On 16 September 2019, the Organisation for Economic Co-operation and Development (OECD) released the Mutual Agreement Procedure (MAP) statistics for 2018 (MAP Statistics). The 2018 MAP Statistics stem from Base Erosion and Profit Shifting (BEPS) Action 14, which seeks to improve the resolution of tax-related disputes between jurisdictions.

The MAP Statistics cover 89 jurisdictions and nearly all MAP cases worldwide, and include information on opening and closing case inventory, evolution of case inventory, types of outcomes for cases closed, average time for cases closed, and closing case ratios. The MAP Statistics are reported in total cases and by case type – either transfer pricing cases (i.e., attribution of profits to a permanent establishment or determination of profits between associated enterprises under Articles 7 and 9 of the OECD Model Tax Convention, respectively) or other cases (i.e., all cases that do not involve transfer pricing).

Inherent in the MAP Statistics is a rise in audits in 2018, and taxpayers are seeking relief through the MAP process.

Caseload

Although more MAP cases were closed in 2018 than in 2017, the number of new MAP cases increased. Transfer pricing cases increased by nearly 20% while other cases increased by more than 10%. The following table shows the jurisdictions with the most cases started in 2018:

Total Cases Closed Transfer Pricing Cases Closed Other Cases Closed
Jurisdiction # Jurisdiction # Jurisdiction #
Germany 615 France 222 Belgium 546
Belgium 581 Italy 196 Germany 437
France 449 Germany 178 Netherlands 293
Netherlands 357 United States 157 France 227
Italy 256 India 133 Luxembourg 227

In North America, the United States started 253 total cases, 157 transfer pricing cases, and 96 other cases; Canada started 97 total cases, 75 transfer pricing cases, and 22 other cases; and Mexico started 19 total cases, 12 transfer pricing cases, and 7 other cases.

The following table shows the jurisdictions with the most cases closed in 2018:

Total Cases Closed Transfer Pricing Cases Closed Other Cases Closed
Jurisdiction  # Jurisdiction Jurisdiction # 
Germany 658  Germany 227  Belgium 596 
Belgium 635  United States 181  Germany  431 
Netherlands  373  France  136  Netherlands  314 
France  362  Canada  102  Luxembourg  241 
United Kingdom  274  Italy 90  France 226 

In North America, the United States closed 251 total cases, 181 transfer pricing cases, and 70 other cases; Canada closed 126 total cases, 102 transfer pricing cases, and 24 other cases; and Mexico closed 7 total cases, 6 transfer pricing cases, and 1 other case.

Similar to 2017, Germany, Belgium, and France were near the top of the pack in both total cases started and total cases closed. In the Netherlands, the total cases started increased from 223 to 357 and total cases closed from 176 to 373 in 2018, representing increases of 60% and 112%, respectively. Another noteworthy jurisdiction is Spain, which had a significant increase in total cases started from 112 to 211 that largely can be attributed to a near tripling of transfer prices cases started.

Of the total MAP cases closed in 2018, 80% were successfully resolved (at least in part), which is a small improvement from 79% in 2017.

Time to Close Cases

The average time to close transfer pricing cases increased by 3 months, from 30 months to 33 months, between 2017 and 2018. Meanwhile, the average time to close non-transfer pricing cases decreased by 3 months, from 17 months to 14 months, during the same period. In the United States, the average time to close MAP cases for 2016 through 2018 is as follows (in months):

Case Type 2016 2017 2018
Transfer pricing cases 31.61 24.43 34.98
Other cases 28.65 26.02 32.78
All cases 30.99 24.78 34.37

As shown above, the United States made significant progress in decreasing its average time to close cases in 2017, only to have that headway reversed in 2018. This comes on the heels of recent criticism by the OECD of the MAP processing times for the United States in the MAP Peer Review Report (Stage 2), which exceeded the Action 14 target of 24 months. In that report, the OECD said that the United States should “make more adequate use of the available resources in order to be able to resolve MAP cases in a timely, efficient, and effective manner” and that “further resources may be necessary.” However, the increase in time to close cases could signal that the United States cleared out older MAP inventory.

Implications

One thing is clear from the MAP Statistics, which is that taxpayers are facing increased audits and are investing resources in the MAP process, as shown by the spike in the number of new cases. Further, the current variability in approaches to digital taxation among countries potentially exposes companies to double taxation, which may result in an even further increase in MAP cases. That said, if countries can agree on safe harbors or benchmarks for routine transactions and communicate them publicly, then many cases could be kept from the purview of MAP. Taxpayers also may want to consider alternatives to MAP for transfer pricing issues, such as advance pricing agreements (“APAs”), to proactively address potential disputes. APAs are often an efficient means of achieving transfer pricing certainty while avoiding prolonged audits.

Explore More Insight