Transfer Pricing legislation in Spain is regulated in Article 18 of Law 27/2014 (the Law) or “Corporate Tax Act“.
It is also complemented by Articles 13 to 36 of the Regulations approved by Royal Decree 634/2015.
The formal obligations are established in this area by the latter regulation, such as the necessary documentation to prove that such transactions are at market value, taking into consideration the guidelines set forth by the Organization for Economic Cooperation and Development (OECD) in Action 13 of the BEPS (Base and Erosion and Profit Shifting) Plan.
Likewise, by the Orden HFP (Orden ministerial del ministerio de Hacienda y Función Pública) or Ordinance FPF (Ordinance of the ministry of Finance and Public Function) /816/2017 the informative affidavit on transactions with related parties and tax havens was established, which along with the rules already mentioned above establish a framework for the Transfer Pricing regime in this country.
This is defined as those prices or values agreed upon in transactions among linked or related parties, these types of transactions are also known as intercompany transactions.
It is also known as the “Arm’s Length” principle, which is based on prices or values agreed in transactions among related parties being in line with market value.
Said principle is also regulated in the Transfer Pricing legislation of Spain, in numeral 1, Article 18 of Law 27/2014 or “Corporate Tax Act“.
The aforementioned paragraph states that transactions performed among related persons or entities must be valued at market value, which is taken to mean as the value agreed among independent parties.
In order to determine whether two or more transactions are comparable, Article 17, numeral 2 of the Regulations of the Corporate Tax Act states that the following circumstances must be taken into consideration:
Article 18, numeral 3 of the Law states that taxpayers, in order to prove that the prices in the transactions with related parties have been valued according to the market, must keep the documentation established by Regulation, with the purpose it can be made available to the Tax Administration when it is required.
In this regard, articles 13 to 16 of the Regulations indicate the documentation that must be kept in accordance with the law.
Pursuant to numeral 4 of Article 16 of the Regulation, those persons or entities that do not exceed ten million euros may file a standardized document in order to comply with the specific documentation required by the aforementioned regulation.
According to numeral 3 of article 18 of the Law, in accordance with article 16 of the aforementioned Regulation, it is stated that those taxpayers whose net turnover is greater than 10 million but less than 45 million may file the specific documentation in a simplified format.
This documentation shall have the following content:
Article 16, numeral 4 of the Regulation states that the Specific Documentation of the Taxpayer will be applicable to taxpayers whose net turnover exceeds 45 million euros, including permanent establishments of non-resident entities in Spain.
This documentation must include information such as company structure, description of the company’s activities, main competitors, detailed information on related transactions and economic and financial information of the taxpayer.
It should be noted there are exceptions to the obligation of having such information, one of them being when the transactions are carried out with the same related party and the total consideration does not exceed the amount of 250,000 euros, according to the market value.
This documentation will be applicable, as well as the specific documentation, for those taxpayers whose net turnover exceeds 45 million euros, in accordance with numeral 2 of article 15 of the Regulation.
The information to be disclosed includes the structure and organization of the group, the activities, information related to intangible assets of the economic group and financial and tax information of the group.
Article 19, numeral 2 of the Law states that transactions performed with persons or entities resident in countries or territories classified as tax havens or territories of low or no taxation must also be agreed at market value.
This article, in turn, states that those who carry out transactions with these entities are required to have the documentation indicated in numeral 3 of article 18 of the Law, as described in the preceding paragraphs, taking into consideration the specifications indicated in article 37 of the Regulations.
In relation to the filing non-compliance the formal Transfer Pricing requirements or incomplete filing, the regulation states that in the case no adjustment is made, the penalty will be 1,000 € for each omitted, inaccurate or false data and 10,000 € for each set of data.
In the case of an adjustment, the fine shall amount to 15% of the correction made.
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