Transfer Pricing in Emerging Economies: Brazilian Case
Transfer Pricing in Emerging Economies: Brazilian Case Marcos Aurélio Pereira Valadão Brasil
Background & Legislation• Brazil adopted tax law imposing worldwide income taxation in 1995. The change in the law that allowed the taxation on a worldwide basis was made by means of the Federal Law n. 9.249, Dec. 29, 1995, that entered into force in Jan. 1, 1996.• Transfer Pricing law was enacted in 1996, and entered into force in Jan. 1, 1997 (Federal Law n. 9,430/96). Federal Law 9,430/96 was modified by Law n. 10,451/ 2002, and by Federal Law n. 11,196/2005, which introduced a modification to adjust exchange rate appreciation of the Real against foreign currency.• Brazilian regulations for transfer pricing must follow the law, as approved by the Congress. It may be an Administrative Rule (“Portaria”) issued by the Minister of Finance or by the Federal Revenue Secretary, or an Normative Rule (“Instrução Normativa RFB”), similar to Treasury Rulings, issued by the Federal Revenue Secretary, that are detailed regulations.
Background & Legislation• Current transfer pricing rules are detailed in Normative Instruction SRF No. 243, issued in November 11, 2002, modified by Normative Instruction SRF No. 321, issued in April 14, 2003, and Normative Instruction No. SRF nº 382, issued in Dec, 12, 2003.• There are other Regulations dealing with adjustments to exchange rate appreciation (issued in 2005, 2006, 2007, 2008 and 2011).• Law and regulations are available at: www.receita.fazenda.gov.br/Legislacao/LegisAssun to/PrecosTransf.htm (Texts in Portuguese)
Legislation Analysis• Brazilian legislation seeks to adopt the arms length principle. If this principle is not observed, the law authorizes tax authorities to reallocate income for income tax and social contribution collection purposes (in Brazil there are two taxes on income: Income Tax and Social Contribution) Lack of compliance may result in tax penalty of 75% or 150% based on unpaid tax.Transactions examined under Brazilian Transfer Pricing Regulations are transactions between related parties, that are juridical persons (legal entities) or individuals that have common interests in accordance to a set of rules established by tax legislation. In addition, all transactions with parties established in low tax and non transparent jurisdictions and those enjoying‘ ‘ p r i v i l e g e d t a x r e g i m e s ” a r e s u b je c t t o t r a n s f e r p r ic in g r u le s . T h e r e is a lis t o f ju r is d ic t io n s .
Legislation Analysis• Transactions examined under Brazilian Transfer Pricing Regulations include:imports and exports of goods, services, and rights with related parties, payments or credits for interest paid or received on loans with related parties not registered with the Central Bank of Brazil. However they are not applicable to royalty payments, technical assistance, and scientific and administrative fees (when it represents payments for technology transfer). These expenses are subject to limited deduction. They are also subject to withholding tax.
Methods adopted by Brazilian TP Regulations• There are two set of methods for goods, services an rights (in general): – For import transactions: • Comparable Uncontrolled Price Method (PIC) (CUP) • Resale Price Method (20% or 60% mark up margin) (PRL) (RPM) • Cost Plus Method (20% mark up margin) (CPL) (Cost Plus) – For export transactions. • Comparable Uncontrolled Price Method (PVEx) (CUP) • Wholesale Price in the Country of Destination Less Profit Method (15% margin) (PVA) (RPM) • Retail Price in the Country of Destination Less Profit Method (30% margin) (PVV) (RPM) • Cost Plus Method (15% profit margin) (CAP) (Cost Plus) There is no preferable method, taxpayer may use the one that better fits (or works) to his/her operation, but cannot use other methods such as Profit Split and CPM.
Methods adopted by Brazilian TP Regulations v. OECD Recommendations BRAZIL OECD•PIC – PVEx Comparable Uncontrolled Price (CUP)•PRL – PVA/PVV Resale Price Method (RPM)•CPL – CAP Cost Plus Method• N/A Transactional Net Margin Method (TNMM)•N/A Profit Split Method•N/A Formulary Apportionment
Methods adopted by Brazilian TP regulations• Compulsory profit margins are set between 15 and 60 percent, depending on the Transfer Pricing Method, and they differ for inbound and outbound transactions. The law specifies minimum and maximum profit margins and grants the Ministry of Finance the authority to change these margins, under special circumstances.• In other words, the profit margins are statutorily set in the Transfer Pricing regulations and are not dependent on comparable, uncontrolled transactions, for each specific case.• It is also important to point out that the law foresees the possibility of modifying those margins through an individual request submitted by the taxpayer or a taxpayer association.
Methods adopted by Brazilian TP regulations• The remarkable feature of the Brazilian methodology is the so called “fixed” or “predetermined” margins. These margins that are set in the law are used for the Resale Price and Cost Plus Methods in import and export operations. This methodology overcomes the difficulty to find a comparable for every single operation. It brings simplicity and predictability to the application of TP regulations. It prevents complex litigation, and makes the law and he regulations simpler. This simplification also applies to TP documentation.• This aspect, i.e., the use fixed margins will be part of the Manual of TP for Developing Countries the Committee is preparing (Chapter 7 in the very last version).