Трансфертное ценообразование – весьма актуальная, даже горячая тема, причем в этом институте могут скрываться подводные камни, опасные для налогоплательщиков. Вопросы, связанные с трансфертным ценообразованием, освещаются и в настоящей публикации, причем особое внимание автор уделяет новеллам в этой области. Хотя бремя доказывания несут налоговые органы, налогоплательщики обязаны обеспечивать их достаточной документацией для оценки соответствия условий контролируемых операций принципу “вытянутой руки”. Особенно интересным является исследование положений Руководства Организации по экономическому сотрудничеству и развитию (ОЭСР) о трансфертном ценообразовании для транснациональных корпораций и налоговых органов (Transfer pricing guidelines for multinational enterprises and tax administrations) 2010 года, в частности, положений Главы V, пересмотренной в 2014 году и доступной по гиперссылке: http://dx.doi.org/10.1787/9789264219236-en.
Business within Ukraine is challenging not only due to political and economic struggles, but also because of continuous changes in business regulation rules. Transfer pricing is one of the most crucial and unexpected issues.
Being a pre-stage for assessment of transfer pricing risk by the tax authorities, the transfer pricing report and documentation are very important for taxpayers. The contents of the documentation are the key factor for making a decision whether to launch a full audit of controlled transactions.
Article 39 of the Tax Code of Ukraine (hereinafter — TCU) specifies the requirements for the transfer pricing report and documentation.
New changes regarding reporting
Under the new rules, which came into force on 13 August 2015, the value criterion of controlled transaction increased to UAH 5 million. Thus, every taxpayer, participating in the controlled transactions, is obliged to deliver a report, providing information about all related persons who are counteragents to the controlled transactions as well as about the persons or entities, who obtain a share of 20 or more percent in the taxpayer’s capital. This provision is specified in the new version of the Article 39 of the TCU, which, until 1 January 2015, obliged to disclose all related parties regardless of their participation in the controlled transactions with the taxpayer. The due date for report delivery is 1 May.
Furthermore, the changes influenced the reasons for audit of the controlled transactions by the tax authorities, for instance, proper submission of the report is not a ground for audit after the publication of Act of Ukraine of 15 July 2015 No. 609-VIII, amending the TCU.
Unfortunately, the proposed term of limitation of 3 years for the purposes of transfer pricing issues was not approved and the term remains 7 years.
The penalties for failure to submit the report is 300 minimum wages (approximately USD 12,000 as of August 2015) and for the failure to record all controlled transactions in the re- port — 1% of the amount of the omitted controlled transactions, but not more than 300 minimum wages (instead of 100 minimum wages and 5% of the amount, respectively). The penalty for failure to submit transfer pricing documentation remains 3% of the amount of the controlled transactions, limited at 200 minimum wages.
The other kind of reporting is filing an appendix to the corporate income tax return demonstrating an adjustment of tax base, except for decrease. Under the new rules, no adjustments for value added tax is available. Nevertheless, the conditions of VAT adjustment were not clearly established, which made it unenforceable.
The information anticipated
The tax authorities carry the burden of proof. Notwithstanding, the taxpayer must provide information for risk assessment. Knowing the purpose of filing the documentation, taxpayer could ensure sufficient reasoning of using specific method, rational for functional analysis, and, consequently, compliance with the arms-length principle.
Ukrainian legislation obliges a taxpayer to file transfer pricing documentation within one month from receipt of the request. The request may be delivered only after 1 May of the year following the reporting year. In practice, some requests were submitted before the due date, which cannot justify a failure to provide a response, but could be a reason to deliver the documentation within one month from 1 May. An additional request can be made in cases when no relevant reasoning is provided or information, specified in the TCU, is not fully manifested. The term to submit additional documentation is 30 days.
The aforementioned liability for failure to submit transfer pricing documentation can be imposed if no answer for the first request is provided or information is not fully manifested after the additional request. In fact, the real damage may occur as a result of adjustments of tax base by the tax authorities. Apart from increased amount of tax, the taxpayer will be obliged to pay at least 25% of underpaid tax plus interest penalties, which are also significant — 36% per year.
The term for submission of documentation after obtaining the request is not enough, thus, all the documents must be provided while or upon the performance of the controlled transaction. It may also include documents that can be drafted only for tax purposes and would not be filed in the standard business practice. Furthermore, the information kept by the foreign related party may be unavailable or obtained within a considerable period of time. The taxpayer must also provide a proper certified translation of the documents into Ukrainian.
Under the TCU, all relevant properly certified primary documents must be provided on request. Furthermore, certain information can be contained in one or more documents: information about related parties, organizational and functional structure of a group, description of its activity and transfer pricing policy, the circumstances that influence the pricing, the characteristics of the production or services, functional and economic analysis, including the methods applied and profitability gained, the results of comparability analysis and adjustments. There are no specific requirements to the form, therefore statistical data can be performed in schemes or diagrams.
Under the TCU, the sources of information and the methods used by a taxpayer are mandatory for the tax administration if they are in compliance with the TCU (see subparagraph 39.3.2.1, 39.5.2.11 and 39.5.3.2 of the Article 39 of the TCU). Nevertheless, the tax authorities can prove that the information is not relevant or sufficient, or the methods do not prove the compliance of arm-length principle, and therefore, apply different sources and methods. That is the reason why the documentation should contain all the sources of information used and the grounding for giving preference to certain sources. The justification that there was no contradicting information, reasonably available at the time of transaction, would ground the taxpayer’s position. If there is no information available from the foreign related party due to the legislation of its state, the relevant provisions should be stated. In cases of long-term transaction, information can be inaccessible at the moment of the documentation’s filing. Such circumstance should be emphasised in documentation as well.
It should be mentioned that only the State Fiscal Service of Ukraine (the highest tax authority of Ukraine) can make a request. It means that any request from local tax authorities can be left without response and no penalties will occur. The request is required to specify the controlled transactions, documentation of which must be submitted. Nevertheless, if the last requirement is not met, the failure to respond to such request may be assessed by court as an infringement.
The OECD Guidelines
The Ukrainian version of the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations of 2010 is posted on the official web-site of the State Fiscal Service of Ukraine. The Guidelines are not binding and are applied as recommendations.
The new version of Chapter V of the mentioned Guidelines, regarding transfer pricing documentation, is provided in the Guidance on Transfer Pricing Documentation and Country-by-Country Reporting published in 2014 (available at http://dx.doi.org/10.1787/9789264219236-en).
Paragraph 3 of the new version of Chapter V stipulates that despite the complication and costs incurred by the taxpayer for complying with documentation requirements, “tax administrations often find transfer pricing documentation to be less than fully informative and not adequate for their tax enforcement and risk assessment needs.” Therefore, there is a tendency to foster a decrease in the tax burden on the taxpayer during filing of the report and documentation. The most significant rule is stated in paragraph 14: “It must be recognised, however, that it would be unduly burdensome and inefficient for transfer pricing documentation to attempt to anticipate all of the information that might possibly be required for a full audit.”
Therefore, the principle is a result of the previous statement: “Where a taxpayer reasonably demonstrates, having regard to the principles of these Guidelines, that either no comparable data exists or that the cost of locating the comparable data would be disproportionately high relative to the amounts at issue, the taxpayer should not be required to incur costs in the search for such data.” (see paragraph 28)
Under Chapter V of 2014, in order to achieve global reporting and balance between the interests of the tax authorities and taxpayers, countries should adopt a standardised approach to transfer pricing documentation that consists of a three-tiered structure:
— a master file containing standardised information relevant for all MNE group members;
— a local file referring specifically to material transactions of the local taxpayer; and
— a country-by-country report containing certain information relating to the global allocation of the MNE’s income and taxes paid together with certain indicators of the location of economic activity within the MNE group.
In this context, para. 18 states: “For the purposes of producing the master file, information is considered important if its omission would affect the reliability of the transfer pricing outcomes.” At the same time, there are no specific requirements. Thus, this test can be completed under specific circumstances when the importance of the information is obvious.
As we can see, the OECD Guidelines do not contain specific rules, but some fundamental principles stipulated therein can be useful.
Unfortunately, being aware of the notorious operating principles of the Ukrainian tax authorities, we cannot deny the risk of being unreasonably accused of non-compliance with the requirements of transfer pricing. The bigger the sum of the transaction the greater the chances that this situation will occur. Nevertheless, with thorough preparation and solid reasoning in proper time, a taxpayer has an opportunity to protect his/her rights.
Автор: Yuliia N. Lavrekha
Источник: http://www.ujbl.info/article.php?id=664