The Argentinian company Materia Pampa S.A. exported products to a Brazilian company, Companhia De Bedidas Das Americas in Brazil (Ambev), via a related party in Uruguay, Maltería Uruguay S.A. There was a significant difference between the price declared on export to Uruguay and the price used for the subsequent final shipment to Brazil.
An assessment was made by the tax/customs authorities, which resulted in an upward adjustment of the price received for the products from the related party in Uruguay, which in turn resulted in additional taxes and VAT. The price adjustment was based on the guidance provided in the OECD TPG, and in relation to the application of the arm’s length principle in determining prices for customs purposes, reference was made to the guidance provided in paragraph 1.137 of the 2017 TPG, which states.
“The arm’s length principle is broadly applied by many customs administrations as a principle of comparison between the value attributable to goods imported by associated enterprises, which may be affected by the special relationship between them, and the value of similar goods imported by independent enterprises. However, valuation methods for customs purposes may not be consistent with transfer pricing methods recognised by the OECD. Nevertheless, customs valuations may be useful to tax administrations in assessing the arm’s length character of a transfer price in a controlled transaction and vice versa. In particular, customs officials may have contemporaneous information about the transaction that may be relevant for transfer pricing purposes, especially if prepared by the taxpayer, while tax authorities may have transfer pricing documentation that provides detailed information about the circumstances of the transaction.”Tax Court Ruling
The court upheld the assessment and dismissed Materia Pampa’s appeal.
Excerpt
“In summary, in the specific case, I understand that the tax authorities succeeded in demonstrating price inconsistencies in a context of transactions between related parties, without the appellant having been able to justify the differences with the degree of certainty necessary to defeat the argument of the customs service. There is clear and certain evidence that MALTERÍA PAMPA S.A. sold certain goods to its related party based in Uruguay who, a few days later, resold them to a related company of both, with substantial price differences, the final destination of the exported physical goods being the same, since they were even the same shipment, without the appellant being able to justify it”
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