The OECD’s work in the Base Erosion and Profit Shifting project (BEPS) resulted in an update of the OECD Transfer Pricing Guidelines 2017. What the resulting necessary fundamental revision of the Austrian Transfer Pricing Guidelines 2010 brings.
On 4 December 2020, the Austrian Ministry of Finance published the draft of the revised Austrian Transfer Pricing Guidelines (Austrian Guidelines) 2020. The Austrian Guidelines 2020 are an essential interpretative aid for the application of the arm’s-length principle in business relationships between associated companies and permanent establishment situations.
The “arm’s-length principle” requires that business relationships between related parties be agreed upon as would be the case in comparable transactions between independent third parties. Otherwise, the tax authorities are entitled to adjust the agreed prices to the arm’s-length value and make corresponding profit adjustments.
The former Austrian Guidelines 2010 have been fundamentally revised, but the structure has essentially been retained. In addition to current case law and administrative practice, the Austrian Ministry of Finance information on the Transfer Pricing Documentation Law (VPDG) and the corresponding implementing regulation has also been incorporated. In addition, regulations for companies that are not required to provide documentation under the VPDG as they do not exceed the threshold values have been integrated into the Austrian Guidelines 2020.
Specifically, the changes under the OECD Guidelines 2017 have been taken into account, which were introduced during the Base Erosion and Profit Shifting (BEPS) project. During the BEPS project, the OECD made proposals - specifically in BEPS Actions 8 to 10 - to ensure that taxes are paid where corporate value creation is realised. These proposals were fully incorporated into the 2017 update of the OECD Guidelines. These amendments are now also included in the Austrian Guidelines 2020. The appendix to the Austrian Guidelines 2020 also contains an overview of the responses of the Austrian Ministry of Finance to questions on transfer pricing.
The Austrian Guidelines 2020 consist of five parts:
The Austrian Guidelines 2020 also devote a large chapter to permanent establishment taxation, with detailed explanations on the attribution of results. The attribution of results between the parent company and its permanent establishments also follows the arm’s-length principle created for legally independent associated companies, but with certain deviations (i.e., “AOA light”).
The new Austrian Guidelines 2020 provide assistance in interpreting the arm’s-length principle. They are a reference work for practitioners. The update primarily incorporates those changes to the OECD Guidelines that were included in the 2017 update due to BEPS. The final version of the Austrian Guidelines 2020 is to be expected shortly.
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