Australia – Oracle Corporation Australia Pty Ltd v Commissioner of Taxation FCAFC 145

Comprehensive Legal Analysis: Oracle Corporation Australia Pty Ltd v Commissioner of Taxation FCAFC 145

Executive Summary

This Full Court decision concerns Oracle Corporation Australia Pty Ltd v Commissioner of Taxation FCAFC 145, an appeal from a stay application involving the intersection between domestic tax proceedings and the Mutual Agreement Procedure (MAP) under the Australia-Ireland Double Taxation Agreement (DTA). The appeal concerned the primary judge’s refusal to stay three proceedings pending finalisation of the MAP between the competent authorities of Australia and Ireland under the DTA. The Full Court allowed the appeal and granted the stay.

I. Factual Background

A. The Parties and Corporate Structure

The three appellants are part of the Oracle group of companies: Oracle Corporation Australia Pty Ltd (Oracle Australia) is tax resident in Australia; Oracle CAPAC Services Unlimited Company (Oracle Ireland) is resident in Ireland for tax purposes; and Vantive Australia Pty Ltd (Vantive) is the provisional head company of a multiple entry consolidated group (MEC group) of which Oracle Australia is a subsidiary member.

B. The Underlying Tax Dispute

The underlying tax issue is whether amounts paid by Oracle Australia to Oracle Ireland under intra-group licensing arrangements are royalties as defined by s 6 of the Income Tax Assessment Act 1936 (Cth) and Art 13 of the Australia-Ireland DTA. The Commissioner’s position is that the amounts paid under the intra-group licensing agreements are royalties, such that Oracle Ireland was liable to pay withholding tax at a rate of 10% pursuant to ss 128B and 128C of the 1936 Act, thus exposing Oracle Australia to penalties for failing to withhold.

The Distribution Agreements

Oracle Australia and Oracle Ireland were parties to a Fourth Amended & Restated Distribution Agreement and a Fifth Amended & Restated Distribution Agreement (together, Distribution Agreements), under which Oracle Ireland granted Oracle Australia the right to market, promote, distribute, copy (for limited purposes) and sell licences for the “Programs” to “End Users”.

The End User Licence Distribution rights granted under the 4th Distribution Agreement permitted Oracle Australia to: enter into End User Licences for the Programs; use the Programs to provide training product support and additional support to End Users and Subdistributors; use the Programs for demonstrations; use the Programs to prepare marketing material; grant trial End User Licences; and use and reproduce the Programs, only to the extent necessary for internal use, safekeeping, back-up and archival purposes.

Under each agreement, Oracle Australia was to pay a fee as set forth in Schedule 1 in consideration for the distribution rights granted, with Part I of Schedule 1 being the only part which appears to provide for a fee to be paid by Oracle Australia to Oracle Ireland.

C. Procedural History

Assessment and Objection Process

On 30 May 2018, the ATO issued to Oracle Australia a “Notice of penalty for failure to withhold amounts” for the 2013 financial year after an audit process conducted through 2017. The Commissioner decided on 6 December 2019 not to remit the penalty.

On 23 March 2022, the ATO issued to Oracle Australia a “Notice of penalty for failure to withhold amounts” for the 2014 to 2018 financial years.

On 3 February 2020, Oracle Australia lodged an objection to the penalty notice issued in respect of the 2013 year, contending that the Commissioner misconstrued the 4th Distribution Agreement in concluding that the payments were royalties.

Invocation of MAP

On 18 May 2021, Oracle Ireland wrote to the Irish competent authority, invoking the MAP under Art 26 of the DTA in respect of the 2013 year, requesting the Irish competent authority enter into a mutual agreement with the Australian competent authority requiring the Australian competent authority to withdraw the assessed tax or allow Oracle Ireland a corresponding downward adjustment to its income.

By a letter dated 4 March 2022, Oracle Australia requested that the ATO “reconsider the need to issue any penalty notices, or at least defer the issue of the penalty notices until the conclusion of MAP”.

On 8 March 2022, an officer of the ATO wrote to the Irish competent authority noting that the Australian taxpayer had requested that the objection process be put into abeyance while the MAP process is undertaken, and observed that “the taxpayers are now relying on the MAP process as the primary mechanism for resolving the [redacted] and royalty withholding tax issues”.

Objection Decisions and Commencement of Proceedings

On 8 September 2023, the ATO notified Oracle Australia that its objection in respect of the 2013 year had been disallowed, despite the ATO having, in 2022 and earlier in 2023, proceeded in its interactions with the Irish competent authority on the apparent basis that the objection process would be put into abeyance while the MAP was pursued.

The three proceedings were filed on 7 November 2023: the first proceeding is an application for relief under s 39B of the Judiciary Act 1903 (Cth) and the other two proceedings are brought pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth), appealing the Commissioner’s disallowance of objections to penalty assessments.

On 3 November 2023, Oracle Australia’s solicitors wrote to the ATO noting that Oracle Australia “requested that the issuing of the objection decisions be delayed so as to enable alternative dispute resolution mechanisms (including MAP proceedings) to be completed”, and that proceedings would be commenced on the last possible day for filing but would be accompanied by an application for a stay pending the conclusion of the MAP proceedings.

Suspension of MAP

After proceedings were commenced on 7 November 2023, the ATO notified Oracle Australia on 17 November 2023 that the 2013 MAP had been suspended as at 7 November 2023 following the filing of the proceedings, and on 21 December 2023 that the 2014-2018 MAP had also been suspended as at 20 December 2023.

II. The Legal Framework

A. The Double Taxation Agreement

The DTA is a bilateral agreement between the government of Australia and the government of Ireland which has been enacted as and forms part of Australia’s domestic taxation law pursuant to the International Taxation Agreements Act 1953 (Cth).

The purpose of the DTA is to eliminate double taxation with respect to the taxes covered by the agreement, with royalties being among the taxes covered.

Definition of Royalties

Pursuant to Art 13(1)-(2), royalties “arising” in one contracting state, to which a resident of the other state is beneficially entitled, may be taxed in that other state, save that the contracting state in which the royalties “arise” may impose a tax not exceeding 10% of the gross amount of the royalties. The term “royalties” is defined in Art 13(3) as payments or credits made as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trademark, or other like property or right, and the supply of any assistance that is ancillary and subsidiary to such property or right.

B. The Mutual Agreement Procedure (MAP)

Article 26 of the DTA makes provision for the MAP, whereby a resident of a contracting state who considers that the actions of one or both contracting states result, or will result in, taxation not in accordance with the provisions of the DTA may “irrespective of the remedies provided by the domestic law” of the contracting states, “present” the case to the competent authority of either state.

Any MAP must be initiated by a resident within three years of the first notification of the action resulting in taxation contrary to the terms of the DTA.

Provided the claim appears to be justified, and the competent authority is not itself able to arrive at an appropriate solution, the competent authority is obliged to endeavour to resolve the case with the competent authority of the other contracting state, with a view to avoiding taxation contrary to the DTA.

Any agreement reached between the two contracting states is to be implemented “notwithstanding any time limits in the domestic law of [the contracting states]”.

C. The Multilateral Instrument (MLI) and Arbitration

Some of the DTA’s terms are relevantly modified and/or supplemented by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI), to which both Ireland and Australia have acceded.

Arbitration Process

If the competent authorities are unable to reach an agreement resolving a case presented by a taxpayer within two years, subject to a potential extension of time, the taxpayer may request that any unresolved issues be submitted to an arbitration process under Part VI of the MLI, with each contracting state appointing one member to the arbitral panel having expertise or experience in international tax matters.

The arbitration conditions to which Australia and Ireland have agreed provide for each contracting state to submit a “proposed resolution” which is generally limited to being a specific monetary amount, with the arbitral panel selecting as its decision one of the proposed resolutions with respect to each issue, with the panel’s decision being in writing but prohibited from including any “rationale or any other explanation of the decision”.

Any arbitration decision is final and, subject to some exceptions, binding on both contracting states, but it is not binding on the taxpayer, who can choose not to accept the outcome of any mutual agreement reached under the MAP.

Suspension of MAP

Article 19(2) of the MLI refers to a competent authority having “suspended the mutual agreement procedure… because a case with respect to one or more of the same issues is pending before a court or administrative tribunal”, which provision implicitly empowers each competent authority to suspend a MAP where an issue is brought before a domestic court or tribunal.

Although the DTA and MLI address the interaction between the MAP and domestic proceedings in a number of respects, they do not explicitly provide for what is to occur where a taxpayer commences domestic proceedings in order to comply with a strict time limit, but wishes to have a MAP continue.

Where a domestic proceeding is not stayed, but proceeds to judicial resolution, the reservation made by Art 19(12) of the MLI will apply such that any unresolved issue within the scope of the arbitration process will not be submitted to arbitration if a decision on the issue has been rendered by a domestic court or tribunal of either contracting state.

III. The Primary Judge’s Decision

A. Analysis of the DTA and MLI Framework

The primary judge considered that a final judicial determination of whether the payments are royalties within the meaning of DTA Art 13 would bind the Commissioner such that it would not be possible for any MAP outcome by consensus to contradict that determination, and if a MAP follows a judicial determination, and the competent authorities do not reach an agreement, the matter will not proceed to arbitration under the MAP due to the reservation in MLI Art 19(12).

The primary judge found that both the MAP process in DTA Art 26 and the arbitration process in MLI Art 19 seek to achieve the central purpose of the DTA, namely, the avoidance of double taxation.

The primary judge identified that refusing a stay would empower the Commissioner to force taxpayers to choose between a MAP and pursuing their domestic proceedings by issuing an objection decision, which would be inconsistent with textual indications in the DTA and MLI that the taxpayer should be able to access both mechanisms, including: DTA Art 26(1) providing that a taxpayer may present their case “notwithstanding the remedies provided by the national law”; MLI Art 16(1) providing access “irrespective of the remedies provided by the domestic law”; MLI Art 16(2) providing that any agreement reached through the MAP “shall be implemented notwithstanding any time limits in the domestic law”; and the taxpayer not being bound by any agreement reached under the MAP.

The primary judge concluded that the Commentary “shows that generally, where domestic proceedings are commenced, a competent authority in the position of the ATO should seek to suspend the domestic proceedings”.

In light of his analysis of the DTA and MLI regime, the primary judge found that, generally speaking, if a taxpayer has been forced to commence domestic proceedings to meet a time limit, proceedings should be stayed to permit the MAP (including any arbitration) to proceed, if that is what the taxpayer wishes, as refusing a stay in such cases would effectively result in the competent authority being able to force the taxpayer to abandon one process, a consequence which is not contemplated by the DTA or the MLI.

B. Public Interest Considerations

The Commissioner submitted that a judicial determination by the Court would provide guidance both to him and other taxpayers about the operation of the royalty tax, with evidence that there were approximately fifteen other entities whose distribution of software or related arrangements require consideration of the definition of ‘royalty’ for Australian tax purposes, and that the Commissioner’s approach to what constitutes a royalty has created friction with the United States.

The primary judge accepted that any decision by the Court would provide guidance to the Commissioner about his draft ruling, and that there are approximately 15 other taxpayers whose arrangements raise the principal issue in these proceedings, an ongoing dispute with an important trading partner and possibly other similar disputes, which matters are a powerful discretionary consideration favouring the refusal of the stay application, as decisions of an arbitral panel have no precedential effect and are not to include a rationale or any other explanation of the decision.

The primary judge concluded that were it not for the position of the 15 other taxpayers and the dispute with the United States, he would grant the stay sought, but the need for a judicial determination of the royalties question for the benefit of others persuaded him that a stay should not be granted for public interest reasons.

IV. The Full Court’s Analysis

A. Standard of Review and Preliminary Matters

There was no serious challenge on the appeal to the primary judge’s characterisation of the nature of the DTA and MLI and, in particular, his conclusion that those instruments anticipate that a taxpayer will be able to access both the MAP and domestic appeal remedies, albeit not simultaneously, and that absent discretionary factors tending in support of a stay being refused, “generally speaking, in a case where a taxpayer has been forced to commence domestic proceedings to meet a time limit, proceedings should be stayed to permit the mutual agreement procedure (including any arbitration) to proceed if that is what the taxpayer wishes”.

The Full Court agreed with the primary judge’s careful and comprehensive analysis of the DTA and MLI regime, and his conclusions as regards the general position that arises under them where a taxpayer wishes to invoke a MAP in addition to keeping alive domestic appeal rights, and the legislative policy those matters reveal.

In the course of oral submissions on the appeal, the Commissioner confirmed that he did not contend that the other matters that the primary judge identified as militating against the stay (expertise of an arbitral tribunal versus the Court, delay and wasted resources) would be sufficient to warrant the stay being refused.

B. The Critical Error: The 15 Other Taxpayers

The Appellants’ principal contention on the appeal was that the primary judge erred in concluding that the stay should be refused on public interest grounds on the basis that refusing the stay would provide guidance in relation to the 15 other taxpayers and the dispute with the United States, contending that the evidence did not support the primary judge’s conclusions on these matters.

Paucity of Evidence

The sum total of the evidence on the other 15 taxpayers is a single paragraph in the affidavit of the Commissioner’s deponent, Ms Spurge, stating: “The ATO is aware of approximately fifteen entities whose arrangements require consideration of the definition of a ‘royalty’ for an Australian tax purposes in connection with software distribution and related arrangements for the purposes of their Australian tax affairs”.

There was no evidence regarding the nature of the 15 taxpayers’ “arrangements”, nor was there any evidence regarding what aspects of the definition of “royalty” were in dispute, how those disputed aspects arose in relation to the 15 taxpayers’ “arrangements”, or whether any of these 15 taxpayers was involved in substantively the same dispute as another.

Fact-Specific Nature of the Dispute

The issues arising in relation to the question of whether the fees paid by Oracle Australia under the Distribution Agreements were “royalties” for the purposes of Art 13(3) of the DTA require a close analysis of the terms of the two Distribution Agreements, and consideration of how the arrangements and rights established by those agreements mapped to several aspects of the Copyright Act, with none of the material concerning the underlying tax dispute identifying any question of construction about the meaning of “royalty” in the DTA that was capable of being answered at a level of generality, or in a manner divorced from the specific terms of the agreements between Oracle Australia and Oracle Ireland.

The definition of “royalty” under the DTA is not itself the source of the controversy in the sense of there being some question of construction of Art 13(3) or question of law that can be answered in a way divorced from the specific terms of the arrangement in issue; rather, the controversy concerns whether the payments made by Oracle Australia to Oracle Ireland under the Distribution Agreements were payments “made as consideration for… the use of, or right to use, any copyright”, which involves an in-depth analysis of: the terms of the Distribution Agreements; the particular nature of the rights acquired by Oracle Australia; the arrangements in operation; how those rights and arrangements are to be evaluated by reference to the Copyright Act; what the fees paid are consideration for; and whether those payments are to be apportioned in any way.

The Full Court’s Conclusion

Based on such slender evidentiary foundations, the Full Court did not consider that it was open to the primary judge to conclude that judicial determination of the Oracle proceedings would provide material “guidance” in relation to the 15 other taxpayers, as the Commissioner’s evidence provided no foundation for the conclusion that the affairs of the 15 other taxpayers were such that judicial determination of the Appellants’ proceedings would quell the controversy with the 15 other taxpayers, or materially contribute to its resolution by offering “guidance” on a common principal issue.

There is simply no basis upon which to conclude that determination of the proceedings brought by the Appellants by the Court will shed meaningful light on whether the “arrangements” of 15 other taxpayers, said to involve “software distribution and related arrangements”, are or are not royalties for Australian tax purposes, as the affidavit evidence does not include any evidence about the nature of those rights beyond saying they concern “software distribution and related arrangements”, nor does the affidavit suggest that the tax affairs of the other taxpayers involve the application of a double taxation agreement.

C. The Dispute with the United States

The evidentiary basis for the dispute with the United States was very limited, comprising only two letters from the United States Treasury Department to the Commonwealth Treasury regarding the position taken in draft tax rulings, which also raised the issue of whether Australia was departing from the international consensus view regarding the ambit of “royalties”.

The Full Court did not consider that the evidentiary record supported the conclusion that there was a “dispute” between Australia and the United States whose resolution would be materially assisted by the judicial determination by the Court of the Oracle proceedings, as it is not apparent that a resolution of the fact-specific controversy concerning the payments made by Oracle Australia to Oracle Ireland will provide “guidance” that will materially contribute to resolving the disagreement between Australia and the United States.

The various double taxation agreements to which Australia is a party provide mechanisms by which taxpayers can be relieved of the burden of double taxation through the MAP, and if the Commonwealth considers that “guidance” is desirable on matters of concern in its relations with other trading partners, progressing the Appellants’ domestic proceedings to conclusion is not necessarily the only way in which such guidance may be procured.

V. Key Transfer Pricing Issues Identified

A. Characterisation of Payments Under Distribution Agreements

The ATO’s objection decision noted that pursuant to Art 13(3) of the DTA, the term “royalties” means payments or credits “to the extent to which they are made as consideration for… the use of, or the right to use, any copyright”, and as copyright is not defined in the DTA, it takes its meaning from domestic law, specifically the Copyright Act pursuant to Art 3(3) of the DTA, with the ATO addressing in detail the rights granted to Oracle Australia under the Distribution Agreement, including by reference to whether the nature of the rights conferred extended to the right to “reproduce” a work in material form, the right to communicate to the public, the right to authorise, and the right to make an adaptation.

B. Simple Use Rights vs Copyright Rights

Oracle Australia’s arguments included that the rights granted under the 4th Distribution Agreement fall under the definition of “simple use” rights where payments for licences for such rights are not royalties, and that, except for those “simple use” rights, the other rights conferred on Oracle Australia under the 4th Distribution Agreement would not infringe copyright even if exercised without a licence, and alternatively, that even if the rights it acquired under the agreement did include a right to use copyright, such rights were of minimal value.

The ATO concluded that the rights granted to Oracle Australia went beyond “simple use” rights, and that neither the exception to copyright infringement for certain incidental and automatic reproductions in s 47B of the Copyright Act, or the exception for back-ups in s 47C, applied.

C. Apportionment of Payments

Oracle Australia contended in the alternative that if any part of the payments were royalties, that part was nominal or, failing that, that there should be an apportionment of the payments made under Art 4.4 on the basis that they were only royalties in part.

The ATO detailed its reasons for rejecting the alternate contention that the payments should be apportioned and were only partly referable to any royalty.

VI. The Court’s Conclusion and Disposition

A. Finding of Error

The Full Court considered that the primary judge mistook the facts in concluding that the present proceedings would, if determined by the Court, provide material guidance on the correct tax treatment of the arrangements of the 15 other taxpayers.

The Full Court concluded that the error identified with respect to the 15 other taxpayers vitiates the primary judge’s determination to refuse the stay, and that the matters raised concerning the dispute with the United States do not expose such utility in the proceedings continuing as to warrant the stay being refused.

B. Orders Made

It follows from the Commissioner’s concession and the Full Court’s agreement with the primary judge’s analysis of the DTA and MLI that the orders to be made should allow the appeals, revoke the primary judge’s order dismissing the applications to stay each of the three proceedings, and stay those proceedings until the conclusion of the MAP processes (including by any arbitration).

VII. Actionable Insights for Practitioners

1.Preservation of Dual Remedies

Practitioners should be aware that the DTA and MLI regime anticipates that taxpayers will not be free to pursue a MAP and domestic court or tribunal proceedings simultaneously, but it anticipates that the choice of remedy remains with the taxpayer, and the practical effect of the Commissioner issuing objection decisions and then opposing the grant of a stay is that taxpayers are required to abandon one of the two options, which is not what the DTA and the MLI contemplate.

Action Point: When facing strict domestic time limits whilst pursuing a MAP, taxpayers should:

• Commence domestic proceedings to preserve appeal rights
• Immediately apply for a stay pending MAP conclusion
• Clearly document their preference to pursue the MAP as the primary dispute resolution mechanism
• Emphasise that the choice of remedy should remain with the taxpayer

2.Evidentiary Requirements for Public Interest Arguments

Courts will require substantial evidence to support public interest arguments against granting a stay, with slender evidentiary foundations being insufficient to conclude that judicial determination would provide material “guidance” in relation to other taxpayers or international disputes.

Action Point: When opposing public interest arguments:

• Scrutinise the evidence supporting claims about other affected taxpayers
• Challenge assertions that lack specific detail about the nature of other taxpayers’ arrangements
• Emphasise the fact-specific nature of transfer pricing disputes
• Highlight the absence of evidence showing commonality of issues

3.Fact-Specific Nature of Royalty Characterisation

The question of whether payments under particular contractual arrangements are “consideration for” particular rights turns on the terms of the contracts between the parties, with determining whether or not certain payments are royalties being a fact-dependent exercise involving close analysis of the terms of the contracts between the parties and the nature of their arrangements.

Action Point: In transfer pricing disputes involving royalty characterisation:

• Conduct detailed analysis of the specific contractual terms
• Map the rights granted to the relevant copyright provisions
• Consider whether rights constitute “simple use” rights or extend to copyright rights
• Analyse whether payments are consideration for copyright use or other services
• Prepare detailed evidence on the nature of the arrangements in operation

4.Strategic Use of MAP Procedures

If the Commonwealth considers that “guidance” is desirable on matters of concern in its relations with other trading partners, progressing domestic proceedings to conclusion is not necessarily the only way in which such guidance may be procured, as the MLI provides for contracting states to resolve, by mutual agreement, any “difficulties or doubts arising as to the interpretation or application of [the DTA]”, and it is open to contracting states to vary the basis upon which an arbitration is conducted so that reasons are given.

Action Point: Taxpayers should:

• Consider the strategic advantages of MAP arbitration, including finality and binding effect on both states
• Be aware that arbitration decisions under the MLI are not binding on the taxpayer
• Understand that taxpayers can reject MAP outcomes and proceed with domestic litigation
• Recognise that MAP arbitration may be conducted with reasons if the competent authorities agree

5.Timing and Procedural Strategy

The Commissioner’s decision to issue objection decisions after previously proceeding on the basis that it was open to defer making decisions to allow the MAP to progress exposes that the Commissioner decided to take a step that would force the taxpayers to elect either to bring domestic proceedings in 60 days and risk suspension of the MAP, or to forever forego domestic appeal rights and place all their eggs in the MAP basket.

Action Point: Practitioners should:

• Monitor the Commissioner’s approach to objection decisions during MAP processes
• Request deferral of objection decisions in writing whilst MAP is progressing
• Document all communications showing the taxpayer’s preference for MAP resolution
• Be prepared to commence proceedings on the last possible day if necessary
• File stay applications immediately upon commencing proceedings

6.Copyright Act Analysis in Royalty Disputes

The analysis of whether payments are royalties requires detailed consideration of the Copyright Act, including: the definition of copyright in s 31; whether the nature of rights conferred extends to the right to “reproduce” a work in material form by reference to s 21(5); the right to communicate to the public (s 22(6)); the right to authorise (ss 13(2), 36(1A) and 101(1A)); the right to make an adaptation (s 10(1)); and whether exceptions for incidental and automatic reproductions (s 47B) or back-ups (s 47C) apply.

Action Point: In software distribution arrangements:

• Carefully draft distribution agreements to distinguish between simple use rights and copyright rights
• Consider whether rights granted would infringe copyright if exercised without a licence
• Analyse whether exceptions under ss 47B and 47C of the Copyright Act apply
• Document the commercial substance of the arrangement
• Consider apportionment arguments where payments relate to multiple rights or services

7.International Consensus and OECD Guidance

The United States Treasury raised concerns about whether Australia was departing from the international consensus view regarding the ambit of “royalties”, as reflected in the Commentary to Article 12 (Royalties) of the OECD Model Tax Convention.

Action Point: Practitioners should:

• Reference OECD Model Tax Convention Commentary in submissions
• Highlight where the Commissioner’s position departs from international consensus
• Consider the approach taken by other jurisdictions to similar arrangements
• Use comparative analysis to support arguments on royalty characterisation

VIII. Conclusion

This decision provides important guidance on the interaction between domestic tax proceedings and MAP procedures under double taxation agreements. The Full Court’s emphasis on preserving taxpayer choice between remedies, the requirement for substantial evidence to support public interest arguments, and the fact-specific nature of royalty characterisation disputes will be of significant practical importance to practitioners handling transfer pricing matters.

The decision reinforces that:

• Taxpayers should not be forced to choose between MAP and domestic proceedings
• Courts will carefully scrutinise evidence supporting public interest arguments against stays
• Royalty characterisation is highly fact-specific and requires detailed contractual analysis
• The choice of dispute resolution mechanism should remain with the taxpayer

Practitioners should carefully consider the strategic implications of this decision when advising clients on transfer pricing disputes involving potential double taxation and the availability of MAP procedures.