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The laws surrounding transfer pricing are becoming ever more complex, as tax affairs of multinational companies are facing scrutiny from media, regulators and the public
Tax policies are constantly evolving and there are a number of complex changes on the horizon that could significantly affect your business.
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- According to the Greek legislation, the transfer pricing rules apply to transactions between related parties. The term “related parties” applies to legal persons, individuals, and any other body of persons.
Specifically, the following entities are considered as related:
- any person holding directly or indirectly shares or portions of participation in the company’s share capital of at least thirty three percent (33%), based on the value, number, rights of participation to the profits, or voting rights of these shares
- two or more persons, in cases that an entity holds directly or indirectly shares or portions of participation in the company’s share capital of at least thirty three percent (33%), on the value, number, rights of participation to the profits, or voting rights of these shares
- any person who has direct or indirect significant administrative dependence or control on another person, or where one entity exercises or is able to exercise a dominant influence on another entity or in every case where both entities are dependent or controlled, directly or indirectly, under the above meaning, by a third party.
- For the years up to 31 December 2013, the applicable legislation is Law 2238/1994 and for transactions that took place in 2008, 2009 and 2010, Law 3728/2008 also applies.
- As of 1st January 2014, the applicable Laws are Law 4172/2013 (the Income Tax Code) and Law 4174/2013 (the Tax Procedures Code). According to them, persons subject to documentation requirements include taxpayers with a total value of intercompany transactions of more than €200,000 or €100,000, depending on whether their turnover is more or less than €5,000,000, respectively.
- Greece follows the three-tiered approach, i.e. the preparation of the Master File, the Greek File, and the Country-by-Country Reporting (if the consolidated group turnover exceeds €750,000,000). The Greek File and the Master File should be made available to the Tax Authorities within 30 days of their request. Also, the taxpayer should submit to the Ministry of Finance a TP Summary Information Table within the time period provided for the submission of annual income tax returns.
- The provisions of the Income Tax Code and the Tax Procedures Code regarding the transfer pricing are applied and interpreted in line with the principles of the OECD Guidelines. Consequently, the tax authorities have to take into consideration the Guidelines when ruling on transfer pricing issues.
- All the OECD transfer pricing methods are accepted by the Income Tax Code (Law 4172/2013). But, according to POL 1097/2014, as amended by POL 1144/2014, there is a preference for the traditional methods over the transactional methods and especially for the comparable uncontrolled price (CUP) method, which is considered to be the most accurate method. Transactional profit methods can be used when the traditional methods do not lead to reliable results, while the taxpayer needs to provide a detailed justification regarding the application of the transactional profit methods instead of the traditional methods.
As stated above, Greece follows the three-tiered approach, i.e. the preparation of the Master File, the Greek File and the Country-by-Country Reporting (if the consolidated group turnover exceeds €750,000,000). Also, the taxpayer submits to the Ministry of Finance a TP Summary Information Table within the time period provided for the submission of annual income tax returns.
The transfer pricing file may be written in an internationally accepted language, preferably English, but upon the request of the tax authorities, a translation into Greek should be available.
The Greek File should include the following information:
- a description of the group structure and the background of the Greek company
- a description of the intercompany transactions between the Greek taxpayer and its related parties, including business restructuring (i.e. nature of the transactions, amounts and flow of invoices, transaction’s terms and conditions)
- an industry analysis
- a detailed functional analysis, presenting the key functions, assets and risks of the Greek company
- an economic analysis, including a presentation of the transfer pricing method used and justification for its selection and supporting evidence such as comparables
- copies of the contracts that refer to the transactions between the Greek and the related companies.
The Master file should include the following information:
- a description of the legal and organizational structure of the group
- a description of the strategy and the activities of the group
- a presentation of the competitors
- a description of the group companies, along with a functional and risk analysis regarding the related parties
- a description of the group’s transfer pricing policy
- a list of the intangible assets owned by the group and the royalties related to these assets
- a list of the APAs concluded with foreign tax authorities, a list of CCAs, and a list of any court decisions.
- Transactions (commonly loans or services) between individuals who have direct or indirect significant administrative dependence or control on the company (ie related parties according to Greek Tax Law) which is difficult to find comparable data in order to verify the arm’s length principle.
- Group companies that have persistent losses.
Late filing of the TP Summary Table
- Minimum €500 – Maximum €2,000 (1/1000 on the value of the intercompany transactions).
- Late filing of a modified TP Summary Table
- Minimum €500 - Maximum €2,000 (1/1000 on the value of the intercompany transactions).
Penalty applies only to the extent that the amounts are amended and such amendments exceed the amount of €200,000.
- No filing of the TP Summary Table
Minimum €2,500 - Maximum €10,000 (1/1000 on the value of the intercompany transactions).
- Filing of inaccurate TP Summary Table
Minimum €500 - Maximum €2,000 (1/1000 on the value of the amounts to which the inaccuracy relates).
If the inaccuracy of the amounts does not exceed 10% of the value of the total transactions subject to documentation, no penalty applies.
- Late or no filing the transfer pricing file to the tax authorities
In the case of failure to provide the transfer pricing file to the tax authorities within 30 days from the official request, a penalty of €5,000 applies, which is increased to €10,000 if the file is provided after 60 days, and to €20,000 if the file is provided after 90 days or if it is not provided at all.
- Late or inaccurate filing of the CbC report
- Non- filing of the CbC report
As stated above, the traditional methods are preferred over the transactional methods and especially the comparable uncontrolled price (CUP) method. Based on this, the auditor will expect from the taxpayer to perform a search for potential internal comparables before defaulting to an external database search for comparables.
The taxpayer could use any available database to perform comparable company search and should include the details in the Transfer Pricing File. The Greek Tax Authorities doesn’t accept only local comparables but European benchmarking studies too. The comparable data of the benchmarking study can be used for the next 2 years, while the financial data of the initial study should be annually updated. In addition to the updating of the financial data it should be checked if the companies that were in the original comparative sample remain independent and comparable.
There are no ‘safe harbour’ rules available, per se.
Transfer pricing adjustments are allowed, but when they result in the reduction of the taxpayer’s profits or the increase of tax losses, the auditors will pay great attention to the issue.
In Greece, APAs are regulated by Law 4174/2013 and Ministerial Circular POL 1284/2013, where the General Directorate of Tax Audits and Public Revenues is in charge for their examination. Until now, the programme has not been widely used.
APAs may be agreed on a unilateral, bilateral or multilateral basis and they usually address complex transfer pricing issues. APAs are entered into at the discretion of the Authorities and they may decline a taxpayer an APA application. The duration of an APA cannot exceed four (4) years.
When having an APA, the taxpayer avoids double taxation and there is no obligation to document the APA transactions.
In terms of domestic Law regarding Mutual Agreement Procedure (MAP), Circular 1049/2019 regulates issues regarding bilateral conventions for the avoidance of double taxation.
In Greece, there is specific legislation (Law 89/1967) which gives significant incentives for the creation of Shared Services Centers in Greece. It refers to companies that offer exclusively specific support services to their headquarters (mainly abroad), having at the same time a predetermined mark-up approved by the Ministry of Development & Investment. The mark-up will be reassessed every five years at the latest, and cannot be less than 5%. It is worth noting that all expenses on which the mark-up applies are deductible for corporate income tax purposes.
The aforementioned regime offers a stable and certain corporate environment, while the company has not the obligation to submit a Summary information Table.
Transactions that do not exceed the amount of €100,000 annually and in total are exempted from the documentation requirement when the gross revenues do not exceed the amount of €5,000,000 per financial year. In case that the gross revenues of the liable party exceed the amount of €5,000,000 per financial year, the threshold increases to €200,000. Entities exempt from income tax obligations are also exempt from TP documentation requirements.
The franchisor-franchisee relationship does not imply that the parties are affiliates.
According to Circular 1093/22.4.2015, there is not any obligation to prepare a Transfer Pricing documentation file every year and submit a Summary Information Table regarding the companies under the regime of Law 89/1967.
- The tax authority has set up a specific task force (KEMEP – Center for the Audit of Large Companies) to enforce the Transfer Pricing rules, which is consisting of specialized executives. Thus, the intercompany transactions should be documented sufficiently in the Transfer Pricing File, as set by the Greek legislation, otherwise, penalties may be sought.
- The Greek Independent Authority for Public Revenue (IAPR), adopted the OECD Guidance, (18 Dec 2020), proceeded with the issuance of the Circular E. 2054/10.03.2021 that provides guidance on the transfer pricing implications of the COVID-19 period.
For further information on transfer pricing in Greece please contact: