New TP rules and challenges in Central and South America

The growing integration of world economies evidenced over the past few decades, with the ensuing increase in intercompany transactions carried out by multinational enterprises (MNEs), has generated a conflict of interests between tax authorities from where such MNEs operate, as regards estimating the taxable income on which income tax should be paid in such jurisdiction. In response to that, 20 years ago, a transfer pricing regulatory process started, which has relentlessly extended around the world.

In this context, Latin American countries have not been unresponsive to the addition of local regulations related to this matter and, specifically in the case of Central America, several countries have added transfer pricing regulations to their laws over the past few years.

El Salvador has been one of the pioneers in the region with the introduction of local regulations for the tax years ending after 2010, and other countries followed suit: Panama in 2011, the Dominican Republic in 2011 and Guatemala in 2013. In the same sense, Honduras and Nicaragua have added regulations which will be effective as from the tax years ending in 2014 and beginning in January 2016, respectively. Additionally, it is expected that other countries such as Costa Rica will continue with this process, adding transfer pricing regulations to their local tax laws.

In the cases of Guatemala and Panama, intercompany transactions subject to transfer pricing regulations are those carried out by parties located in one of the previously mentioned countries, with parties considered affiliates and located abroad. In turn, in the cases of El Salvador, Honduras and the Dominican Republic, transactions carried out between affiliates located in the country are also subject to analysis.

For the purpose of considering the existence of a relationship between the parties, current regulations in Guatemala and Panama include the assumptions of corporate/equity interest- relationship and economic relationship. Additionally, the laws of El Salvador, Honduras and the Dominican Republic include within the scope of transactions subject to transfer pricing analysis those carried out with parties located in countries considered to be of low or nil taxation, commonly known as tax havens. Honduras is an exception to this rule. Its laws exempt from such analysis those transactions carried out with parties located in countries that, although considered tax havens, have executed an agreement for the cooperation or exchange of tax information.

In the case of Guatemala, it is necessary to include the analysis of those export transactions carried out between related parties when an intermediary having no actual and effective presence in their country of residence is involved (what is commonly known among the region as the Sixth method).

In the case of all the previously mentioned countries, their laws provide that any type of transactions carried out between related parties (considering the scope and previously mentioned relationship criteria) are subject to transfer pricing regulations. Current regulations do not establish materiality criteria determining a minimum threshold in terms of volume in order for the transactions to be subject to transfer pricing analysis.

In line with regulations effective in most countries that have transfer pricing regulations, standards effective in El Salvador, Guatemala, Panama and the Dominican Republic provide the requirement of filing annual informative tax return, through which detailed information about the transactions carried out with affiliates is provided. In turn, they establish the obligation that the companies carrying out these transactions prepare and make available to tax authorities annual transfer pricing studies evaluating compliance with the market condition of such transactions. It should be noted that in the case of Honduras, current regulations have not yet been established, which will be the formal obligations that companies should comply with regarding transfer pricing documentation.

In all cases, standards effective in Central American countries have included the OECD's Transfer Pricing Guidelines. They are based on the arm's-length principle, which provides that transactions executed between related parties should be carried out as between independent parties, in similar transactions, under comparable conditions. Likewise, it is provided that there is no method that may be applicable to all situations and therefore, for the purposes of determining transfer prices on an arm's-length basis, taxpayers should use the most appropriate method in accordance with the type of transaction under analysis.

Transfer pricing methods provided in the OECD guidelines are: comparable uncontrolled price (CUP) method, resale price method, cost plus method, split profit method and transactional net margin method.

While laws in place in Latin American countries include such methods, there are some peculiarities as detailed below.

The law in place in El Salvador prioritises the application of a price comparison method specifically added to local laws, which is known as the "market price method". However, under the Instructions Guide for compliance with transfer pricing obligations, if there are reasons preventing its application (which should be duly documented), the application of the remaining transfer pricing methods is authorised.

Guatemala has established a special methodology to analyse the export and import of commodities (those goods about which there is information available regarding their prices listed on transparent markets). For the case of imports, the price of goods may not be higher than the estimate price based on an international parameter as of the purchase date at the place of origin. In the case of exports, the price of goods should be evaluated comparatively to the international prices in effect, according to the method chosen by the taxpayer, as of the last shipping date or the agreement date (if it has been reported to tax authorities).

Laws in place in the Dominican Republic, Guatemala and Panama have established a preference to use traditional transactional methods over the profit-based methods (split profit method and the transactional net margin method).

Laws in place in Honduras have established the possibility of applying methods not regulated, in the event it can be proved that they are the best available alternative for the case under analysis.

With the purpose of promoting compliance with formal obligations established, transfer pricing regulations generally provide specific penalty systems. Except for Guatemala, which has not yet established in its laws a specific penalty system (although the enforcement of a general penalty system contained in the Tax Code is expected), regulations in place in the remaining countries in the region have established sanctions upon failing to comply with established obligations according to the following detail:

Failing to comply with the obligations carried out by the transfer pricing system implies sanctions for formal non-compliance established by the tax code. Applicable sanctions are detailed below:

• Up to three times of the sanctions established for failing to comply with formal duties: from five to thirty minimum salaries, and fines equivalent to 0.25% of income declared in the preceding period.

• When the transfer pricing adjustment is determined, up to two times the omitted tax amount. In the case a fine cannot be determined, it will be established at a value equivalent to an amount ranging from 10 to 50 minimum salaries.

Failing to file the informative sworn statement is punished by a fine equivalent to 0.5% of the infringing company's equity and not keeping the transfer pricing study for a ten-year period generates a fine equivalent to 2% of equity. Current regulations establish sanctions upon cases of adjustments to the taxable income originating from agreed-upon transfer prices (equivalent to 20% of the adjustment amount) and income tax withholdings not made (equivalent to 30% of the amount whose withholding has been omitted).

Failing to file the required information and filing false or inaccurate information is punished by a fine standing at US$10,000. Likewise, determining a lower taxable income due to transfer prices used is punished by a fine equivalent to 15% of the resulting adjustment amount. If both non-compliances are simultaneous, the sanction will increase up to 30% of the resulting adjustment amount or US$20,000 (whichever is higher). Finally, a US$5,000 fine shall be imposed upon the existence of other non-compliances as regards the provisions established by transfer pricing regulations.

Failing to file the informative transfer pricing sworn statement is punished by a fine equivalent to 1% of total gross amount of operations carried out by affiliates. Additionally failing to file the transfer pricing report is punished by fines that may range from US$100 to US$5,000 the first year and from US$5,000 to US$10,000 in the case of recidivism.

Following the trend marked by those countries' pioneers in transfer pricing laws, the standards established by Guatemala, Honduras and the Dominican Republic have established the possibility of executing APAs between the tax authorities of those countries and the companies that carry out transactions subject to transfer pricing analysis.

Under the definition established by OECD guidelines, APAs are "agreements determining, upon carrying out controlled transactions, a set of appropriate criteria (such as the method, comparables and the adjustments appropriate to them, critical assumptions about the future) to determine the transfer price of such transactions over a certain period of time".

From the taxpayers' standpoint, APAs are a non-contentious alternative to resolve transfer pricing disputes, and allow for improving the control over business changes, minimising or eliminating the exposure to tax authorities. Additionally, they allow obtaining a more accurate calculation of future taxes payable, which leads to a better management of a company's cash.

From a tax authorities' standpoint, the use of this tool allows obtaining more certainty about taxable income and a more efficient use of their limited resources. Likewise, it improves the cooperation level of taxpayers and the capacity of handling complex transfer pricing problems.

Once the systems governing transfer pricing have been implemented, it is expected that tax authorities strengthen and progressively increase their control activity. While tax audits have not started to be widely carried out in Central American countries (especially in the cases of Honduras and Panama), there are relevant precedents in the Dominican Republic (specifically in the hospitality sector) and in El Salvador.

As mentioned above, the legal system in place in Costa Rica does not have express standards governing the tax administration power to value the transactions carried out between related companies, under the regular market value or the value of comparable transactions carried out between independent third parties.

Conversely, at present there are isolated standards governing specific issues related to transfer pricing matters, such as income tax (as to interest rates agreed upon above market value and criteria to allow deduction of certain intercompany expenses) and the selective tax on consumption (as regards the transfers of ownership at prices lower than regular ones or for gratuitous consideration, between economically related companies, whose purpose is to evade taxes).

However, it is estimated that in the short term, a bill authorising and governing the application of transfer pricing rules will be signed into law in Costa Rica, which should not significantly differ from those in place in the remaining countries in the region (based on OECD guidelines) and detailed in this report.

It should be noted that Costa Rican tax authorities, even without having specific standards in such matters, have started tax audits and made various adjustments resulting in increases in the income tax amount determined by taxpayers, due to detecting sales prices used in transactions carried out with related parties, lower than those used in transactions carried out with independent third parties. In many of the cases mentioned above, the CUP method has been used which has generated uncertainty as regards the analysis methodology to be considered. Consequently, expecting that a tax reform will be approved shortly, it is recommended that the companies operating in the country prepare a diagnostic analysis regarding transfer pricing to establish if they present some kind of tax risk related to the manner in which transactions are carried out with their related parties.

We describe below the main transfer pricing issues from 2012 and 2013 in countries that are part of the Deloitte LATCO cluster.

• As from the fiscal years ending December 2012, transfer pricing studies should be filed electronically with the tax authority, with the introduction of the digital signature thereon.

• Audits by the tax authority continue and they are extremely aggressive in certain industrial sectors.

• Customs information requirements have intensified and transactions carried out by related parties are cross-checked.

• Focus on commodities exports involving international intermediaries who are not the actual recipients of goods, mainly carried out by the cereal and oil & gas industries.

• Several cases are still pending at the administrative court stage; the majority of rulings have been in favour of taxpayers.

• Introduction of thin capitalisation rules.

• Inclusion of OECD Chapter IX, related to restructuring, as part of Colombian law.

• Inclusion of the definition of permanent establishments and their respective transfer pricing-related obligations.

• Tax authorities are granted the power to reclassify loans as capital contributions and interest as dividends.

• In the event the new regulation considers that mergers and spin-offs have tax effects, they may be subject to transfer pricing analysis.

• As from fiscal year 2012, transactions carried out with local related parties are considered to determine the obligation of filing the comprehensive transfer pricing report (until 2011, only transactions carried out with foreign related parties were considered).

• The minimum transaction amount has been modified. It will be mandatory to file a comprehensive transfer pricing report, in case of being over the following increased cap: from US$5 million in previous fiscal years to US$6 million for the current fiscal year).

• The manner to file the transfer pricing report has been modified and it is indicated that it should be filed in hard copy and in digital format in PDF – Text.

• Form 101 has been modified, including informative boxes to report transactions with local related parties.

• Some countries (Bulgaria, Estonia, FYR Macedonia, Ireland and Montenegro), entities (artificial persons organised as limited liability companies whose owners are not US residents and that neither the company nor its owners are subject to federal income tax) and jurisdictions (the states of Delaware, Nevada, Wyoming and Florida, US), are considered included as preferential tax jurisdictions.

• As from fiscal year 2012, taxpayers should file with tax authorities the technical transfer pricing study together with the annual transfer pricing informative sworn statement. By exception, for fiscal year 2012 they will be filed with the deadline schedule for September tax obligations (in October). From fiscal year 2013 and beyond, they will be filed at the regular period (in June).

• Transfer pricing audits have increased significantly in 2013. Besides, SUNAT [national tax authority] is asking by means of specific requirements to file technical transfer pricing studies for fiscal years 2008 through 2011 (in order to identify taxpayers with risk factors and start transfer pricing audits).

• SUNAT has strengthened its transfer pricing team by creating a Transfer Pricing and International Audit Department, recruiting specialised professionals and training its teams.

• SUNAT continues to foster the subscription of APAs for local and international intercompany transactions. APAs may also be held with other tax administrations of countries with which Peru has held double taxation treaties (bilateral and/or multilateral APAs). The regulation on APAs was also amended to include as one of the major changes the possibility of preliminary meetings (pre-filing meetings) to explain the proposal to SUNAT and evaluate its feasibility.

• Inclusion of the sixth method to analyse exports and imports of commodities between related parties in which a trader is involved, who is not the final recipient of such goods and imports and exports of commodities carried out from, to or through nil or low taxation countries or territories.

• It is determined that the transfer pricing adjustments will only be applicable when the amount agreed upon between the parties determines a tax loss or a lower tax in the country. Moreover, the adjustment must be determined by type of transaction as the evaluation was made when applying the respective method. Finally, the adjustment should also proceed in case of non-domiciled transactions for their Peruvian source income and/or deductions for determining their income tax.

• Regarding the Transactional Net Margin method, it has been specified that segmented financial information should be used dismissing the use of global financial information across the enterprise (unless proven inability to prepare the segmentation).

• For the application of the CUP method, it is possible to use the full range (between minimum and maximum) in operations with a high level of comparability (if the variation applied to comparable transactions value does not exceed 3%).

• Transfer pricing controls continue in companies considered "large taxpayers".

• Sanctions for failing to comply with formal transfer pricing duties are in place. Sanctions are graded according to the non-compliance gravity, with a maximum cap of about US$250,000.

• Tax authorities continue to foster the execution of APAs.

• The total amount of transactions included in the transfer pricing system should be included in the annual corporate income tax return.

• Authorities' intention to carry out analysis on a transaction-by-transaction basis: need to prepare financial information segmentation by function, by transaction and even by product.

• Review of relationship principles. Subjectivity in cases of relationship due to management and control.

• Rationality and support of comparison periods used in the analysis.

• Review of rationality of interest rates used in analysing loans (lending and borrowing rates).

• Review of rationality of search for agreements and comparable companies.

Biography
		Horacio Dinice Lead partner Transfer Pricing LATCO & Argentina Deloitte Florida 234 Piso 5 CABA, C1038AAN Tel: +54 11 4321-3002 Fax: +54 11 4320 4066 Email: hdinice@deloitte.com Horacio Dinice is a tax partner in Deloitte Argentina. He has engaged mainly in international iax consulting and transfer pricing matters. His experience covers a wide range of industries, but has been centred on the pharmaceutical sector for many years. He is in charge of the transfer pricing practice in Argentina & LATCO. His experience encompasses advising multinational corporations on the tax implications of cross-border acquisitions / transactions and the establishment of foreign operations in countries within the Latin American region (mainly Argentina, Bolivia, Paraguay & Uruguay) He also provides advice for the international or regional reorganisation of various clients. He specialises in cross-border structuring for Argentinean and Latin American companies. He has participated in various mergers and acquisitions in Argentina and various regional and global transfer pricing projects. He has been a professor of Tax at the University of Buenos Aires from 1986 to 1992, and has been teaching at the University of CEMA since 2006. Horacio is a frequent speaker at conferences focusing on tax and transfer pricing issues. He is an active member of the AAEF (IFA branch member). He participated in technical meetings of improvement and professional development in Argentina and other countries. He dictated advanced training courses for professional personnel. He is a Certified Public Accountant and graduated from the School of Economic Sciences at the University of Buenos Aires in 1986. He has been named as one of the world's leading transfer pricing advisers by the prestigious Legal Media/Euromoney Magazine.

Biography
		Adolfo Raso TP manager Deloitte Argentina Buenos Aires, Argentina Tel: +54 11 4320 2700 Email: araso@deloitte.com Adolfo is a transfer pricing manager in Deloitte Argentina. He has engaged in transfer pricing consulting matters. His experience encompasses advising multinational corporations on transfer pricing implications of cross border transactions, covering a wide range of industries. He has been a speaker at various conferences, focusing on transfer pricing issues. Adolfo is a member of the AAEF (IFA member) and is part of the Transfer Pricing Commission. He has been working in various regional projects and has experience working for Deloitte offices in Montevideo (Uruguay) and Lima (Peru). Education University of Cordoba: Bachelor of Arts in Business Administration. Torcuato Di Tella University: Posgraduate in Finance.

Biography
		Michelle Martinelli Tax & Legal partner Deloitte Panama Panama City, Panama Tel: + (507) 303-4100 Email: mmartinelli@deloitte.com Michelle is a tax lawyer and partner in our Tax & Legal department at Deloitte Panama City office, with more than 10 years of experience, specialised in tax consulting and compliance services for local and international companies operating in and from Panama. Before joining Deloitte, Michelle has worked as a tax manager for EY, Cable & Wireless Panama and PricewaterhouseCoopers. She has been involved in several mergers and acquisitions projects, and also has extensive experience in restructuring proposals, consisting in the evaluation and implementation of strategies. While working in Cable & Wireless, Michelle acted as country leader for the Sarbanes-Oxley Act implementation, managing all actions related with the identification of risks and the follow-up of mitigating actions. Education Law Degree from Universidad Santa Maria la Antigua. Master Degree in International Business Law from Southern Methodist University in Dallas, TX.

Biography
		Byron Martinez Tax & TP partner Deloitte Guatemala Guatemala City, Guatemala Tel: + (502) 2384 6500 Email: bymartinez@deloitte.com Byron Martinez joined Andersen in 1989 and began his career at Deloitte in 2002. He has more than 20 years of experience as a tax consultant serving multinational clients. With the first time adoption in 2013 of transfer pricing rules by Guatemala, Byron has been appointed as the leader of Deloitte's transfer pricing practice in this jurisdiction. Byron has developed extensive experience in international tax planning strategies including cross-border transactions, as well as broad experience in providing multinational clients the following services: transfer pricing, tax and transfer pricing consulting, tax compliance, tax and legal assistance in mergers, acquisitions, restructuring and spin offs, tax controversies, tax planning, outsourcing of the tax function as well of statutory accounting processes, project finance-related tax planning, and local employee and expatriates planning and compliance. His industry experience also covers taxation applicable to: banking and finance, consumer business (retail, food and beverages, pharmaceutical, etc.) oil and gas, utilities, telecom, services, manufacturing, transportation, real estate, exporting and free trade zones. Education Public Accountant and Auditor, Rafael Landívar University, Guatemala City, Guatemala. Master of Science (Finance), Galileo University, Guatemala City, Guatemala.

Biography
		Federico Paz Tax director Deloitte El Salvador San Salvador, El Salvador Tel: + (503) 2524-4100 Email: fepaz@deloitte.com Federico is the leader of the Tax & Legal practice in Deloitte's El Salvador office with more than 17 years of experience providing tax advisory services. His main experience includes corporate tax advisory, international tax consulting in the Central American countries, transfer pricing projects, tax defence and due diligence processes. As part of his professional development he has participated in different international courses. He has also participated as speaker in several local and international seminars and conferences about tax and transfer pricing topics. Federico is a member of the Tax Committee of the American Chamber of Commerce in El Salvador. Education Bachelor in Business Administration (BBA). Master degree in Tax Administration and Public Estate

Biography
		Richard Troncoso Tax partner Deloitte Dominican Republic Santo Domingo, Dominican Republic Tel: + 1 (809) 563 5151 Email: rtroncoso@deloitte.com Richard Troncoso is in charge of the Dominican Republic office and the tax advisory services practice. He has more than 12 years of experience participating in and leading fiscal strategies and tax planning projects for local and international companies from different industries. He also provides tax advice related to special projects regarding mergers and acquisitions, due diligences, tax appeals, and so on. In addition, Richard provides assistance to the financial audit services area and other Deloitte offices, advice to multinationals in issues related to international transactions, fiscal strategies and fiscal minimisation projects, and so on. Richard has been part of different professional training and updating programmes related to the tax area. Education Certified Public Accountant. Master degree in Tax Administration and Public Estate. Postgraduate studies in Financial Administration. Postgraduate studies in Control and Tax Planning.

Biography
		Rita Silva Tax & Legal partner Deloitte Honduras Tegucigalpa, Honduras Tel: + (504) 231 3131 Email: ritsilva@deloitte.com Rita Silva has been a tax partner for Deloitte Honduras since 2007 and has more than 17 years of experience in tax litigation and tax consulting services. She advises national and international companies with regional presence in tax matters. She has participated in the tax strategy definition of Honduras companies, and has also participated in several mergers and acquisitions of major companies within Honduras. She has been international consultant for tax matters for the Inter-American Development Bank.

Biography
		José Erney Guarin Alvarado TP partner Deloitte Colombia Bogotá, Colombia Tel: +57 1 426 2315 Email: jguarin@deloitte.com José Erney Guarin is partner of the transfer pricing division of Deloitte Asesores y Consultores Ltda. in Colombia. He has more than 10 years of experience in the sectors of manufacturing, public utilities, services and clubs, and oil and0 gas. His professional experience has included participating in, and supervising various engagements such as tax planning, tax diagnosis, due diligence, tax outsourcing, review and preparation of tax returns of individuals and corporations. Education Public Accountant, Universidad del Valle Courses and Seminars: International course for seniors at the training centre in Chicago; Course in Miami section 404 Survey Oxley; Training on the different types of taxes (income, VAT, withholdings, industry and commerce), Bogota; Training for development of administrative abilities (time management, team work, efficient writing), Bogota; Integral inflation adjustments, Bogota; Analysis of processes and procedures, Cali.

Biography
		Gloria E. Guevara Gutiérrez TP partner Deloitte Perú Lima, Perú Tel: +51 (1) 211 8585 Email: glguevara@deloitte.com Gloria Guevara is partner of the transfer pricing department. Gloria has more than 11 years of transfer pricing experience with Deloitte, during which time she has advised clients on a wide spectrum of issues. She is responsible for managing a diversified client portfolio consisting of multinational firms operating in different industries, such as pharmaceutical, telecommunication, consumer business, construction, mining, oil and gas, among others. Gloria has significant experience in serving multinational companies as well as the largest Peruvian companies. She has experience advising clients on strategic planning and tax efficient structures, and designing corporate transfer pricing policies. She has also performed intangible valuation studies and has actively participated in some of the most complex engagements of the Peruvian transfer pricing practice (mining properties valuation, damage valuation, residual profit split application). Also, her experience extends to the application of econometric models for the analysis of transfer pricing policies Education Graduate degree in Economics, Pontificia Universidad Católica del Perú. Post Graduate Degree in Economic Management of Businesses, at Universidad de Lima.

Biography
		Martha Cerda Albuja Tax & TP senior manager Deloitte Ecuador Quito, Ecuador Tel: + 593 (2) 3815-100 Email: mcerda@deloitte.com Martha Cerda is tax and transfer pricing senior manager. She has been working for Deloitte since 1991, and has worked in the audit, outsourcing and tax areas. In the tax consultancy field, Martha has offered tax consulting services, review of tax reconciliation and income tax declaration, among others, to national and multinational companies. Currently, she is in charge of tax and accounting consultancy and the transfer pricing area of the firm, in which she prepares transfer pricing reports which should comply with local requirements and OECD guidelines. She has participated in international summits of transfer pricing organised by Deloitte worldwide, since 2000. Education Certified Public Accountant. Degree in Accounting and Auditing. PhD in Accounting.

Biography
		Iliana Salcedo TP partner Lara Marambio & Asociados (Member of Deloitte) Caracas, Venezuela Tel: +58 212 206 8701 Email: isalcedo@deloitte.com Iliana has more than 12 years of experience providing tax technical advisory in transfer pricing matters. She contributes to the development of the Deloitte's Andean region transfer pricing practices. As a partner of the transfer pricing unit, she offers her experience gained through training at the regional level and in the United States. She has been actively involved in the development of projects for documenting and designing transfer pricing policies, strategies and structures for multinational groups. Iliana is frequently a speaker in different transfer pricing regime-related conferences in the Andean Region. Education Public Accountant. Master in Tax Management.

Biography
		Alejandra Barrancos TP senior manager Deloitte Uruguay Montevideo, Uruguay Tel: + 59 8 2916 0756 Email: abarrancos@deloitte.com Alejandra is a senior manager in the transfer pricing practice of Deloitte Uruguay. She has been working in different areas of our tax department since 1997. She also worked for the transfer pricing practice of Deloitte Argentina for a few months. During this period she has accumulated significant experience in various advisory services to foreign companies: tax compliance, local and international tax planning and transfer pricing. Her experience in transfer pricing projects includes planning projects, documentation projects and also defence in tax audits. She has attended numerous training courses locally in the tax area, while she has also participated in several TP courses in Uruguay and abroad.