Even though Chilean transfer pricing legislation was introduced in 1997, being amongst the first in the region, Article 38 of the Chilean Income Tax Law (ITL) seemed to be insufficient, since it did not include relevant technical matters such as a detailed description of the TP methods, nor did it incorporate internationally accepted practices on this matter.
However, ever since Chile became an active member of the OECD in 2010, the Chilean IRS has been very active with regards to transfer pricing and has incorporated qualified personnel with wide experience in this area. This circumstance led to a series of selective reviews by the Chilean IRS, where it was clearly perceived that a highly trained team was behind the TP audits, since the information requests (notifications and summons) and tax assessments issued by the local tax authority, demonstrated a clear understanding of the internationally accepted practices and concepts, regarding transfer pricing.
In the context of the tax reform of September 27 2012, significant changes that modernised Chilean TP legislation were introduced by means of Article 41E of the Chilean ITL. Among other aspects the new Chilean TP legislation introduced the following: i) OECD aligned transfer pricing methods; ii) requirement to file an annual informative return (affidavit); iii) introduction of an APA programme; and iv) possibility to request corresponding adjustments), this new TP legislation incorporated the formal requirement to file by electronic means, on a yearly basis, a transfer pricing informative return (affidavit) on June 28 2013, for the intercompany transactions performed on the previous calendar year (starting on CY 2012).
This new source of information will allow the Chilean IRS to build a database with very detailed data about the taxpayer's intercompany transactions, because of the fact that this transfer pricing return was strategically and technically developed by the Chilean tax authority, with the purpose of requesting very detailed information per type of transaction (tangible goods, financing transactions, intangible assets, services and current mercantile accounts). Therefore, it is expected that the Chilean IRS will use this database to perform even more specific and focused TP audits.
On the other hand, the Chilean IRS has been very open to Chilean taxpayers requesting advanced pricing agreements (APAs), since new TP legislation also introduced this possibility, which has led to a series of APAs already requested by local taxpayers to the Chilean IRS, to have certainty of the fulfillment of the arm's-length principle, from a Chilean transfer pricing perspective.
Chile has entered a path of no return with regards to transfer pricing, which will imply that Chilean taxpayers will have to be more careful when performing intercompany transaction, to avoid possible risks on this relevant tax area.
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