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Transfer pricing is a topic that goes beyond borders… and so do we

Transfer pricing is the number one commercial and fiscal issue facing companies with intra-group international transactions. The RTA, along with tax authorities from other jurisdictions, are aggressively seeking out what they perceive as their “fair share” of the corporate tax pie. Jurisdictions with “mature” transfer pricing regimes have invested heavily in recruitment and initiated more targeted and sophisticated transfer pricing reviews. On the other hand, countries which previously had little or no transfer pricing legislation, or Guidelines, have rapidly been introducing them in order to redress this perceived imbalance.

As a consequence, taxpayers should expect that their cross border international transactions will face intense scrutiny both domestically and internationally from fiscal authorities.

Transfer pricing is a profit allocation method used to attribute a corporation’s net profit or loss before tax to tax jurisdictions. Transfer prices are the charges made between controlled or related legal entities i.e. within the same group.

Legal entities considered under the control of a single corporation include branches and companies that are wholly or majority owned ultimately by the parent corporation. Certain jurisdictions consider entities to be under common control if they share family members on their board of directors.

Nigeria’s transfer pricing compliance process

The transfer pricing compliance process in Nigeria is now composed of the following:

  • TP documentation: Taxable persons who engage in transactions with connected taxable persons are required to maintain contemporaneous transfer pricing documentation to justify the arm’s length nature of the pricing of such transactions. The TP Regulations require that the TP documentation is in place prior to the due date for filing the income tax return of the year in which the transactions occurred. However recently published FIRS guidance has indicated the FIRS expects taxable persons to start maintaining documentation at the time the transaction is taking place i.e., contemporaneously. In practice, it is expected the FIRS will not ask for TP documentation until after the filing of the tax return, though as indicated, it expects such documentation to be in place at the time the transactions occurred to enable arm’s length pricing.
  • TP policy: In addition to TP documentation, taxable persons are required to maintain transfer pricing policy documents (both Group and Domestic policies), which are to be submitted with the first annual transfer pricing return, and updated when there are material changes to the policy.
  • Annual TP returns: An annual TP Return must be submitted at the time of filing the annual income tax return, and consists of the following:

 – TP disclosure form

 – Audited financial statements

 – Copy of income tax self assessment

– Tax computation with all schedules In addition, for the first year of submission of TP returns, the TP policy documents and TP declaration form must also be submitted. The FIRS guidance indicates that these documents would only need to be updated when there are material changes to the information contained in them.

Transfer pricing policy requests

The FIRS TP Division has begun sending out requests to taxpayers subject to the TP Regulations, asking such taxpayers to submit their group and domestic transfer pricing policy to the division within 30 days.

The requirement to maintain and submit a TP policy is not included in the TP regulations and so these requests have caused some uncertainty among taxpayers. However the FIRS recently clarified its position in the guidance published on its website and at an event it held for stakeholders.

The FIRS guidance indicates every taxpayer subject to the TP regulations is required to document its TP policy at both Group and Domestic levels and submit such policy to the FIRS either within 21 days upon request or, if no request is made, at the time of filing their first TP returns.

The FIRS guidance indicates that a Group TP policy refers to the set of principles adopted by the group upon which the pricing of intra-group transactions are based, depending on the objectives being pursued by the group. The guidance indicates that a Domestic TP policy differs from the Group TP policy by taking into consideration the requirements of the country’s TP legal framework.

The FIRS view of what a TP policy should contain differs from the type of policy documents most multinational groups maintain. Such policy documents are often in the form of an internal manual that provides guidance on how transactions are to be booked within the group, whereas the FIRS expects a TP policy will contain information on the TP methods and the comparables used to assess arm’s length pricing. Companies may therefore need to prepare specific policy documents in order to comply with the FIRS request, as existing internal documents are unlikely to fully address those expectations.

Declaration and disclosure forms

The FIRS has published updated versions of the TP disclosure form and TP declaration form, including guidance on how to complete the forms.

The TP disclosure form requires the provision of information about all the taxpayers controlled transactions, including transaction volumes and the transfer pricing methods used to support the arm’s length nature of the transactions. It also requires provision of basic financial information from the financial statements of the reporting entity and its consolidated group.

The TP declaration form requires the provision of information about the reporting entity, its parent, subsidiaries, ownership structure, major shareholders, and directors.

Implications

These recent communications indicate the FIRS is continuing its strong commitment to the enforcement of the TP regulations, and the transfer pricing regime in Nigeria is shaping up to be one of the more comprehensive regimes globally.

Affected taxpayers would be advised to take immediate action to ensure they have their transfer pricing policy, documentation and returns completed in time to meet the above-noted deadlines.

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