Transfer pricing – obligation to update TP documentation

7 May 2018

On 3 April 2018, the Minister of Finance published general advance tax ruling no. DCT.8201.6.2018 dated 28 March 2018 concerning the obligation to update transfer pricing documentation.

According to Article 9a(2g) of the Corporate Income Tax Act which has been in force since 1 January 2017 (and the corresponding Article 25a(2g) of the Personal Income Tax Act), the transfer pricing documentation has to be revised and updated at least once every tax year, before the tax return filing deadline.

In the general advance ruling the Ministry explains that the updating obligation applies to documentation of transactions or other dealings that last longer than a tax year, for instance financial transactions (e.g. loans, bond issue, guarantees, sureties).

The transfer pricing documentation should be updated and periodically revised to reflect the actual course of transactions and other dealings and highlight all changes from the original date of the documentation or the date of its last update.

The Ministry of Finance explains that the transfer pricing documentation should be updated:

• whenever material terms and conditions of transactions or other dealings (e.g. loan renewal, payment of another loan tranche or new interest rate) change;
• when there are no material changes, but in order to disclose current financial figures concerning the transactions or other dealings as well as details of the taxpayer.

Additionally, the Ministry of Finance points out that whenever material parameters of transactions change in the course of the transactions, this is not a new transaction. Consequently, the existing transfer pricing documentation must be updated as appropriate and no new documentation has to be prepared (from scratch).

As a consequence, new rules of drawing up and updating transfer pricing documentation apply to transactions and other dealings which are:

• new, made in the tax year commencing after 31 December 2016;
• continued in the subsequent tax year(s);
• continued in the tax year commencing after 31 December 2016 and started but not completed before 1 January 2017.

The explanations in the general ruling used financial transactions as examples, but the new rules apply to all transactions or other dealings.

We recommend reviewing your transactions commenced before 1 January 2017 and continued in later years in terms of the documentation obligation. Using this opportunity, we would like to remind you about the obligation to prepare/update the documentation of transactions and other dealings made with tax havens, e.g. Hong Kong.