S.L. 123.207 Art. 11Unilateral transfer pricing rulings.      Cap. 490.     Cap. 372. Renewal of unilateral transfer pricing ruling.

(1) The Commissioner may issue a unilateral transfer pricing ruling in order to provide certainty in relation to the application of these rules to a cross-border arrangement.

(2) A request for a unilateral transfer pricing ruling shall be made by a party to the arrangement or his authorised representative (hereinafter in this rule referred to as "directly interested party"). Such a request shall:

(a) be made in writing;

(b) be made in relation to a specific cross-border arrangement;

(c) include a reference to these rules;

(d) disclose the identities of the directly interested parties and all other persons involved in the relevant arrangement including the direct and ultimate beneficial owners of such persons. Where any of such parties or persons are not in existence at the time of the request, the request shall indicate this fact, and the details shall be provided as soon such persons come into existence including all the relevant details of the relevant arrangement; and

(e) any other details as determined by guidelines issued under the Income Tax Acts.

(3) A request for a unilateral transfer pricing ruling may be made in connection with the tax treatment of a cross-border arrangement commencing on or after the date that the request was made:

Provided that where the relevant arrangement had already commenced on the date when the said request was made, the scope of the request may be extended as follows:

(a) in the case of a cross-border arrangement which does not consist of a series of transactions, agreements and dealings to transactions, agreements and dealings taking place in the year preceding the year of assessment in which the request was made; and

(b) in any other case, to transactions, agreements and dealings that took place within the three (3) previous basis years and that form part of that arrangement.

(4) A unilateral transfer pricing ruling may only be issued once all the necessary information, including all the identification details and any other relevant information requested by the Commissioner has been provided and the applicable fees have been paid by the directly interested party.

(5) A unilateral transfer pricing ruling shall specify that it has been issued under the provisions of these rules.

(6) The Commissioner shall not unreasonably withhold the issuing of a unilateral transfer pricing ruling. The Commissioner may, however, decline to issue a unilateral transfer pricing ruling where the Income Tax Acts, and any rules, regulations and guidelines made or issued thereunder, clearly provide sufficient certainty with regard to the tax treatment of the relevant arrangement. When the Commissioner declines to issue such a ruling on this basis, he shall issue a notice in writing that includes a reference to the provisions that provide such certainty. The Commissioner may withhold the issuing of a unilateral transfer pricing ruling where the interested party is not up-to-date in relation to the obligations in relation to tax returns at the time that such request is made.

(7) A non-refundable fee of three thousand euro (€3,000) shall be paid when making a request for a unilateral transfer pricing ruling.

(8) A unilateral transfer pricing ruling shall remain binding on the Commissioner for a period of five (5) years from the date the unilateral transfer ruling takes effect:

Provided that the Commissioner may, when issuing a unilateral transfer pricing ruling and after considering the circumstances of the request, stipulate that such ruling shall only remain binding for a shorter period, which period shall be indicated in the ruling itself:

Provided further that a unilateral transfer pricing ruling may also cover the period referred to in the proviso to sub-rule (3) where a request has been made to this effect by the directly interested party. The provisions of this proviso shall not affect the operation of any provision relating to interests and penalties provided for in the Income Tax Acts.

(9) A directly interested party shall notify the Commissioner of any relevant material change within thirty (30) days from the later of the date of its occurrence or the date from when such party becomes aware thereof. Where such notification includes a request for a modification of the relevant unilateral transfer pricing ruling, such a request may be considered to be a new request for a unilateral transfer pricing ruling, as the Commissioner may deem fit.

(10) A unilateral transfer pricing ruling shall have no effect as from the date on which the Commissioner notifies the directly interested party that a relevant material change has taken place.

(11) A unilateral transfer pricing ruling shall be null and void where the notification referred to in sub-rule (9) has not been made or where the unilateral transfer pricing ruling issued by the Commissioner was based on a misrepresentation or the withholding of any relevant facts.

(12) (a) A directly interested party that has made a request under the provisions of sub-rule (2) may refer a matter relating to that request to the Administrative Review Tribunal established by article 5

of the Administrative Justice Act, hereinafter in these rules referred to as "the Tribunal". Such reference may only be made in relation to matters that had been first raised in correspondence with the Commissioner within the parameters of this rule.

(b) A reference to the Tribunal in accordance with paragraph (a) shall be made by means of an application which shall state clearly all the facts relevant to the matter and the manner in which, in the opinion of the applicant, that matter should be determined. A copy of the correspondence with the Commissioner referred to in paragraph (a) shall form part of the reference to the Tribunal made by the directly interested party.

(c) The reference to the Tribunal in accordance with paragraph (a) shall be made not later than one hundred and eighty-three (183) days from the date that establishes any of the following instances:

(i) where the Commissioner has issued the unilateral transfer pricing ruling or a refusal in terms of sub-rule (6), the date of such ruling or refusal, as the case may be;

(ii) where the Commissioner has not issued the unilateral transfer pricing ruling or a refusal in terms of sub-rule (6), the date when a period of one hundred and eighty-three (183) days have lapsed from the date that the Commissioner received the request for a unilateral transfer pricing ruling or such other longer period as agreed between the Commissioner and the directly interested party;

(d) Where a directly interested party institutes a reference to the Tribunal in accordance with this sub-rule, article 34 of the Income Tax Management Act shall apply, mutatis mutandis.

(e) A decision by the Tribunal and by any subsequent Court of Appeal on a reference made under this sub-rule shall be binding on the Commissioner and the directly interested person with respect to the specific matter referred to it:

Provided that such decision shall be so binding only if the relevant facts have been correctly stated in the application or otherwise recorded in the records of the case and shall remain binding only as long as there has not been a relevant material change.

(13) A directly interested party may request a renewal of a unilateral transfer pricing ruling dealing with an ongoing cross-border arrangement under the same conditions as prescribed in this rule where there has not been a relevant material change since the date of its issue. A request for such renewal shall be made in writing to the Commissioner during the six (6) months preceding the expiry of the relevant unilateral transfer pricing ruling. A non-refundable fee of one thousand euro (€1,000) shall be paid when making a request for a renewal of a unilateral transfer pricing ruling. Except for the provisions of sub-rule (7), the provisions of this rule shall also apply to a request for a renewal of a unilateral transfer pricing ruling.