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What is meant by 鈥榩rovision鈥�

The term 鈥榩rovision鈥� is not defined in the legislation. TIOPA10/S147 (1) (a) requires that a provision is made or imposed between any two persons by means of a transaction or series of transactions.

鈥楶rovision鈥� is broadly equivalent to the phrase conditions made or imposed in Article 9 of the OECD Model Tax Convention, which is included in the OECD Transfer Pricing Guidelines. It embraces all the terms and conditions attaching to a transaction or series of transactions. This interpretation of 鈥榩rovision鈥� is supported by TIOPA10/S164 which requires interpretation to best accord with OECD Transfer Pricing Guidelines.

DSG Retail Ltd and others v HMRC (TC0001) provides useful guidance on the meaning of provision. The Special Commissioners found that there was a provision between two connected companies in an arrangement where the first company had a contract with an independent company which had a contract with the connected company. They found that the various entities knew that the different agreements would all take effect together, that they were planned and seen as interlocking and interdependent. The contract with the 鈥榝ronter鈥� would not have been entered into unless the fronter would reinsure with the connected company. This brought the agreements within the meaning of a 鈥榮eries of transactions鈥� as set out at ICTA88/SCH28AA/PARA3 (now TIOPA10/S150). Hence the provision was something different to the transactions.

The actual provision

The actual provision is that which has been made between the two connected parties.

The arm鈥檚 length provision

The arm鈥檚 length provision is that which would have been made between independent enterprises. If no provision would have been made or imposed between independent persons then the legislation allows the advantaged person鈥檚 profits to be computed accordingly, thus reflecting the arm鈥檚 length position.

Meaning of 鈥榯ransaction鈥�

Because TIOPA10/Part 4 refers to a provision made or imposed between two connected persons by means of a transaction or a series of transactions, it allows a wider perspective to be taken of arrangements put in place between connected parties, in line with the principles set down in the OECD Guidelines.

A transaction has a very wide definition (see TIOPA10/S150), including arrangements, understandings and mutual practices (whether or not they are legally enforceable). The term 鈥榮eries of transactions鈥� is defined so as to make it difficult to structure business arrangements in a way that will prevent there being transactions for transfer pricing purposes. The transfer pricing legislation can apply whether or not

• there is a transaction in the series to which both connected persons are party
• the arrangements by which the series of transactions are entered into are between the two connected persons
• there is a transaction in the series to which neither connected person is a party.

There can be a provision between two connected persons, even if one of those persons is not a party to any of the transactions in the series.