Whether Revenue was justified in refusing access under section 15(1)(a) of the FOI Act to internal Revenue manuals or other guidance materials relevant to transfer pricing audits

19 February 2021

Background

On 10 September 2019, the applicant made a wide-ranging request, set out in four appendices, relating to the transfer pricing audit carried out by Revenue regarding the corporation tax payable by the Company and Revenue’s approach to transfer pricing and related audits generally. In response to a request made by Revenue on 17 September 2019, the applicant agreed to a staggered approach to dealing with the appendices. Revenue therefore treated the appendices as separate requests for the most part. This review concerns Appendix 4, in which the applicant sought access to any Revenue manuals or other written materials containing details of Revenue guidance on the application of the 2010 OECD Transfer Pricing (TP) Guidelines or on the type of information which may be sought by a Revenue officer in connection with a transfer pricing audit and the means of obtaining such information.

In a decision dated 5 December 2019, Revenue refused the request under section 15(1)(a) of the FOI Act. On 20 December 2019, the applicant sought an internal review of Revenue’s decision. In multiple decisions issued on 24 January 2020, various Divisions largely affirmed the refusal of the request under section 15(1)(a). However, Revenue’s Large Corporates Division located one record relevant to the request, which it released. On 21 July 2020, the applicant applied to this Office for a review of the matter.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by Revenue and the applicant. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether Revenue was justified in refusing access under section 15(1)(a) of the FOI Act to additional records containing guidance that is relevant to transfer pricing audits.

Analysis and Findings

Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body insofar as those practices relate to the records in question.

During the course of the review, Revenue made submissions to this Office in which it provided details relevant to its search for guidance material that may assist a Revenue officer in carrying out a transfer pricing audit. As this Office has already provided the applicant with the relevant details, I do not consider it necessary to repeat them in full here.

In short, it explained that the relevant areas within Revenue in relation to transfer pricing audits are the Corporation Tax 1 Branch (CT1) of its Business Taxes Policy and Legislation Division (BTP&L) and also its Large Corporates Division (LCD). The policy and legislation aspects of transfer pricing are within the remit of CT1, but it was unable to find any relevant records following a thorough search of both its hard copy and electronic records. Revenue also explained that LCD does not create guidance in relation to the transfer pricing guidance of the 2010 OECD TP Guidelines. Accordingly, there are no such records in LCD, which was confirmed by searches carried out by the two Principal Officers who manage the Transfer Pricing Branches.  

It is therefore Revenue’s position that, apart from the one record that was located and released to the applicant, no internal manual or other written internal guidance exists that may assist a Revenue officer in carrying out a transfer pricing audit. I find no basis for disputing Revenue’s position. As this Office has explained to the applicant, the OECD TP Guidelines themselves appear to provide the guidance required in relation to transfer pricing audits. I am therefore satisfied that section 15(1)(a) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Revenue in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator