Five New CAAs on Exchange of CbC Reports Pushes Total to 27

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October 9, 2017

The IRS has concluded competent authority arrangements (“CAAs”) for the exchange of country-by-country (“CbC”) reports with the Czech Republic, Finland, Greece, Italy, and Sweden.  The new arrangements bring the number of CAAs for the exchange of CbC reports to 27.  The CAAs for the exchange of CbC reports generally require the competent authorities of the foreign country and the United States to exchange annually, on an automatic basis, CbC reports received from each reporting entity that is a tax resident in its jurisdiction, provided that one or more constituent entities of the reporting entity’s group is a tax resident in the other jurisdiction, or is subject to tax with respect to the business carried out through a permanent establishment in the other jurisdiction.

In the United States, CbC reporting is required for U.S. persons that are the ultimate parent entity of a multinational enterprise (“MNE”) with revenue of $850 million or more in the preceding accounting year, for reporting years beginning on or after June 30, 2016, under the IRS’s final regulations issued last summer (see prior coverage).  Reporting entities must file a new Form 8975 (“Country by Country Report”) and Schedule A to Form 8975 (“Tax Jurisdiction and Constituent Entity Information”).  In Revenue Procedure 2017-23, the IRS announced that U.S. MNEs may voluntarily file Form 8975 with the IRS for taxable years beginning on or after January 1, 2016, and before June 30, 2016.  U.S. MNEs that do not voluntarily file with the IRS may be subject to CbC reporting in foreign jurisdictions in which they have constituent entities.

As we have previously reported, a CAA generally must be in force with a foreign jurisdiction for CbC reports filed with the IRS by a U.S. MNE to satisfy the CbC reporting requirements under foreign law.  Although the new agreements are welcome, the pace at which the IRS has concluded CAA negotiations with foreign jurisdictions continues to raise concerns that U.S. MNEs may be subject to foreign filing requirements, as many foreign jurisdictions that have adopted CbC reporting requirements under the OECD’s Base Erosion and Profit Shifting Action 13 have done so with respect to reporting years beginning on or after January 1, 2016.  The United States’ decision to pursue bilateral CAAs with each foreign jurisdiction rather than sign a multilateral CAA has made the implementation process longer than that in other jurisdictions.  The U.S. CAAs are substantially similar to the multilateral CAA, but numerous foreign jurisdictions have not yet signed a bilateral CAA with the IRS, including China, France, Germany, Mexico, and Japan, although a number of these jurisdictions are in negotiations with the United States.

The IRS maintains a status table of foreign jurisdictions on its CbC Reporting web site.  The table identifies foreign countries with which the U.S. is in negotiations for a CAA and that have satisfied the United States’ data safeguards and infrastructure review.  Although the foreign jurisdictions listed have consented to being listed, the web site warns that taxpayers cannot rely on the table for assurances that the CAAs will be adopted by the end of 2017.  Although U.S. voluntary reporting for early reporting periods began on September 1, U.S. MNEs should monitor continuing developments to determine whether delays in the U.S. CAA process may necessitate the filing of CbC reports in foreign jurisdictions in addition to the United States.