On 9 September 2021, the United States (US) Internal Revenue Service (IRS) and Treasury released the 2021-22 priority guidance plan (pdf), which lists the projects to which the IRS and Treasury will allocate resources for plan year 1 July 2021 through 30 June 2022. This year's plan includes three new transfer pricing-related projects.
Two of the new listed transfer pricing projects involve regulations under the Internal Revenue Code1 Section 482 transfer pricing provisions on:
- The effects of group membership on arm's-length pricing (specifically with respect to financial transactions)
- Clarifying aspects of the arm's-length standard, including "(1) coordination of the best method rule with guidance on specified methods for different categories of transactions, (2) discretion to determine the allocation of risk based on the facts and circumstances of transactions and arrangements, and (3) periodic adjustments"
The third new transfer pricing project is updating the rules in Revenue Procedure 2015-41 (pdf) on requests for advance pricing agreements and administering executed advance pricing agreements.
The guidance plan also listed regulations under Sections 367 and 482 under the transfer pricing section. They were previously listed under the section for Tax Cuts and Jobs Act (TCJA) regulations (temporary 2015 regulations under Section 482 on transfer pricing aggregation expired in 2018, but the IRS did not finalize them after the TCJA amended the statutory text of Section 482 to explicitly allow aggregation for intangible property transfers (see EY Global Tax Alert, US Treasury to consider reviving expired transfer pricing aggregation regulations, dated 8 February 2021).
The guidance plan also includes two new outbound transfer projects on Section 367 addressing:
- The outbound transfer of intangible property subject to Section 367(d)
- Certain triangular reorganizations involving foreign corporations
Implications
The inclusion of transfer pricing rules suggests forward movement of potential enforcement efforts in this area. In addition, updating Revenue Procedure 2015-41 will further enhance the advance pricing agreement rules and process. Given this Guidance Plan and the number of recent high-profile cases addressing Section 367 and the transfer of intangible property, taxpayers should anticipate this code section to be a continued area of focus for both the IRS and Treasury Department in 2022 and beyond.
For additional information with respect to this Alert, please contact the following:
Ernst & Young LLP (United States), International Tax and Transaction Services – Transfer Pricing, Washington, DC
- Ryan Kelly, Americas ITTS Tax Controversy Leader
- Heather Gorman
- Matt Johnson
Ernst & Young LLP (United States), Tax Policy & Controversy, Seattle
- Bryon Christensen, BTS US Tax Controversy Leader
Ernst & Young LLP (United States), Tax Policy & Controversy, Washington, DC
- John DiIorio
For a full listing of contacts and email addresses, please click on the Tax News Update: Global Edition (GTNU) version of this Alert.
