TRANSFER PRICING AND CHOICE OF METHOD

According to ruling no. 539 of 28 January 2016 by the Milan tax court of second instance a transfer pricing adjustment based on the transactional net margin method (TNMM) is unlawful, if the arm’s length price has already been established using the comparable controlled price (CUP) method. Hence, the comparison made by the taxpayer to prove that the price applied by one company to another of the same group is comparable to the one applied to an external company is to be considered correct, adequate and reasonable. In particular, the ruling confirms the principle that the characteristics of a trade partner of a “suspected” company, which can either be an affiliated company or a third party, are less important, as long as the services provided are the same. Hence, it must be first of all ensured that the transactions carried out with third parties have the same characteristics as the ones carried out with the subsidiary and then compare the conditions applied in the two cases. This method respects the OECD-guidelines, according to which the required comparability of goods and services is stricter with the CUP-method, whereas the differences between the goods and services seem less important with methods based on trans-action profits, among which TNMM. In addition, the court has raised an additional objection against the list of supposedly comparable companies selected by the tax authority for the application of TNMM. The companies chosen have been deemed inadequate for a correct comparison and for a reliable reconstruction of the taxpayer’s situation. As proven by the latter, the list of comparable companies selected by the tax authority are different from the company under scrutiny from a structural point of view, primarily because many of these companies carry out transports with other modes of transport (road or water) than rail (the mode of transport of the company under scrutiny).