Regulations

In 2010, a great new opportunity has been introduced to the taxpayer in respect of transfer pricing.

In fact, preparing a specific supporting documentation, indicating the possession of such documentation within the terms and in the manner prescribed by the new rules and delivering the same not later than 10 days after the request, the taxpayer could  benefit from the non application of administrative sanctions in case of dispute and transfer pricing adjustment.

This opportunity was introduced by Article 26 of Law Decree no. 78 of 31 May 2010 (converted with modifications by Law no. 122 of 30 July 2010) and was subsequently regulated by the Measure of the Director of the Revenue of 29 September 2010 and Circular. 58 / E of 15 December 2010 the Revenue Agency.

Dichiarazione dei redditi 2

The conditions to apply for the non-application of administrative sanctions are basically three:

  • Preparation of a specific supporting documentation specified in the decision of 29 September 2010, sufficient to permit the finding of compliance with the normal value of the transfer prices charged;
  • communication to the tax authorities of the possession of the documentation that must be performed:
  • with the submission of the tax return, starting with the one existing on the date of entry into force of the Decree Law no. 78 (ie 31 May 2010) and subsequent (presumably 2010 and subsequent ones);
  • with electronic filing through the service Entratel by 28 December 2010 or later but prior the beginning of access, inspections, audits or other administrative investigation of which the subject has had formal knowledge, for tax periods prior to those at the date of entry into force of Decree Law 78 ( 2009 and the previous ones) still ascertainable;
  • delivery of such documentation no later than 10 days after the request.

The required documentation consists of a document called National Documentation, which in summary contains information concerning the company and local information related to intercompany transactions that the company has put in place, together with the methodology for determining transfer prices applied and the related economic analysis.

In case the company may as well qualify as a holding or sub-holding company of a multinational group under the rules above, it will have to prepare a Masterfile, which contains in brief the information concerning the group or sub-group and the information relating to intercompany transactions occurred between the various companies belonging to the same group or sub-group and related policies for the determination of transfer prices.

Indicating the context of reference of the new regulation, the Measure and the Circular mentioned above and in addition to explicitly call the Italian legislation on transfer pricing (Article 110, paragraph 7 and Article 9 of Presidential Decree 22 December 1986, n. 917) and that sanctioning (Legislative Decree 18 December 1997, n. 471) and introduction of the International Ruling (Article 8 of Law Decree 30 September 2003, n. 269 converted with amendments by law of 24 November 2003, n. 326) the same as well recall specifically the EU Code of Conduct on transfer pricing documentation for associated enterprises in the European Union of 27 June 2006, Article 9 of the Model tax Convention on income and on Capital as well as reproduced in the Conventions against of double taxation signed and ratified by the Italian State and the OECD Guidelines (Transfer Pricing Guidelines for Mulinational Enterprises and Tax Administrations) approved by the Council of the Organization for Economic Cooperation and Development on 20 July 2010.

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