Transfer pricing in Panama has been regulated for more than 9 years This article addresses a brief overview of the regulation on the matter, definitions, application scope, subjects obliged to make declarations and penalties for non-compliance.
Transfer Pricing obligations in Panama have been established since 2011, when a Transfer Pricing study was required whenever transactions are carried out with related parties domiciled in countries with which Panama had signed a Double Taxation Avoidance Agreement.
Nevertheless, since the enactment of Law No. 52 of 2012, the application scope was extended to taxpayers that carry out transactions with related parties abroad, even if they are not domiciled in a country with which Panama has signed the aforementioned Agreement.
Thus, the Panamanian Transfer Pricing regime has as its regulatory framework Chapter IX of the Panamanian Tax Code, which was amended by the aforementioned law and Executive Decree N°390 of 2016, as well as N°43 of 2019.
The latter is of great importance as it establishes the regulatory framework of the Country-by-Country Report, with which Panama continues to align itself with what is indicated by the Organization for Economic Cooperation and Development (OECD) in its BEPS (Base and Erosion and Profit Shifting) Plan.
Transfer prices are those prices or values agreed for transactions among related parties, which are usually also known as intercompany transactions.
Also referred to “Arm’s Length” principle. This is the fundamental pillar of Transfer Pricing.
This is based on the fact that the prices or considerations agreed among related parties are in accordance with market value, as if they had been made by independent parties.
This principle is also regulated in the Transfer Pricing Legislation of Panama, in article 762-A of the Panamanian Tax Code, which states that transactions carried out between related parties must be valued according to the Arm’s Length Principle.
This is taken to mean as the amount that independent parties would have agreed upon by independent parties in similar circumstances.
According to article 762-D of the Tax Code, the transactions subject to the Transfer Pricing Regime are those that the taxpayer carries out with its related parties located in another jurisdiction.
This is provided that such operations are considered as income, cost or deduction for income tax.
According to article 762-C, of the Panamanian Tax Code, two or more persons are considered related parties when:
Likewise, the main office or other permanent establishments of a permanent establishment, as well as the persons indicated above and their permanent establishments, shall also be considered as related parties to a permanent establishment.
The Panamanian legislation on Transfer Pricing provides for those taxpayers obliged to file a Transfer Pricing Report and a technical study with information from the taxpayer and, if applicable, from the business group to which the taxpayer belongs.
Likewise, as of 2019, the presentation of the Country-by-Country Report or CbC Report has been regulated.
According to article 762-I of the Tax Code, taxpayers that carry out transactions with related parties must file a transfer pricing report on an annual basis.
This must be filed within six months following the closing date of the fiscal period, by means of Form No. 930.
According to Article 762-J of the Tax Code, as well as Article 11 of Executive Decree N°390 of 2016, persons required to file the aforementioned affidavit or report must have a Transfer Pricing study, in order to be able to verify the valuation analysis of related party transactions.
This report, which could be called a “Local File“, as it is focused on taxpayer-specific documentation and follows the guidelines outlined in BEPS Action 13, should only be filed at the request of the Directorate General of Taxes (DGI).
The term for this will be 45 days, counted from the notification of the requirement.
Likewise, in the case of those taxpayers that are part of a business group and carry out economic activity among themselves, information must be submitted regarding the group, such as a general description of the organizational, legal and operational structure of the group, among others.
This is also in accordance with the guidelines of the aforementioned action for the “Master File“.
Executive Decree No. 43 of 2019 establishes the regulatory framework for the Country-by-Country Report.
In accordance with Article 2 of the aforementioned Decree, the following shall be required to file this report:
The information to be reported includes income, pre-tax profit or loss, income tax paid and accrued, declared capital, intangible assets, identification of each member entity, among others, regarding the jurisdictions in which the multinational group operates.
The aforementioned report must be filed within 12 months following the closing date of the corresponding fiscal period and will be delivered in “XML Schema” format, according to DGI regulations.
According to article 762-I, of the Tax Code, the failure to file the Transfer Pricing Affidavit referred to in said article entails a penalty of 1% of the total gross amount of the transactions with related parties, with a maximum limit of B/. 1,000,000.
Regarding the lack of Transfer Pricing study, the regulation does not quote a specific fine or sanction for this infraction. Nevertheless, it may be sanctioned according to the provisions of article 756 of the mentioned Code, regarding the failure to deliver documentation related to the application of the tax or to elaborate it out of the term.
This is sanctioned with a fine ranging from B/.1,000.00 to B/.5,000.00, the first time, and with fines ranging from B/.5,000.00 to B/.10,000.00 in case of recurrence.
According to the third paragraph of article 762-D of the Tax Code, the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations approved by the OECD Council are considered as interpretative criteria.
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