As of 1/1/2021, the TP Master File and Local File are required to be submitted to the tax authorities within 60 days after filing the tax return, with daily penalties imposed for not meeting the timeline.
The permanent establishment (PE) rules are also being modified: the PE definition will be conformed to the 2017 OECD definition, with deviations for a building site becoming a PE from day 1, and a trading activity is required for a PE resulting from investments in shares, receivables and financial instruments.
Additionally, the Court of Justice of the European Union (CJEU) on 12 June 2018 (case C-650/16, Bevola) held that Danish law was incompatible with European Union law because a Danish company could not claim a tax deduction for a final loss in a foreign PE. Denmark’s revised guidance will be effective from 2019, providing opportunities to claim such losses.
Taiwan’s new transfer pricing (TP) guidance encompasses the local file, country-by-country (CbC) report and the Master File, effective for the 2017 tax year.
Inclusion of the TP Master File as a required document to be submitted annually is a new trend, apart from having it available upon audit. Although generally protected by a tax administration’s confidentiality provisions, increasing circulation around the world increases the chances of a leak, inadvertent or otherwise.
Thus, it would be prudent to consider such information as being in the public domain when finalizing this report for distribution.
As time is of the essence for various OECD BEPS proposals to be made public, the interim time gap may be an excellent time to refresh global transfer pricing documentation strategies. Several questions that may be addressed in a transparent and critique perspective include the following:
Have each of the BEPS proposals been matched to current TP methodology, questioning the future state of global TP documentation?
For current cooperative compliance relationships, is a discussion contemplated / scheduled to discuss the potential impacts of BEPS on the ongoing ways of working, including TP documentation?
Are future cooperative compliance relationships in focus, aligned with BEPS initiatives, especially among countries seeking unilateral legislative actions re: General Anti-Avoidance Rules (GAAR) implementation, etc.?
Are the attributes of a GAAR, including a taxpayer’s responsibility for GAAR compliance, being considered globally and /or in local country files?
Should compliance roles and responsibilities of TP compliance change re: internal / external resources due to BEPS with additional complexities envisioned?
If a Master File and Local Country file methodology is not currently in place, will there be a global and/or regional shift to such methodology? What is the proposed timing for change?
Are the local tax return disclosures re: TP aligned with that country’s TP documentation?
What tax team / TP resources are being aligned to address the BEPS initiatives and proposed documentation?
Are tax policy statements of the Tax Risk Framework being reviewed for desired TP transparency?
Have there been “idea” meetings to discuss next steps in a creative atmosphere?
A BEPS / TP review will be valuable in aligning future vision, flexibility and transparency in today’s volatile atmosphere of TP assumptions and perceptions.