Penalties on Transfer Pricing Adjustments
The penalties on adjustments of transfer prices follow a similar pattern but lie in a broad range regarding their severity. In most cases, the penalties on a transfer pricing adjustment are expressed as a percentage of unpaid tax or of the transfer pricing adjustment itself. About half of the countries apply a percentage of less than 100% of additional tax with Austria (2%), Denmark (surcharge of about 6%), and Vietnam (10%) being the countries with the lowest rates. The other half imposes penalties of at least 100%, Argentina of even 400%. Five countries (Canada, Finland, Greece, Poland, and Spain) use the transfer pricing adjustment as the base of the penalty, thereby applying a special tax rate on the additional income. The rates range from 10% in Canada and Greece to 50% in Poland. In many countries, a higher percentage applies to cases where transfer prices were fraudulently manipulated. Some countries even limit the imposition of penalties to cases of fraud (e.g. Russia or Switzerland).The applicable percentages are at least doubled, ranging between 20% in Russia and 1,000% in Argentina. However, it has to be mentioned that many countries allow for a reduction in penalties on the adjustment if sufficient documentation exists.
Penalties on Documentation
Penalties on documentation also vary significantly. For 4 out of the 44 considered countries, it is known that no documentation penalties exist (e.g. Australia, Japan, and the United States). But many countries impose penalties on wrong, late or missing documentation. The penalties either amount to a fixed monetary amount, to a percentage of unpaid tax or to another specific factor as defined in the 18 national tax code. 16 countries impose a fixed fine which lies between RON14,000 (~USD3,900) in Romania and ARS450,000 (~USD150,000) in Argentina. The Latin American countries tend to express monetary fines in tax units (e.g. Peru, up to 30TU with 1TU=~USD1,000). The value of a tax unit is defined in the tax law and is adjusted according to inflation. Eight countries (e.g. Belgium, Brazil, and the United Kingdom) impose a penalty on the transfer pricing adjustment only if no documentation exists. The percentage ranges between 45% in Malaysia and 225% in Brazil. The distinction between documentation and adjustment penalties is rather difficult in this case, but generally, adjustment penalties are also applicable if full documentation exists. There may be a reduction regarding the quality of the provided information, but it is not only imposed if no documentation exists. Some countries define other specific measurements for documentation penalties, for example, a percentage of the transaction value for which the information is wrong or missing (e.g. Brazil and Colombia). A very interesting approach is chosen by Denmark where the penalty amounts to 200% of costs saved by not preparing documentation. It is questionable how saved costs should be calculated and so far - although introduced in 2006 - no guidance exists on that behalf.
Statute of Limitations
The statute of limitations defines the time period during which tax authorities can undertake reassessments of the tax liability. It is therefore also part of transfer pricing regulations as it prescribes how long documentation has to be kept or how long changes can be made to transfer prices applied in intercompany transactions. Table A6 provides an overview of national regulations on statutes of limitations. It shows that most countries (28 out of 44 countries) use the tax year end or the end of the year in which the tax return has been filed to determine the beginning of the statute of limitations. The remaining countries apply the date of the filing of the return. In order to compare the duration of the statute of limitations, it is assumed that the end of the filing year is one year after the end of the tax year. The survey then shows that the great majority of countries applies a duration of up to five years (34 countries), the shortest time period being two years (e.g. Colombia, India, France, or Russia). The longest statutes of limitations are prescribed by Australia (unlimited), the Czech Republic, Switzerland (both 15 years), and Austria (10 years). It has to be noted that the four countries that have amended their regulations on the statute of limitations have reduced the duration (Austria, Belgium, Czech Republic, and Indonesia). 13 countries apply a longer duration of the statute of limitations for cases of fraud. The interval is usually at least doubled, with four countries even applying an unlimited time period (i.e. Indonesia, Malaysia, Ukraine, and the US). The Netherlands are the only country which prescribes a specified statute of limitations for foreign income (i.e. 12 years, compared to 5 years for other income).
Advance Pricing Agreements
In the course of the application of transfer pricing regulations, disputes may arise between taxpayers and tax authorities. An adjustment of transfer prices by one jurisdiction can lead to double taxation a the other jurisdiction may not always agree with the adjustment. Thus, several approaches exist in order to prevent double taxation and minimize transfer pricing disputes which the OECD has outlined in its Transfer Pricing Guidelines
In an advance pricing arrangement (APA), a set of characteristics for controlled transactions is determined in advance and for a fixed period of time. Some countries offer unilateral APAs that are concluded between the taxpayer and the tax administration in the same jurisdiction and do not take other parties into account. But since unilateral APAs also affect the tax liability of the related party, there may still be a need for an agreement procedure. Therefore, bilateral or multilateral APAs are more favourable. In those cases, taxpayers of at least two jurisdictions negotiate with the responsible tax administrations and identify a transfer pricing strategy that is more equitable to all participants in the agreement. Such arrangements reduce the risk of double taxation and lead to a greater certainty in international trade, which is supported by the result of a survey conducted by Ernst & Young, where 90% of multinationals that have entered into advance pricing agreements indicated that they would use them again.
ÔNG KẺ DỊCH RỒI KẺ CÁI BẢNG NÀY RA NHA, SỬA 2009 THÀNH 2013
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