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Could an Australian APA be enforced in a court?

Published on 01 Apr 14 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

An advance pricing arrangement (APA) is generally an arrangement between a taxpayer, the Australian Taxation Office (ATO) and sometimes also a foreign tax authority regarding the income tax treatment of international transactions, agreements or arrangements between related parties or associates. Advance pricing arrangements often represent a compromise between the taxpayer and the ATO where a dispute is resolved by execution of an APA in relation to future years (sometimes bilaterally). Since an APA is a compromise and deals with future years, the outcome may differ from that which would result under arm’s length conditions.

Taxpayers who wish to enforce such agreements against the ATO will find it difficult to do so through court processes. Disputes over APAs are currently resolved by administrative means, importantly including mutual agreement procedure. This article considers whether taxpayers or the Commissioner of Taxation might also be able to bring such disputes before a court.

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Paul MCNAB
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