Transfer Pricing in Argentina

Applicable regulations

• Income Tax Law.
• Executive Order 1170/18.
• General Ruling (AFIP) No. 1122.
• General Ruling (AFIP) 4130-E.

Supplementary Application of OECD Guidelines

The OECD Transfer Pricing Guidelines have no formal enforceability since the Argentine law does not adhere directly to them. However, both AFIP (Argentine Revenue Administration) and ordinary courts have recognized that said Guidelines represent interpretation guidelines to be taken into consideration insofar as they do not conflict with Argentine legal rules.

Transactions under the Scope of TP Regulations

TP regulations govern all transactions conducted with related individuals, legal persons or undivided estates created, domiciled, resident or located abroad or with persons residing in zero or low tax jurisdictions or jurisdictions considered “non-cooperating for fiscal transparency purposes”, even when there is no relation between them.

Definition of Related Party

There is relation where the parties that carry out a transaction are linked either directly or indirectly to the management or control of the same natural or legal persons, or else, the latter, whether through an equity interest, claims receivable, functional or any other kind of influence, whether contractual or not, have decision making power to define or influence the activities of the companies, their establishments or other types of entities.

Definition of Zero or Low Tax Jurisdiction

Zero or low tax jurisdictions are defined as countries, territories, possessions, commonwealth states or special tax regimes where the maximum income tax rate on companies is lower than 60% of the corporate tax rate applicable to companies which is 25%. As a result, those jurisdictions with an income tax rate below 15%, considering all levels of governments, are treated as low tax jurisdictions.

Treatment Afforded to Small Amount Transactions

Taxpayers that conduct transactions with foreign related parties or parties in zero or low tax jurisdictions or non-cooperating jurisdictions are not required to make transfer pricing filings where such transactions in the tax period:

(a) do not exceed individually the amount of ARS 300,0000, or (b) on the aggregate they do not exceed ARS 3,000,0000. Notwithstanding the above, they are expected to maintain source documentation that supports such transactions.

Imports and exports between related parties

On an annual basis, taxpayers are required to report import and export transactions with related parties, provided the counterparty does not reside in a zero or low tax jurisdiction or non-cooperating jurisdictions, through the following:

  • Tax Return Form F. 741: for commodities transactions
  • Tax Return Form F. 867: For the other export and import transactions, which annual amount, on the aggregate, exceed ARS 10,000,000.

Documentation

Related to the Local File

The following information is to be filed annually with AFIP:

  • Tax Return Form 743 with a breakdown of transactions.
  • Form 4501, which should be accompanied with:
    • The Transfer Price Report (Local File) in “PDF” format. In the case it includes information written in a foreign language, the report should be filed with a translation into Spanish made by a national sworn translator.
    • Certification of an independent accountant.

Tax Return 4501 should have the “digital signature” of the taxpayer, the intervening public accountant and the representative of the Professional Association where such accountant is registered.

Related to the Master File

Pending implementation.

Related to the Country by Country Report

Reporting obligations include:

  • Form 8097 with the Country by Country Report for multinational groups, whose total annual consolidated revenue for the fiscal year previous to the reporting year amount to or exceed € 750,000,000, or its equivalent in local currency of the ultimate controlling company as of January 2015.

Parties required to file this information include:

    • Ultimate controlling company residing in Argentina for tax purposes.
    • Surrogate entity in Argentina, appointed by the ultimate controlling company to file the Report.
    • Entity residing in Argentina other than the ones refer above, provided certain assumptions are verified (no obligation to file the report in the country of the ultimate controlling company, absence of an international exchange information between the jurisdiction of the ultimate controlling company and Argentina, etc.).
  • Form F. 8096 to be filed by resident persons that form part of multinational groups, including identification data and revenue of each group of multinational companies to which they below, of the ultimate controlling company and, if applicable, of the reporting entity designated to file the Country by Country Report, if the multinational companies group is required to do so.
  • Information on the Country by Country Report filed in the corresponding jurisdiction

Due Dates for Filing with Argentine Tax Authorities

  • Local file: Forms F. 741, F. 743, F. 867 and F. 4.501 and the financial statements are to be filed within the eighth month immediately after the end of the annual fiscal or calendar year.
  • Country by Country Report:
    • Form F. 8097 may be filed until the last business day of the twelfth month following the end of the reporting fiscal year of the ultimate controlling company of the multinational Group.
    • Form F. 8096 may be filed until the last business day of the third month immediately after the end of the reporting fiscal year of the ultimate controlling company.
    • Information on the presentation of this report in the corresponding tax jurisdiction: may be filed until the last business day of the second month immediately after the month where the Country by Country Report is to be filed.

Transfer Pricing Methods

Regulations adopt the best method principle out of the following authorized methods:

• Comparable Uncontrolled Price.
• Resale Price.
• Cost Plus.
• Profit Split.
• Transactional Net Margin.
• Other methods (for the transfer of valuable and unique intangibles, unlisted financial assets or investments in assets which capitalization only generates income through depreciation/amortization).

 

Comparability

The same criteria established by the OECD Guidelines are adopted.

Internal comparables should be given priority in the selection.

The information on the tested party should correspond to the fiscal year under review (no multiannual information is admitted) unlike comparable data where the type of business or market conditions warrant it.

Transactions or business lines should be tested on disaggregated or segmented information arising from the taxpayer’s financial statements, or else, be supported with reliable information.

Transactions conducted with local taxpayers in favor of a related foreign person or a person domiciled in a zero or low tax jurisdiction or non-cooperating jurisdiction without agreed consideration should be included in the analysis.

Risk Analysis

The tested party should: (i) identify the risks relevant to the transaction, (ii) identify how they were assigned among the parties in accordance with contract provisions and as it results from the behaviors of the parties, (iii) identify the party that performs control and risk mitigation functions and the entity that has the financial capacity to bear them and (iv) determine the consistency between what has been agreed and the behavior of the parties.

Intangibles

There are no specific provisions applicable to intangibles other than the following guidelines:

  • If any of the parties in the transaction were owner or licensor of trademarks, patents or other intangibles, it should be identified and this situation should be weighted, even when their economic use or utilization is not expressly remunerated.
  • In the event of a transfer of valuable intangibles, “other methods” may be used to support the agreed-upon price insofar as they prove to be a better option than the methods set forth by the law.
  • Deduction is limited to 80% of the remuneration paid on trademark and patents to foreign parties.

Low Value-Added Services

There are no specific  rules governing the distribution of shared costs or a maximum admitted markup.

Export and Import Transactions through Intermediaries

According to regulations, the remuneration of the international intermediary should be supported and should be consistent with the functions performed, the assets employed and the risks assumed, provided the following conditions of economic relation are verified:

  • The international intermediary should be related to a local person, or
  • The exporter in the source jurisdiction or the importer in the destination jurisdiction should be related to the local party.

If the remuneration of the international intermediary is higher than an arms’ length remuneration, any excess will be treated as higher Argentine-source income attributable to the local taxpayer.

In the event of an international intermediary that does not meet the conditions mentioned above, the evidence to support such remuneration should be provided by the taxpayer (public information on the intermediary resulting from the public financial statements of the economic group to which the intermediary or the taxpayer belong).

Export of Listed Assets (commodities)

In the case of exports of assets listed in an international exchange with the intervention of an international intermediary, where the latter or the importer is related to the local taxpayer or else the intermediary is located in a low or zero tax jurisdiction or a non-cooperating jurisdiction, Argentine rules require that the relevant contracts be registered with a Special Registry managed by AFIP and, where applicable, any comparability issue that may result in differences in the transacted prices and the market price on the delivery date, as well as any aspect to be taken into consideration in the application of premiums and/or discounts. Such Registry has yet to be created.

Should the contract not be registered as required, the market price listed on the shipment date should be applied.

Export contracts for commodities without the intervention of intermediaries, as well as those entered into between unrelated parties, are also subject to the registration provision.

Transfer Price Differences

In the case of transactions with prices or markups within the interquartile range, such prices will be afforded arm’s length status. Otherwise, the AFIP shall apply the median of the prices or markups agreed upon by unrelated third parties.

In the case of goods or services listed in public exchange, the market range shall be formed by the high and low prices on the same day of the tested transactions, if available. If the price of the transaction falls outside the range, the average between those two prices will be applied.

APAs Scheme (Joint Assessment of International Transaction Prices)

The application should be filed with the AFIP before the beginning of the fiscal year where the transactions are to take place. This joint assessment of international transaction prices (DCPOI in Spanish) has no temporal effectiveness but rather is contingent upon the transactions meeting the terms and conditions in the agreement.

For any questions about this matter, send an e-mail to:

Cecilia Goldemberg – Cecilia.goldemberg@gsrc.com.ar
Julieta Firpo – julieta.firpo@gsrc.com.ar