Transfer pricing news: 2011 year in review Featured

9:21am EDT March 12, 2012
Transfer pricing news: 2011 year in review

 

 

Transfer pricing refers to the pricing of goods, services or intangibles within a multinational organization, particularly in regard to cross-border transactions.

The vast majority of global trade occurs between related-party entities. As global trade increases, companies are confronted more and more with complex issues associated with intercompany pricing. This is compounded because many countries have specific transfer pricing legislation, and the tax authorities within those countries aggressively pursue transfer pricing adjustments. It is no wonder transfer pricing is often listed as the single most important international tax issue facing multinational companies.

Smart Business sat down with Will James and David Whitmer of BKD, LLP, to discuss transfer pricing and the following is their country-by-country breakdown.

Australia: Transfer Pricing Rule Changes Proposed

The Australian government has announced intent to reform its transfer pricing regime due to worries its regulations, issued in 1982, are outdated, leading to an eroding tax base and a less attractive business climate for investors. As part of the process, the Australian government issued a Consultation Paper on November 1, 2011, outlining potential changes in attempt to solicit comments. Comments on the Consultation Paper closed on November 30, 2011. The main point of the Consultation Paper was an attempt to modify Division 13 (Australia’s transfer pricing legislation) to better reflect the arm’s-length principle and line up more closely with the 2010 revised Organisation for Economic Cooperation and Development’s Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD Guidelines).

The Consultation Paper suggests taxpayers are obliged to conduct intercompany business in an arm’s-length manner and maintain contemporaneous documentation; the paper also considers a statute of limitation for tax audits and adjustment periods. The Consultation Paper seeks to move away from looking at specific transfer prices, instead focusing on transaction outcomes. The Australian government also considered that there is some disconnection between its tax treaties and transfer pricing legislation and may apply clarifications retroactive to July 2004. Finally, the paper recognizes the differences between Australia’s approach of profit attribution to branches and the OECD’s “functionally separate enterprise” approach.

Canada: GE Capital Canada – Crown’s Appeal Dismissed

On December 15, 2010, Canada’s Federal Court of Appeal (FCA) dismissed the Crown’s appeal of the Tax Court of Canada (TCC) 2009 judgment in favor of the taxpayer, General Electric Capital Canada, Inc. (GECC). This concludes a landmark case regarding the treatment of intercompany financial guarantees. The Canada Revenue Agency (CRA) had disallowed GECC’s deductions of guarantee fees on the grounds that the explicit financial guarantee provided by General Electric U.S. (GEUS) did not provide a benefit to GECC. The CRA argued GEUS would have provided financial support to GECC with or without the explicit guarantee, asserting financial guarantees are implicit by nature.

Ultimately, the TCC determined and the FCA confirmed GEUS’ explicit guarantee did provide an incremental benefit to GECC and that the guarantee fee charged did not exceed an arm’s-length price. The TCC’s 2009 judgment relied on the “yield approach” (also commonly called the “interest-saved approach”) to determine the total benefit of the intercompany guarantee, i.e., the yield spread. The yield spread was calculated by comparing the actual cost of GECC’s third-party financing with an explicit guarantee to its estimated cost of financing without the explicit guarantee. This required a credit rating assessment of GECC to estimate GECC’s cost of finance without the explicit guarantee. The TCC determined and FCA confirmed implicit support would be considered by a third party when pricing an arm’s-length guarantee fee. As such, in applying the yield approach, the TCC estimated GECC’s cost of third-party finance without the explicit guarantee based on GECC’s credit rating inclusive of implicit support, rather than on a standalone basis.

With the GECC case serving as a precedent, analysis of intercompany guarantee fees should incorporate the concept of implicit support. Under this concept, the borrower’s credit rating would lie between its credit rating on a standalone basis and that of its parent. The yield approach provides an acceptable method to determine the benefit provided by the parent’s guarantee to its subsidiary, but it does not calculate the market price of intercompany guarantees. As the GECC case stopped short of determining an arm’s-length guarantee fee, the TCC and FCA have not yet suggested the preferred approaches to determine arm’s-length guarantee fees.

Estonia: Rule Revisions Require Documentation from More Multinationals

Estonia’s formal transfer pricing legislation (Article 53), which relies heavily upon the OECD Guidelines, has been effective as of January 1, 2007. Prior to the adoption of Article 53, the Estonian Tax and Customs Board (ETCB) rarely challenged Estonian taxpayers on transfer pricing matters. However, as the ETCB has built its transfer pricing expertise in recent years, it also increased its enforcement of transfer pricing regulations. According to KPMG’s Estonian entity, the number of transfer pricing audits conducted by the ETCB was expected to have doubled in 2010 compared to 2008 and 2009.

On January 1, 2011, new amendments to Estonia’s transfer pricing regulations took effect. The most significant change was the broadening of the previously limited definition of what constitutes related parties with respect to transaction participants in a business contract. Under the new amendment, entities now are to be considered related parties through common business interest or “dominant influence” of one of the partners over others. Presumably, with a broader definition of related parties, a greater number of Estonian business entities will be required to abide by the Estonian transfer pricing legislation, which includes certain documentation requirements.

Furthermore, the new amendments more clearly define the terms “transfer price” and “market price.” The term transfer price is now defined as the value of a transaction between related parties, while the term market price has been defined as the value of a business contract between unrelated parties.

France: Release of Guidance on 2010 Documentation Requirements

During January 2011, the French Tax Authorities (FTA) issued the final administrative guidelines regarding transfer pricing (Instruction 4 A-10-10). They are an interpretation of articles L13 AA and L13 AB of the French Tax Procedure Code (FTPC), which went into effect for tax years beginning on or after January 1, 2010. The revised rules apply to entities meeting any of the following requirements:

  • Gross annual revenues or gross assets equal to or exceeding €400 million (approximately $520 million)
  • The entity directly or indirectly owns at least 50 percent of companies meeting the €400 million criteria
  • More than 50 percent of the entity’s capital or voting rights are owned, directly or indirectly, by French or foreign entities meeting the €400 million criteria
  • The entity benefits from the regime of worldwide tax consolidation in France
  • The entity is in a consolidated tax group in France when at least one company of the group meets any of the above criteria

The new guidelines rely on the OECD Guidelines to define the arm’s-length standard and methods to prepare transfer pricing documentation. The French transfer pricing guidelines state transfer pricing documentation must be prepared contemporaneously and must be provided within 30 days of a written request by the FTA during an audit. French transfer pricing documentation can be prepared in any language, but the FTA may require translation into French. The FTA’s final administrative guidelines on transfer pricing allows for penalties of up to 5 percent of the transfer pricing adjustment for each audited year, with minimum penalty of €10,000. Companies with French affiliates need to evaluate French transfer pricing documentation needs annually.

Italy: Government Issues Revisions to the Relatively New Transfer Pricing Regime

On September 29, 2010, the Italian Revenue Agency (IRA) established a new transfer pricing documentation regime under Regulation 2010/137654, which provides penalty protection for taxpayers that have prepared and maintained sufficient documentation. In addition, the IRA introduced new transfer pricing guidelines under Circular No. 58/E on December 15, 2010. Circular No. 58/E updates Italy’s original guidelines, introduced in 1980, and provides further explanation of the documentation requirements under Regulation 2010/137654.

Regulation 2010/137654 specifies who is required to prepare transfer pricing documentation and what information is required to achieve penalty protection. Italian taxpayers meeting these documentation requirements may avoid administrative penalties of 100 percent to 200 percent of unpaid tax resulting from an IRA-imposed income adjustment. Italian entities that are holding or subholding companies are required to prepare a master file containing documents pertaining to the taxpayer’s worldwide group. In addition, a country-specific file is required that must provide items such as a description of the local entity’s business, industry and intercompany transactions, as well as provide a detailed discussion regarding the selection of transfer pricing method and comparability analysis related to the relevant intercompany transactions. Circular No. 58 implies cooperation with the IRA and good faith efforts to prepare documentation will be factored into decisions whether to impose transfer pricing penalties.

Under Circular No. 58/E, the transfer pricing rules have been revised to be consistent with the revised transfer pricing guidelines issued by the OECD on July 22, 2010. The original Italian guidelines exalted traditional methods above income-based methods. The updated Italian guidelines, in certain circumstances, eliminate this hierarchy and allow selection of the most appropriate method given the transaction circumstances.

Korea: Better Alignment of Customs & Transfer Pricing Rules

Multinational corporations with subsidiaries in Korea and Korean companies purchasing goods from foreign related parties often face difficulties due to differences between Korea’s transfer pricing rules under income tax law and customs valuation rules under customs law. For example, if during a transfer pricing audit, a Korean importer is determined to have underreported income due to an overstated transfer price, it is often difficult for the importer to receive a refund on the applicable customs duties. In contrast, if the transfer price paid by the importer is subsequently raised due to a transfer pricing audit, the Korean Customs Service (KCS) often charges the importer the additional customs duties as well as any related penalties.

To better align Korea’s tax and customs laws and increase cooperation between the Korean National Tax Service (NTS) and KCS, a task force was organized by the Korean Ministry of Strategy and Finance (MOSF) in early 2011. On September 7, the MOSF announced proposals based on the task force’s instructions that would amend the Law for Coordination of International Tax Affairs (LCITA) and the Customs Act. The amendment is expected to take effect January 1, 2012.

The most significant change in the proposal is the provision of correlative adjustments between transfer pricing and customs value for import transactions. If the NTS or KCS makes an adjustment on a related-party import transaction and the taxpayer files a refund request to the other authority, the other authority must make a correlative adjustment if it views the adjusted price as appropriate. If the KCS or NTS views the price adjustment made by the other authority as inappropriate, the two authorities must come to a compromise.

Other major amendments included in the proposal include:

  • Opportunity to present taxpayer’s opinion in determining customs value
  • Improvement on profit and general expense ratio under Method 4 of customs valuation
  • Exemption from penalties in relation to Advance Customs Valuation Arrangement
  • Establishment of a Customs Ruling Examination Committee
  • Establishment of a duty amendment system

The proposal represents a positive development in the Korean transfer pricing environment, as it reduces the possibility of a taxpayer being unfairly assessed additional customs or taxes in the event of an adjustment by either authority.

Luxembourg: Circular Issued on Advance Rulings for Finance Companies

A circular (Circular L.I.R. No. 164/2) affecting multinational enterprises with financing arrangements involving a Luxembourg entity was issued by the Luxembourg tax authorities on January 28, 2011. Luxembourg, like the Netherlands, has been a preferred jurisdiction for intercompany financing arrangements, and many multinationals have obtained informal rulings covering their intercompany financing arrangements.

The new requirements were a result of pressure from the European Union to harmonize the pricing approach for financing companies. The circular specifies companies wishing to obtain advance clearance on their intercompany financing arrangements must meet more stringent requirements in order to qualify. The rules necessitate the Luxembourg company must have significant substance in Luxembourg and must bear real economic risks related to its financing activities. The substance requirement necessitates:  the Luxembourg company’s board of directors be comprised of Luxembourg residents—or nonresidents with a professional activity in Luxembourg—who have decision-making ability; the key management decisions should be made in Luxembourg; the entity must not be considered a tax resident of another country; and the entity must have a Luxembourg bank account or a bank account with a Luxembourg bank with a foreign branch. A ruling, which is valid for five years, only will be granted if the above conditions are met and an OECD-compliant transfer pricing study, which includes a functional analysis, is prepared.

Malaysia: New Intercompany Disclosure Form Launched in Malaysia

In July 2011, the Inland Revenue Board’s (IRB) Multinational Tax Department (MTD) introduced Form MNE [1/2011] in an effort to increase transfer pricing compliance by multinational companies under section 140A of Malaysia’s Income Tax Act, 1967. While this form does not establish formal transfer pricing rules, it is regarded as a step toward prescribed transfer pricing regulation in Malaysia.

Form MNE [1/2011] is divided into four sections:  General Information, Related Party Transactions, Intercompany Financing and Other Information. The General Information section requests information related to the taxpayer’s legal entity structure and details regarding the taxpayer’s dealings with related parties. The Related Party Transactions section asks for information regarding intercompany transaction volumes in relation to tangible goods, intangible assets, services, interest and guarantee fees. The Intercompany Financing section requests disclosure and details of the financing arrangements between foreign related parties and information about whether this financial assistance is interest bearing or interest free. The Other Information section requests a functional characterization of the Malaysian entity and an indication of whether the company has prepared contemporaneous transfer pricing documentation for the current year; outdated transfer pricing documentation would need to be updated for a positive response to the latter request.

Company data from Form MNE [1/2011] will enable the MTD to target companies engaging in significant related-party transactions, consistently reporting losses or poor profits and lacking transfer pricing documentation for audit. The IRB has advised taxpayers to maintain current documentation or pursue advance pricing agreements to avoid uncertainty and potential costs related to transfer pricing audits.

People’s Republic of China: Assault Continues on Multinational Companies

China’s transfer pricing laws took effect January 1, 2008. There usually is a lag between the enactment of the new transfer pricing rules and vigorous enforcement. However, the State Administration of Taxation (SAT) has been aggressively auditing the transfer pricing arrangements for inbound multinational enterprises as part of a concerted enforcement effort.

In a recent turn of events, the SAT has started to compile information from its audits into a database. According to the Deputy Chief of SAT’s Anti-Avoidance Division, more than 1,000 audit cases will be added to the database. The information will be used as ‘secret comparables’ during the course of transfer pricing audits where publicly available data is not available or is not sufficient. The use of secret comparables is permissible in China. Taxpayers are at a distinct disadvantage when secret comparables are used as the basis of the tax authority’s position, as taxpayers have no ability to review the information to determine if it is on par.

According to an SAT official, a number of taxpayers are producing inadequate transfer pricing documentation. The SAT is working on a template to enable local tax inspectors to assess the transfer pricing documentation. Circular No. (2010) 323, issued in July 2010, requires local tax authorities to review and grade at least 10 percent of documentation.

Qatar: Transfer Pricing Principles Introduced

The introduction of self-assessment tax regime in Qatar also included some transfer pricing provisions. Companies registered in the Qatar Financial Center (QFC) must pay a flat corporate income tax of 10 percent. Companies operating in the QFC are largely in the banking, asset management, insurance and reinsurance sectors.

The new rules provide a definition of what constitutes related parties, i.e., control, introduce the arm’s-length principle and provide a process for advance rulings and relief from double taxation. The new rules enable tax authorities to adjust non-arm’s-length intercompany transactions for companies located in the QFC and outside of the QFC using arm’s-length principles. The new rules, retroactive to January 1, 2010, do not require taxpayers to maintain transfer pricing documentation.

Russia: New Rules Require Increased Transfer Pricing Documentation

With the introduction of Federal Law No. 227-FZ by the Russian Ministry of Finance in July 2011, Russia’s transfer pricing rules have been amended to include additional technical detail and increased consistency with OECD Guidelines.

Some of the noteworthy changes to the Russian transfer pricing regulations include:

  • The introduction of the arm’s-length principle as the standard for analyzing intercompany transactions
  • Augmentation of the number of accepted transfer pricing methodologies
  • A reduction in the list of transaction types subject to Russian transfer pricing regulations
  • An expanded definition of the term “related parties,” including an increase in the direct or indirect ownership threshold from 20 percent to 25 percent
  • Elimination of the safe harbor that previously allowed controlled prices to deviate by up to 20 percent from current arm’s-length market prices
  • An expanded list of approved sources from which data may be obtained for purposes of determining an arm’s-length transfer price

Also outlined in the 2012 regulations is the transfer pricing documentation requirements. Taxpayers will be required to prepare transfer documentation for related-party transactions in which the total income received by the taxpayer from all controlled transactions with the same related party exceeds RUB 100 million (USD $3.6 million) in 2012 and RUB 80 million (USD $2.9 million) in 2013. After 2013, documentation will be required for all related-party transactions.

The 2012 regulations also include details about penalties for Russian taxpayers who underpay taxes due to the use of non-arm’s-length transfer prices. However, the penalties will not go into effect until 2014. Between 2014 and 2016, a penalty of 20 percent of the additional tax payable may be imposed on noncompliant taxpayers. Beginning in 2017 and moving forward, the penalty will be increased to 40 percent of the additional tax payable.

Turkey: Documentation Requirements Increased

In November 2010, the Turkish Tax Authority (TTA) published guidelines that further clarify transfer pricing subjects covered in Article 13 of the Turkish Corporate Income Tax Law.

In 2007, the TTA published the General Communiqué Regarding Disguised Income Distribution via Transfer Pricing, which provided details and clarification of Turkey’s formal transfer pricing rules located in Article 13 of the Turkish Corporate Income Tax Law. The November 2010 publication by the TTA contained guidelines further clarifying subjects covered in the transfer pricing communiqué and outlining Turkey’s transfer pricing documentation requirements in greater detail.

The TTA’s guidelines maintain Turkish taxpayers should prepare transfer pricing documentation on an annual basis, covering all intercompany transactions regardless of materiality. The 2010 guidelines place further emphasis on the TTA’s preference for the use of internal comparables to determine an arm’s-length transfer price. However, for situations requiring third-party comparable searches, the TTA has indicated it may further investigate taxpayers with transfer pricing report draft dates substantially differs from the documented performance date of any comparable searches.

The guidelines also provide a sample transfer pricing report outlining what information should be included in each section of a complete transfer pricing report. To avoid future conflicts with taxpayers, the TTA has indicated it would like taxpayers to strictly follow the format of the provided sample transfer report when assembling their own documentation.

United Kingdom: OECD Guideline Revisions Formally Adopted into Law

Her Majesty’s Revenue and Customs (HMRC) has issued a briefing about proposed revisions of its transfer pricing rules found in Schedule 28AA to the Income and Corporation Taxes Act 1988 (for accounting periods ending on or after July 1, 1999). As the OECD Guidelines were modified and finalized in July 2010, the HMRC wants to synchronize its transfer pricing rules with the 2010 revised OECD Guidelines. This should help mitigate double taxation risk for businesses with cross-border activities.

HMRC also is examining its stance on taxation of high-technology intangible property (IP) and its link to research and development. In particular, it has the idea of creating a Patent Box tax regime to locate high-technology jobs and IP in the U.K. In 2011, the HMRC consulted with corporations and other stakeholders for input on this idea.

United States: Recent IRS Transfer Pricing Developments

The IRS has continued efforts to enhance its international tax capabilities, with specific efforts to bolster its transfer pricing enforcement capability. The IRS intends to more effectively identify, examine and resolve transfer pricing cases through the recent reorganization of the Large & Mid-Sized Business (LMSB) division, the hiring of additional technical transfer pricing personnel and the addition of a transfer pricing director. With the expected increase in transfer pricing-focused audits, taxpayers increasingly will benefit from sensible transfer pricing documentation to justify their intercompany pricing.

In October 2010, the IRS reorganized the LMSB division into the Large Business & International (LB&I) division, signifying renewed attempts to integrate and coordinate international tax compliance efforts. The IRS’ international subdivision will add nearly 900 employees, including examiners, transfer pricing economists and technical staff, to the 600 employees in place at the end of 2010. New Transfer Pricing Director Samuel Maruca has been tasked with developing and managing the international subdivision’s transfer pricing strategy, training initiatives and operating policies, as well as the soon-to-be combined Advance Pricing Agreement (APA) and Competent Authority programs. To better coordinate the efforts of the transfer pricing national office and the field, the LB&I division intends to create a transfer pricing advisory group organized geographically, comprising 40 to 60 personnel.

According to Michael Danilack, the IRS Deputy Commissioner (International), there will be an enhanced focus on intercompany transactions of foreign-controlled U.S. corporations and U.S. branches of foreign corporations. With Japan reducing its statutory tax rate, the U.S. will soon have the highest statutory tax rate in the world, and the IRS will be dedicating resources to challenge intercompany transactions that avoid U.S. tax by inappropriately shifting income back to the taxpayer’s home country.

Vietnam

In 2010, Vietnam issued new transfer pricing guidelines outlined in Circular 66 (2010) to replace Circular 117 (2005), as a part of an initiative to enforce Vietnam’s transfer pricing regulations. Circular 66 introduced several changes that strengthened the country’s transfer pricing requirements. During 2011, the Vietnamese General Department of Taxation (VGDT) issued a report citing significant gains in tax revenues due to the release of the 2010 transfer pricing rules and increased audits resulting in transfer pricing assessments. The VGDT also announced it will conduct further audits of the 2008 to 2010 tax years; companies with losses or low profits automatically will be audited.

As part of the compliance initiative, the VGDT also issued surveys asking taxpayers to provide certain company data for 2006–2010, including financial indicators, transaction descriptions and transaction volumes. In addition, the VGDT inquired about the location of these related parties, transfer pricing methods adopted in connection with the surveyed transactions and each company’s compliance procedures implemented after the introduction of Circular 66.

To learn more about transfer pricing solutions or to discuss your company’s current transfer pricing positions, please contact Will James (wdjames@bkd.com), David Whitmer (dwhitmer@bkd.com) or your BKD advisor.

 

Article reprinted with permission from BKD, LLP, bkd.com.  All rights reserved.