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The saga of transfer pricing continues

Nikkolai F. Canceran Nikkolai F. Canceran

Last month, I wrote an article about the saga of transfer pricing in the Philippines. The tale begins in 1939 when the Commonwealth Act 466 or the “National Internal Revenue Code was passed. This is the source of the Commissioner of Internal Revenue’s (CIR) authority to review, allocate and distribute the income and deductions of related-party transactions (RPT), both cross-border and domestic, including intra-firm transactions between related parties, to determine the appropriate revenue and taxable income.

Since the birth of this authority, the Bureau of Internal Revenue (BIR) has issued several guidelines to put this authority in effect. While there were no official transfer pricing regulations in place then, the CIR exercised this authority from the actual accounts of tax cases in which the BIR assessed taxpayers whose transactions with related parties allegedly did not conform to transfer-pricing requirements.

To catch up with other countries with more established transfer pricing regulations, the BIR formulated the following notable administrative issuances in the past seven years:

(1) Revenue Regulations (RR) No. 2-2013 (The Transfer Pricing Guidelines) — requires taxpayers to maintain contemporaneous transfer pricing documentation or TDP;

(2) Revenue Audit Memorandum Order (RAMO) 1-2019 — provides standardized audit procedures and techniques in auditing taxpayers with a related party and/or intra-firm transactions to ensure that the audit is of good quality;

(3) RR No. 19-2020 — requires taxpayers to submit their Information Return on Related Party Transactions (BIR Form No. 1709) or RPT Form and its supporting documents, including the TPD, as an attachment to their Annual Income Tax Returns (AITR); and

(4) Revenue Memorandum Circular (RMC) No. 76-2020 — clarifies certain issues and provides answers to frequently asked questions on the filing of RPT Form and its attachments.

The latest development in transfer pricing is the issuance of RMC No. 76-2020 two weeks ago.

According to the RMC, the BIR’s rationale for requiring the submission of the RPT Form and TPD is to improve and strengthen its transfer pricing risk assessment and audit. The BIR will analyze the information gathered from these submissions when selecting taxpayers to be subjected to a tax investigation and in determining whether or not to conduct a thorough review/audit of a particular entity or transaction.

The BIR implied that not all RPTs can be examined because, given its limited resources, it will only focus its audit and commit its resources to the most important transfer pricing issues.

The RMC emphasized that all Philippine taxpayers with RPTs regardless of amount and volume of transactions must file the RPT Form and its attachments every year as an attachment to their AITR. However, eFPS filers have 15 days from the statutory due date or actual date of electronic filing of the AITR within which to submit the RPT Form and attachments. Taxpayers’ failure to comply will lead to a penalty of P1,000 up to P25,000, which is subject to further penalties.

eFPS filer or not, the manner of filing of RPT Form and attachments will be manual, to the Large Taxpayer Division or Revenue District Office where the taxpayer is registered.

The first to submit the RPT Form and its attachments are supposedly taxpayers with the fiscal year ended March 30 and filing due date on July 30, but the BIR extended the deadline until Sept. 30. Because of this extension, non-eFPS taxpayers with the fiscal year ended April 30 will instead become the first filers when they file their AITR on or before Aug. 15. On the other hand, eFPS filers’ filing due date of the RPT Form and attachments is on Aug. 30.

AITRs for the 2019 calendar year and for the fiscal year ending before March 31, on the other hand, are not covered by the mandatory submissions.

While the BIR prefers local TPD, TPD prepared by the parent company or the group (master file) covering the transactions with the Philippine related company is also acceptable. This TPD must be updated yearly in case there are significant changes in the business model, factors or conditions considered in drafting the TPD, and the nature of the RPTs. If there is none, the old TPD shall suffice.

In terms of covered RPTs, the RMC stated that the enumeration of RPTs in RR No. 19-2020 is not exclusive. The intention of the RR is to include within the term RPT all transactions between related parties that result in the transfer of resources, services or obligations, irrespective of their arrangement (with cost-recovery or cost-sharing or recharging) and regardless of whether a price is charged. Even dividends and redemption of shares between and among related parties, though not usually covered by a TPD, should likewise be disclosed in the RPT Form.

RR No. 19-2020 requires full disclosure of all RPTs in the RPT Form. Taxpayers cannot rely on the related party disclosures in their audited financial statements because of some lack of tax-related information. Some of this information are the names of each related party and its Taxpayer Identification Number, amount of tax paid in a foreign country, amount of tax withheld on income payment to foreign related parties, and declaration of whether or not the taxpayer availed of benefits under tax treaties.

Additionally, the BIR claims that some cost-sharing arrangements are abusive RPTs, therefore a formal written agreement or contract to prove the legitimacy of the transaction must be maintained in addition to other documents to substantiate the transaction.

These new filing requirements are not simple tasks, because all contracts are required to be attached to the RPT Form regardless of volume. In a normal sale or purchase of goods to or from a related party, for example, the contract or any equivalent genuine documents, sales invoices, delivery receipts and proof of payment of the consideration must be submitted. Just imagine the piles of documents the taxpayer must collate just to complete the submission.

Another challenge facing taxpayers is their accounting system’s ability to capture all the required information and if it can generate reports that suit the disclosure requirements of the RPT Form. Another system investment added onto the taxpayer’s plate. Moreover, the accounting system is not the only concern, but also who is responsible for gathering the information: Will it be the accounting or tax personnel?

Just like other tales, viewers will start asking questions as the storyline progresses. If the tale of transfer pricing in the Philippines were a TV drama, the present situation would put us in the early episodes — because the plot has just unfolded. Taxpayers are invited to wait excitedly for the release of other episodes.    

Let’s Talk Tax is a weekly newspaper column of P&A Grant Thornton that aims to keep the public informed of various developments in taxation. This article is not intended to be a substitute for competent professional advice.

Nikkolai F. Canceran is a partner from the Tax Advisory & Compliance division of P&A Grant Thornton, the Philippine member firm of Grant Thornton International Ltd.


As published in BusinessWorld, dated 11 August 2020