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.
According to numeral 2 of Article 18 of the Law, it shall be understood as related persons or entities, when they are in the following situations:
With respect to the definition of “group“, the regulation states that such a group exists when an entity has or may have control over another or others, as established in Article 42 of the Spanish Commercial Code.
According to Article 19, numeral 4 of the Law, in order to determine the market value of the transactions with related parties, one of the following five methods may be used:
It should also be noted that the choice of any of the methods indicated above should take into account the circumstances, the nature of the transaction, the information available and the degree of comparability of the transactions.
To the extent that the use of any of these methods is not possible, the taxpayer may apply other valuation methods in accordance with the Arm’s Length principle.
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 14, numeral 1 of the Regulations states that such report shall be applicable to the following entities:
It also states that dependent entities resident in Spain will not be required to file a Country-by-Country Report when the parent company of the multinational group has appointed another entity of the group abroad, provided that the latter is resident in a European Union country.
As regards the deadline for filing the aforementioned Report, the regulation states that it will expire twelve months after the end of the tax period.
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.
Ordinance FPF/816/2017 establishes the requirement to file an Informative Affidavit of transactions with related parties and transactions related to tax havens by means of Form 232.
According to article 2 of the aforementioned regulation, the following taxpayers are required to do so:
It should be noted that in the case of transactions with tax havens, Form 232 must be filed regardless of the amount.
The filing deadline is the following month after a period of 10 months from the end of the fiscal year.
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.
Se cuestiona la deuda entre SAREB y el Estado español por los presuntos fraudes cometidos por la primera entidad, por lo que se deberá evaluar la correcta aplicación de precios de transferencia.
España incorpora la “Guía de Procedimientos Amistosos” sobre precios de transferencia, centrada en aquellos procedimientos que son competencia de la AEAT.
Se establecen medidas urgentes para la protección del empleo, la recuperación económica y la mejora del mercado de trabajo.
