Transfer pricing are those established between related parties, according to article 16 of Spanish Corporate Tax Law 43/1995, of December 27 (with the wording of Measures of Prevention of Fiscal Fraud Law 36/2006, of November 29).
The aforementioned article establishes that transactions between related parties MUST be valued at their normal market value. This valuation has to be documented in the form established for that purpose by the Spanish Tax Administration.
Current criteria to determine market value are those determined in OECD Pricing Transfer Guidelines for Multinational Enterprises and Tax Administrations. That is to say:
1. Comparable uncontrolled price – The C.U.P. method compares the price charged for property and services in a controlled transaction to the price charged for property and services in an uncontrolled transaction. However, this system is extremely complex in the practice:
a. Because of the difficulty of finding reliable information on prices and
b. Due to the impossibility of comparing prices, since prices are extremely sensitive tot he characteristics of each transaction. In practice, this method requires a different valuation for each transaction. C.U.P. method is quite reliable in case of financial transactions, such as those with commodity sales, for instance. Notwithstanding, it is totally inefficient in case of operations involving the incorporation of an intangible asset (e.g.: a Loewe handbag or a Prada dress).
2. Resale price method – The resale price method begins with the price at which a product that has been purchased from an associated enterprise is resold to an independent enterprise. This price (the resale price) is then reduced by an appropriate gross margin on this price (the „resale price margin“), representing the amount of which the reseller would seek to cover its selling and other operating expenses and, in the light oft he functions performed, maek an appropriate profit. This method reduces the need for comparability of the product, but it requires a greater functional comparability of the company, the contractual conditions and the economic circumstances of the transaction.
3. Cost Plus – As in the case of resale price, cost plus method begins with the costs incurred by the supplier of property or services in a controlled transaction for property transferred or services provided to an associated purchaser. An appropriate cost plus mark up is then added to this cost, to make an appropriate profit in light of the functions performed and the market conditions. The typical example is that of a company that provides archtectural services and calculates their prices by applying a profit margin on the hours of work of their employees. This method may also represent drawbacks, since it does not take into account production efficiency.
4. Profit Split – The transactional profit split method seeks to eliminate the effect on profits of special conditions made or imposed in a controlled transaction by determining the division of profits that independent enterprises would have expected to realise from engaging in the transaction or transactions (that is to say: assets, employees, expenses). To do so:
a. The overall profit is determined, adding up the profits obtained by each party in the operation and
b. The abovementioned overall profit is distributed among the parties, according to the proportional contribution to the operation of each of those parties. This system is more consistent with what is usually done by independent companies, who usually split results according to their investment on the transaction.
5. Transactional Net Margin Method – The transactional net margin method examines the net profit relative to an appropriate base that a taxpayer realises from a controlled transaction. Thus, it operates in a similar manner to cost plus and resale methods. Like resale and cost plust methods, transaction net margin one is applied only to one of the parties. This can affect the overall reliability. Besides, there are also difficulties in determining an appropriate corresponding adjustment when applying the transactional net margin.
The determination of the operation value must be documented in compliance with the requirements of article 18 of RD 1793/2008. That is to say:
· Documentation which must be accompanied by the taxpayer:
o Identification of the taxpayer and of the related parties.
o Description of nature, charateristics and price of the operation
o Analysis of comparability, carried out by the company
o Justification of the valuation method employed
o Cost sharing criteria
o Other relevant information
· Documentation which must be accompanied by the group:
o Organizational, legal and operational structure of the group
o Identification of the related parties taking part in the operation
o Description of nature, price and flows of operation
o Functions and risks assumed by each related party
o Ownership of brands and intangibles affected
o Group policy on transfer pricing
o Cost sharing agreement
o Valuation agreements
o Group Report