By Marc M. Levey and Imke Gerdes, Baker & McKenzie, New York
This article was published in its initial form in January 2004.1 While the authors then sought to advise on the needs of consistency, among other things, for global documentation, the practice at that time generally was not centralized, and the global view of transfer pricing was met with varying views by taxpayers, their auditors, and many taxing authorities. Indeed, the global transfer pricing rules and practice at that time were much less refined.
Ten years later, the landscape has wholly changed. The Organization for Economic Cooperation and Development has issued a draft template on country-by-country reporting that has the potential to redefine not only transfer pricing documentation, but the arm's-length standard itself. While the impact of the draft template on specific countries' rules is as yet unknown, more countries have enacted documentation rules in the last 10 years, and the implementation of these rules has been more robust. Many taxing authorities view documentation as the “holy grail” and believe that the comparable firms used to benchmark the tested parties' transactions constitute far more than a mere indication of arm's-length prices—in some countries' views, this information represents the arm's-length standard itself. Auditing firms concerned for their clients' financial statements peruse this documentation in excruciating detail to verify these financial statements and recommend the necessary reserves. And, taxing authorities scrutinize every detail of not only the local documentation, but often the documentation of those entities within the relevant supply chain, in their quest for tax adjustments.
Today, as in 2004, transfer pricing documentation prepared for local regulatory compliance and penalty protection generally gives tax authorities their first impression of a multinational corporation and its transfer pricing policy. The documentation therefore must be prepared with extreme care and consideration as to how the company wishes to be perceived. The factual, economic and empirical presentation must be company-, product- and market-specific, and all unusual or unique internal and external events that affect the multinational's business, financial performance and transfer pricing must be detailed.
More today than ever before, this documentation sets the tone for how the multinational company, its culture and its market will be perceived, as well as all issues to be raised in the ensuing tax audit. The more precise and focused the documentation, the less likely a controversy will occur, and if one does so occur, the greater the opportunity to control that controversy. The more flimsy and scattered this documentation, the more likely the multinational will be inviting a controversy, and the more difficult it will be to effectively control the facts in issue.
Multinationals must prepare documentation keeping in mind that it will be reviewed by multiple taxing jurisdictions. In the United States, the Internal Revenue Service routinely seeks the documentation of all entities along the relevant supply chain—an approach also adopted by many European tax authorities. Competent authority requests and information exchanges specifically for this type of documentation are common, so that even local country documentation may have this direct scrutiny by a foreign tax authority. Inconsistencies in methods, sets of comparable firms, data and factual representations can undermine the credibility of the documentation and trigger unnecessary disputes.
Difficult transfer pricing issues likely will be the subject of increasing advance pricing agreements, which themselves constitute documentation. APAs have become popular in various jurisdictions throughout the world, particularly in the United States, Canada, the United Kingdom, Austria, the Netherlands, France, Germany, Mexico, Japan, Korea and Australia, where the process has been dominant and encouraged.
APAs also are gaining popularity in other jurisdictions. In Latin America, for example, the first APA in Colombia and Chile was completed in 2013, and it is expected that additional APAs will be issued in the region in the foreseeable future. The Australian Taxation Office seems to routinely suggest that taxpayers consider using APAs during audits to resolve transfer pricing issues. APAs most aptly address difficult circumstances, such as:
What constitutes documentation generally can be determined by reviewing:
In preparing documentation, multinationals face significant strategic decisions. First, they must identify the regions or local countries in which documentation must be prepared and determine whether one analysis will suffice for each of these regions or localities. For example, in Europe, the traditional master file may be considered. Generally, the European Union master file is a collation of a functional and economic analysis of all the multinational's European affiliates. It is anticipated that this master file will be used to produce, as needed, specific transfer pricing documentation for local country purposes. Disclosure of the entire EU master file to any one country provides more data than necessary and can open untoward issues to a controversy.6
After identifying the jurisdictions for which documentation must be prepared, the multinational must determine how much documentation and information should be provided to the tax authorities to meet various requirements and avoid any proposed tax adjustments and penalties, while avoiding added burdens and obstacles in the event that a tax controversy arises. Restricting the factual component to solely relevant facts and avoiding excess and gratuitous factual disclosure is critical. These gratuitous facts can serve only to confuse and prolong the audit process. Merely preparing documentation, whatever the format or scope, may allow a multinational to avoid penalties, but it must be observed that it is not an assurance that tax deficiencies will not be assessed. Therefore, from a documentation perspective, sometimes too much can be as problematic as too little. And too much may only serve to expand and, at times, prolong, inquiries at audit.
For example, it has been frequently observed that multinationals' functional analyses and industry descriptions all too often closely parallel the overly optimistic and marketing-oriented company statements of anticipated financial performance, market-level position and market share that is typically contained in annual reports, websites, and similar documents. Preparing documentation may not necessarily be a difficult exercise for a multinational whose financial performance has matched or exceeded these expectations, but these multinationals are not often audit targets.
For multinationals with low or varied earnings levels or recurring net operating losses, or those attempting to penetrate markets, launch new products, or rebound from recession or market impediments, these optimistic marketing statements argue against using a set of comparable firms that would support below-normal performance and may place the multinational on the defense in a tax audit or controversy. All too often, this market data is misunderstood, and thus, can become a service of controversy.
Accordingly, great care must be taken to assure that factual representations in a multinational's transfer pricing documentation are relevant, accurate, precise and concise, match the accounting, financial and benchmarked data, and do not oversell the multinational and its anticipated performance with gratuitous facts. Any specific event that may have hindered the company's performance should be highlighted and documented so that appropriate fact-based economic adjustments can be considered. Further, any non-recurring or extraordinary expenses incurred by the multinational should be reflected below operating profit on the profit and loss statement. Quality is not measured by the weight of a document.
This concern is magnified when the prepared documentation is part of a single global or regional documentation study. Here, as with the EU master file, the facts and economic analysis directly impact numerous legal entities in more than one tax jurisdiction. Further, the global view of the multinational may not accurately depict the present local market functions, risks and assets of a particular legal entity under review. Therefore, the accuracy and consistency requirement in this type of documentation can be achieved only by starting with the basic and bare minimal facts and building from there. Superlatives, gratuitous facts, and industry anecdotes are useful only if they support the ultimate transfer pricing policy and economic benchmarking. Factual representations and economic analyses should directly relate to an entity's profit and loss statements, for two basic reasons: first, the P&L statement gives tax authorities their first glance at the tested party's financial performance, and second, a functional and risk analysis can most easily be depicted by understanding how the tested party spends its money.
While documentation, whether global, regional, or local, is required as a compliance tool, it is also an asset to, and a planning vehicle for, a multinational, as well as a guideline for a review of its financial performance by one or more tax authorities. Properly prepared, it can save the multinational significant tax dollars, internal headaches, and compliance costs. Multinationals should consider their documentation not as something routine and standardized, but rather as a protective tool requiring careful analysis and judgment.
Because the United States has taken the global lead in transfer pricing and documentation arena, its documentation rules have been a model for both jurisdictions worldwide and the OECD. Under Section 6662(e), IRS may impose substantial penalties on taxpayers that:
Principal documents are those comprising the taxpayer's basic transfer pricing analysis and generally include:
Background documents typically support the principal documents. Background documents potentially include documents required under Regs. §1.6038A-3(c) (original entry books and transactions records, profit and loss statements, and pricing documents, such as invoices, shipping documents, functional analyses, and intercompany correspondence).
The authors note that the IRS issued new audit guidance in February 2014.1 The stated goal of the audit “roadmap” is to guide examiners as well as taxpayers through the two-year audit process, providing audit techniques and tools to assist with the planning, execution and resolution of transfer pricing examinations. The road map is organized along the lines of the IRS's Quality Examination Process and emphasizes three key elements: up-front planning, factual development, and a reasonable commercial result.
While the road map largely organizes and refers to existing case processing procedures, it is a work in progress. The IRS has used the approach set forth in the road map over the past year, and is has been at times productive in resolving cases. However, its initial use has not been without some difficulties, which is to be expected with new procedures. Its relevance to transfer pricing documentation is an obvious issue. The road map makes clear that it seeks robust data during the course of an audit and the authors' experience indicates that detailed functional and financial data is at the forefront. Accordingly, including any relevant data in more detail in transfer pricing documentation can only ease the fact-finding exercise of an audit.
Many countries have enacted their own documentation rules, including (among others) Argentina, Australia, Austria, Canada, Chile, China, France, Germany, Hungary, the United Kingdom, Ireland, Spain, Italy, India, Korea, Malaysia, Singapore, Vietnam, Mexico, the Netherlands, and Russia. Some of these countries' rules, as well as documentation guidelines drafted by the OECD, are described below. Notably, while these rules fairly pattern the U.S. rules, they have specific nuances that require special attention.
Taxpayers engaged in transactions with foreign related parties are required to include a detailed schedule (an international dealings schedule) with their annual returns, and indicate and evaluate whether its transfer pricing method complies with the arm's-length standard under a grading schedule and, if so, what documentation exists to support that method. The Australian Taxation Office is among the most aggressive in pursuing transfer pricing audits.
Australia's transfer pricing provisions were the subject of legislative reform in 2013. The provisions were amended by the Tax Laws Amendment (Counter Tax Avoidance and Multinational Profit Shifting) Act 2013 to modernize the transfer pricing rules contained in Australia's domestic law.
The amendments aimed to ensure that Australia's transfer pricing rules better align with the internationally consistent transfer pricing approaches set out by the OECD. In this regard, the new law requires that certain amounts (such as taxable income, particular losses, tax offsets, and withholding tax) should be worked out by applying the internationally accepted arm's-length principle. Under the new law, there is an increased focus on determining arm's-length conditions and the use of OECD guidance. The new law is contained in Subdivision 815-B of the Income Tax Assessment Act 1997.
Australia's record keeping and transfer pricing documentation rules also were amended. The preparation of transfer pricing documentation is not mandatory, but failing to do so prevents an entity from establishing a reasonably arguable position (see below).
The type of transfer pricing documentation that an entity may prepare and keep is contained in Subdivision 284-E of Schedule 1 to the Taxation Administration Act 1953. The general requirements are that the documentation:
Documentation kept in accordance with Subdivision 284-E, outlined above, is required (but may not be sufficient) to establish a reasonably arguable position. This is a distinct change from the previous law, which contained no such requirement.
If a taxpayer cannot demonstrate a reasonably arguable position, a transfer pricing adjustment made by the Commissioner of Taxation generally will result in an administrative penalty (at a minimum, a 25 percent penalty generally is imposed on the shortfall amount). Where a taxpayer can establish a reasonably arguable position, however, the Commissioner of Taxation may remit the penalty. Accordingly, there is now a distinct incentive for taxpayers to prepare and maintain contemporaneous documentation to support the position adopted.
Consistent with the OECD's approach, a taxpayer's documentation also should disclose the choices made and the prices or margins achieved by the taxpayer compared with those achieved by independent enterprises engaged in the same or similar activities. Further, the ATO's public ruling TR 98/118 notes that some of the documentation and records that have been given weight by the ATO include documentation describing:
Austrian law contains specific rules that require businesses to maintain books and records and to produce financial statements. Generally, if a person or business is obligated to keep books and records under commercial law, this obligation also exists for tax law purposes. Further, domestic tax law (Sections 124 through 132 of the Austrian Fiscal Code—Bundesabgabenordnung, or BAO) requires taxpayers to provide sufficient documentation to enable tax authorities to correctly assess the taxes. In addition, Section 119 BAO in combination with Section 138 BAO states that taxpayers are obligated to provide a higher level of cooperation with tax authorities if foreign parties are involved. Here, the taxpayer must ensure that evidence is available and provide tax authorities with the requested proof. However, Austrian law lacks rules that specifically govern the documentation requirements relating to transfer pricing. Rather, Austrian transfer pricing legislation follows the OECD guidelines, which are supplemented by the domestic guidelines on transfer pricing matters. Neither set of guidelines is binding on the taxpayer or the courts, but the OECD guidelines are used as a means of interpretation, whereas the domestic guidelines are binding on the tax authorities. Notably, the Federal Administrative Court ruled9 that transfer prices must be recorded in separate documentation if the general documentation is not sufficient to prove the transaction details and the arm's-length consideration.
In general, as far as documentation is concerned, the domestic guidelines refer to the OECD guidelines and the EU code of conduct.10 Accordingly, any documentation that is in line with those rules should satisfy Austrian requirements. Therefore, any documentation should at least provide:
The law also is silent on the timing of the documentation. The Austrian tax authorities refer to the General Fiscal Code and claim that the documentation must be in place when the corporate income tax declaration is filed.11 Accordingly, in an audit, they might take the position that they may request proper documentation without granting the taxpayer a grace period. This opinion is not covered by the law and is disputed by most scholars and practitioners. In practice, it is advisable to establish the transfer pricing documentation contemporaneously.
Section 247(2)(c) of the Canadian Income Tax Act (ITA) permits the Canada Revenue Agency to adjust amounts in non-arm's-length transactions to those that would result if the terms and conditions complied with the arm's-length standard. Section 247(2)(d) also allows the CRA to recharacterize a transaction as one between a taxpayer and a nonresident, non-arm's-length party if it would not have been entered into between persons dealing at arm's length and can reasonably be considered not to have been entered into primarily for bona fide purposes other than to obtain a tax benefit. Transfer pricing penalties may be avoided by making reasonable efforts to determine and use arm's-length transfer prices. The reasonable efforts standard will be deemed not to be satisfied unless the taxpayer prepares contemporaneous documentation before the documentation due date12 and provides this documentation to the CRA within three months of a CRA request under Section 247(4)(c) of the ITA. Subsection 247(4) of the ITA sets minimum mandatory requirements for the contemporaneous documentation that a taxpayer must make or obtain to avail itself of the exemption. Documentation in Canada must be complete and accurate in all material respects and describe:
In addition to the statutory requirements, the CRA expects the taxpayer's documentation to include:
Penalties for noncompliance may be assessed if the transfer pricing adjustment exceeds the lesser of 10 percent of gross revenue for the year or C$5 million (US$4.52 million). Additional requirements may apply for cost sharing arrangements and transactions involving intangible property.
China's documentation requirements, found in Circular 2 of 2009,13 mandate documentation for all legal entities starting in 2008 that have certain levels of related-party transactions. The documentation must be made available at the time of the tax return filing (May 31) and produced within 15 days upon request from the tax bureau.
As specified in Article 15 of Circular 2, there are three kinds of enterprises that are exempt from contemporaneous documentation:
There are four specific types of penalties to which the taxpayer will be exposed if there is no documentation:
When filing their annual returns with the tax authority under the Enterprise Income Tax (EIT) Law, both resident enterprises that pay taxes based on actual profit and nonresident enterprises that have an office or a site in China and truthfully declare EIT must enclose an Annual Statement of Related Party Business Transactions of an Enterprise in the People's Republic of China, including the following forms:
There is no exemption. All entities must file these forms with their annual tax returns.
Contemporaneous documentation is divided into five areas and 26 sub-areas and shall mainly include the following, according to Article 14:
Circular No. 363,14 also issued by the SAT in 2009, states that loss-making entities must prepare documentation if they are limited-function entities.
Circular 363 further tightens the net by stating that limited-function entities “shall not bear financial crisis, market and decision-making risks and, in keeping with the transfer pricing principle of correspondence between function/risks and profit, shall maintain a reasonable profit level.”
The Chinese tax authorities in 2003 effectively extended the statute of limitations for transfer pricing inquiries from three years to 10 years.15
Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, July 1995, and supplemented in March 1996, August and September 1997, and February 1998, and updated in July 2010.3456
Under the OECD's approach as outlined in the draft template for country-by-country reporting, parent companies would need to prepare a master file in English containing information beyond what is required by the EU master file regarding the group's major business lines, intangibles, intercompany financial activities and tax positions. The parent of a multinational group would file the template and master file with its own tax authority, and its group entities would provide copies to their local tax administrations.7189
VwGH 8.7.2009, 2007/15/0036.10
Austrian domestic transfer pricing guidelines MN 309. The “Code of Conduct on Transfer Pricing Documentation for Associated Enterprises in the European Union” adopted in June 2006 was unchanged from a November 2005 proposal, found at14 Transfer Pricing Report 603, 11/23/05.11
Austrian domestic transfer pricing guidelines MN 307 et seq.12
Defined in Section 247(1). Generally, this is the date for filing of the taxpayer's income tax return.131415
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