Prospects of transfer pricing regulation: more clarity or new challenges for business?

For many years the Ukrainian state has shown little concern for transfer pricing issues. Ukrainian conglomerates in particular benefited from such a state of affairs by moving their profits to off­shore and low tax jurisdictions. But times seem to be changing, and the Ukrainian government is keen on implementing the transfer pricing control and compliance practices followed by OECD states. It is no secret the fiscal deficit is the prin­cipal driver of this government effort.

In Ukraine somewhat watered-down transfer pricing rules were adopted in the mid-nineties. In subsequent years these rudimentary rules were amended several times. But still they remained pretty simple, unsophisticated, and did not provide much room for tax authorities to adjust pricing for tax purposes.

The adoption of the new Tax Code in late 2010 brought Ukraine closer to OECD-based transfer pricing practices. These rules took effect just recently, but are expected to be buried by the government in a shallow grave without even the accoutrements of a decent burial. The Ukrainian government is actively working on new rules and recently published a draft law intro­ducing substantial revisions to the current transfer pricing regulations.

The main idea of this law is to bring prices on certain types of trans­actions (i.e., so-called "controlled transactions") under close scrutiny of tax authorities and to oblige taxpayers to file annual reports in respect of such transactions and their pricing. These transactions are generally (I) related-party deals, and (II) transactions between Ukrainian companies and non-residents registered in low tax jurisdic­tions. They are "controlled" by tax authorities if their annual aggregate value equals or exceeds the equivalent of UAH 50 million. The general requirement of the draft is that prices in such "controlled transac­tions" shall correspond to the fair market prices.

A positive trend is that, unlike the current version of the law, the draft stipulates a number of factors to be considered by the tax authorities when choosing similar transactions between independent parties that will serve as a basis for comparison with "controlled" transac­tions. Among such factors are the functions of the parties and assets involved, the allocation of benefits and risks, the course of dealing, business strategies etc.

Since it sometime happens in Ukraine that commercial data filed with Ukrainian authorities become available to competitors, the annual reports to be submitted may be of concern for businesses. According to the draft such reports shall disclose rather sensitive data such as information about (I) all related entities in the group (including foreign entities), (II) the group's transfer pricing poli­cies, (III) detailed characteristics of goods/services (including their "reputation" on the market, trademarks involved, producers, etc.), (IV) factors that influenced pricing, (V) functions of the parties, (VI) economic analysis disclosing transfer pricing methods used, relevant revenues and expenses, the level of profitability, sources of "pricing" information etc. This submission shall be also supported by copies of relevant documents. Failure to file the above report and required documents may result in a penalty of 5% from the amount of the "controlled" transaction.

Under the current version of the law, a deviation in contractual price of less than 20% from the fair market price is generally per­mitted and shall not result in tax adjustment. Unfortunately, the draft does not contain such a guarantee. Furthermore, although the burden of proof rests with the tax authorities, the taxpayer would be still obliged to substantiate the prices upon the authori­ties' request. This suggested change differs from current regulation, which allows taxpayers to seek refuge in the statutory presumption that a contractual price is deemed to be the fair market price. Still, the advance transfer pricing arrangements with tax authorities are allowed for big taxpayers only.

At present, the draft is actively promoted by the tax authorities and government officials. Ukrainian political observers, who con­sider this draft law as colliding the interests of the President's team and major oligarchs, are impatiently waiting to see how it passes Ukraine's parliament, where the largest Ukrainian conglomerates have wide representation.