According to the OECD, “… Transfer prices are the prices at which a company transfers physical assets and intangible property, or provides services to associated companies …”.
In this regard, Chile was late until September 27, 2012, when Law 20,630 came into force, which amended the Revenue Law . With it the derogation of Art.38 of the LIR was produced, and article 41 E was introduced, which deals, among other issues, with the possibility that the Internal Revenue Service has, when, in its judgment, the securities do not conform to the market, to challenge the prices, values or fixed profitability or establish them in case of not having set any in cross-border operations and those that are related to reorganizations or business or business restructurings that domiciled, resident or established taxpayers in Chile, they perform with related parties abroad, provided they have not been made at normal market prices, values or returns. That is to say, when the Arm’s Length principle has not been respected.
What this standard intends is to achieve control of transactions between Chilean taxpayers and their related (in the same rule it is established that it is understood by related parties), without residence or domicile in Chile or persons domiciled or resident in a country or territory incorporated in the list referred to in article 41 DN ° 2 (tax havens), of the LIR.
In order to achieve the objective that the tax legislator has set forth, an obligation is established by taxpayers, domiciled, resident or established in Chile that carry out transactions with related parties located abroad, to present an annual sworn statement, whose The submission deadline is the last business day of June of each year. The erroneous, incomplete, untimely declaration or its non-presentation result in the application of fines by the Internal Revenue Service that may exceed $ 24,000,000. It must be said, in any case, that a postponement of the presentation of this affidavit may be presented, once and for a period of up to three months.
In order to establish a relationship of collaboration and trust with the taxpayer, this law allows in Article 41 E N ° 3, that he can submit a Transfer Pricing Report, which justifies them. And, since the preparation of the sworn statement involves the analysis of accounting, tax and commercial information of the audited company, it is convenient to prepare a transfer pricing report, taking advantage of the mandatory filing of the sworn statement ( DJ 1907).
The taxpayer must justify before the SII that the transactions with its foreign related companies are adjusted to market values, presenting for this the adoption of any of the methods, justifications of values, which are established in article 41 E. The adoption of the method and The Transfer Pricing Report does not reduce the taxpayer’s obligation to keep all the information that has been the basis for the application of the method and the preparation of the Transfer Pricing study at the disposal of the Service. Along with this, the tax authority also has the power to request information from foreign prosecutors in order to investigate possible information concealment.
In order to facilitate the task of the supervising body and in order to prevent possible conflicts, the Internal Revenue Service is authorized, according to Art.41 EN ° 7, to carry out with the taxpayer Anticipated Price Agreements (APA), in the which is proposed to the Service in advance a certain price, value or normal market profitability of the operations during a period that includes the commercial year of the application and up to three commercial years. The rejection or acceptance is the exclusive function of the Service, and its claim is not possible. Both the Service and the taxpayer can cancel the agreement, due to voluntary causes, changes in circumstances or defects. As this is a deal that is based on good faith; the presentation of maliciously false information matters a Tax Infringement and the commission of a crime.
The APA, always involves the Service and the taxpayer, and eventually, the Customs Service if the transactions refer to the import of products, and, also, may commit another or other tax administrations.
To address this issue, it is necessary for companies to consult with teams of suitable professionals; that is why the Consultant Navarrete & Cordova Ltda., has specialized its members, through courses and practice, having the technical knowledge and experience necessary to advise taxpayers in the application of this regulation, either, by filing the mandatory sworn statement, in the month of June of each year; preparation of transfer pricing report and processing of APA (Advance Price Agreements).
– Ley 20.630
– Resolución nº 14, establece obligación de presentar declaración jurada anual informativa de precios de transferencia. Fecha, 31 de enero de 2013.
– Circular n° 29 instruye sobre las modificaciones efectuadas por la ley n° 20.630. Fecha 14 de junio de 2013.
– Resolución n°68 imparte instrucciones sobre procedimiento de suscripción de acuerdos anticipados de precios de transferencia. Fecha 21 de junio de 2013