Background
Transfer pricing regimes made their formal appearance in Latin America in the 1990s. As economies liberalized, trade agreements were signed, and treaties to avoid double taxation were negotiated, it became urgent to establish a tax audit system that would allow multinational groups entering the region to be taxed appropriately. These multinational companies sought to exploit competitive advantages such as abundant natural resources, labor availability, and logistical benefits. The country with the most experience in the region is Mexico, whose transfer pricing regime has been in place for 30 years (or 25 years if considering 1997 as the year in which the regime was fully established with additional rules beyond merely imposing the arm’s length principle). The last country to align its regime is Brazil, which in April of this year announced a shift from its current transfer pricing system based on predetermined profit margins to an OECD-aligned regime (see Table 1).
Current Status
Since their implementation, almost all countries in the region have followed the recommendations issued by the Organization for Economic Cooperation and Development (OECD) and have applied the arm’s length standard and its derived rules to the extent possible. The Inter-American Center of Tax Administrations (CIAT) estimates in its databases that up to 87% of the region’s countries have reasonably robust transfer pricing regimes, and generally, only a few have not incorporated specific provisions (Barbados, Guyana, Trinidad). Given this, the following trends can be observed in the region:
- The arm’s length principle governs transactions between related parties (even domestically, as in Peru, Colombia, or Mexico).
- The application of transfer pricing methods is required, which entails conducting comparability analyses to support taxpayers’ selection of reference parameters or ranges.
- Penalties for non-compliance are established.
- Taxpayers must submit informative reports on intercompany transactions, including those derived from BEPS Action 13 (master file, local file, and country-by-country report).
- The possibility of negotiating advance pricing agreements is enabled.
- Information exchange agreements exist.
- Disputes in this field have reached administrative courts.
It is also important to highlight that transfer pricing regimes have been influenced by the OECD’s Base Erosion and Profit Shifting (BEPS) Action Plan, particularly in Actions 8-10 (aligning transfer pricing with value creation) and Action 13 (country-by-country reporting and transfer pricing documentation). Over time, either through national courts, legal amendments, or administrative provisions, the interpretation of the regime has been adapted to align with the BEPS plan recommendations.
Some notable cases reflecting judicial activity in the region include Mexico vs. Beverage Distributor (Federal Court of Administrative Justice, 5378/16-17-09-2/1484/18-S2-08-04), concerning the deductibility of marketing and advertising expenses and their connection to trademarks; Colombia vs. Sony Music (Administrative Litigation Chamber, Section 4, 20641), addressing proper delineation of transactions, choice of entity for analysis, deductibility of services, and range determination; and Argentina vs. Nike (National Tax Court, Case 24.495-I), regarding the deduction of royalties for brand usage, technical assistance, and commissions.
What Lies Ahead?
Latin American countries have made significant efforts to implement their national transfer pricing regimes, sometimes even proposing ad hoc alternatives, such as Argentina’s sixth method or Mexico’s simplified maquila regime. However, implementing these regimes is not straightforward. Practical challenges include a lack of national data for applying the arm’s length standard, limited financial resources, infrastructure, and human capital, administrative courts’ inexperience, and the proliferation of aggressive tax planning schemes leveraging intercompany transactions.
These challenges affect tax revenue collection. Recent studies indicate that countries like Mexico (which has over 60,000 registered subsidiaries of multinational corporations, according to the Ministry of Economy) lose around half a percentage point of GDP in taxation due to transfer pricing practices—more pessimistic estimates suggest losses of up to 1.5% of GDP. Given this situation, governments in the region are in a wait-and-see mode regarding the outcome of OECD negotiations on the unified approach (Pillars 1 and 2). However, preliminary estimates indicate relatively modest revenue increases (our firm estimates a maximum of $1.884 billion for Mexico), making it necessary to rethink the organization of national tax authorities’ transfer pricing departments. This rethinking includes greater investments in human capital, training, infrastructure, and even a potential redesign of the regime to discourage aggressive tax planning via transfer pricing. Possible measures could involve requiring independence between transfer pricing advisors and tax auditors or incorporating BEPS Action 12 recommendations regarding reportable schemes, including those related to transfer pricing (as Mexico did in 2020).
Additionally, greater taxpayer support through programs like the International Compliance Assurance Program (ICAP) could significantly improve regime outcomes.
At this stage, it is worth considering the significant contributions made to the region by CIAT, which actively provides training to tax administrations (even developing practical guides such as the “Transfer Pricing Cocktail” or the manual on international tax planning control). Likewise, the contributions from the joint collaboration platform (OECD, UN, IMF, WB) are notable, including practical guides on comparability and documentation and initiatives like Tax Inspectors Without Borders, which enhance tax auditing capabilities.
Recommendations
A frequently cited principle in transfer pricing is: “The greater the functions, assets, and risks, the higher the return.” Consequently, if countries in the region expect to benefit from their transfer pricing regimes, they must aggressively invest in training their transfer pricing audit departments, or they risk seeing their revenue collection decline.
Additionally, improving and expanding information exchange mechanisms and professionalizing administrative courts should be short-term objectives to enhance the efficiency of a regime that is destined to be a key pillar of tax revenue collection across the continent.
I appreciate the collaboration of Daniela González, José Chamorro, and Esteban Ollervides in the preparation of this article.
1 Jesús Aldrin Rojas. Socio. QCG Transfer Pricing Practice.
2 Jansky, Petr, Palansky Miroslav. Estimating the scale of profit shifting and tax revenue losses related to foreign direct investment (2019). International Tax and Public Finance. ONU-Wider 2019.
3 Rojas, Jesús Aldrin, Chamorro Gómez, José. Uma nueva era de tributación para la economía digitalizada. International Tax Review, 2021
4 Plataforma de Colaboración Conjunta, OECD, ONU, FMI, BM. Guía práctica para afrontar las dificultades asociadas con la falta de comparables en los análisis de precios de transferencia
5 Plataforma de Colaboración Conjunta OECD, ONU, FMI, BM. Guía práctica para la implementación de obligaciones documentales eficaces en materia de precios de transferencia en países en desarrollo
