations.

(2) The APA Program and a SBT may hold a PFC to determine as early as
possible the best method for the SBT's proposed covered transactions.
The APA Program will need a detailed description of the underlying facts
and the proposed TPM for the SBT's proposed covered transactions at
least 60 days prior to the scheduled conference. The SBT may provide
the information it maintains under § 6662(e) to satisfy this requirement.
Prior to its prefiling submission, the SBT must consult with the APA
Program to determine the information required to evaluate the SBT's
covered transactions.

(3) An APA Team will evaluate the APA prefiling information to determine
items of concern and the additional documentation needed to evaluate the
request. The SBT will be advised of the APA Team's initial conclusions
before the PFC so that it can address these items before or at the
conference.

(4) At the PFC, the SBT and APA Program will agree on a schedule with the
objective of finalizing the recommended negotiating position for a bilateral

APA, or concluding a unilateral APA, within six months of the date the SBT
files its APA request. The APA Program expects that performing this
analysis earlier in the process should result in a reduced number of post-
filing meetings and supplemental information requests.

.03 Items Required for an SBT APA Request

Before an SBT submits an APA request, the APA Program and the SBT may agree to
reduce or eliminate specific items that would otherwise be required by section 4.

.04 Locale and Number of Meetings for SBT APA Requests

The APA Program will endeavor to hold meetings with the SBT at a location convenient
to the SBT. To minimize the number of meetings, teleconferences will be employed
whenever feasible.

.05 Assistance in Economic Analysis

At the SBT’s request, the APA Program will assist the SBT in the selection and
evaluation of comparables, as well as the computation of any appropriate adjustments
to comparables.

.06 APA

For unilateral APA requests, a SBT should submit a proposed draft APA in a form
substantially similar to the APA Program’s current Model APA (see Announcement
2005-27, 2005-16 I.R.B. 918, 950). The electronic component of the APA request
should include a “redline” version showing the differences between the Model APA and
the SBT’s proposed draft APA (see section 4.02(6)).

.07 APA Program’s Consideration of Other Alternative Procedures

The APA Program may consider other procedures suggested by the SBT to reduce the
SBT's administrative and financial burden, consistent with the objectives of the APA
Program and the requirements of § 482.

SECTION 10: LEGAL EFFECT OF THE APA

.01 An APA is a binding agreement between the taxpayer and the Service.
See sections 2.01 - 2.04.

.02 If the taxpayer complies with the terms and conditions of the APA, the
Service will not contest the application of the TPM to the subject matter of the APA

except as provided in this revenue procedure. The taxpayer remains otherwise subject
to U.S. income tax laws and applicable income tax conventions.

.03 An APA will have no legal effect except with respect to the taxpayer,
taxable years, and transactions to which the APA specifically relates.

.04 Unless provided otherwise by written agreement or regulations, the
Service and the taxpayer may not introduce the APA or non-factual oral and written
representations made in conjunction with the APA request as evidence in any judicial or
administrative proceeding regarding any tax year, transaction, or person not covered by
the APA. This paragraph does not preclude the Service and the taxpayer from agreeing
to roll back the APA TPM, or the Service’s use of any non-factual material otherwise
discoverable or obtained other than in the APA process merely because the parties
considered the same or similar material in the APA process.

.05 Unless provided otherwise by written agreement or regulations, the
Service and the taxpayer may not introduce a proposed, cancelled, or revoked APA, or
any non-factual oral or written representations or submissions made during the APA
process, as an admission by the other party, in any judicial or administrative proceeding
regarding any taxable year of the requested APA term. This paragraph does not
preclude the Service’s use of any non-factual material otherwise discoverable or
obtained other than in the APA process merely because the APA Program and the
taxpayer considered the same or similar material in the APA process.

SECTION 11: ADMINISTERING THE APA

.01 Annual Reports

(1) For each taxable year covered by the APA, the taxpayer must file a timely
and complete annual report describing its actual operations for the year
and demonstrating compliance with the APA’s terms and conditions. The
report must include all items required by the APA, describe any pending or
contemplated requests to renew, modify or cancel the APA, and report
any adjustments made pursuant to section 11.02. In addition, the annual
report must identify any material information submitted while the APA
request was pending that the taxpayer discovers during the taxable year
was false, incorrect, or incomplete. See section 5.02.

(2) The taxpayer must file an original and four copies of the annual report by
the later of (a) 90 days after the time prescribed by statute (including
extensions) for filing its federal income tax return for the year covered by
the report, or (b) 90 days after the effective date of the APA. The Service
and the taxpayer may agree to alternative filing dates. The taxpayer

should file the original annual report and copies with the APA Director in
Washington, D.C., as indicated in section 4.11. For bilateral or multilateral
APAs, the Service may require the taxpayer to file simultaneously a copy
of the annual report with the treaty partner or partners.

(3) The Service Operating Division or the APA Program Office will contact the
taxpayer regarding an annual report if it is necessary to clarify or complete
the information submitted in the annual report. The taxpayer must supply
the additional information by the date specified.

(4) Any contact between the Service Operating Division, or the APA Program
Office, and the taxpayer to clarify or complete the information in an annual
report is not an examination or the commencement of an examination of
the taxpayer for purposes of § 7605(b) or any other Code provision.

(5) If a filed annual report contains incomplete or incorrect information, or
reports an incorrect application of the TPM, the taxpayer must amend it
within 45 days after becoming aware of the need to amend the report.
The time may be extended for good cause.

(6) An annual report must contain the following declaration:

Under penalties of perjury, I declare that I have examined this annual report
including accompanying documents, and, to the best of my knowledge and
belief, this annual report contains all the relevant facts relating to the annual
reporting requirements pursuant to the APA, and such facts are true, correct,
and complete.

[If applicable: An adjustment to conform taxable income and other relevant
items to reflect the results reported herein has been reported to the
appropriate responsible Service Operating Division personnel.]

[If applicable: An amended income tax return to conform taxable income and
other relevant items to reflect the results reported herein [has been] [will be]
filed with the appropriate Internal Revenue Service Center.]

(7) The taxpayer must sign the declaration in compliance with sections 4.09
(Perjury Statement) and 4.10 (Signatures).

(8) Failure to file a timely, complete, or accurate annual report may be
grounds for canceling or revoking the APA under sections 11.06.

.02 APA Primary Adjustments, Secondary Adjustments, and Revenue Procedure

Treatment

(1) APA Primary Adjustments. The APA provides the TPM for determining
the proper amount of the taxpayer’s gross or net income, deductions,
credits, or allowances with respect to the APA’s covered transactions. In
general, the taxpayer’s actual covered transactions during an APA year,
as reported in its books and records, should comply with the TPM and be
clearly reflected on the taxpayer’s timely-filed original return for the year.
Under some TPMs, however, the taxpayer may have to wait until the close
of the taxable year to determine whether the intercompany prices it
actually paid or received complied with the TPM (for example, a
comparable profits method providing for a particular operating margin
range). If the taxpayer’s actual covered transactions do not comply with
the TPM, the taxpayer must nonetheless report its taxable income in an
amount consistent with the TPM (an “APA primary adjustment”) on either
a timely-filed original return or an amended return. The generally
applicable Code rules, including additions to tax, penalties and interest,
apply with respect to an APA primary adjustment. When the taxpayer
makes an APA primary adjustment, an appropriate correlative adjustment
will also be made with respect to the related foreign entity affected by the
APA primary adjustment. See § 1.482-1(g)(2). To the extent the APA
covers years for which federal income tax returns were filed prior to, or no
later than 60 days after, the effective date of the APA, the taxpayer must
file, unless otherwise agreed to in the APA, an amended return or returns
that reflect any required primary adjustment and pay any tax due because
of such adjustments, within 120 days of entering into the APA. The
generally applicable Code rules will apply with respect to the primary
adjustment with respect to the APA years for which federal income tax
returns were filed before the APA was executed, except: (a) the
computation of any required estimated tax installments for the taxable
year will not take into account the primary adjustment and related
secondary adjustments (see section 11.02(2)); and (b) the taxpayer will
not be subject to the failure to pay penalties under §§ 6651 and 6655, or
the failure to make timely deposit of taxes penalty under § 6656, by
reason of the primary adjustment and related secondary adjustments.

(2) Secondary Adjustments. Absent an election of the APA revenue
procedure treatment described in section 11.02(3), an APA primary
adjustment requires a secondary adjustment to conform the taxpayer’s
accounts. The secondary adjustment may result in additional tax
consequences. See § 1.482-1(g)(3).

(3) APA Revenue Procedure Treatment. If a taxpayer makes an APA primary

adjustment, the taxpayer and its related foreign entity may elect APA
revenue procedure treatment and avoid the possible adverse tax
consequences of a secondary adjustment that would otherwise follow the
APA primary adjustment. Under APA revenue procedure treatment,
consistent with the principles of Rev. Proc. 99-32, 1999-2 C.B. 296, the
taxpayer will be permitted to establish an account receivable from, or
payable to, its related foreign entity in the amount of the APA primary
adjustment as of the last day of the taxable year to which the APA primary
adjustment applies. The account will not bear interest and must be paid
within 90 days of the later of (a) the date for timely filing (with extensions)
of the federal income tax return for the taxable year to which the APA
primary adjustment applies, or (b) the APA’s effective date. The account
must be paid within the 90 day period to receive revenue procedure
treatment. Payment must be in the form of money, a written debt
obligation payable at a fixed date and bearing interest at an arm’s length
rate as provided in § 1.482-2(a)(2), or through an accounting entry
offsetting such account against an existing bona fide debt between the
U.S. taxpayer and the related foreign entity. The taxpayer must document
the payment or offset of the account, and disclose it in the APA annual
report for the year of the payment.

(4) The Service will give effect to an APA primary adjustment, secondary
adjustment, and payment under APA revenue procedure treatment, if
applicable, for all U.S. income tax purposes. The tax treatment of any
such adjustment or payment depends on the facts and circumstances of
the adjustment or payment. For example, if a taxpayer’s APA primary
adjustment involves the reporting of an additional royalty expense for a
transaction with a related foreign entity, the Service will deem a payment
in the nature of a royalty in the amount of the APA primary adjustment to
have been made by the taxpayer to the related foreign entity. This
deemed payment may be subject to U.S. withholding tax, and interest
would accrue on the tax required to be withheld from the due date of the
taxpayer’s federal income tax return without regard to extensions.
Similarly, a taxpayer's APA revenue procedure treatment may involve the
recharacterization of a dividend paid by its foreign subsidiary as a
payment of an account receivable established in connection with an APA
primary adjustment. Any foreign tax withheld from the payment may be
treated as a noncompulsory payment ineligible for the foreign tax credit,
unless the taxpayer exhausts all effective and practical remedies, including
invocation of competent authority procedures, to obtain consistent
treatment that would eliminate the foreign tax liability. See §_1.901-
2(e)(5).

(5) If the Service proposes a tax adjustment or the taxpayer files an amended
return that does not require an APA primary adjustment, generally
applicable Code rules will apply.

(6) If the taxpayer requests a bilateral or multilateral APA, the U.S. Competent
Authority will discuss the principles of this section with the appropriate
foreign competent authority to seek substantially identical treatment of the
taxpayer's related foreign entity.

.03 Examination

(1) With respect to the application of § 482 to the covered transactions, the
Service will limit the examination of a taxpayer’s income tax return for a
tax year covered by an APA to the requirements described in the next
paragraph and will not reconsider the TPM.

(2) For the year under examination, the Service may require the taxpayer to
establish: (a) compliance with the APA’s terms and conditions; (b) validity
and accuracy of the annual report’s material representations; (c)
correctness of the supporting data and computations used to apply the
TPM; (d) satisfaction of the critical assumptions; and (e) consistent
application of the TPM.

(3) The Service Operating Division must inform the APA Director if the
taxpayer has not satisfied any requirement in the prior paragraph. After
consulting with the appropriate Service Operating Division personnel, the
Associate Chief Counsel (International) may decide to apply the terms of
the APA, or revise (see section 11.05), cancel, or revoke (see section
11.06) the APA.

(4) The Service Operating Division may audit and propose adjustments to the
taxpayer’s operating results as determined under the TPM without
affecting the APA’s validity or applicability. The taxpayer may agree with
the proposed adjustments in the same manner as any other adjustment,
and the Service Operating Division will assess any resulting additional tax
or refund any resulting overpayment of tax. If the taxpayer does not agree
with the proposed adjustment, the taxpayer may contest it through the
normal administrative and judicial procedures. The taxpayer must include
the audit adjustments as finally determined for the purpose of applying the
TPM and, as necessary, make any APA primary, secondary and
correlative adjustments under section 11.02. APA revenue procedure
treatment under section 11.02(3) is unavailable for audit adjustments.

.04 Record Retention

(1) The taxpayer must maintain books and records sufficient to enable the
Service Operating Division to examine whether the taxpayer has complied
with the APA. The taxpayer’s compliance with this paragraph fulfills the
record-keeping requirements of §§ 6038A and 6038C as applied to the
covered transactions.

(2) Upon examination, the Service Operating Division may submit a written
request to the taxpayer requiring the submission of requested information
or the translation of specific documents within 30 days, as extended for
good cause. The fact that a foreign jurisdiction may impose a penalty
upon the taxpayer or other person for disclosing the material will not
constitute reasonable cause for noncompliance with the Service Operating
Division's request.

.05 Revising the APA

(1) An APA may be revised by agreement of the parties, consistent with the
principles set forth herein and the interests of sound tax administration.
The Associate Chief Counsel (International) may agree to revise an APA
in lieu of canceling or revoking it. If the parties agree to revise the APA,
the revised APA will indicate its effective date.

(2) If the parties agree to revise a bilateral or multilateral APA, the Team
Leader will submit the revised APA to the U.S. Competent Authority to
obtain the consent of the foreign competent authority. If the foreign
competent authority refuses to accept the revised APA, or if the competent
authorities cannot agree on a revised APA acceptable to all parties, the
APA Director and the taxpayer may agree to: (a) apply the existing APA,
if appropriate; (b) apply the revised APA or agree to further revisions; or
(c) request the Associate Chief Counsel (International) to cancel the APA
as of an agreed date. If the APA Director and the taxpayer cannot agree
on how to proceed, the Associate Chief Counsel (International) will cancel
the APA pursuant to section 11.06.

.06 Revoking or Canceling the APA

(1) The Associate Chief Counsel (International) may revoke an APA due to
fraud or malfeasance (as defined in § 7121), or disregard (as defined in
§ 6662(b)(1) and (c)) by the taxpayer in connection with the APA,
including, but not limited to, fraud, malfeasance, or disregard involving (a)
material facts in the request or subsequent submissions (including an

annual report) or (b) lack of good faith compliance with the APA’s terms
and conditions.

(2) The Associate Chief Counsel (International) may cancel an APA due to
the taxpayer’s misrepresentation, mistake as to a material fact, failure to
state a material fact, failure to file a timely annual report, or lack of good
faith compliance with the terms and conditions of the APA.

(3) Unless the parties agree to revise the APA, the Associate Chief Counsel
(International) will cancel an APA in the event of a failure of a critical
assumption, or a material change in governing case law, statute,
regulation, or a treaty (as described in section 11.07).

(4) For purposes of this section 11.06(1) and (2) the Associate Chief Counsel
(International) will consider facts as material if, for example, knowledge of
the facts could reasonably have resulted in an APA with significantly
different terms and conditions. In regard to annual reports, the Associate
Chief Counsel (International) will consider facts as material if, for example,
knowledge of the facts would have resulted in (a) a materially different
allocation of income, deductions, or credits than reported in the annual
report, or (b) the failure to meet a critical assumption.

(5) The Associate Chief Counsel (International) may waive cancellation if the
taxpayer can satisfactorily show good faith and reasonable cause and
agrees to make any adjustment proposed to correct for the
misrepresentation, mistake as to a material fact, failure to state a material
fact, or noncompliance.

(6) If the Associate Chief Counsel (International) revokes an APA, the
revocation relates back to the first day of the APA’s first taxable year. The
Service may: (a) determine deficiencies in income taxes and additions
thereto; (b) deny relief under Rev. Proc. 99-32, 1999-2 C.B. 296; (c) allow
the taxpayer relief under Rev. Proc. 99-32, but determine the interest on
any account receivable established under Rev. Proc. 99-32, section 4.01,
without mutual agreement or correlative relief; (d) revoke the APA as an
"egregious case" under Rev. Rul. 80-231, 1980-2 C.B. 219, so as to deny
the taxpayer a foreign tax credit; and (e) not make available the unilateral
relief provisions of Rev. Proc. 2002-52 (see section 12.07). The Service
will seek to coordinate any action concerning revocation of a bilateral or
multilateral APA with the foreign competent authority.

(7) If the Associate Chief Counsel (International) cancels an APA, the
cancellation normally relates back to the beginning of the year in which the

critical assumption failed, or the beginning of the year to which the
misrepresentation, mistake as to a material fact, failure to state a material
fact, or noncompliance relates. If, however, the cancellation results from a
change in case law, statute, regulation, or treaty, the cancellation normally
relates back to the beginning of the year that contains the effective date of
the change in case law, statute, regulation, or treaty.

(8) As of the effective date of the cancellation, the APA has no further force
and effect with respect to the Service and the taxpayer for U.S. income tax
purposes. The Service will seek to coordinate any action concerning the
cancellation of a bilateral or multilateral APA with the foreign competent
authority.

.07 Change in Case Law, Statute, Regulation, or Treaty

If applicable U.S. case law, statutes, regulations, or treaties change the federal income
tax treatment of any matter covered by the APA, the new case law, statute, regulation,
or treaty provision supersedes inconsistent terms and conditions of the APA.

SECTION 12: RENEWING THE APA

.01 A taxpayer may request renewal of an APA using the procedures for initial
APA requests. To expedite the preparation and evaluation of an APA renewal request,
however, taxpayers are encouraged to request a prefiling conference to discuss with the
APA Program the suitability of streamlined submission requirements. Taxpayers are
encouraged to file the renewal request nine months before the expiration of the APA
term.

.02 The APA Program will endeavor to expedite the processing of a renewal
APA. Expedited processing will be most likely where the taxpayer demonstrates that
the following conditions exist: (a) substantially the same law and policy applied to the
existing APA; (b) no substantial differences exist between the taxpayer’s proposed TPM
and the TPM under the existing APA; (c) no material changes occurred in the taxpayer’s
facts or circumstances since the parties entered into the existing APA; and (d) for a
bilateral APA, a rollback or closed year considerations did not influence the TPM in the
existing APA.

.03 If the conditions in the prior paragraph exist, the APA Team begins its
evaluation of the renewal APA by considering the continuing applicability of the existing
APA, using updated comparables as appropriate. The APA Team will focus on any
changed facts and circumstances. While the APA Team will endeavor to streamline the
renewal process, certain cases may require additional analysis. That is, experience and
insight gained from applying the TPM to actual data (for example, APA annual reports)

may provide insight that indicates the need to modify the TPM. The APA Program will
use its best efforts to advise the taxpayer at a prefiling conference whether a
streamlined APA renewal process will be achievable.

SECTION 13: DISCLOSURE

.01 An APA, any background information related to the APA, and the
taxpayer’s APA request for that APA, are return information and are confidential. See
§§ 6103, 6105, 894, and 7852(d).

.02 An APA, any background information related to the APA, and the
taxpayer’s APA request, are not “written determinations,” and they are not open to
public inspection. See § 6110.

.03 The Secretary must prepare an annual report for public disclosure. See
§ 521(b) of the Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L.
106-170, 113 Stat. 1860, 1925. That report includes specifically designated information
concerning all APAs, but in a form that does not identify taxpayers or their trade secrets
or proprietary or confidential business or financial information.

.04 An APA, any annual reports, and any factual information contained in the
background files is subject to exchange of information under income tax treaties or tax
information exchange agreements in accordance with the terms of such treaties and
agreements (including terms regarding relevancy, confidentiality and the protection of
trade secrets). In cases where the exchange of information would be discretionary,
information may be exchanged to the extent consistent with sound tax administration
and the practices of the relevant foreign competent authority, including where relevant
the existence and application by the foreign competent authority of rules similar to those
described in sections 10.04 and 10.05.

SECTION 14: EFFECT ON OTHER DOCUMENTS

Rev. Proc. 2004-40, 2004-2 C.B. 50, is superseded.

SECTION 15: EFFECTIVE DATE

This revenue procedure will apply to all APA requests, including requests for renewal,
received on or after February 1, 2006. By agreement, this revenue procedure may
apply to any APA resulting from an APA request pending on such date.

SECTION 16: PAPERWORK REDUCTION ACT

The collections of information contained in this revenue procedure have been reviewed

and approved by the Office of Management and Budget in accordance with the
Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545 - 1503.

An agency may not conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection of information displays a valid control
number.

The collections of information are in sections 3.06, 4, 5, 8.03, 11.01, 11.02(1), 11.04,
11.05 and 12.01. This information is required to provide the Service sufficient
information to evaluate and process the APA request or request for renewal of an
existing APA, or to determine whether the taxpayer is in compliance with the terms and
conditions of an APA. This information will be used to evaluate the proposed TPM, and
the taxpayer's compliance with the terms and conditions of any APA to which it is a
party. The collections of information are required to obtain an APA. The likely
respondents are business or other for-profit institutions.

The estimated total annual reporting and/or recordkeeping burden is 8200 hours.

The estimated average burden for an APA prefiling conference is 10 hours; the
estimated average burden for an APA request is 50 hours; and the estimated average
burden for preparation of an annual report by a party to an APA is 15 hours. The
estimated number of respondents and/or recordkeepers is 230.

The estimated annual frequency of responses is one request or report per year per
applicant or party to an APA, except that a taxpayer requesting an APA may also
request a prefiling conference.

Books or records relating to a collection of information must be retained as long as their
contents may become material in the administration of any internal revenue law.
Generally tax returns and tax return information are confidential, as required by § 6103.

DRAFTING INFORMATION

The principal authors of this document are various members of the Advance Pricing
Agreement Program of the Office of Associate Chief Counsel (International). For further
information regarding this revenue procedure, please contact Mr. Craig A. Sharon or Mr.
Craig R. Gilbert at (202) 435-5220 (not a toll free number).

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