Brazil is the only country in South America that has particularities in its Transfer Pricing Legislation, by not following the model outlined by the OECD. Nevertheless, it is increasingly preparing for such convergence. This article presents a brief overview of the Brazilian transfer pricing legislation, including definitions, linkage rules, methodology, formal obligations and penalties for non-compliance.
Transfer Pricing legislation in Brazil was established in the mid-1990s, due to the growth of large multinational companies in this country.
These standards were incorporated by Law No. 9430 of 1996, which was designed by the guidelines established by the Organization for Economic Cooperation and Development (OECD), although it has its own particularities, which in turn have created divergences regarding to the model proposed by the OECD.
When the Brazilian transfer pricing rules were established, they have been characterized by trying to simplify for the taxpayer the valuation of its prices agreed among related parties and at the same time facilitating the Tax Administration to verify them.
Nonetheless, this regime has not undergone many changes over time and has presented certain problems, which is why in 2019 Brazil is working with the OECD on a project in order to align itself with the model proposed by this organization.
Transfer prices or Preços de Transferência are understood to be those prices or values agreed in transactions among linked or related parties, such transactions are also referred to as intercompany transactions.
The Arm’s Length principle is based on the principle that the values or considerations agreed among related parties should be in accordance with market value, i.e. as if they had been agreed among independent parties.
This principle is not expressly included in Brazilian legislation on the matter. Nonetheless, it is in fact agree according to the Explanatory Memorandum of Law No. 9430/1996.
It should be noted that this principle has nuances in this legislation, due to certain transactions that are not subject to these, such as royalties, licenses for technology transfer licenses, and other intangibles, in addition to regulating certain safe harbors for certain transactions.
According to Articles 18 and 19 of the Law, the Transfer Pricing rules shall apply to the following import and export transactions:
Article 24 of the Law also states that these rules shall apply to transactions performed with a person, whether an individual or legal entity, resident in countries of tax favored or tax havens, which do not tax income or if taxed, they do so at a rate of less than 20%.
According to Article 23 of the Law, the following shall be considered related parties to the legal entity in Brazil:
Brazilian regulations distinguish the use of methods, depending on whether is an import or export transaction with a related party, in such a way that Articles 18 and 19 detail the following:
In addition, Article 18-A establishes a method for the case of imports of commodities, also known as the ICP Method, taking as a reference the international quotation values of unalterable contracts in the future and primary goods.
In accordance with Article 19, when the income from these transactions with related parties is less than 90% of the average price for the sale of goods, rendering of services or rights in the Brazilian market under similar conditions, any of the following methods must be used:
The Brazilian legislation on this matter has the particularity of presenting “safe harbors“, also known as “portos seguros“, by means of which certain margins are established. If the taxpayer is within these margins, the Federal Revenue of Brazil (RFB or Receita Federal do Brazil) would have no reason to question the established Transfer Prices.
One of these safe harbors is quoted in Article 19 of the aforementioned Law, since the valuation methodology will only be applied in export transactions when the income with related parties is less than 90% of the price of similar goods or services in the Brazilian market.
This mechanism is intended to facilitate price verification for taxpayers and the tax authority.
Brazilian Transfer Pricing legislation, unlike other Latin American legislations, has not yet introduced the first two levels of supporting documentation required by Action 13 of the BEPS (Base and Erosion and Profit Shifting) Plan, such as the Local File and the Master File.
Nonetheless, it has regulated the third level of documentation, i.e. the Country-by-Country Report (CbC Report or Relatório País por País) through Normative Instruction N°1681 issued by the RFB in December 2016.
Article 3 of this regulation states that taxpayers domiciled in Brazil that are the parent company of a multinational group are required to file this affidavit.
The parent company resident in Brazil or its constituent entities resident in Brazil will not file such affidavit, when the consolidated income of the previous fiscal year is less than R $2,260,000,000.00 or 750,000,000.00 €.
This will be filed through the EFC or Tax Accounting system, by the Public Digital Accounting System (Speed), so its filing deadline will be the one established for the EFC.
On the other hand, the rule requires the documentation being filed annually along the corporate tax affidavit.
Transfer Pricing legislation in Brazil does not establish specific Transfer Pricing penalties for non-compliance. Nonetheless, general infractions and penalties may be applied.
In case of the Affidavit late filing, the required taxpayers will be subject to a fine of R $1,500.00 for each month or fraction thereof of delay.
Likewise, in case of inaccurate affidavits, these will be subject to a sanction of 3% of the value of the omitted transactions.
A tax reform was proposed in Brazil to tax dividend income at 15%.
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