Thailand moves to apply VAT to foreign digital services

Thailand Moves to Apply VAT to Foreign Digital Services

By Varapa Aurat (Consultant, Tilleke & Gibbins, Thailand) & Natthanit Mallikamal (Consultant, Tilleke & Gibbins, Thailand)

The rise of global digital economies has introduced uncertainties and exposed many loopholes in our existing tax system, with the most significant issues being the difficulties in collecting tax from those conducting digital activities without a physical presence in a jurisdiction. Thailand has long considered reforming its traditional tax system to better cover the digital economy and digital transactions, believing that foreign companies engaged in the same transactions in Thailand as local companies should also pay tax to the country. This includes value added tax (VAT) on the provision of digital services.Continue Reading

Maldives promulgates its first Transfer Pricing Regulation

The Maldives Promulgates its first Transfer Pricing Regulation

By Husam Shareef (Partner, CTL Strategies, Maldives)

On June 10, 2020, the Maldives tax administration, Maldives Inland Revenue Authority (MIRA), issued the country’s first transfer pricing regulation. The Regulation is made pursuant to the new Income Tax Act, which came into effect from January 1, 2020. The Regulation sets out the rules to be followed by enterprises that are required to maintain transfer pricing documentation and stipulates the criteria which exempt enterprises from maintaining such documentation. The Maldives has had a corporate tax regime since July 18, 2011, however, this is the first time that taxpayers are required to follow a specific transfer pricing documentation requirement.Continue Reading

Worst of both worlds: A case against digital services tax in Brazil

Worst of both worlds: strong reasons why the digital services tax should not be implemented in Brazil

By Maurício Barros (Partner at Gaia Silva Gaede Advogados in São Paulo, former Taxpayer-Appointed Judge at the São Paulo Taxes and Fees Court – TIT/SP (2014-2019) and a former Visiting Professor at the Getulio Vargas Foundation and at the Mackenzie Presbiteryan University) & Luiz Guilherme de Medeiros Ferreira (Tax lawyer, São Paulo and Member of the Tax Litigation Commission at the Brazilian Bar Association)

Amid the covid-19 pandemic and the imminent financial crisis of companies, Draft Bill (DB) 2358/2020, drafted by Deputy João Maia, is making its way through the Brazilian Congress. If it becomes law, it will institute a digital services tax (DST) in Brazil, like similar taxes levied in other countries.Continue Reading

India-Mauritius Tax Treaty Benefits Denied – Controversy Continues

India-Mauritius Tax Treaty Benefits Denied – Controversy Continues

By Nishit Parikh (Partner, Sudit K Parekh & Co LLP, India)

India-Mauritius Tax Treaty has had its fair share of controversy in India. This saga continues even today, as recently Authority for Advance Ruling (‘AAR’) in India rejected a Foreign Private Equity player’s claim for Tax Treaty benefit considering the entire arrangement to be for tax avoidance.Continue Reading

Irish tax guidance on transfer pricing correlative adjustments explained

Irish Revenue Issues New Guidelines on Article 9 Correlative Adjustment Claims

By Catherine O’ Meara (Partner, Matheson, Dublin) 

The ability to claim relief from double taxation for transfer pricing adjustments is increasingly important as taxpayers face audits worldwide.  The Irish Revenue Commissioners (“Revenue”) have recently issued new guidelines for taxpayers seeking correlative adjustments (“CA Guidance”) in Ireland for transfer pricing adjustments by tax treaty partner jurisdictions. Continue Reading

Digital levy proposed in Brazil amid pressing budget: introducing or increasing digital taxation?

Digital levy proposed in Brazil amid pressing budget: introducing or increasing digital taxation?

By Luís Eduardo Schoueri (Full Professor of Tax Law at University of São Paulo & Senior partner at Lacaz Martins, Pereira Neto, Gurevich & Schoueri Advogados) & Mateus Calicchio Barbosa (PhD Candidate and M.Sc. at University of São Paulo & Tax partner at Lacaz Martins, Pereira Neto, Gurevich & Schoueri Advogados)

It is said that in every crisis lies an opportunity. If the quote means that possibilities may emerge, in the tax realm taxpayers also have a new momentum to the danger component of the notion. In Brazil, outdated – not to say dangerous – tax alternatives have been put on the table to meet the recent budgetary needs. Certain wealth and capital taxes on both companies and individuals, despite previous and frustrated propositions since mid-90s, have been discussed while the government seeks a way out of an unprecedented public debt in the years to come.Continue Reading

Significant economic presence: Nigerian perspective

Significant economic presence: Nigerian perspective

By Kelechi Ugbeva (Managing Partner, Blackwood & Stone, Nigeria)

Existing global tax rules such as, the arm’s length principle and principle of physical presence may not be robust enough to accommodate the peculiarity of digital activities and digital taxation. To this end, the OECD has come up with a few proposals on how digital activities may be taxed. Continue Reading

Equalisation Levy in India

Equalisation Levy in India

By Lokesh Shah (Partner, L&L Partners, New Delhi) & Devashish Poddar (Advocate, L&L Partners, New Delhi)

Technology, considered as a factor of production, has virtually been adopted in all sectors of the economy in order to enhance productivity, enlarge market reach, and reduce operational costs.  The adoption of technology is demonstrated by the spread of broadband connectivity in businesses, which in almost all countries of the Organisation for Economic Co-operation and Development (“OECD”) is universal for large enterprises and reaches 90% or more even in smaller businesses.Continue Reading

Draft Bill proposes a Digital Service Tax in Brazil

Draft Bill proposes Digital Service Tax in Brazil

By Ramon Tomazela Santos (Partner, Mariz de Oliveira e Siqueira Campos Advogados)

The taxation of large technology companies has been at the center of the global debate in recent years, as their disruptive business models allows the exploitation of the market of a country without a physical presence. The underlying assumption surrounding the debate is that the application of current tax rules to companies operating in the digital economy has led to a misalignment between the place where profits are taxed and the place where value is created, due to the growing relevance of interaction and engagement with a user base for digital business.Continue Reading

Customs valuation and related party transactions

Customs Valuation and Related Party Transactions

By Shilpa Goel (Tax Lawyer, India)

I am currently working on a case that involves questions of huge significance when it comes to related-party transactions and customs valuation. It is always good to begin with a caveat and I have two. The first is that the import in question pertains to the years 2002-2006, when the Indian custom valuation rules were somewhat different (from what they are now). The second is that I will not comment on the exact merits of the case but provide a broad overview of the legal and practical side of things.Continue Reading

How international tax landscape changes in India from April 1, 2020

How international taxation landscape changes in India from 1 April 2020

By Ritu Shaktawat (Partner, Khaitan & Co, India) Raghav Kumar Bajaj (Principal Associate, Khaitan & Co, India)

India’s Union Budget for the fiscal 2020-21 was announced in February 2020 and the tax proposals, after undergoing some important changes, were approved by the Indian Parliament and received Presidential assent on March 27, 2020. With this, the annual exercise of amending India’s tax law was completed, and the tax changes are effective from April 1, 2020.

On the tax front, some significant amendments have been made – such as widening the scope of digital tax, abolition of dividend distribution tax, more stringent tax residency rules for non-resident Indians etc.

We have analyzed here the key international tax changes impacting non-residents (MNEs and others having Indian business or nexus).Continue Reading

Brazilian TP Reform: Can We Have the Full First World Package?

By Luis Schoueri (University of Sao Paulo; Lacaz Martins, Pereira Neto, Gurevich & Schoueri Advogados) 

Introduction

There is no divine truth about what the Arm’s Length Standard (ALS) actually means. Its content can only be determined by a decision, which can be reached by a court or by means of political consensus. There is no international tax court with jurisdiction to promote harmonization among countries on the content of the ALS and all efforts in this direction are made by means of negotiation. Such decisions affect not only the extent to which double (non-)taxation will be avoided, but also concern the country to which income is allocated, which may render the issue controversial where countries present distinct patterns of capital in- and outflow[1].

The OECD has been responsible for consolidating some degree of consensus around the content of the ALS in the last decades. More than merely clarifying the meaning of an expression, it has adopted an evolutionary approach towards the ALS, often leading academics to perceive the outcomes as going way beyond the original intent of the standard[2].  It has promoted flexibility where comparables are not available and offered the theorization necessary to fill the gaps where the application of the standard was not immediate.

Parallelly, Brazil has gone its own way, designing a system which is much simpler than the OECD counterpart – for the good and for the bad. This simplicity seeks to strike a balance between preventing double taxation and ensuring ease of administration, considering the Brazilian institutional capacity – e.g. the available personnel vis-à-vis the size of our economy. The abrupt abandonment of the current system, suggested by a Joint Report of the Brazilian tax authorities (RFB) and the OECD[3] (hereinafter, the “Joint Report”) is expected to significantly increase uncertainty, punishing taxpayers in case a controversy arises, by means of practices that are not as progressist as one would expect from the intended reform.

Shifting gears in the Brazilian transfer pricing policy

In the 1995 Guidelines, following US legislative reforms[4], the OECD opened the path towards profit methods, which would afterwards become prevalent in transfer pricing practice. Indirect methods were incorporated into the Guidelines as measures of last resort, after years of discussions on whether they could be considered ALS-based in the first place. The Guidelines also provided important theorization on the remuneration of assets, risks and functions, which would become central to the evolution of the standard in subsequent years.

In 1996, Brazil enacted its first TP legislation, whose essential features have remained the same ever since[5], in spite of relevant improvements which have clearly reduced tax litigation initially observed in the country. The Brazilian transfer pricing methods are all inspired on the traditional transactional methods, but they adopt sectorial fixed margins instead of demanding the identification of comparables, and functional analysis is present only to a very limited extent[6]. Commodities are subject to a control based on publicly traded prices. No profit method is possible and the issue of intangibles is dealt with by means of significant restrictions to royalty deductions[7] – which have put tax authorities in the very comfortable position of not having to provide answers to the most complicated TP issues, but also have rendered the system particularly obsolete in the long run.

Despite the significant differences with the OECD Guidelines, it is a huge misconception to regard the Brazilian approach as a methodology of formulary apportionment. The Brazilian legislation does not take global profits into account: all existing methods are one-sided. The sectorial margins are intended to imitate the behavior of independent parties and, at the same time, grant certainty and practicability both to taxpayers and tax authorities. It is even inspired by the 1995 Guidelines, in the sense that it adopts simplified versions of the traditional methods. As far as Brazilian tax authorities and Brazilian treaty partners are concerned, the Brazilian system has been deemed as an ALS-based one during the last twenty years for the purpose of applying Article 9 of the signed treaties – which do not include an equivalent to Art. 9(2) of the OECD-MC.

In 2010, with widespread application of the TNMM, the Guidelines followed practice and acknowledged that profit methods were no longer methods of last resort[8]. Indirect methods progressively left the periphery and finally reached the center of the TP system, with further detail on its application. A year later, the UN Committee of Experts on International Cooperation in Tax Matters published the “Practical Manual on Transfer Pricing for Developing Countries”[9]. The Brazilian approach is described therein as an ALS-based approach. The document is much more aimed at presenting miscellaneous alternatives on the ALS than properly at reaching a more refined consensus on the topic. Instead of aiming at convergence, the Practical Manual gives space for countries to present divergent practices. The Practical Manual is not intended to pose itself as an antagonist to the OECD Guidelines. Being included therein has not attenuated the Brazilian isolation, as no country seem to have adopted something similar to the fixed margins.

In 2015, the BEPS Project brought the ultimate relativization of the need for comparables, enthroning the allocation of profits pursuant to “value creation” as the theoretical goal to be pursued by transfer pricing rules. Value chain analysis is now central and justifying individual transactions does not seem to cut it anymore. The allocation of residual profits under profit split methods is perhaps the most controversial outcome of the new ALS consensus. Even synergy rents, which were deemed to be the Achilles’ heel of the ALS, seem to have found their redemption in the value creation mantra. By means of abstractions on the behavior of independent parties, it is now possible to allocate synergy rents as independent parties would have, even though independent parties would never derive synergy rents in the first place. As part of the G20, Brazil had the first opportunity to present its dissonant perspective on transfer pricing at a negotiation table. Apparently, however, it only managed to remain isolated on transfer pricing issues, being the only country to which a footnote has been dedicated in the Actions 8-10 Final Report[10].

In relation to the digital economy, the OECD decided that the ALS can no longer be tweaked[11] and that the current allocation of taxing rights is not fair. Under Pillar One, new alternatives to the ALS are being discussed and it is acknowledged that, this time, some amendments to the Model Convention will be necessary, in order to make the application of the new policy possible. Within the Inclusive Framework, Brazil again could play a role, considering how central the current negotiations are to the future of the international tax regime. Brazil has not showed any particular initiative on the topic, even though the issue is one aimed at ensuring more source taxation along with simplicity concerns – which should be central for the Brazilian interests. India has taken the lead among emerging economies, but a strong position from Brazil has not followed.

In practice, Brazil has remained a complete stranger to the evolutionary process of the OECD Guidelines and is currently responsible for the most significant deviation from the OECD transfer pricing methodology, with no significant influence around the globe.

As the Brazilian accession to the OECD gains momentum, these separate ways are required to converge. Brazil is expected to adhere to the OECD consensus on the ALS. Since Brazil is the one requesting accession and not the other way around, convergence has taken the form of elimination of the Brazilian peculiarities. The Joint Report is an expression of such approach: it identifies the gaps between Brazil and the Guidelines and elaborates on how Brazil should adapt to the Guidelines. Both the traditional isolation and the recent tentative approximation strategies do not seem to have provided Brazil with any leverage to support its positions. Despite earlier criticism of Brazilian specialists[12], no partial alignment with the Guidelines is envisaged by the Joint Report and full alignment is presented as a deal-breaker for the Brazilian accession.

Can we converge to the full first world package?

Simply put, Brazil is expected to incorporate twenty years of evolutionary transfer pricing practice at once. Whilst the complete lack of precedents on the application of profit methodologies, and even on more basic aspects of functional analysis for the application of the traditional methods, full-alignment is demanded[13], also on a “gradual” version, based on the size of the companies or on the type of transaction[14]. If taken forward, this sort of alignment will surely be followed by a lot of uncertainty, considering the theoretical and institutional adaptations that will be necessary. When dealing with such uncertainty, the Joint Report has already set the tone and made clear that, despite the alleged modernization, some practices will remain medieval.

An example thereof is on the issue of penalties. The Joint Report states the difficulty of evaluating in abstract while a monetary penalty is excessive, making a general statement on the need for proportionate measures[15]. It further specifies, however, that “the imposition of sizable ‘no-fault’ penalty based on the mere existence of an understatement of a certain amount would be unduly harsh when it is attributable to good faith error rather than negligence or an actual intent to avoid tax[16]. It also affirms that  “it would be unfair to impose sizable penalties on taxpayers that made a reasonable effort in good faith to set the terms of their transactions with associated enterprises in a manner consistent with arm’s length principle[17].

The Report then identifies the relevant Brazilian framework on the topic, according to which “as a general rule, the penalty for underpayment of federal taxes is 75% [of the amount due][18]. This is precisely the “no-fault” sort of penalty criticized in the preceding paragraphs of the Joint Report: a mere divergence of interpretation leads to the 75%-penalty. In case of fraud or sham, the penalty is increased to 150%.

In relation to the 75%-penalty, the Joint Report dedicates two conflicting statements. The first affirms that “the Brazilian framework does not necessarily deviate from the OECD Guidelines, since it is recognised therein that it is difficult to assess whether a particular penalty is fair or not[19]. The second, considers that “the 75% penalty that is automatically applicable to a tax underpayment, irrespective of the reason, may be considered unduly harsh in some situations (e.g., good faith)[20]. The conflict is further blurred by the following excerpt[21]:

This potential harshness may however be mitigated because the penalties resulting from an assessment by the tax authorities may be decreased by half if the taxpayer voluntarily pays the tax due, which also means that he gives up any administrative remedies.

The reasoning is therefore that a no-fault 75%-penalty is not “unduly harsh”, when it is reduced to 37,5%, if the taxpayer just agrees to pay the tax allegedly due and give up the relevant administrative remedies. This logic is not exactly sound, but leads one to believe that the no-fault 75%-penalty is acceptable under OECD standards. In practical terms, however, the unduly harsh penalty may reduce to ashes the efforts on mitigating double taxation. If maintained after the intended reform, there is no doubt that the 75%-penalty will remain being applied by tax authorities to any and every interpretative divergence – as it currently is. From a good faith taxpayer’s perspective there is no benefit in completely avoiding double taxation in a given transaction, but paying a 75%-fine (or 37,5%) to one of the states.

At the end of the day, the Brazilian divergence with the OECD is not one based on the fair allocation of taxing rights, which is a discussion to which Brazil has remained completely alienated and never achieved the necessary refinement to offer any opposition. The main problem is that the OECD Guidelines methodology is much more complicated than the current Brazilian system, which has also been drafted to be an ALS-based one, even though in a (much) rougher version. If there is no bargaining power to meet the OECD halfway, Brazil will end up with a complicated legislation with flavors of the current disproportionate administrative measures and practices – of which the 75%-penalty is only an example. The full first world package cannot be simply enacted as legislation and demands years of institutional development, which an abrupt reform will not be able to skip.

[1] See L. E. Schoueri & R. A. Galendi Júnior, ‘Justification and Implementation of the International Allocation of Taxing Rights: can we take one thing at a time?’, In: A. Christians; S. A. Rocha (ed.). Tax Sovereignty in the BEPS Era, Alphen aan den Rijn: Wolters Kluwer, 2017, pp. 47-72.

[2] See, for a discussion on the evolution of the standard, L. E. Schoueri, Arm’s Length: Beyond the Guidelines of the OECD, BIT, 69(12), 2015, pp. 690-726.

[3] OECD/Receita Federal do Brasil (2019), Transfer Pricing in Brazil: Towards Convergence with the OECD Standard, OECD, Paris, www.oecd.org/tax/transfer-pricing/transfer-pricing-in-brazil-towards-convergence-with-the-oecd-standard.htm.

[4] See, on the evolution of the methods in the U.S. tax system, R. Avi-Yonah, The Rise and Fall of Arm’s Length: A Study in the Evolution of U.S. International Taxation, Public and Legal Theory Working Paper Series, Working Paper No. 92 (September 2007).

[5] For an extensive analysis of the Brazilian legislation, see L. E. Schoueri, Preços de Transferência no, Direito Tributário Brasileiro (3rd ed., São Paulo, Dialética, 2013), 479p.

[6] See, on the Brazilian TP system, L. E. Schoueri; R. A. Galendi Júnior. Brazil. Cahiers de Droit Fiscal International –  The future of transfer pricing, v. 102B, 2017, pp. 191-215.

[7] See L. E. Schoueri & R. A. Galendi Júnior, Challenges to Brazilian Transfer Pricing Rules upon Accession to the OECD, ITPJ, 26, 2019, pp. 433-441.

[8] See OECD, OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, July 22, 2010 (OECD Publishing, 2010), para. 2.2.

[9] United Nations, Practical Manual on Transfer Pricing for Developing Countries, (United Nations, New York, 2011). A second edition was published in 2017.

[10] The authors have commented the footnote on a previous article to Kluwer International Tax Blog. See L.E. Schoueri and R. A. Galendi Júnior, ‘The Brazilian Mysterious position on Actions 8-10: a blank check for cherry picking?’, Kluwer International Tax Blog, October 25 2016, http://kluwertaxblog.com/2016/10/25/the-brazilian-mysterious-position-on-actions-8-10-a-blank-check-for-cherry-picking/.

[11] For criticism on how the ALS has been “tweaked” in the last decades, see Yariv Brauner, BEPS: an interim evaluation, WTJ, 2014, p. 28.

[12] The first author has signed a public position on the topic, along with other Brazilian professors, which has been published by the Kluwer International Tax Blog. See L. E. Schoueri, Brazilian TP: Missed Opportunities Ahead, Kluwer International Tax Blog, July 30, 2019, http://kluwertaxblog.com/2019/07/30/brazilian-tp-missed-opportunities-ahead/.

[13] The authors have presented an alternative to the full-alignment. See L. E. Schoueri & R. A. Galendi Júnior, Challenges to Brazilian Transfer Pricing Rules upon Accession to the OECD, ITPJ, 26, 2019, pp. 433-441.

[14] OECD/RFB, Transfer Pricing in Brazil, para. 1054-1064.

[15] OECD/Receita Federal do Brasil (2019), Transfer Pricing in Brazil: Towards Convergence with the OECD Standard, OECD, Pariswww.oecd.org/tax/transfer-pricing/transfer-pricing-in-brazil-towards-convergence-with-the-oecd-standard.htm, para. 316.

[16] OECD/RFB, Transfer Pricing in Brazil, para. 318.

[17] OECD/RFB, Transfer Pricing in Brazil, para. 318.

[18] OECD/RFB, Transfer Pricing in Brazil, para. 363.

[19] OECD/RFB, Transfer Pricing in Brazil, para. 364.

[20] OECD/RFB, Transfer Pricing in Brazil, para. 365.

[21] OECD/RFB, Transfer Pricing in Brazil, para. 365.

The article was first published here

Belgian Transfer Pricing Circular sets out tax authority’s view on 2017 OECD Guidelines

View of Belgian Tax Administration on 2017 OECD Guidelines and specific positions

By Géry Bombeke (Partner, Baker McKenzie, Brussels)

On February 25, 2020, the Belgian Tax Administration published a new transfer pricing Circular (Circular 2020/C/35) (TP Circular) summarizing the post-base erosion and profit shifting (BEPS), OECD Transfer Pricing Guidelines and reflecting the tax authority’s views thereon.Continue Reading

Mexican 2020 Tax Reform: key international tax proposals

By Ricardo Rendón (Partner, Chevez, Ruiz, Zamarripa y Cía, S.C., Mexico)

On September 8, 2019, the Executive Branch of the Mexican Government submitted to the Congress Tax Reform for 2020, which includes key tax changes to the country’s tax law primarily inspired by the OECD’s base erosion and profit shifting (BEPS) project.Continue Reading

Ireland Transfer Pricing Feedback Statement Explained

Ireland's Transfer Pricing Feedback Statement Explained By Expert

By Catherine O’ Meara (Partner, Matheson, Dublin)

The Irish Government recently published a Transfer Pricing Rules Feedback Statement, which confirms that changes to the country’s transfer pricing rules and their implementation are forthcoming.Continue Reading

Delving into Hong Kong’s New Transfer Pricing Landscape

Delving into Hong Kong’s New Transfer Pricing Landscape

By Maulik Doshi (Partner, Head of Transfer Pricing & International Tax, SKP Group) and Kamlesh Kaltari (Principal, Transfer Pricing Services, SKP Group)


On July 4, 2018, Hong Kong’s Inland Revenue Department passed the country’s final Inland Revenue (Amendment) (No. 6) Bill 2017, (the Amendment Bill). 

This Amendment Bill (which became law on July 13, 2018) specified the documentary requirements from a transfer pricing perspective and also introduced measures to address various recommendations under BEPS Action Plans.Continue Reading

Indian tax authority sets new CbC reporting deadline for US subsidiaries

Indian tax authority sets new CbC reporting deadline for US subsidiaries

By Maulik Doshi (Partner, Head of Transfer Pricing & International Tax, SKP Group) and Kamlesh Kaltari (Senior Manager, SKP Group)


In India, the 2016 Finance Act introduced a three-tiered transfer pricing documentation regime with a view to aligning the Indian transfer pricing documentation rules with Action 13 of the OECD’s base erosion and profit shifting (BEPS) project.

Accordingly, Indian subsidiaries of multinational groups were required to comply with new “master” and “local” files requirements and a new country-by-country reporting requirement from the 2016-17 financial year.Continue Reading

Saudi tax authority publishes draft transfer pricing bylaws

Saudi tax authority publishes draft transfer pricing bylaws

By Anas Salhieh  (Senior Tax Executive, Al Tamimi & Company, Riyadh, Saudi Arabia)


Saudi Arabia’s General Authority for Zakat and Income Tax has published for public comments draft transfer pricing bylaws as part of the Kingdom of Saudi Arabia’s commitment to the OECD’s base erosion and profit shifting (BEPS) project.Continue Reading

Bulgaria introduces new interest limitation and CFC regimes

Bulgaria introduces new interest limitation and CFC regimes

By Elizabeth Sidi (Senior Tax Consultant, PwC, Bulgaria) 

Bulgaria is introducing new interest limitation rules and a new controlled foreign corporation regime from January 1, 2019. 

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New Agreement between Ireland and Malta to counteract the ‘Single Malt’ tax structure

New Agreement between Ireland and Malta to counteract the ‘Single Malt’ Structure

By Catherine O’ Meara (Partner, Matheson, Dublin) and Brian Doohan (Senior Associate, Matheson, Dublin)

On November 27, 2018, Ireland’s Finance Minister Paschal Donohoe announced the details of a Competent Authority Agreement between Ireland and Malta (Agreement). The clear aim of the Agreement is to end what is referred to as the “Single Malt” tax structure.Continue Reading

Belgium publishes draft transfer pricing guidance for public comments

Belgium publishes draft transfer pricing guidance for public comments

By Bram Markey (Director, Transfer Pricing, PwC Belgium)

The Belgian tax authority has issued a draft Circular on the 2017 update to the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations.Continue Reading

EU Joint Transfer Pricing Forum Issues Recommendations on Multilateral Transfer Pricing Audits

EU Joint Transfer Pricing Forum Issues Recommendations on Multilateral Transfer Pricing Audits

By Bram Markey (Director, Transfer Pricing, PwC Belgium)

The EU Joint Transfer Pricing Forum has published a report, which aims to address the lack of guidance on bilateral and multilateral transfer pricing audits.
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Transfer Pricing Regulation in Albania and Recent Developments

Transfer Pricing Regulation in Albania and Recent Developments

By Erinda Xhaferraj (Tax Manager, PwC, Albania) and Edland Graci (Transfer Pricing Senior Associate, PwC, Spain)

The amendment in 2014 of Albania’s Income Tax Law and the release of the Transfer Pricing Instruction introduced changes that are of importance to Albanian taxpayers performing cross-border transactions. For the first time taxpayers were faced with a complex and sophisticated legislation, which required the application of arm’s length in intra-group transactions.Continue Reading

Indian Tax Tribunal Allows Claim of Expenses by Mauritian PE

Indian Tax Tribunal Allows Claim of Expenses by Mauritian PE

By Ritu Shaktawat (Partner, Khaitan & Co, India) and Shabnam Shaikh (Principal Associate, Khaitan & Co, India)

In a decision delivered on October 5, India’s Income Tax Appellate Tribunal, New Delhi ruled that the Indian Income Tax Act cannot limit the claim of expenses of a permanent establishment in the absence of such limitation in the India-Mauritius tax treaty.Continue Reading

Belgium Announces Cooperative Tax Compliance Program

Belgium Announces Cooperative Tax Compliance Program

By Bram Markey (Director, Transfer Pricing, PwC Belgium)

The Large Enterprises Division of the Belgian tax administration has announced the launch of a two-year pilot project aimed at transforming the traditional approach of ex-post tax investigations towards a system of proactive, real-time, and constructive dialogue on corporate tax affairs.

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Transfer Pricing Regulations Revised in Nigeria: Some Highlights

Transfer Pricing Regulations Revised in Nigeria: Some Highlights

By Amaka Samuel Onyeani (Senior Manager, Transfer Pricing, Andersen Tax, Nigeria) & Abisola Agboola (Assistant Manager, Transfer Pricing, Andersen Tax, Nigeria)

Nigeria’s Federal Inland Revenue Service (FIRS) recently released the revised Income Tax (Transfer Pricing) Regulations, 2018 (the Transfer Pricing Regulations). The Transfer Pricing Regulations are one of the efforts of the FIRS in improving the administration of transfer pricing in the country, increasing revenue collection via taxes, and protecting Nigeria’s tax base.Continue Reading

Draft Tax Proposal Drastically Expands Scope of Finnish CFC Regime

Draft Tax Proposal Drastically Expands Scope of Finnish CFC Regime

By Mika Ohtonen (Head of Tax, Roschier, Finland) & Laura Puro (Senior Associate, Roschier, Finland)

Finland’s Ministry of Finance last month published a draft proposal on amending the Finnish controlled foreign corporation (CFC) statute. While the purpose of the draft is to implement the CFC provisions of the Anti-Tax Avoidance Directive (ATAD), the proposed changes are materially stricter than required by the ATAD.Continue Reading

Finland Consulting on Draft Controlled Foreign Corporation Rules

Finland Consulting on Draft Controlled Foreign Corporation Rules

By Sami Tuominen (Partner, Head of Tax, Bird & Bird, Finland) &  Marianna Santamala (Associate, Bird & Bird, Finland)

The Finnish Ministry of Finance recently proposed amendments to the current Finnish legislation concerning controlled foreign corporations (CFC). On August 6, 2018, the Finance Ministry submitted a proposal for Government Bill on the amendments to the Act on taxation of members of controlled foreign companies (Act). The Act is currently going through a consultation round and the Ministry would accept input until the end of this month. The purpose of the Act is to prevent the avoidance of taxation in Finland by utilizing corporations established in states with low taxation.Continue Reading

Transfer Pricing Adjustment Rules Amended in Mexico

Transfer pricing adjustment rules amended in Mexico

By Ricardo Rendón (Partner, Chevez, Ruiz, Zamarripa y Cía, S.C., Mexico)

The Mexican tax authorities last month issued the Second Resolution of modifications to the 2018 Miscellaneous Tax Resolution (MTR) in which the rules regarding transfer pricing adjustments were amended and certain additional provisions were included. This article discusses the relevant modifications to the miscellaneous tax rules on transfer pricing adjustments.Continue Reading

Transfer Pricing Documentation: Belgium Gazettes Administrative Fines

Transfer Pricing Documentation: Belgium Gazettes Administrative Fines

By Stefaan De Ceulaer (Director, Tax and Legal Support, PKF International)

The Belgian Parliament on June 29 adopted the Programme Act, which introduces in Belgian tax law specific transfer pricing documentation requirements, that is, in article 321/1 to 321/7 of the Income Tax Code (Programme law of July 1, 2016 gazetted on July 4, 2016), in response to Action 13 of the OECD’s base erosion and profit shifting (BEPS project.  Continue Reading

Transfer Pricing Documentation Regime Being Revised in Poland

Transfer Pricing Documentation Regime Being Revised in Poland

By Marcin Jamroży (Associate Professor, Warsaw School of Economics, and Partner, Rödl & Partner, Poland)

Poland’s Finance Ministry recently published a draft tax Bill to implement key changes to the country’s transfer pricing documentation rules. The draft Bill is aimed at simplifying Poland’s transfer pricing regulations and lowering the bureaucratic and administrative burden for enterprises. The philosophy of a simple, transparent, and friendly tax system should be written into the law. At the same time, it is underlined that the draft Bill should be sealed against loopholes and incorporate the new OECD recommendations. The new regulation is proposed to be effective from January 1, 2019.Continue Reading

Spain’s Patent Box Regime Aligned with BEPS Action 5

Spain's Patent Box Regime Aligned with BEPS Action 5

By Mario Ortega Calle (Partner, Garrigues, Madrid) and Laura Jiménez (Associate, Garrigues, Madrid)

Spain’s General State Budget for 2018, published by Law 6/2018 of July 3, 2018, in the Official Gazette, has amended the country’s patent box regime to bring it in further alignment with the “nexus approach” developed by the OECD under Action 5 of the base erosion and profit shifting (BEPS) project.Continue Reading

‘Significant Economic Presence’ – Missing Pieces of the Indian Tax Puzzle!

‘Significant Economic Presence’ – Missing Pieces of the Indian Tax Puzzle!

By Ritu Shaktawat (Associate Partner, Khaitan & Co, India) and Krutika Chitre (Associate, Khaitan & Co, India)

Ritu Shaktawat and Krutika Chitre of Khaitan & Co discuss the consultation document addressing the tax challenges of digital economy released by Indian’s Central Board of Direct Taxes on July 13, 2018.

Soon after having introduced ‘Google Tax’ in 2016, India becomes one of the first tax jurisdictions to treat ‘significant economic presence’ of a foreign enterprise as its taxable presence in India (effective from April 1, 2018 (that is, from assessment year 2019-20)).Continue Reading

Altera and the Arm’s Length Standard

Altera and the Arm’s Length Standard

By Reuven Avi-Yonah (Irwin I. Cohn Professor of Law, University of Michigan)

On July 24, 2018, the Ninth Circuit Court of Appeals reversed the US Tax Court decision in Altera Corp. v. Commissioner, 145 T.C. 91 (July 27, 2015), which had invalidated Treas. Reg. § 1.482- 7A(d)(2).[1]Continue Reading

New Italian Transfer Pricing Guidelines Explained

New Italian Transfer Pricing Guidelines Explained

By Diletta Fuxa (Senior Manager), Studio Associato Servizi Professionali Integrati, Member of Fieldfisher

On May 14, 2018, Italy’s Ministry of Economy and Finance issued a Decree, which lays down new transfer pricing guidelines in compliance with the provisions set forth in article 110 (7) of the Income Tax Code (Testo Unico delle Imposte sui Redditi).Continue Reading

No Indian Permanent Establishment for Nokia, But Concerns Remain

No Indian Permanent Establishment for Nokia, But Concerns Remain

By Daksha Baxi (Head of International Taxation, Cyril Amarchand Mangaldas) and Jyoti Anumolu (Associate, Cyril Amarchand Mangaldas)

India’s Income Tax Appellate Tribunal (ITAT) at New Delhi last month delivered a significant decision in the case of Nokia Networks OY (taxpayer) on the issue of whether it’s Indian subsidiary, Nokia India Private Limited (NIPL) (which was assigned installation contracts by the taxpayer or entered into independent installation contracts with customers) constituted a permanent establishment (PE) for the taxpayer.Continue Reading

Nigeria CbC Reporting Tax Regulations Explained

Nigeria CbC Reporting Tax Regulations Explained

By Josh Bamfo (Partner & Head, Transfer Pricing Services, Andersen Tax, Nigeria)

The Federal Government of Nigeria finally published the much anticipated Income Tax (Country-by-Country Reporting) Regulations, 2018 (the CbC Regulations) on June 19, 2018 (with a commencement date of January 1, 2018). This is in line with Nigeria’s signing of the OECD’s Multilateral Competent Authority Agreement on January 27, 2016, providing for automatic exchange of CbC reports.

As a sequel to my earlier publication on the potential implications of the draft CbC reporting Regulations to affected taxpayers, which was published four months ago, this article presents the key highlights of the CbC reporting Regulations and re-assesses the potential implications based on the content of the final, published version.Continue Reading

India’s CbC Reporting Requirement Clarified

Maulik Doshi discusses CBDT's clarification issued in relation to the timeline for furnishing of Country-by-Country Report

By Maulik Doshi (Partner, Head of Transfer Pricing & International Tax, SKP Group) and Kamlesh Kaltari (Senior Manager, SKP Group)

As an active participant in the OECD’s base erosion and profit shifting (BEPS) project, India has implemented nearly all the BEPS recommendations and has taken several steps to amend the country’s domestic tax laws appropriately. The Indian Finance Act, 2016 implemented BEPS Action Item 13 by introducing a three-tiered transfer pricing documentation structure and made it effective from the 2016-17 financial year.Continue Reading

How Will Brazil’s OECD Membership Affect Its Transfer Pricing Regime?

How Will Brazil’s OECD Membership Affect Its Transfer Pricing Regime?

By Debora De Souza Correa Talutto (Group Transfer Pricing Manager, Temenos Banking Software Co.)

The Brazilian transfer pricing rules were created to address the maximum tax deductible costs or expenses when domestic taxpayers buy goods and services from foreign suppliers, and the minimum taxable revenues when local companies sell goods and services to foreign customers.Continue Reading

Italy’s Transfer Pricing Overhaul Will Boost Taxpayer Confidence

Italy’s Transfer Pricing Overhaul Will Boost Taxpayer Confidence

By Marco Greggi (Professor, International Tax Law, University of Ferrara)

The Italian Finance Ministry, on February 21, 2018, published for stakeholders’ comments two draft transfer pricing regulations. The first Regulation is a proposed decree that deals with substantive aspects of transfer pricing regulations (analyzed in this article), while the second Regulation concerns corresponding adjustments (procedural aspects). The second Regulation on corresponding adjustments will be analyzed in a forthcoming article.Continue Reading

South Africa’s 2018 Budget: Unpacking International Tax Measures

South Africa’s 2018 Budget: Unpacking International Tax Measures

By Ahmed Jooma (Independent Tax, Legal, and Public Policy Consultant)

On February 21, 2018, South Africa’s Finance Minister, Malusi Gigaba, presented the country’s National Budget, which will be tougher on the populace than on multinational corporations. Most of the tax changes that will affect cross-border transactions are of a technical nature. A continued focus on base erosion and profit shifting is expected to assist in arresting the deteriorating fiscal environment. This is further exacerbated by pressure to maintain a relatively low corporate tax rate in the face of tax competition.
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The Future of the Dutch Tax Ruling Practice

The Future of the Dutch Tax Ruling Practice

By Jian-Cheng Ku (Legal Director, DLA Piper Nederland N.V.) and Jeroen Swart, (Tax Adviser, DLA Piper Nederland N.V.)

On February 18, 2018, the Dutch State Secretary of Finance announced that it will revise the Dutch tax ruling practice in light of results from a review conducted to examine if Dutch tax rulings met Dutch procedural requirements. Over 4,000 Dutch tax rulings were reviewed.

Current practice and review

A tax ruling provides Dutch taxpayers with the opportunity to obtain advance certainty on the tax consequences of proposed legal transactions. Taxpayers and the tax authorities are able to avoid potential disputes through tax rulings, which provide upfront assurance. The Dutch tax ruling practice is considered an important pillar of the Dutch business climate.Continue Reading

Belgium Initiating New Wave of Transfer Pricing Audits

Belgium Initiating New Wave of Transfer Pricing Audits

By  Bram Markey (Director, Transfer Pricing, PwC Belgium)

The Belgian tax authorities are increasing their manpower, shifting focus areas, and stepping up national and international cooperation with other tax authorities, with a clear view to audit transfer pricing and other international tax matters in a more targeted and efficient way, writes Bram Markey, Director, Transfer Pricing at PwC Belgium. Continue Reading

Italy Enacts New Web Tax, Redefines PE

Italy Enacts New Web Tax, Revises PE definition

By Aurelio Massimiano (Partner, Maisto e Associati) and Matteo Cataldi (Associate, Maisto e Associati)

On December 29, 2017, the Italian Government published Law No. 205 of December 27, 2017 (Budget Law) in the Italian Official Journal, which contains key tax measures including a new tax on digital transactions (Web Tax) and revisions to the definition of permanent establishment (PE) in the domestic law.Continue Reading

France Gazettes Revised Transfer Pricing Documentation Requirements

Terence WILHELM of CARA Avocats, France discusses Transfer Pricing Documentation Requirements in France

By Terence WILHELM (Attorney at Law, Managing Partner, CARA Avocats, France) 

On December 31, 2017, the French Government gazetted Finance Act, 2018, which revises the current transfer pricing documentation requirements in France. Accordingly, companies falling within the ambit of the new requirements will need to newly submit to the tax authority a two-fold documentation comprising “master” and “local” files, developed under Action 13 of the OECD’s base erosion and profit shifting (BEPS) project. The revised transfer pricing documentation requirement is inserted in Article L13AA of the French Procedural Tax Book (Livre des procedures fiscales) and is applicable to fiscal years beginning January 1, 2018.
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Indian Budget 2018: Transfer Pricing Expectations

Maulik Doshi of SKP Group stresses what India's 2018 Budget must cover on the transfer pricing front

By Maulik Doshi (Partner, Head of Transfer Pricing & International Tax, SKP Group) and Kamlesh Kaltari (Senior Manager, SKP Group)

The Indian Government has, in recent past, taken bold and practical measures to align the Indian transfer pricing regulations with global best practices by introducing country-by-country reporting and “master” file regulations; interest limitation provisions; revising the rates under the safe harbor rules; rationalizing specified domestic transactions; and introduction of range concept and use of multiple-year data. Additionally, the Government has made several attempts on the administrative side to reduce litigation and introduce a taxpayer-friendly regime. Having said that, there are certain ambiguities that need to be resolved.

In the 2018 Budget, which is due to be presented on February 1, 2018, we hope to see appropriate steps being taken to address these ambiguities, some of which are listed below.Continue Reading

CbC Reporting Regulations in Nigeria: Potential Implications For Taxpayers

Joshua Bamfo of Andersen Tax discusses CbC Reporting Regulations in Nigeria

By Josh Bamfo (Partner & Head, Transfer Pricing Services, Andersen Tax, Nigeria)

Since the signing of the Multilateral Competent Authority Agreement by the Federal Inland Revenue Service (FIRS) and its subsequent ratification by the Federal Executive Council in 2016, most Nigerian taxpayers and tax practitioners have been keenly waiting for the implementation of a country-by-country (CbC) reporting requirement, developed under Action 13 of the base erosion and profit shifting (BEPS) project. Nonetheless, we were still surprised by the FIRS’ communication via its official Twitter handle on 24 January, 2018, that the Income Tax (Country-by-Country Reporting) Regulations, 2018, (CbC Regulations) has now been signed by the Federal Government of Nigeria, and will be gazetted soon.Continue Reading