What are the Transfer Prices
We have tried to summarize in the following the main definitions, concepts, legislative provisions and case studies regarding transfer pricing.
Although the field of transfer pricing is characterized by subjectivity, not being an exact science, it is important to know the main legal provisions regarding transfer pricing in order to be able to apply them correctly in the operational activity and in the interactions with the tax authorities.
Those who know the law enforcement in detail will correctly implement transfer pricing policies and survive tax audits.
The Concept of Transfer Pricing
WHY CAN TRANSFER PRICING REPRESENT UNSAFE GROUND OR A RISK ZONE?
When related persons from different tax jurisdictions (from different countries, for example) carry out transactions with each other, the taxable base is reduced or increased by the respective expense or income, depending on the role fulfilled in the transaction (provider / seller or beneficiary / client).
When the prices for these transactions do not respect the arm’s length principle or the market value principle, the taxable base is, incorrectly, increased or decreased to the detriment of a taxing jurisdiction.
The tax jurisdiction where the unjustified reduction of the taxable base took place can, through fiscal controls, additionally impose the part of income not initially included in the tax base. As a result, the company verified by the tax authorities will pay additional tax and accessories.
The market value principle was introduced into Romanian tax legislation in 1994 and is applicable to all transactions with related parties, including those carried out between a foreign legal entity and its permanent establishment in Romania.
Starting from 2010, transactions between Romanian affiliated entities also fall within the scope of the transfer pricing rules, specifying that previously only transactions between Romanian entities with non-resident affiliated persons could be verified by the tax authority.
Regarding the documentation of transfer prices, although the principle of market value is present in the local tax legislation from 1994, much later – in 2008 – ANAF issued Order 222 / 2008 regarding the file of transfer prices. It is currently replaced by Order 442 / 2016 on the amount of transactions, deadlines for drawing up, content and conditions for requesting the transfer pricing file and the transfer pricing adjustment / estimation procedure.
The country profile of Romania in terms of transfer prices can be consulted here.
An arrangement that determines, in advance of controlled transactions, an appropriate set of criteria (e.g. method, comparables and appropriate adjustments thereto, critical assumptions as to future events) for the determination of the transfer pricing for those transactions over a fixed period of time. An advance pricing arrangement may be unilateral involving one tax administration and a taxpayer or multilateral involving the agreement of two or more tax administrations.
Domestic taxation laws that are intended to prevent taxpayers from avoiding tax or abusing tax laws for the sole purpose of obtaining a reduction, avoidance or deferral of tax.
The international standard that OECD Member countries have agreed should be used for determining transfer prices for tax purposes. It is set forth in Article 9 of the OECD Model Tax Convention as follows: where “conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.”
A range of figures that are acceptable for establishing whether the conditions of a controlled transaction are arm’s length and that are derived either from applying the same transfer pricing method to multiple comparable data or from applying different transfer pricing methods.
Taxation by means of either the tax authority or the taxpayer (“self-assessment”) computing tax due over a period, usually a calendar or fiscal year. In effect, the taxpayer pays tax on an income amount after the gross amount has been received, as compared to taxation by a final withholding tax where a tax amount is retained and forwarded to the tax authorities before a net amount (of dividends, for example) is paid to the taxpayer.
Two enterprises are associated enterprises with respect to each other if one of the enterprises meets the conditions of Article 9, sub-paragraphs 1a) or 1b) of the OECD Model Tax Convention with respect to the other enterprise. See Article 3 for the definition of “enterprise”.
A comparison of a controlled transaction with an uncontrolled transaction or transactions.
Controlled and uncontrolled transactions are comparable if none of the differences between the transactions could materially affect the factor being examined in the methodology (e.g. price or margin), or if reasonably
accurate adjustments can be made to eliminate the material effects of any such differences.
An adjustment in which the taxpayer reports a transfer price for tax purposes that is, in the taxpayer’s opinion, an arm’s length price for a controlled transaction, even though this price differs from the amount actually charged between the associated enterprises. This adjustment would be made before the tax return is filed.
“Competent authority” is a term used in tax conventions to identify the person who represents the State in the implementation of the treaty, as defined under Article 3 of a tax treaty. A sample clause might be:
The term “competent authority” means, in the case of Utopia, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of Ruritania, the Minister of Finance or an authorised representative of the Minister.
The competent authority has certain specific functions under the treaty, including acting as a contact point for both taxpayers and the other competent authority in Mutual Agreement Procedures. Sometimes there are different competent authorities for different functions under the treaty.
Transactions between two enterprises that are associated enterprises with respect to each other.
A term used in the transfer pricing context. An adjustment that creates an increase or decrease in the tax imposed on one member of the group of controlled taxpayers correlating to the “primary adjustment” made in respect of another member of the same group. The adjustment may be to the income of the group member or to an allowance of relief under a foreign tax credit or exemption mechanism. This term is generally seen as interchangeable with the term “corresponding adjustment”, although when speaking of a particular monetary adjustment, some prefer to refer to “correlative adjustments”.
An adjustment to the tax liability of the associated enterprise in a second tax jurisdiction made by the tax administration of that jurisdiction, corresponding to a primary adjustment made by the tax administration in a first tax jurisdiction, so that the allocation of profits by the two jurisdictions is consistent.
“Economic double taxation” is where two different legal persons are taxed on the same income or other taxable item by more than one State. This may occur, for example where two States take different views of the profits made in transactions between a subsidiary resident in one of the States in its transactions with a parent company in the other State, so that at least some part of the profits on the transaction are taxed in both States.
The Model Tax Convention does not often deal with economic double taxation, but Article 9 seeks to address aspects of this sort of double taxation of related entities. As noted by the Commentary on Article 10, at paragraph 40 certain States’ domestic tax laws and treaty practice seek to avoid or mitigate economic double taxation caused by the simultaneous taxation of the company’s profits at the level of the company and of the dividends at the level of the shareholder. Compare “juridical double taxation”.
The method of relieving double taxation under Article 23A of the OECD Model Tax Convention.
Under this method, where a resident (“R”) of one of the treaty partner States receives an amount that may be taxed in the other treaty State (which we can call for these purposes the “source State”) under the tax treaty, the residence State must, when taxing R, exempt that amount from residence State taxation. In other words, R will not have to pay any tax to the residence State on the amount where the source State may levy tax under the treaty, whether or not it actually does so. This is the principle under paragraph 1 of Article 23A.
Paragraph 2 provides an exception, however in that where amounts are only liable to source State taxation to a limited extent under Article 10 (Dividends) or Article 11 (Interest), the State of residence need only give a credit, rather than an exemption in respect of that amount. Paragraph 4 provides an exception to the general exemptionprovision in paragraph 1. It provides that that obligation does not apply in certain circumstances where to apply it would result in double non-taxation as a result of different approaches to the application of the treaty which are both consistent with the meaning of the treaty.
This system of tax exemption deals with avoidance of “juridical double taxation”, where the person liable to the residence State taxation is the same person liable to the source State taxation.
Article 23A does not provide for a “full exemption” system, but is rather, an “exemption with progression” system (Paragraph 3). This means that although an amount which may be taxed in the source State is exempt in the residence State, the residence State is still allowed to take that amount into account when determining the amount of tax that the resident must pay on his or her other (that is, non-exempt) income. For example, the income may be taken into account as received in order to decide what marginal tax rate applies to the other income.
A credit given for foreign tax in calculating the amount of tax to be paid in a person’s country of residence. In effect, a taxpayer need not pay residence country tax on the income where the source country of the income taxes that income to an equal or greater degree. Where the residence country tax is higher, the amount of foreign tax is deducted from the amount of local tax otherwise to be paid. This avoids double taxation where, as is often the case, a tax treaty allows both the source and residence country some taxing rights.
An analysis of the functions performed (taking into account assets used and risks assumed) by associated enterprises in controlled transactions and by independent enterprises in comparable uncontrolled transactions.
Two enterprises are independent enterprises with respect to each other if they are not associated enterprises with respect to each other.
“Juridical double taxation” occurs where the same legal person is taxed twice on the same income or other taxable item by more than one State. A common situation is where the source country taxes a payment as it flows to a person (by dividend or interest withholding tax, for example, which is in effect a tax on the recipient collected by a withholding agent such as the company paying the dividend) and the residence state of the recipient also taxes that person on the same item as part of his or her worldwide income. The division of taxing rights in the Model Tax Convention, when combined with the effect of Article 23 is designed to prevent such juridical double taxation as far as is possible. Compare “economic double taxation”.
See mutual agreement procedure.
A group of associated companies with business establishments in two or more countries.
A company that is part of an MNE group.
A means through which competent authorities consult to resolve disputes regarding the application of double tax conventions. This procedure, which is described and authorized by Article 25 of the OECD Model Tax Convention, can be used to eliminate double taxation that could arise from a transfer pricing adjustment, but can also be relevant for other aspects of a tax treaty’s operation. In the case of MAP relating to transactions between associated enterprises, see also Article 9, especially paragraph 2.
The Model Tax Convention on Income and Capital published by the OECD, as amended from time to time. The OECD Model Tax Convention includes Commentaries on the articles of the Model. The OECD Model Tax Convention serves as a model for the negotiation of bilateral tax treaties between countries. Copies are available for sale at the OECD website.
The Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations first published by the OECD in 1995, as amended from time to time. The Guidelines provide guidance on the use of the arm’s length principle to determine transfer pricing between associated enterprises. Copies are available for sale at the OECD website.
Term given definition by Article 5 of the OECD Model Tax Convention, and used to determine whether the business profits of a resident enterprise [H/L] of the treaty partner may be taxed under Article 7 in the other treaty partner. As Article 7 makes clear, the amount of business profits so taxable, is the amount attributable under that Article to the permanent establishment. The PE test is broadly a test of whether there is the minimum economic connection necessary to justify source State taxation of such business profits under the tax treaty.
There are generally two aspects required for there to be a PE, a relationship to a particular place (the geographical aspect) and a presence for a particular point of time (the temporal aspect). There are, however, special rules for some types of PEs under the OECD Model Tax Convention, such as “construction” PEs, where the temporal period required is more than 12 months, and certain PEs constituted by “dependent agent” arrangements, where no time period applies. There are also some exclusions under the OECD Model Tax Convention, presences which are specifically stated not to be PEs, such as activities related solely to storage, display or delivery of goods or merchandise or other so-called “preparatory or auxiliary activities”.
Sometimes the term “permanent establishment” is used in domestic tax legislation as well, but it may not have exactly the same meaning as in the tax treaties.
An adjustment that a tax administration in a first jurisdiction makes to a company’s taxable profits as a result of applying the arm’s length principle to transactions involving an associated enterprise in a second tax jurisdiction.
In the transfer pricing context, this term refers to the act by which an enterprise that has been party to a controlled transaction with an associated enterprise and has been found, in accordance with a transfer pricing adjustment, to have derived as a result of that transaction an amount of income that exceeds an arm’s length amount, returns the excess funds to its associated enterprise.
The residence State is the country where a person is resident under the treaty at the relevant time. In international tax law, this is a basis for taxation of the global income of the resident. See the text of Article 4, and its explanation, for more on treaty residence.
An adjustment that arises from imposing tax on a secondary transaction in transfer pricing cases.
A constructive (that is, notional) transaction that some States assert under their domestic transfer pricing legislation after having proposed a primary adjustment in order to make the actual allocation of profits consistent with the primary adjustment. Secondary transactions may take the form of constructive dividends (that is items treated as though they are dividends, even though they would not normally be regarded as such), constructive equity contributions, or constructive loans.
A simultaneous tax examination, as defined in Part A of the OECD Model Agreement for the Undertaking of Simultaneous Tax Examinations, means an “arrangement between two or more parties to examine simultaneously and independently, each on its own territory, the tax affairs of (a) taxpayer(s) in which they have a common or related interest with a view to exchanging any relevant information which they so obtain”.
The State where, for the purposes of a treaty, a taxable amount is regarded as arising. As rules in domestic law about where an amount arises differ (e.g. some might look to where the profits that become a dividend are made as the source of a dividend, whereas others may look to the State from which the dividend is paid, the Model Tax Convention often provides implied or specific rules.
For example, a State A – State B tax treaty, if it was based on the OECD Model Tax Convention, would allow State B as the source State to impose a limited withholding tax on dividends paid by corporations resident in State B to residents of State A (see Article 10), but would prohibit State B from imposing a tax on dividends paid to a resident of State A by a corporation resident in State C, even if those dividends were paid out of profits earned by the corporation in State B (see Article 21).
Source States may, under general international tax law, tax income sourced in that State. The residence State may then provide an exemption or a credit for tax paid in the source State under domestic law. A tax treaty often limits or prevents source State taxation, and also generally provides that the residence State must give a credit or exemption for tax paid in the source State under Article 23. Compare “residence State”.
Tax on an item of income imposed in the State wherein that income is derived, or tax on an item of capital imposed in the State wherein that capital is situated. Many Articles of the Model Convention provide for an exemption from, or a reduction of, such “source” tax on certain items of income or capital.
The participants in a controlled transaction that is the party by reference to whom a particular transfer pricing method is applied.
The terms and conditions applying in transactions between associated enterprises.
An adjustment to the tax liability of an enterprise when a tax jurisdiction applies the arm’s length principle to transactions between associated enterprises in a transfer pricing case. See “primary adjustment” (by the initial tax jurisdiction), “corresponding adjustment” (by the jurisdiction of the other associated enterprise) and “compensating adjustment” (reported by the taxpayer based on the arm’s length principle though it differs from the actual terms and conditions of the transaction). See also a “secondary adjustment” (an adjustment arising from taxing certain notional transactions).
The methods used to make transfer pricing adjustments. The following is a list of methods and terminology used in transfer pricing:
- Comparable uncontrolled price (CUP) method: A transfer pricing method that compares the price for property or services transferred in a controlled transaction to the price charged for property or services transferred in a comparable uncontrolled transaction in comparable circumstances.
- Cost plus mark up: A mark up that is measured by reference to margins computed after the direct and indirect costs incurred by a supplier of property or services in a transaction.
- Cost plus method: A transfer pricing method using the costs incurred by the supplier of property (or services) in a controlled transaction. An appropriate cost plus mark up is added to this cost, to make an appropriate profit in light of the functions performed (taking into account assets used and risks assumed) and the market conditions. What is arrived at after adding the cost plus mark up to the above costs may be regarded as an arm’s length price of the original controlled transaction.
- Profit split method: A transactional profit method that identifies the combined profit to be split for the associated enterprises from a controlled transaction (or controlled transactions that it is appropriate to aggregate under the principles of Chapter I of the OECD Transfer Pricing Guidelines) and then splits those profits between the associated enterprises based upon an economically valid basis that approximates the division of profits that would have been anticipated and reflected in an agreement made at arm’s length.
- Resale price margin: A margin representing the amount out of which a reseller would seek to cover its selling and other operating expenses and, in the light of the functions performed (taking into account assets used and risks assumed), make an appropriate profit.
- Resale price method: A transfer pricing method based on the price at which a product that has been purchased from an associated enterprise is resold to an independent enterprise. The resale price is reduced by the resale price margin. What is left after subtracting the resale price margin can be regarded, after adjustment for other costs associated with the purchase of the product (e.g. customs duties), as an arm’s length price of the original transfer of property between the associated enterprises.
- Traditional transaction methods: The comparable uncontrolled price method, the resale price method, and the cost plus method.
Transactional net margin method: A transactional profit method that examines the net profit margin relative to an appropriate base (e.g. costs, sales, assets) that a taxpayer realizes from a controlled transaction (or transactions that it is appropriate to aggregate under the principles of Chapter I of the OECD Transfer Pricing Guidelines).
- Transactional profit method: A transfer pricing method that examines the profits that arise from particular controlled transactions of one or more of the associated enterprises participating in those transactions.
A transfer pricing term for transactions between enterprises that are independent enterprises (that is, that are not “associated enterprises”) with respect to each other.
As part of the MAP process, one competent authority provides relief from double taxation or taxation not in accordance with the treaty. This unilateral relief can be by way of one competent authority withdrawing its initial adjustment or by the other competent authority providing a correlative adjustment.