Regarding The Beneficial Regime For Transfer Pricing Italy
New developments regarding the suitable documentation established by the Tax Office regulation of 29 September2010.
NEW DEVELOPMENTS REGARDING THE BENEFICIAL REGIME FOR TRANSFER PRICING: IT IS DENIED IN SPECIFIC CASES
Art. 26 of DL 78/2010 introduced a regime that gave taxpayers the right to make a disclosure of the transfer pricing policy adopted, with the aim of establishing a collaborative relationship with the Financial Administration.
This led to the waiving of sanctions in the event of objections regarding the considerations applied in transactions with non-resident companies of the group.
The suitable documentation is indicated by the Tax Office regulation of 29 September 2010.
In this case, it is not an avoidance from tax control, but a measure aimed at rewarding diligent taxpayers with a “penalty protection”: those taxpayers that permit the Tax Office to have a direct support from the company to perform a check of the transfer prices adopted.
The penalty protection depends on the delivery of documentation “suitable for permitting a check of the conformity of the transfer prices applied with a normal value” (art. 1 paragraph 2-ter of Leg. Dec. 471/97).
The beneficial effect for the taxpayer is, therefore, dependent upon compliance with both the formal and substantial requirements indicated by the regulation. With regards to the first, the regulation establishes a rigid and very detailed scheme relating to the information to be inserted in the national documentation.
Compliance with the formal requirements is a necessary condition but is not sufficient to guarantee the waiver of sanctions.
It is not possible, in fact, to disregard the assessment of the substantial suitability of what is disclosed by the taxpayer in providing the information necessary for an analysis of the transfer pricing.
This documentation must, in other words, enable the Financial Administration to understand and assess the taxpayer’s fiscal conduct.
Point 8.3 of the regulation sets out the cases in which there is a “non-suitability” of the national documentation so as to preclude the penalty protection.
The penalty protection is denied to taxpayers that make an instrumental use of the favourable regime, that is, in cases of “ascertained bad faith” of the taxpayer in which:
- despite having communicated its existence, the national documentation is found to be inexistent during an assessment;
- the national documentation (prepared and promptly submitted) contains factual information which instrumentally and knowingly does not correspond to the truth;
- the national documentation (prepared and promptly submitted) completely distorts the intragroup pricing system;
- the national documentation (prepared and promptly submitted) is clearly invalid and has been crafted to obtain an economic benefit contrived by the taxpayer.
Jurisprudential precedents are referred to in order to support the above (Tax Commission (T.C.) Prov. Milano no. 99/2012, T.C. Prov. Milan no. 1457/2015, T.C. Reg. Milan no. 2454/2017).
In the light of the above, conduct on the part of the Tax Office which, on the one hand, uses the national documentation submitted in order to raise an irregularity regarding transfer pricing and, on the other hand, fails to grant the benefit of the waiver of sanctions, does not conform to the cited regulation.
Furthermore, it should be reiterated that the aim of art. 26 of DL 78/2010 is not to propagate its transfer pricing policy, but rather, to guarantee the waiver of sanctions in the context of objections on the part of the Tax Office, if the taxpayer, having prepared the national documentation, is found to be transparent and cooperative.
In the light of the above, we strongly recommend every company belonging to international groups to carefully check the correctness of its “Disclosure of the transfer pricing policy” document.
Are you not sure if the “Disclosure of the transfer pricing policy” is correct?
To receive a free INDEPENDENT AND OBJECTIVE CHECK OF THE SUITABILITY of your company’s “Disclosure of the transfer pricing policy”, call immediately +39 059 877 3 427 or send an e-mail to email@example.com.
We will immediately fix an appointment with our Specialist to check the suitability of the Disclosure of transfer pricing policy Document.
Dr Massimiliano Pifferi
Chartered Accountant and Auditor