Transfer Pricing News Issue 37 - December 2021

Circular letter to clarify transfer pricing documentation requirements released

The Italian tax authorities have opened a public consultation on a draft circular on the new documentation requirements introduced by the Administrative Provision of 23 November 2020. To benefit from the disapplication of penalties, Italian taxpayer are required to draft the appropriate documentation--a master file and a local file--and to report its possession in the tax return. The public consultation was open until 12 October 2021.

Administrative Provision no. 360494 amended the Italian rules on transfer pricing documentation, with the goal of aligning national requirements to OECD post-BEPS standards. The new rules apply for FY 2020, and no changes are necessary for transfer pricing documentation related to previous fiscal years.

The Provision’s main changes and impact on transfer pricing, as well as the clarifications made by the draft circular, are summarised below.

Major changes

The Provision stipulates that the required documentation for taxpayers to be eligible for penalty protection will continue to be composed of the master file and country-specific documentation (the country file). However:

  • Both the master file and the country file will be subjected to a substantial restyling of their formal structures and substantive requirements, in line with OECD BEPS Action 13 standards;
  • Subsidiaries will be required to make the master file available to the tax authorities, and it may be drafted in English;
  • Italian permanent establishments (PEs) of nonresident companies and Italian resident companies with foreign PEs will have to comply with the new documentation obligations (that is, making both a master file and a country file available);
  • Enterprises with less than EUR 50 million turnover will no longer be considered small and medium-sized enteprises (SMEs) if they directly or indirectly control or are controlled by entities that exceed that threshold; [CORRECT?]
  • A separate and mandatory documentation package will be necessary to support intragroup low-value-adding service transactions; and
  • The transfer pricing documentation must be signed by the taxpayer’s legal representative through electronic signature and a time stamp must be affixed before the filing of the annual corporate income tax return.

Impact on global transfer pricing

The new rules introduced by the Provision have had a significant impact, especially in terms of the information to be collected and the relevant deadlines.

Regarding the master file, the Italian tax authorities substantially increased the amount of data and information to be included; for example, the rules bring greater focus on group IP strategy and structuring, group financing policies, and consolidated financials, which in many cases are not easy for Italian subsidiaries of multinational entity (MNE) groups to access.

With regard to the local file, even though the Provision has aligned its formal structure with that provided by the OECD transfer pricing guidelines, several activities [actions?] continue to be necessary from an Italian perspective, in terms of content review and integration, financial analysis of local entities (P&L segmentation, when needed), and mandatory Italian translation.

The Italian tax authorities have significantly burdened taxpayers in terms of documentation to be prepared to support intragroup transactions for low-value-adding services. Indeed, a specific section of the transfer pricing documentation must be drafted that includes the proper identification of services, benefit testing, cost base determination and documentation. Penalty protection will not be granted to the extent intragroup low-value-adding service transactions are not duly analysed and supported.

Draft circular

The draft circular is intended to provide clarification regarding some of the measures included in the Provision.

Master file requirements

  • The draft circular allows for the possibility that taxpayers may prepare several documents for the same MNE group, if the group engages in different activities regulated by specific transfer pricing policies (so-called divisions). Moreover, for groups with a decentralised structure, it would be possible under the circular to submit a master file containing information relating only to the division in which the company operates.
  • A master file prepared by the foreign parent company for the MNE group as a whole is considered acceptable, provided it includes the information required by the Provision. If the required information is not included in the group’s master file, the Italian taxpayer must provide the missing information in a supplemental appendix.
  • The draft circular clarifies that the master file must include the group’s organisational and participatory structure, as well as the jurisdiction of fiscal residence of the various companies and permanent establishments, if any.
  • The intragroup transaction flows must highlight the value chain for the group's top five goods/services in terms of turnover, as well as other products and/or services with turnover exceeding 5% of the group’s total turnover.
  • The principal contracts/agreements relating to the provision of intragroup services, indicating the criteria for allocating costs and pricing services and the most significant extraordinary transactions that took place during the tax year must be listed.
  • The list of intangible assets (or groups of intangible assets) held by each group entity that enters into intragroup transactions (excluding companies not involved in those transactions) also must be included, indicating the legal ownership of those assets.
  • A description of the group's financing arrangements, financing contracts with third parties and identification of the companies performing financing functions is required, also indicating the transfer pricing policies.
  • In addition to the MNE group’s consolidated financial statements, the documentation must include a list of all advance pricing agreements the group has concluded with the tax authorities of the countries in which it operates.

Local file requirements

The local file, which complements the master file, focuses on the local entity’s specific transactions. The document contains an illustration of the company’s organization, its operational structure, its activities and business strategy.

The draft circular provides that the local entity’s intragroup transactions, which may be grouped into homogeneous categories, must be reconciled against the amount of intragroup revenues and costs reported in the corporate income tax (CIT) return.

The payments made and/or received must be divided by the tax jurisdiction of the nonresident company or the payor.

A comparability analysis must show any changes during the tax period that may have affected comparability factors, such as the effect of any government aid received because of the COVID emergency.

Formalities and delivery of documentation

The draft circular clarifies that the local file must be drafted in Italian, but allows for the possibility of submitting the master file in English. Any annexes may be drafted in English.

The draft circular also explains the procedure for communicating the possession of documentation beyond the deadline for submitting the tax return, also in light of the time stamp requirement.

This documentation must be signed by the company’s legal representative or his/her delegate, by means of an electronic signature with a time stamp by the effective due date of the tax return. All documentation must be submitted in electronic format no later than 20 days after a request from the tax authorities.

The draft circular specifies that the communication of possession of the documentation may also be made even in the case of declarations submitted within 90 days of the deadline, whether the taxpayer submits the declaration for the first time or if, within the same period, a supplementary corporate income tax return has been submitted to amend the CIT return submitted within the ordinary deadline. Both the master file and the local file must be signed by electronic signature, with time stamp to be affixed no later than the effective date of submission of the supplementary CIT return.

Finally, the draft circular clarifies that the communication of the possession of the appropriate documentation may also be made later, taking into account the institution of the so-called “remissio in bonis” (Article 2, paragraph 1, of Decree Law no. 16/2012), provided that the conditions required by Article 2, paragraph 1, of Decree-Law no. 16 of 2 March 2012 are respected, according to which the access to tax benefits or the access to optional tax regimes is not precluded, unless the violation has been ascertained or inspections, audits or other administrative audit activities of which the author of the violation has had formal knowledge have been initiated. The master file and the local file must be signed by means of an electronic signature with a time stamp to be affixed before the date of submission of the first useful declaration, that is, the first tax return for which the deadline for filing expires after the deadline for making the communication. In this case, a fixed penalty of EUR 250 is payable.

Ciro Pisacane

Andrea Trainotti