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Transfer pricing adjustments jump by 90% as DPT takes effect

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After a three year gap, HMRC has restarted publishing statistics on transfer pricing enquiries and adjustments, and related issues. This year, data on the DPT has been added. The headline figure is a 90% jump in transfer pricing adjustments over the prior year to £1.6bn. Given the high level of ongoing enquiries, and the introduction of country by country (CBC) reports, we do not expect this level of adjustments to be a one-off.

These statistics reflect our experience of a large increase in the number of transfer pricing enquiries, often conducted in conjunction with a DPT enquiry and often covering a number of years. The introduction of DPT has given HMRC an additional tool to use in transfer pricing disputes, as well as being a separate taxing opportunity in its own right.

The length of enquiries is also increasing, with the average age of settled enquires now just short of 29 months. This reflects the increasing complexity of cases (including DPT implications) and increased levels of governance within HMRC. It is possible however that this figure may drop in 2017/18, as HMRC has been accelerating enquiries this year in order to work within the window for DPT notices in respect of the first year of this being added.

The DPT statistics show a yield very closely aligned to the anticipated yield on its introduction, at £281m for 2016/17. This number includes actual DPT assessments, additional corporation tax levied as a result of HMRC intervention in respect of potential DPT charges, and behavioural change where businesses have modified their transfer pricing arrangements in order not to suffer a DPT charge. However, it is unclear how this last element has been calculated by HMRC.

They also include details on advance pricing agreements (APAs), mutual agreement procedures (MAP) and advance thin capitalisation agreements (ATCAs).

On APAs, the figures show a decrease in the number of applications and APAs agreed in the year, along with an increase in the number of applications rejected. They also show a similar timeframe for reaching agreement to the prior year, which was a large increase on 2014/15. The longer timeframes reflect the need to clarify the DPT position at the beginning of the process, and the increased governance at the end. We expect APAs to continue to be a useful tool for taxpayers, albeit with a greater size and complexity threshold following the issue of a revised Statement of Practice last year. Similarly ATCAs have seen a reduction in the number of applications, along with an increase in the time to resolve.

MAP statistics show a concerning drop in the number of cases resolved alongside an increase in claims made and the length of time to resolve them. We expect this to be exacerbated in future years, as tax authorities take different views on the recent revisions to the OECD Transfer Pricing Guidelines, and gain access to greater levels of data through CBC reporting.

These statistics are not unexpected, and they reinforce the view that transfer pricing and DPT will be a major focus for HMRC in the coming years. Taxpayers need to be fully prepared for potential enquiries.

Peter Steeds & Paul Fields, KPMG