Practical Manual on Transfer Pricing

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1 United Nations Practical Manual on Transfer Pricing for Developing Countries

2 ST/ESA/347 Department of Economic & Social Affairs United Nations Practical Manual on Transfer Pricing for Developing Countries asdf United Nations New York, 2013

3 Foreword PRACTICAL MANUAL ON TRANSFER PRICING FOR DEVELOPING COUNTRIES The United Nations Practical Manual on Transfer Pricing for Developing Countries is a response to the need, often expressed by developing countries, for clearer guidance on the policy and administrative aspects of applying transfer pricing analysis to some of the transactions of multinational enterprises (MNEs) in particular. Such guidance should not only assist policy makers and administrators in dealing with complex transfer pricing issues, but should also assist taxpayers in their dealings with tax administrations. The United Nations Model Double Taxation Convention between Developed and Developing Countries 1 considers (at Article 9 Associated Enterprises ) whether conditions in commercial and financial relations between related enterprises, such as two parts of a multinational group, differ from those which would be made between independent enterprises. The same test is applied at Article 9 of the Organisation for Economic Co-operation and Development (OECD) Model Tax Convention on Income and on Capital. 2 In this respect both Models, which between them are the basis for nearly all bilateral treaties for avoiding double taxation, endorse the arm s length standard (essentially an approximation of market-based pricing) for pricing of transactions within MNEs. While it is for each country to choose its tax system, this Manual is addressed at countries seeking to apply the arm s length standard to transfer pricing issues. This is the approach which nearly every country seeking to address such issues has decided to take. Such an approach minimizes double taxation disputes with other countries, with their potential impact on how a country s investment climate is viewed, while combating potential profit-shifting between jurisdictions where an MNE operates. 1 United Nations, Model Double Taxation Convention between Developed and Developing Countries, updated Available from un.org/esa/ffd/documents/un_model_2011_update.pdf 2 OECD, Model Tax Convention on Income and Capital. iii

4 United Nations Practical Manual on Transfer Pricing In recognizing the practical reality of the widespread support for, and reliance on, the arm s length standard among both developing and developed countries, the drafters of the Manual have not found it necessary, or helpful, for it to take a position on wider debates about other possible standards. The Manual will, at most, help inform such debates at the practical level, and encourage developing country inputs into debates of great importance to all countries and taxpayers. There is a risk, without an effective response to transfer pricing issues, that profits might appear to be earned in low- or no-tax jurisdictions (thereby serving to reduce tax rates on taxable profits/incomes and associated tax obligations), and losses might appear to be incurred in high-tax jurisdictions (thereby increasing allowable deductions for tax purposes). This may have the net effect of minimizing taxes and, in so doing, may impact on the legitimate tax revenues of countries where economic activity of the MNE takes place, and therefore the ability of such countries to finance development. For the purposes of this Manual, the term mis-pricing is used to refer in a short form to pricing that is not in accordance with the arm s length standard. It is not intended to imply that a tax avoidance or evasion motive necessarily exists in a particular case. From the country development perspective, the impact of non-arm s length pricing does not depend on whether or not such an intention exists, though that may of course affect how countries respond to particular instances of such behaviour. There are as yet no figures which clearly indicate the amount of revenue lost to transfer mis-pricing that might otherwise be directed to development. However, with intra-firm trade generally regarded as comprising more than 30 per cent of global trade, 3 there is reason to 3 See for example Alexander Yeats, Just How Big Is Global Production Sharing?, in Fragmentation: New Production Pattern in the World Economy, Sven Arndt and Henryk Kierzkowski, eds. (Oxford, Oxford University Press, 2001); Alfonso Irarrazabal, Andreas Moxnes and Luca David Opromolla, The Margins of Multinational Production and the Role of Intra-Firm Trade, Journal of Political Economy, vol. 121, No.1 (February 2013) and Peter Egger and Tobias Seidel, Corporate taxes and intra-firm trade, July Available from The share iv

5 Foreword believe that the figures are large. While more research still needs to be done on the size of the potential losses for developing countries, and the situation will no doubt vary greatly from country to country, there is clearly great scope for pricing decisions about intra-group transactions that detrimentally impact domestic revenues for development. Conversely, in this complex area, there is a risk that taxpayers, especially MNEs, will be faced with a multiplicity of approaches to applying the arm s length standard in practice that can lead to compliance burdens and the risk of unrelieved double taxation. This can be the case even where there is no issue of tax avoidance or evasion, because of the scope for differences of view about what the arm s length price would be in a particular case. Helping achieve common understandings on transfer pricing issues can also improve trust between taxpayers and tax authorities, both avoiding some differences between them and helping resolve others more quickly. In offering practical guidance to policy makers and administrators on the application of the arm s length principle, the Manual does not seek to be prescriptive. In particular it recognizes that the needs of countries, along with their capabilities, will evolve over time. A phased or life cycle approach, with a transfer pricing capability strategy identifying short, medium and longer term objectives and areas of focus will therefore often yield the best results. It follows that many developing countries may find the early history of transfer pricing in developed countries to be of special relevance, as well as the current practices in other, especially developing, countries. By showing ways in which the arm s length approach to transfer pricing can operate effectively for developing countries, while giving a fair and predictable result to those investing in such countries, the Manual will also help explain why that approach has been found so of intra-firm trade is however, very difficult to measure, varies significantly between countries and depends on the definition of relevant relationships. See for example Rainer Lanz and Sébastien Miroudot, Intra-Firm Trade: Patterns, Determinants and Policy Implications, OECD Trade Policy Working Papers, No. 114, (Paris, OECD, 2011). Available from org/officialdocuments/displaydocumentpdf/?cote=tad/tc/wp(2010)27/ FINAL&docLanguage=En at page 12 following. v

6 United Nations Practical Manual on Transfer Pricing broadly acceptable, including in both major Model Tax Conventions. It should therefore assist countries in important decisions on how to address transfer pricing issues, whatever approach they ultimately take. It will also play a part in signposting areas where more support and assistance may be needed for countries at the various stages of their transfer pricing journeys. An approach to risk management will need to inform transfer pricing strategies, recognizing the areas of greatest mis-pricing risk, and the benefits of tax administrations constructively engaging with taxpayers to help them to know and meet their responsibilities. Resourceeffective ways of addressing those risks from the points of view of both government and taxpayers will be of particular importance for developing country tax administrations. There are a number of other guiding principles that have informed this Manual and reflect the mandate of the Subcommittee involved in its drafting, including that: ¾ This is a practical Manual rather than a legislative model; ¾ The drafting should be as simple and clear as the subject matter permits; ¾ The Manual will be prepared initially in English, but with a recognition that this will not be the first language of most users. It should be translated at least into the other official United Nations languages; ¾ A key value added of the Manual is to be its practicality addressing real issues for developing countries (and of course those dealing with the administrations of such countries) in a practical and problem-solving way. It therefore seeks to address the theory of transfer pricing, but in a way that reflects developing country realities in this area; ¾ The Manual, as a product of the United Nations Committee of Experts on International Cooperation in Tax Matters, has a special role in reflecting the diversity of the United Nations Membership and placing transfer pricing in its developmental perspective. This recognizes both the importance to development of fair and effective tax systems, but also the fact that foreign investment, on appropriate vi

7 Foreword terms, is seen as an important path to development by most countries; ¾ Helpful guidance in this complex area must, in particular, be geared to the inevitable limitations in some countries administrations, and deficits in information and skills that many countries are affected by in this area. Issues, in particular, of building and retaining capability as well as the need for focus and efficiency in dealing with limited resources, bear strongly on the approach taken in the Manual; ¾ Practical examples relevant to developing countries have been especially relied upon, because the experiences of other developing countries in addressing the challenges of transfer pricing are an important way of finding effective solutions that work in their context, and of doing so in the most cost and time effective ways; and ¾ Consistency with the OECD Transfer Pricing Guidelines 4 has been sought, as provided for in the Subcommittee s mandate and in accordance with the widespread reliance on those Guidelines by developing as well as developed countries. Just as building an effective and efficient transfer pricing capability is a journey, so too is the preparation of a Manual seeking to give guidance for that journey. This Manual has been the work of many authors, and particular thanks are due to the Members of the Subcommittee on Transfer Pricing Practical Matters at the time of completion of the Manual: 5 Stig Sollund (Norway - Coordinator) Julius Bamidele (Nigeria) Giammarco Cottani (Italy) Nishana Gosai (South Africa) Mansor Hassan (Malaysia) Michael McDonald (USA) Sanjay Mishra (India) Harry Roodbeen (Netherlands) Marcos Valadão (Brazil) Shanwu Yuan (China) Joseph Andrus (OECD) Keiji Aoyama (University of Waseda, Japan) Carol Dunahoo (Baker & McKenzie, US) 4 OECD, Transfer Pricing Guidelines for Multinational Enterprises. 5 Members as of October 2012, when the Manual was presented to the Committee for consideration. Members of the Subcommittee serve purely in their personal capacity. Accordingly, the references to countries (in the case of those in government service) or employers (in other cases) are for information only. vii

8 United Nations Practical Manual on Transfer Pricing Michael Kobetsky (Australian National University & Melbourne University, Australia) Kyung Geun Lee (Yulchon Lawyers, Korea) Toshio Miyatake (Adachi, Henderson, Miyatake & Fujita, Japan) T.P. Ostwal (Ostwal and Associates, India) Jolanda Schenk (Shell, Netherlands) Caroline Silberztein (Baker & McKenzie, France) and Monique van Herksen (Ernst and Young, Netherlands). Former Members of the Subcommittee who also contributed were Amr El-Monayer (Egypt) José Madariaga Montes (Chile) Carmen van Niekerk (South Africa) and Stefaan de Baets (OECD). Observers at various Subcommittee meetings provided valuable insights. Secretarial support for the Manual was provided by Michael Lennard, assisted in particular by Ilka Ritter. Appreciation is expressed to the European Commission, particularly its Departments of Company Taxation Initiatives and of Budget Support, Public Finance and Economic Analysis, for making possible the valuable editorial work of Hafiz Choudhury, and to the Royal Norwegian Ministry of Foreign Affairs for additional support. The Subcommittee also expresses its gratitude to the relevant ministries and agencies of the governments of Malaysia, India, Japan, South Africa and the People s Republic of China for generously hosting Subcommittee meetings. Thanks are also due to those who made comments on the draft chapters. While consensus has been sought as far as possible, it was considered most in accord with a practical manual to include some elements where consensus could not be reached, and it follows that specific views expressed in this Manual should not be ascribed to any particular persons involved in its drafting. Chapter 10 is different from other chapters in its conception, however. It represents an outline of particular country administrative practices as described in some detail by representatives from those countries, and it was not considered feasible or appropriate to seek a consensus on how such country practices were described. Chapter 10 should be read with that difference in mind. To assist in understanding the practical application of transfer pricing principles, this Manual frequently refers to hypothetical examples, such as in relation to Chapter 5 on Comparability Analysis and Chapter 6 on Methods. Such examples are intended to be purely illustrative, and viii

9 Foreword not to address actual fact situations or cases. Finally, it should be noted that this Manual is conceived as a living work that should be regularly revised and improved, including by the addition of new chapters and additional material of special relevance to developing countries. This will only improve its relevance to users and its significance as a work that can be relied upon in the capacity building efforts of the United Nations and others that are so needed in this field. ix

10 Contents Foreword... iii Chapter 1 Introduction to Transfer Pricing What Is Transfer Pricing? Basic Issues Underlying Transfer Pricing Evolution of Transfer Pricing Concepts in Transfer Pricing Transfer Pricing Methods Special Issues Related to Transfer Pricing Transfer Pricing in Domestic Law Transfer Pricing in Treaties Global Transfer Pricing Regimes Transfer Pricing as a Current and Future Issue Summary and Conclusions Chapter 2 Business Framework Introduction Theory of the Firm and Development of Multinational Enterprises Legal Structure Managing the Transfer Pricing Function in a Multinational Enterprise Chapter 3 General Legal Environment Introduction Domestic Transfer Pricing Legislation: Structural Overview Associated Enterprises Coverage of Transactions and Availability/Priority of Transfer Pricing Methods Practical Guidance for Cases Without Sufficient Comparables Burden of Proof xi

11 Contents 3.7. Presumptive Taxation Approaches and the Arm s Length Principle Safe Harbour Rules Adjustments Advance Pricing Agreements/Arrangements Dispute Resolution Chapter 4 Establishing Transfer Pricing Capability in Developing Countries Introduction Relationship between Tax Policy/Tax Administration Assessing Current Capabilities and Gaps to be Filled Developing the Mission, the Vision and the Culture of the Unit Organizational Structure for the Transfer Pricing Unit Building Team Capability Effective and Efficient Business Processes Application of the Above Considerations in Implementing a Transfer Pricing Unit and Enhancing Capability Country Examples of Capacity Building in Transfer Pricing Chapter 5 Comparability Analysis Rationale for Comparability Analysis Comparability Analysis Process Comparability Analysis in Operation Issues Regarding Comparability Analysis Conclusion Chapter 6 Transfer Pricing Methods Introduction to Transfer Pricing Methods Traditional Transaction Methods Transactional Profit Methods xii

12 Contents Chapter 7 Documentation Introduction International Guidelines on Transfer Pricing Documentation Experiences of Multinational Enterprises with Existing International Guidelines on Documentation Practical Guidance on Documentation Rules and Procedures Chapter 8 Audits and Risk Assessment Introduction to Audits and Risk Assessment Organization and Staffing of Transfer Pricing Audits Selection of Taxpayers for Transfer Pricing Examination: Risk Assessment Planning for a Transfer Pricing Examination Preliminary Examination Audit Procedure Narrowing of Issues: Development of Tax Authorities Position Case Closure Relationship between Transfer Pricing Audits and Advance Pricing Agreements Chapter 9 Dispute Avoidance and Resolution Dispute Avoidance and Resolution in Domestic and Cross-Border Contexts Special Considerations for Developing Countries Dispute Avoidance Procedures: Domestic Dispute Avoidance Procedures: Cross-Border Dispute Resolution Procedures: Domestic Dispute Resolution Procedures: Cross-Border Coordination of Domestic and Cross-Border Dispute Resolution Procedures xiii

13 Contents Chapter 10 Country Practices Preamble by the Subcommittee on Transfer Pricing: Practical Aspects Brazil Country Practices China Country Practice Emerging Transfer Pricing Challenges in India South Africa Country Practice Appendix I Appendix II Glossary Figures (by chapter) 2.1 Value Chain Analysis Multinational Enterprise Decision Trees Global Effects Transfer Pricing Adjustments (before adjustment) Aspects of Transfer Pricing Policy Global Effects Transfer Pricing Adjustments (after adjustment) Audit Process Typical Screening Process Comparable Uncontrolled Price Method Resale Price Method Cost Plus Method Transactional Net Margin Method Profit Split Method Transfer Pricing Compliance Landscape Likelihood of Detection Resale Price Method (without manufacturing) Resale Price Method (with manufacturing) Cost Plus Method A.1 Business Process: Functions Performed (example) xiv

14 Contents Tables (by chapter) 1.1 Countries with Transfer Pricing and Emerging Regimes Qualitative Assessment of Intra-Group Transactions Qualitative Relative Assessment of Functions Performed (by A Co and B Co in relation to B Co s Market) Summary of Assets Employed Illustrative List of Risks Assumed Risks Exposure Summary of Risks Borne by Each Party Mechanism of the Resale Price Method Mechanism of the Transactional Net Margin Method Mechanism of the Cost Plus Method Mechanism of the Transactional Net Margin Method Overview of Profit Level Indicators Functional Comparison Example Specific Transactions versus Company as a Whole Accounting Differences: The Resale Price Method as Compared with the Transactional Net Margin Method Possible Flags Suggesting further Investigation Comparison Chart Audit Closure Template A.1 Summary of Functional Analysis (key to symbols used) 418 A.2 Summary of Functions Performed (example) A.3 Summary of Assets Employed (example) A.4 Summary of Risks Assumed (example) A.5 Summary of Assets Employed for Functions Performed (example) A.6 Summary of Assets Employed (example) A.8 Functional Analysis (checklist) A.9 Intangible Assets Employed: Possible Issues (checklist). 433 A.10 Tangible Assets Employed: Possible Issues (checklist) A.11 Risks Assumed: Possible Issues (checklist) A.12 Business Process (example) xv

15 Contents A.13 Risk Profile (example) A.14 Level of Risk (key to symbols used) A.15 Summary of Functions Assets and Risks Analysis (example) A.16 Summary of Intra-group Transactions (example) A.17 Comparative Table, Prices Charged for Crushed Limestone (example) A.18 Comparative Table, Prices Charged for Gravel (example) A.19 List of Required Documents (example) A.20 Disclosure Form xvi

16 Chapter 1 INTRODUCTION TO TRANSFER PRICING 1.1. What Is Transfer Pricing? This introductory chapter gives a brief outline of the subject of transfer pricing and addresses the practical issues and concerns surrounding it, especially the issues faced and approaches taken by developing countries. These are then dealt with in greater detail in later chapters Rapid advances in technology, transportation and communication have given rise to a large number of multinational enterprises (MNEs) which have the flexibility to place their enterprises and activities anywhere in the world A significant volume of global trade nowadays consists of international transfers of goods and services, capital (such as money) and intangibles (such as intellectual property) within an MNE group; such transfers are called intra-group transactions. There is evidence that intra-group trade is growing steadily and arguably accounts for more than 30 per cent of all international transactions In addition, transactions involving intangibles and multitiered services constitute a rapidly growing proportion of an MNE s commercial transactions and have greatly increased the complexities involved in analysing and understanding such transactions The structure of transactions within an MNE group 6 is determined by a combination of the market and group driven forces which can differ from the open market conditions operating between independent entities. A large and growing number of international transactions are therefore no longer governed entirely by market forces, but driven by the common interests of the entities of a group. 6 The component parts of an MNE group, such as companies, are called associated enterprises in the language of transfer pricing. 1

17 United Nations Practical Manual on Transfer Pricing In such a situation, it becomes important to establish the appropriate price, called the transfer price, for intra-group, crossborder transfers of goods, intangibles and services. Transfer pricing is the general term for the pricing of cross-border, intra-firm transactions between related parties. Transfer pricing therefore refers to the setting of prices 7 for transactions between associated enterprises involving the transfer of property or services. These transactions are also referred to as controlled transactions, as distinct from uncontrolled transactions between companies that are not associated and can be assumed to operate independently ( on an arm s length basis ) in setting terms for such transactions Transfer pricing thus does not necessarily involve tax avoidance, as the need to set such prices is a normal aspect of how MNEs must operate. Where the pricing does not accord with internationally applicable norms or with the arm s length principle under domestic law, the tax administration may consider this to be mis-pricing, incorrect pricing, unjustified pricing or non-arm s length pricing, and issues of tax avoidance and evasion may potentially arise. A few examples illustrate these points: ¾ In the first example, a profitable computer group in Country A buys solid state drives from its own subsidiary in Country B. The price the parent company in Country A pays its subsidiary company in Country B (the transfer price ) will determine how much profit the Country B unit reports and how much local tax it pays. If the parent pays the subsidiary a price that is lower than the appropriate arm s length price, the Country B unit may appear to be in financial difficulty, even if the group as a whole shows a reasonable profit margin when the completed computer is sold. ¾ From the perspective of the tax authorities, Country A s tax authorities might agree with the profit reported at their end by the computer group in Country A, but their Country B counterparts may not agree they may not have the expected profit to tax on their side of the operation. If the computer company in Country A bought its drives from an independent company in Country B under comparable circumstances, it would pay the market price, and the supplier would pay taxes on its own profits in the normal way. This approach gives 7 However, in most cases the transfer pricing analysis will end after an appropriate profit margin has been determined. See Chapter 6 on Transfer Pricing Methods. 2

18 An Introduction to Transfer Pricing scope for the parent or subsidiary, whichever is in a low-tax jurisdiction, to be shown making a higher profit by fixing the transfer price appropriately and thereby minimizing its tax incidence. ¾ Accordingly, when the various parts of the organization are under some form of common control, it may mean that transfer prices are not subject to the full play of market forces and the correct arm s length price, or at least an arm s length range of prices needs to be arrived at. ¾ In the next example, a high-end watch manufacturer in Country A distributes its watches through a subsidiary in Country B. It is assumed that the watch costs $1400 to make and it costs the Country B subsidiary $100 to distribute it. The company in Country A sets a transfer price of $1500 and the subsidiary in Country B retails the watch at $1600 in Country B. Overall, the company has thus made $100 in profit, on which it is expected to pay tax. ¾ However, when the company in Country B is audited by Country B s tax administration they notice that the distributor itself does not earn a profit: the $1500 transfer price plus the Country B unit s $100 distribution costs are exactly equal to the $1600 retail price. Country B s tax administration considers that the transfer price should be set at $1400 so that Country B s unit shows the group s $100 profit that would be liable for tax. ¾ This poses a problem for the parent company, as it is already paying tax in Country A on the $100 profit per watch shown in its accounts. Since it is a multinational group it is liable for tax in the countries where it operates and in dealing with two different tax authorities it is generally not possible to just cancel one out against the other. So the MNE can end up suffering double taxation on the same profits where there are differences about what constitutes the appropriate transfer pricing A possible reason for associated entities charging transfer prices for intra-group trade is to measure the performance of the individual entities in a multinational group. The individual entities within a multinational group may be separate profit centres and transfer prices are required to determine the profitability of the entities. However not every entity would necessarily make a profit or loss in arm s length conditions. Rationally, an entity having a view to its own interests as a distinct legal entity would only acquire products or services from an 3

19 United Nations Practical Manual on Transfer Pricing associated entity if the purchase price was equal to, or cheaper than, prices being charged by unrelated suppliers. This principle applies, conversely, in relation to an entity providing a product or service; it would rationally only sell products or services to an associated entity if the sale price was equal to, or higher than, prices paid by unrelated purchasers. Prices should on this basis gravitate towards the so-called arm s length price, the transaction price to which two unrelated parties would agree While the above explanation of transfer pricing sounds logical and simple enough, arriving at an appropriate transfer price may be a complex task particularly because of the difficulties in identifying and valuing intangibles transferred and/or services provided. For example, intangibles could be of various different types such as industrial assets like patents, trade types, trade names, designs or models, literary and artistic property rights, know-how or trade secrets, which may or may not be reflected in the account. There are thus many complexities involved in dealing with transfer pricing in cross-border transactions between MNE entities Transfer pricing is a term that is also used in economics, so it is useful to see how economists define it. In business economics a transfer price is considered to be the amount that is charged by a part or segment of an organization for a product, asset or service that it supplies to another part or segment of the same organization. This definition is therefore consistent with the approach described above Basic Issues Underlying Transfer Pricing Transfer prices serve to determine the income of both parties involved in the cross-border transaction. The transfer price therefore influences the tax base of the countries involved in cross-border transactions In any cross-border tax scenario, the parties involved are the relevant entities of the MNE group along with the tax authorities of the countries involved in the transaction. When one country s tax authority adjusts the profit of a member of the MNE group, this may have an effect on the tax base of another country. In other words, cross-border tax situations involve issues related to jurisdiction, allocation of income and valuation. 4

20 An Introduction to Transfer Pricing The key jurisdiction issues are: which government should tax the income of the group entities engaged in the transaction, and what happens if both governments claim the right to tax the same income? If the tax base arises in more than one country, should one of the governments give tax relief to prevent double taxation of the relevant entities income, and if so, which one? An added dimension to the jurisdictional issue is that of the motivation for transfer pricing manipulation, as some MNEs engage in practices that seek to reduce their overall tax bills. This may involve profit shifting through non-arm s length transfer pricing in order to reduce the aggregate tax burden of the MNE. However, while reduction of taxes may be a motive influencing the MNE in setting transfer prices for intra-group transactions, it is not the only factor that determines transfer pricing policies and practices The aim of non-arm s length transfer pricing in such cases is usually to reduce an MNE s worldwide taxes. This can be achieved by shifting profits from associated entities in higher tax countries to associated entities in relatively lower tax countries through either undercharging or over-charging the associated entity for intra-group trade. For example, if the parent company in an MNE group has a tax rate in the residence country of 30 per cent, and has a subsidiary resident in another country with a tax rate of 20 per cent, the parent may have an incentive to shift profits to its subsidiary to reduce its tax rate on these amounts from 30 per cent to 20 per cent. This may be achieved by the parent being over-charged for the acquisition of property and services from its subsidiary While the most obvious motivation may be to reduce the MNE s worldwide taxation, other factors may influence transfer pricing decisions, such as imputation of tax benefits in the parent company s country of residence A further motivation for an MNE to engage in such practices is to use a tax benefit, such as a tax loss, in a jurisdiction in which it operates. This may be either a current year loss or a loss that has been carried forward from a prior year by an associated company. In some cases an international enterprise may wish to take advantage of an associated company s tax losses before they expire, in situations where losses can only be carried forward for a certain number of years. Even 5

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