Mexican Transfer Pricing Rules in a Nutshell

May 5, 2014

The Basics of Documentation, Penalties, and Red Flags   Mexico Flag

 

Mexico first enacted transfer pricing documentation requirements in 1997. The Mexican Income Tax Law (MITL) requires application of the OECD transfer pricing guidelines (OECD Guidelines) to the extent consistent with the MITL and any applicable treaty. The transfer pricing rules are included primarily in Articles 86, 215, 216, and 216-BIS of the MITL.1

Article 86 discusses transfer pricing documentation. Article 215 discusses comparability, business cycles, permanent establishments and transfer pricing, tax havens, and OECD Guidelines. Article 215 also states that two or more persons (parties) are deemed to be related when one participates directly or indirectly in the administration, control, or capital stock of the other (person or party).2 Article 216 discusses transfer pricing methods, ranges, and selection of the most appropriate method.

Mexican taxpayers are required to maintain transfer pricing documentation demonstrating that intercompany transactions are conducted at arm’s length. Taxpayers whose revenue in the preceding fiscal year did not exceed MXP 13 million (MXP 3 million for professional services companies) are not required to comply with the documentation requirements, unless the foreign party is located in a preferential tax regime (on audit these smaller companies must still prove intercompany transactions are arm’s length). Transfer pricing documentation must be in place at the time the company files its annual income tax return (typically by March 31 of the following year) and must be kept along with the company’s accounting records for at least five years after the filing of the last tax return for each year.3

Article 86 (Section XII) of the MITL requires taxpayers to include the following elements in transfer pricing documentation (Mexican tax authorities require all documentation to be in Spanish):

  • Name of the company and corporate name
  • Names of the related parties
  • Description of the ownership structure – covering all related parties engaged in transactions of potential relevance
  • Overview of the taxpayer’s business
  • Analysis of economic factors affecting the pricing of intercompany transactions
  • A description of the functions performed, assets employed, and risks borne by each related party to the intercompany transaction (i.e., functional analysis)
  • Annex 9 of the Information Return requires a confirmation of the existence of transfer pricing documentation for each intercompany transaction, the amount of the transaction, the type of transaction, the gross or operating margin obtained by the tested party for one of the transactions, the transfer pricing method used for each transaction4, the taxpayer identification number of the related party, and the country of residence and address at the tax domicile of the related party
  •  Appendix 32 of the Statutory Tax Audit Report (“Dictamen Fiscal”)5 must be completed and filed by June 30, including details of the intra-group transactions carried out by the related party, information on the related party, as well as some details of the analysis
  • Appendix 33 of the Statutory Tax Audit Report must be completed and filed by June 30, including information with regard to whether the taxpayer has documented the arm’s length nature of all domestic and cross-border intra-group transactions
  •  The Questionnaire of Transfer Pricing Matters must be completed by the external auditor filing the Statutory Tax Audit Report. This questionnaire is the auditor’s responsibility, and it covers what the auditor reviewed relating to transfer pricing documentation.

 

Transfer Pricing Penalties

The transfer pricing penalties are included in the Federal Fiscal Code. Article 76 states that if taxpayers do not have documentation supporting the determination of taxable income, and a transfer pricing adjustment is determined by the SAT, penalties could vary from 55% to 75% of the omitted taxes, plus surcharges and inflation adjustments.

When the taxpayers have transfer pricing documentation that supports the determination of taxable income and an adjustment is proposed, the penalty is 27.5% to 37.5% (a 50 percent reduction in the penalty if the taxpayer keeps supporting transfer pricing documentation).

If a transfer pricing adjustment reduces the net operating loss (NOL), the penalty ranges from 30% to 40% of the difference between the determined NOL and the NOL in the tax return, plus surcharges and inflation adjustments. In the case of over-determined NOLs, penalties could be reduced to 15% to 20% of the overstated NOL if the taxpayer has transfer pricing documentation.

 

Red Flags

Mexican tax authorities are focusing audits on the following transfer pricing areas:

  • Business Restructuring – The following business structures are high risk from an audit perspective: limited risk structures, migration of intangible property and centralization of functions and risks in favorable tax jurisdictions, highly leveraged structures, and cost-sharing agreements
  • Headquarter Service Fees – The Mexican tax authority Servicio de Administración Tributaria (SAT) is challenging service fees paid to a foreign related party. A frequent concern is lack of sufficient evidence to establish that the services were provided, and that there was a business reason to pay for them. Taxpayers must show that the following tests are met:
  1. The “strictly indispensable deductibility criteria”
  2. The service was actually received
  3. The service received carried an economic benefit
  4. The service is not duplicative
  5. The service is not stewardship
  • Certain Industries – Offshore drilling, mining, pharmaceuticals, automotive, retail, and tourism industries are under high scrutiny
  • Aggregation of Intercompany Transactions – Mexican tax authorities are challenging the grouping of products and different types of transactions. Also, the aggregation of operating results to test transactions is being disallowed, resulting in required separate analyses of purchases, sales, royalties, etc., rather than accepting overall operating results.

 

Footnotes:

Article 216-BIS of the Mexican Income Tax Law sets out the conditions under which a foreign related party with maquiladora operations in Mexico is considered to have a permanent establishment in that country. However, the foreign related party may be exempt of a permanent establishment if an Advance Pricing Agreement (APA) is obtained with the tax authority. A discussion of rules relating to maquiladoras and APAs are outside the scope of this article.

2 The is no specific threshold for the entities to be considered related parties (even if there is a 1 percent ownership of the shares, the entities are considered related).

3 It is important for the taxpayer to have five years of transfer pricing documentation on hand since the statute of limitations on the assessment of transfer pricing adjustments is five years from filing date of the tax return. When the tax authority requests a taxpayer’s transfer pricing documentation, the taxpayer has 15 business days to submit it to the SAT.

4 Article 216 of the Mexican Income Tax Law defines six transfer pricing methods allowed for analysis of transactions between related parties. These methods are consistent with those defined in the OECD Guidelines: Comparable Uncontrolled Price, Resale Price, Cost Plus, Profit Split, Residual Profit Split, and Transactional Operating Profit (equivalent to the Transactional Net Margin Method in the OECD Guidelines). According to the Mexican regulations, companies must apply the Comparable Uncontrolled Price (CUP) method in their transfer pricing analysis unless they are able to demonstrate that this method is not appropriate to determine that the transactions were conducted at arm’s length. Profit-based methods are to be applied if the CUP, Cost Plus, and Resale Price methods are not applicable.

5 According to PricewaterhouseCoopers’ guide “International Transfer Pricing 2013/14”, the following taxpayers must file a dictamen fiscal:

  • Companies that obtained gross receipts in excess of MXN 34,803,950 during the prior fiscal year (approximately USD 2.9 million)
  • Companies or groups of companies whose net worth (calculated pursuant to the Mexican Assets Tax Act) during the prior fiscal year exceeded MXN 69,607,920 (approximately USD 5.8 million)
  • Companies with at least 300 employees in every month of the prior fiscal year (1 January – 31 December)
  • PEs that fall in any of the above scenarios described under (1), (2) or (3)
  • Companies involved in or arising from a corporate division or a merger during the year of the transaction and during the subsequent year
  • Entities authorised to receive deductible charitable contributions
  • Companies in the liquidation period if they had the obligation during the prior fiscal year

Please feel free to use this contact form for any questions or further explanation on “Mexican Transfer Pricing Rules in a Nutshell”

IRS Transfer Pricing Audit Roadmap

May 3, 2014

 

Transfer Pricing NEWS

Dollar Hitch Hiking

The Transfer Pricing Operations (TPO) of the Large Business and International (LB&I) division of IRS released the 26-page Transfer Pricing Audit Roadmap to the public on February 14, 2014.

The Transfer Pricing Audit Roadmap (“Roadmap”) provides audit procedures around an approximate 24-month audit timeline. The stated goals of the roadmap are to assist both the IRS and taxpayer in the discussion and resolution of transfer pricing issues in a timely and orderly fashion, and to resolve issues in the Exam level rather than at Appeals. Also, the Roadmap is intended to provide insight into what to expect during a transfer pricing examination, as well as put a concrete work plan into place for the TPO to execute its transfer pricing audits. The Roadmap is not official guidance; it is a working document for revenue agents in planning their examinations without having to regularly consult the Internal Revenue Manual.

The Roadmap states, “Proper development of a transfer pricing position may take as much as 2-3 years or more.” Given this extended timeline, the Roadmap acknowledges that up-front planning will be essential to the examination process before the IRS commits significant resources to a transfer pricing examination.

There are three phases to the audit process as described in the Roadmap: Planning, Execution, and Resolution.

1. Planning

The Planning phase can last up to 6 months, and starts before the audit cycle begins. The Planning phase consists of a pre-examination analysis, an opening conference (which starts the 24-month examination clock), a transfer pricing orientation meeting (i.e., explanations by the taxpayer of its transfer pricing arrangements and financial information), and the preparation of the initial risk analysis and examination plan.

Company employees involved in the structuring of intercompany transactions will be requested to participate at the transfer pricing orientation meeting. Personnel “responsible for the transfer pricing study” will also be asked to participate. The IRS does not want the transfer pricing orientation meeting to be a high level review of the documentation, but rather a “comprehensive presentation,” according to the Roadmap. Domestic and foreign site visits may also be requested. The transfer pricing orientation meeting is perhaps the most important meeting during the audit, as it gives the taxpayer the opportunity to make its most compelling case for why its transfer pricing methods, analysis, and results are appropriate.

In the Planning phase the IRS will evaluate whether it thinks the taxpayer is shifting income to lower tax jurisdictions using transfer pricing. The Roadmap encourages IRS examiners to assess the functions, assets, and risks of the related parties involved in the intercompany transaction. These functions, assets, and risks should be described in the taxpayer’s transfer pricing documentation, which is reviewed by the IRS examination team. The Roadmap suggests that transfer pricing issues deserve further scrutiny if the taxpayer’s results are “at odds with common sense and economic reality” and if the taxpayer does not provide a convincing transfer pricing documentation report.

2. Execution

In the Execution phase, which can take up to 14 months, the Examiner will request information on the relevant transfer pricing issues from the taxpayer so that the IRS transfer pricing specialist can prepare a report on agreed facts. The IRS team will choose what it thinks is the best method for the intercompany transaction(s) at issue. The IRS team will apply its chosen transfer pricing method to determine an appropriate intercompany price. If this intercompany price is different than the taxpayer’s actual transfer price, and the IRS-determined price is beneficial to the IRS, then the IRS will have arrived at its basis for a proposed Section 482 adjustment.

3. Resolution

In the Resolution phase, which can take up to 6 months, the audit team conducts a pre-Notice of Proposed Adjustment (NOPA) issue presentation, resolution discussions with the taxpayer, and it issues a final NOPA. The taxpayer may disagree with the IRS position and is encouraged to state its reasons for disagreement.

 

Transfer Pricing INSIGHTS

  • The Roadmap states that “Transfer pricing cases are usually won and lost on the facts,” emphasizing fact gathering as a means of building a case not only for exam, but for successful litigation. There is consistent emphasis in the Roadmap reminding the exam team of the importance of first building a solid understanding of the facts before forming hypotheses and ultimately reaching conclusions. Accordingly, taxpayers are well-advised to ensure that their transfer pricing documentation is robust and presents a factual picture consistent with its tax returns and financial statements.
  • Expect increased involvement of IRS transfer pricing specialists within most audits, particularly during the Planning phase. The IRS developed the Roadmap to ensure that field audit teams use the transfer pricing resources within the Service. A key theme in the Roadmap is that “transfer pricing specialists must be involved in assessing potential transfer pricing issues at the earliest possible stage – ideally before the official audit commencement date.” These specialists will “help weed out issues that are not worth pursuing” and also help identify additional expertise that might be required to evaluate a taxpayer’s transfer pricing.
  • Transfer pricing documentation is the first and best opportunity to prevent a transfer pricing audit. While IRS auditors will know something about a taxpayer from tax return information and the company’s website, transfer pricing documentation reports allow companies to explain the business, including reasonable intercompany pricing results. IRS economists will assess the quality of transfer pricing documentation prior to meeting with the taxpayer. Companies without transfer pricing documentation may be surprised by initial IRS positions when meeting for the first time.
  • The IRS will issue the mandatory transfer pricing documentation information document request (IDR) with the IRS’ initial contact letter, rather than at the opening conference with the taxpayer, which has usually been the case.  Taxpayers therefore should be sure their transfer pricing documentation is complete and on hand (transfer pricing documentation must be prepared contemporaneously and be in existence when the Federal tax return is filed, and must be provided to the IRS within 30 days of receiving the documentation IDR).
  • Taxpayers can expect examiners to review the following documents during the Planning phase: IRC Section 6662(e) documentation (i.e., “transfer pricing documentation” – for penalty protection), forms 5471, 5472, 8833, 8858, 8865, 926, and schedules M-3 and UTP. The IRS team may also issue an IDR requesting worldwide, geographic, and segmented accounting data and financial statements from the taxpayer. If foreign data are important to the IRS team, it may request it from treaty partners – during the Planning phase.
  • To the extent the field team follows the roadmap guidance, taxpayers should expect a more rigorous transfer pricing examination. Taxpayers should be prepared for this process, which in most cases means much more will be required than merely updating comparables data in boilerplate or outdated transfer pricing studies.
  • Multinationals are faced with the prospect of double taxation unless the foreign tax authority agrees with the IRS position. While the Roadmap does not mention the Competent Authority process, any proper resolution should consider getting the IRS and the foreign tax authority to agree to a resolution. When there is not a resolution such disputes are typically handed off by the IRS examination team to either IRS Appeals or the Competent Authority process.

 

 

 

 

New Ukraine Transfer Pricing Rules

December 26, 2012

ImagePrior to 2012, Ukraine had not been overly concerned about transfer pricing issues. But recently, in the era of fiscal deficits, the Ukrainian government has been more focused on implementing transfer pricing compliance practices in accordance with OECD member countries.

 Transfer Pricing NEWS

On December 4, 2012 the Parliament of Ukraine registered the draft bill “On amendments to the Tax Code of Ukraine with regard to transfer pricing”.  The draft bill may become effective as early as on July 1, 2013, according to STSU chief Oleksandr Klymenko.

Which transactions are affected (controlled transactions)?

  1. Related party1 transactions with non-Ukraine affiliates (counteragents) who pay corporate income tax at a rate of at least 5% less than in Ukraine, or such counteragents domiciled in a country with a corporate income tax at least 5% less than Ukraine (i.e., 14% as of January 1, 2013); and
  2. The total sum of transactions with a counteragent exceeds 50 million Grynia per year.

Documentation

The draft bill requires big taxpayers to submit a report on operations and documents related to transfer pricing before May 1st of the year following the year in which transactions occurred.2 Smaller taxpayers must only notify the STSU of their controlled transactions (also, before May 1st of the year following the year in which transactions occurred). The documentation for big taxpayers should contain: detailed information about transactions, counteragents, risk analysis, justification for the selection of a transfer pricing methodology, and determination of the transfer price. Penalties of 5% of the sum of the controlled transactions will be assessed for failure to provide the notification of controlled transactions or the documentation report.3

Prescribed Transfer Pricing Methods

Article 39 of Ukraine’s Tax Code contains a list of five methods for determining the arm’s-length price: comparable uncontrolled price, resale price, cost plus, (transactional) profit split, and transactional net margin. The revised code will also allow for a ‘method of last resort’ (i.e., an unspecified method in cases where there is insufficient data to apply other transfer pricing methods). The method of last resort is typically an independent evaluation by a certified appraiser. This method can be employed only if there is insufficient data to apply the five specified transfer pricing methods. The comparable uncontrolled price method is described in the detail, while the others are not. Finally, it is acceptable to use a combination of two or more of the above transfer pricing methods. Although all the methods are put in a certain order, the Tax Code does not mention a hierarchy of methods.

Safe Harbor

The new transfer pricing rules allow for a 5% safe harbor on certain commodities4.  Tax reassessments are not permitted if the contract price deviates from the “arm’s-length price” by less than 5%. In this case the “arm’s-length price” consists any price from a list of official sources of information, such as data from state authorities, banks, specialized commercial publications, or exchange quotations.

Transfer Pricing Audits

The STSU must provide taxpayers 10 days’ notice of a transfer pricing audit. The maximum duration of the transfer pricing audit is 1 year, consisting of an initial 6-month time-limited audit, and a potential 6-month extension. Taxpayers have 20 days to appeal assessments in tax audits.

Transfer Pricing INSIGHTS 

  • Ukraine realizes it does not have the staffing (nor, more generally speaking, the expertise) to focus on smaller audits at this time. This is a near-term opportunity for multinationals with Ukraine intercompany transactions on certain commodities especially. For example, on Ukraine outbound intercompany commodity transactions to lower tax countries, taxpayers may want to determine transfer prices that are slightly less than (<5%) prices from any of the official sources of information (i.e., data from state authorities, banks, specialized commercial publications, or exchange quotations). Selecting one of the lower prices in the numerous official sources, and then reducing it by almost 5%, can increase tax savings considerably, especially on large transactions (same logic applies with higher tax countries, only higher prices would be advantageous).
  • Likewise, on Ukraine inbound intercompany transactions with lower tax countries, taxpayers may want to determine contract prices that are almost 5% greater than the prices in any of the official sources of information, so long as the price for the imported goods is not less than the customs value. Admittedly, Ukraine is a net exporter of the specified commodities, so this importing strategy is not as applicable as the exporting strategy above.
  • Ukrainian exporters (primarily raw materials) should be most concerned with the new transfer pricing rules. Historically, many Ukrainian exporters sold tangible goods at low prices (e.g., below exchange quotations) to foreign affiliates in lower tax jurisdictions; these foreign affiliates then sold the same goods at higher market prices to third party purchasers, with the profit left in the low tax jurisdiction.
  • MNEs operating in Ukraine may not want to unnecessarily spend money on transfer pricing documentation from expensive professional services firms, since the Ukraine transfer pricing reports, if required, are simplistic, and the STSU does not require a exacting format. All taxpayers must at a minimum notify the STSU of the controlled transactions. Big taxpayers are required to submit more documentation than smaller taxpayers. If the STSU requests additional documentation, the taxpayer has 30 to 60 days to provide it. Compiling Ukraine transfer pricing reports and documentation in-house and/or with a cost-effective independent transfer pricing advisor is a practical solution.
  • Once a taxpayer has determined and implemented a transfer price, the burden of proof that the price is unfair rests with tax authority. The taxpayer is not legally obliged to substantiate the price upon request from the authority.
  • Since the new transfer pricing rules provide that the arm’s-length price for imported goods must be equal to or greater than customs value, it will be interesting to see how this affects how MNEs treat pricing for damaged goods and promotional goods.
  • While Ukraine’s new transfer pricing rules now allow for Advance Pricing Agreements (APAs), the STSU is too unsophisticated on transfer pricing for an APA to be worth the cost of preparation. Since APAs are new to Ukraine, negotiating one is likely to be a time consuming headache for the taxpayer, and even if your company is the first to have a unilateral Ukraine APA, it may not be too helpful since transfer pricing enforcement efforts are lax, and a taxpayer seeing an APA likely has more advanced transfer pricing know how than the STSU. Further, only unilateral APAs are currently allowed, and if these later necessitate competent authority, the STSU is ill equipped for such discussions.

Footnotes

  1. Related parties are defined in Ukrainian tax law as legal entities and/or individuals, whose relationship may affect the terms and economic results of their activities or activities of persons represented by them. An entity qualifies as a related party if ownership of at least 20 percent of shares; based on voting power; share capital; are under common control.
  2. Ukraine has an official register of big taxpayers. Entities are included on this list if either A) Income for the past four consecutive quarters exceeded UAH 500 million or B) Tax payments for the same period were greater than UAH 12 million.
  3. If a transfer pricing adjustment results in additional tax liabilities, the STSU can assess penalties of up to 200 percent of the tax underpayment. However, historically, transfer pricing adjustments have rarely been enforced.
  4. Commodities include: animal oils, grain crops, in-organic and organic chemical products, metals and ferrous metal goods, mineral fuels, ore, and vegetable oils.

Additional Resources:

http://www.kyivpost.com/content/ukraine/lawmakers-to-consider-transfer-pricing-bill-in-january-says-chief-tax-officer-317848.html

Featured Article – Changes to Australia’s Transfer Pricing Rules

December 18, 2012

Australian-flag-waving

Transfer Pricing NEWS:

An exposure draft of legislation was released on November 22, 2012, “Tax Laws Amendment (Cross-Border Transfer Pricing) Bill 2013: Modernisation of transfer pricing rules—proposing changes to Australia’s domestic transfer pricing rules,” to introduce new Australian transfer pricing rules with significant self assessment and documentation requirements. The start date for these new rules has not been announced, but it is expected to be the date of Royal Assent of the amending legislation.

Apparently, these new rules are a response by the Australian Commissioner of Taxation (Commissioner) to recent losses in tax court. The most prominent example is the SNF case last year. In that case the Commissioner unsuccessfully argued for the use of the transactional net margin method of adjusting transfer prices over the comparable uncontrolled price method. It looks like the Commissioner is convincing the Federal Government to legislate the Commissioner’s interpretation of the old rules as the new rules.

The Exposure Draft proposes the repeal of Australia’s existing transfer pricing rules in Division 13 of Part III of the Income Tax Assessment Act 1936 and the insertion of their replacements, as Subdivisions 815-B to 815-E of the Income Tax Assessment Act 1997. Specifically:

  • 815-B: Arm’s length principle for cross-border conditions between entities
  • 815-C: Arm’s length principle for permanent establishments
  • 815-D: Record keeping requirements (Documentation)
  • 815-E: Special rules for trusts and partnerships.

This blog post will only focus on Subdivisions 815-B and 815-D. Of the four, I see these two as having relatively more consequence for taxpayers. For more information on 815-C and 815-E, please refer to the Exposure Draft (link to Exposure Draft at end of posting).

The new transfer pricing rules will operate on a self-assessment basis, unlike the old rules, which required the Commissioner to make a determination of an assessment. This burden has shifted to the taxpayer, who will need to assess its own transfer pricing arrangements to determine whether they comply with the new rules. If a taxpayer identifies that it has a non arm’s-length arrangement creating a ‘tax benefit’ in Australia, it should self-assess a transfer pricing adjustment to increase Australian taxable income to reflect an arm’s-length result (downward adjustments are not permitted under the proposed rules).

Arm’s Length Conditions

The draft legislation focuses on the ‘conditions’ that exist between entities and whether these are consistent with the ‘arm’s length conditions’. Arm’s length conditions are the conditions that may be expected between independent entities dealing wholly independently with one another in comparable circumstances. In identifying arm’s length conditions, regard must be had to the economic substance of what was actually done. Where the economic substance of what was done does not match the legal form, it is the economic substance that determines the ‘arm’s length conditions’.

The arm’s length conditions are to be determined using the most appropriate and reliable method. The method must be selected based on the comparable data available, and a comparability analysis must be performed. Five comparability factors (the comparability factors in the OECD Transfer Pricing Guidelines) must be considered in this analysis. The five comparability factors are:

  1. Characteristics of property or services
  2. Functional analysis
  3. Contractual terms
  4. Economic circumstances
  5. Business strategies

An arrangement could be considered non-arm’s length if it does not contain a condition that third parties would have normally included in a comparable arrangement. Likewise, if a related party arrangement contains a condition that third parties would not normally agree to, this may also constitute a non-arm’s length arrangement. Note: There is great uncertainty as to how the Commissioner will apply this test in practice.

Transfer Pricing Benefit

There will be a ‘transfer pricing benefit’ where arm’s length conditions are applied and one of the following three outcomes would arise:

  1. The Australian entity’s taxable income for the income year is greater than actual conditions
  2. The Australian entity’s loss is less than actual conditions
  3. The Australian entity’s tax offsets are less than actual conditions

 Reconstruction

The draft Explanatory Memorandum states that the Commissioner can substitute actual dealings or arrangements if “independent entities would not have done what was actually done given the options that are realistically available to them.” Basically, the Commissioner is granted broad power to reconstruct transactions when the arrangements are not considered “substantially similar” to what would have occurred between independent parties, given the options realistically available to the Australian taxpayer. This statement in the Explanatory Memorandum is somewhat of a departure from the OECD Guidelines, which state:

“[r]estructuring of legitimate business transactions would be a wholly arbitrary exercise the inequity of which could be compounded by double taxation created where the other tax administration does not share the same views as to how the transaction should be structured.”

Unlike the OECD guidelines, the proposed rules do not require the existence of ‘exceptional circumstances’ before undertaking a reconstruction.

‘Optional’ Transfer Pricing Record Keeping (aka Documentation)

While the Exposure Draft does not make “transfer pricing ‘record keeping’” mandatory, it is in effect mandatory if the taxpayer wants to have a reasonably arguable position. Subdivision 815-D imposes burdensome self-assessment documentation requirements in order for a taxpayer to obtain a RAP. A RAP limits penalties to 10% (non deductible) versus 25% or more otherwise.

Where Taxpayers prepare robust transfer pricing documentation in accordance with the prescribed process, they should be deemed to have a RAP.

Records to satisfy 815-D:

  • Must be contemporaneous
  • Must explain how 815-B applied or did not apply to the entity
  • Must explain why applying 815-B best achieves consistency with the OECD Guidelines
  • Must identify both the ‘actual conditions’ and the ‘arm’s length conditions’
  • Must detail the method used and comparable circumstances relevant to identifying the ‘arm’s length conditions’
  • Must detail the difference, if any, between the ‘arm’s length conditions’ and the ‘actual conditions’

If documentation does not meet the RAP, taxpayers would be subject to a minimum penalty of 25% of the tax shortfall if the Commissioner makes an adjustment, subject to de minimis thresholds (generally $10,000 or 1% of taxable income). The potential penalty with a RAP is 10%.

Transfer Pricing INSIGHTS:

  1. Taxpayers should review their intercompany legal agreements to assess whether legal form and economic substance are aligned, and whether the terms and conditions are consistent with third party agreements.
  2. The Exposure Draft implies that a single set of arm’s-length conditions will exist. In practice, there is rarely a single arm’s-length price or outcome; taxpayers and tax authorities typically seek to identify a range of arm’s-length outcomes. The use of a range is not directly acknowledged in the Exposure Draft. While this is an area of uncertainty, taxpayers could attempt to refer to the OECD Guidelines to support the use of a range.
  3. Subdivision 815-B applies whether the entities are related or not, allowing the Commissioner to attack collusive behavior between unrelated parties, and potentially requiring the taxpayer who wants a Reasonably Arguable Position to document unrelated party transactions to show they are indeed unrelated party transactions.
  4. The Exposure draft gives the Commissioner great power with regard whether or not to make, and how to make, consequential adjustments. Although Subdivision 815-B operates on a self-assessment basis for the primary taxpayer, it does not operate on a self-assessment basis for any other ‘disadvantaged entity’ taxpayer that might be affected by ‘arm’s length conditions’ replacing the ‘actual conditions’. In such cases, the disadvantaged entity will need to ask the Commissioner to make a determination such as reducing its taxable income, increasing its loss, increasing a tax offset, or reducing the withholding tax payable in respect of interest or royalties. The Commissioner is only required to make such a determination where the Commissioner considers it is fair and reasonable to do so.
  5. The proposed de minimis rule does not provide much relief for taxpayers, since it will be necessary for taxpayers to calculate the value of potential transfer pricing adjustment exposures before they can identify whether their dealings fall below the threshold. A simpler approach – which would have been less onerous to the taxpayer – would have been to provide an exemption from penalties for transactions that fall below a certain threshold.
  6. In future transfer pricing cases, the Commissioner may be able to argue that a significant difference between results produced by a transactional method used by the taxpayer (e.g., the comparable uncontrolled price method), and a profit-based method (e.g., the transactional net margin method), suggests there are factors specific to the taxpayer’s situation that are not taken into account by the transactional method. Then, the Commissioner could rely on a profit-based method to defend an assessment of a ‘transfer pricing benefit’ even where the taxpayer is able to use a transactional method to establish that no such benefit exists (as the Commissioner attempted to do in the SNF case).
  7. For certain large and complex intercompany arrangements, I think the added uncertainty for taxpayers resulting from the Exposure Draft, and the additional documentation burden, increases the appeal of APAs.

Links to the Exposure Draft and Explanatory Memorandum:

Exposure Draft

Explanatory Memorandum

The Queen v. GlaxoSmithKline Inc. – After two decades, still no resolution in Canada

December 15, 2012

gsk-logo

The Queen v. GlaxoSmithKline Inc. – After two decades, still no resolution in Canada

Please click on the link for the News on the case, and read below for the Insights.

CRA and the OECD

The Supreme Court of Canada (SCC) rejected the CRA’s narrow “transaction-by-transaction” approach. What was the CRA thinking? Clearly, the Organisation for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (OECD Guidelines) state “there are often situations where separate transactions are so closely linked or continuous that they cannot be evaluated adequately on a separate basis”. It seems Canada may have forgotten about its OECD membership. At least the CRA of today, in publishing TPM-14, fundamentally agrees with the 2010 version of the OECD Guidelines (although it took the CRA 2.5 years to make this public acknowledgement).

Witholding Taxes

The SCC decision opened up a can of worms, specifically, the issue of withholding taxes. GSK-Canada’s purchase price of the ranitidine from a related Swiss company Adechsa S.A. (Swissco) included some of the benefits and rights of its license agreement with Glaxo Group Ltd. (Glaxo Group). In other words, GSK-Canada was paying for some of the benefits of the license agreement (I.e., patent, trademark, access to new products, the right to the supply of raw materials and materials in bulk, marketing support, and technical support for setting up new product lines) through the ranitidine purchase price. No withholding is required on the purchase of the ranitidine, whereas royalties are subject to a withholding tax. In looking at the total payments for the ranitidine plus license agreement benefits, GSK-Canada could have effectively paid for a portion of its licensing rights through the purchase price of ranitidine, and avoided some withholding taxes. How would the court determine the arm’s-length price for ranitidine when rights and benefits under the license agreement are linked to the price paid for the tangible property?

Pros and Cons of Safe Harbors, and Advice to Tax Authorities

December 14, 2012

Galveston, TX

Why is it worth weighing pros and cons of safe harbors*? Because the OECD’s June 6, 2012 draft endorses safe harbors and presents three sample memoranda that countries may use to negotiate bilateral safe harbors. Also, most would say that the IRS has been successful with instituting safe harbors on interest rates for intercompany loans, and safe harbors for certain routine services. The trend is toward the adoption of more safe harbors, not fewer.

PRO: 

  • Less likely to result in double taxation (for bilateral and multilateral safe harbors)
  • Less burdensome on taxpayers, tax authorities, and courts (lower compliance and administrative costs)
  • Safe harbors on routine situations allow taxpayers and tax authorities to focus resources on more complex situations (resource rationalization)
  • Increased taxpayer compliance
  • Provides taxpayers with greater certainty

CON:

  • May not be compatible with the arm’s-length principle
  • Transactional methods (e.g., CUP) when properly applied, are more precise and more accurate than a profit based methodology safe harbor
  • Potential for adverse selection if safe harbors are not arm’s length
  • Unilateral safe harbors could result in some taxpayers over reporting income in the safe harbor country
  • Some amount of tax revenue erosion
  • Published safe harbors may create rules of thumb for arm’s-length analyses, potentially biasing the results

ADVICE:

  • Safe Harbors should emulate arm’s-length results
  • Bilateral (or multilateral) safe harbors are more effective than unilateral ones in preventing double taxation
  • Safe harbors should be elective, not mandatory (a pro and a con of elective safe harbors is a general reduction in tax liability)
  • Mandatory safe harbors would be akin to formulary apportionment, which is not generally accepted nor is it arm’s length
  • Require taxpayers to commit to the safe harbor for a certain number of years, or require an advance notice of election to use the safe harbor (otherwise, taxpayers will electively choose the safe harbor only when it provides a better tax answer)
  • Use ranges to lessen chances of double taxation
  • Allow mutual agreement procedures to mitigate the risk of double taxation
  • Bilateral and multilateral safe harbors should be updated periodically to account for market changes

* The OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (2010), in Chapter IV, Section E, defines a safe harbor as “a statutory provision that applies to a given category of taxpayers and that relieves taxpayers from certain obligations otherwise imposed by the tax code by substituting exceptional, usually simpler obligations.”

Vietnam’s Ho Chi Minh City tax officials targeting enterprises which reported losses interminably while still expanding business operations

December 14, 2012

Vietnam’s Ho Chi Minh City tax officials targeting enterprises which reported losses interminably while still expanding business operations

December 14, 2012, on the heels of HMRC’s recent interest in Starbucks, Amazon, and Google, Vietnam tax authorities follow suit, investigating Coca-Cola, Adidas, and Metro Cash & Carry for potential causal linkages between transfer pricing and losses in Vietnam.

Did it take almost 2.5 years for the CRA to read the 2010 version of the OECD TP Guidelines?

December 14, 2012

Did it take almost 2.5 years for the CRA to read the 2010 version of the OECD TP Guidelines?

Apparently. CRA released Transfer Pricing Memorandum 14 on October 31, 2012, basically saying they agree with the OECD.

Irish Revenue announces transfer pricing compliance review (TPCR) guidance

December 14, 2012

Irish Revenue announces transfer pricing compliance review (TPCR) guidance

On November 26, 2012, the Irish Revenue issued guidance on how they are proposing to monitor transfer pricing compliance in accordance with Part 35A of the Taxes Consolidation Act 1997. A TPCR is a self-review performed by a company of its compliance with Irish transfer pricing legislation. It appears that the TPCR will be an effective approach for Irish Revenue to gather intelligence on the transfer pricing models that companies operating in Ireland have set up. Aside from a TPCR being a potential stepping stone to an audit, exactly how Irish Revenue will use this information remains to be seen. Regardless, Irish Revenue will become better educated and “street smart” on how the arm’s-length principle is employed in practice, with minimum effort in this learning process since the taxpayer will be the teacher.

Markups on covered services and IRS scrutiny

December 11, 2012

Markups on covered services and IRS scrutiny

I am interested to know if anyone has experienced IRS scrutiny of services markups in instances where the services are “covered services” under Rev. Proc. 2007-13, but the taxpayer chooses to markup the services using a method (e.g., the cost of services plus method, or the CPM) that provides a more favorable tax answer. Thanks.


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