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The Administrative Tax Court (TAT) published the Substantive Ruling TAT-RF-062 of 10 September 2020, confirming a transfer pricing adjustment to a branch of a multinational oil company in the amount of 39 million balboas. This ruling represents the largest transfer pricing scope to date in the Republic of Panama, more than 13.5 million balboas, for adjustments to fuel purchases made by a taxpayer with its related parties abroad.

This resolution provides multinational companies operating in Panama and the tax community with important considerations on the application of the arm's length principle, the Tax Administration's supervisory power on the control of intra-group transactions, the factors that affect the comparability analysis, the reliability of the adjustments to comparability, the use of commercial databases and the veracity of the financial information used in the analysis.

In this regard, the importance of this opinion for the formation of the jurisprudence that, in one way or another, will guide the development of transfer pricing practice in Panama should be highlighted.


The main arguments put forward by the Tax Administration as grounds for the ruling on the Additional Assessment are as follows:

  1. Discrepancies in the amounts of transactions with related parties reported in the income tax return, transfer pricing report and transfer pricing studies;

  2. Inconsistencies in the definition, from one period to another, of the nature and scope of related party transactions;

  3. Inconsistencies between the profit margins reported in transfer pricing reports and the profit margins presented in transfer pricing studies;

  4. Inconsistencies of criteria, between one period and another, in the classification of the sector of economic activity required for the search for local comparables in the Panama Stock Exchange that resulted in the non-inclusion of a local comparable for one of the two periods subject to review.

  5. Differences in the financial information of the comparables used in the transfer pricing studies with respect to the public information - 10-K reports filed with the Securities and Exchange Commission (SEC) - and the companies' annual financial statements;

  6. Making undisclosed and unexplained accounting adjustments to the financial information of comparables that were not made on the same basis, from period to period, or applied equally to all comparables;

  7. Making accounting adjustments inconsistent with the application of the resale price method by reclassifying operating expenses as cost of sales only to the taxpayer's financial information and not to the comparables;

  8. Failure to meet the independence criterion by using unconsolidated financial information for one of the comparables when related party transactions that distort the profit level indicator are eliminated in consolidation.

After reversing some of the adjustments made by the taxpayer to its financial information and comparables, replicating the excise tax adjustment to the cost of sales line and adding the local comparable to the analysis for the 2013 period, the transfer pricing adjustments made by the Tax Administration resulted in:

  • Adjustments to purchases from related parties contained in cost of sales of 15.76 million balboas for the 2013 period and 23.53 million balboas for the 2014 period.

  • Total taxes payable (Income and Branch Dividends) of 5.78 million balboas for the period 2013 and 8.41 million balboas for the period 2014.


In this particular case, the disputes between the Tax Administration and the taxpayer focus on six key issues:


Regarding the formal aspects, the taxpayer reiterated that it acted in good faith and expressed being in a state of defencelessness in the absence of the proper closure of the audit process and the delay of more than a year, after making the request, in the delivery of the exact and detailed list established in Article 1239 of the Tax Code. In this regard, the Administration considers that the regulation does not require intent or fraud to verify the compliance of the methodology with the principle of free competition. The DGI also argues that the process was closed by means of a duly notified and confirmed resolution and that throughout the process there were various exchanges of requests and information that are recorded in the minutes of the process, which show that the taxpayer was not in a state of defencelessness.

In relation to the procedural aspects, the Court pointed out that the content of the resolutions proves the detailed and detailed analysis of the formal and substantive aspects that led the Tax Administration to determine an additional income tax assessment due to the taxpayer's non-compliance with the principle of full competence.

In addition, the Court confirms the full nature of the tax control of the formal transfer pricing obligations and of the Tax Administration's power to audit the taxpayer's intra-group transactions, as well as its adherence to the taxpayer's rights and guarantees throughout the process.


The controversy in this point is whether income corresponding to the "other income" line should be part of the taxpayer's profit indicator, because the taxpayer itself excludes it in the calculation of the profit indicator in its transfer pricing report while it includes it in its transfer pricing study. The Tax Administration disagrees because they do not correspond to the fuel distribution activities which are precisely the ones under analysis.

In this regard, the Court agrees with the Tax Administration that the taxpayer, when selecting the resale price method, should have been consistent in the use of the financial information necessary for the calculation of the gross margin in accordance with the transfer pricing rules. The ruling highlights the importance of accounting classifications in the calculation of the profit indicator, which is essential for the correct application of the resale price method.


In the second procedural phase, the taxpayer presented a new element, which was not considered or explained in the transfer pricing studies, arguing about the existence of the Import Parity Price or IPP to support compliance with the arm's length principle. In this regard, the Tax Administration mentions that the transfer pricing studies submitted by the taxpayer to the Treasury ruled out the applicability of the comparable uncontrolled price method due to the lack of comparables and sufficient information for its application, and that the way in which the taxpayer has presented it does not constitute a proper application of the method.

In this regard, the Court notes that the uncontrolled comparable price method was not applicable according to both parties and therefore upholds the use of the resale price method, based on the facts and circumstances presented by the taxpayer itself.

The court further notes that the taxpayer attempts to conduct a transfer pricing analysis subsequent to the additional assessment ruling to demonstrate compliance with the arm's length principle and repeatedly reiterates in the ruling the importance of timely compliance with transfer pricing documentation obligations to verify that the prices or margins agreed with related parties are arm's length and that the appeal stage is not the appropriate procedural moment to raise a new transfer pricing analysis. Translated with (free version)


One of the most controversial aspects of the case was the differences found by the tax authorities between the financial information of the comparables contained in the transfer pricing study and used in the calculation of the arm's length range and the public information from the 10K reports filed with the Securities and Exchange Commission, which coincided with the Orbis database used by the Tax Administration.

In this regard, the taxpayer argued during the process that the differences were due to the use of a database (Compustat North America) different from the one used by the Tax Administration (Orbis), being common that the financial information extracted from these databases differs from that presented in the 10K reports due to the different times at which the information searches are carried out.

The TAH finally ruled that the changes could only be due to amendments to the financial information (adjustments) as raised by the tax authorities and reaffirms the need to verify any information extracted from databases with publicly available information. After reviewing in detail all the tables submitted by the Administration, the TAH notes that the financial information submitted by the Treasury coincides with that observed by the Court in public means and proceeds to use it for the review of the disputed adjustments.


This point is closely related to the financial information extracted from the databases, since the differences detected correspond precisely to accounting adjustments not declared or explained in the transfer pricing studies, which were justified during the process by the taxpayer on the grounds that they were made automatically by the database. The tax administration, on this point, argues that the accounting adjustments correspond to: accounting reclassifications to include operating expenses in the cost of sales used in the calculation of the gross margin and the exclusion of excise taxes in only one of the two items that should be excluded in order to avoid distortions in the profit indicator.

The Court agrees with the Tax Administration in this regard, ruling that the inclusion of operating expenses in the cost of sales is not appropriate for the calculation of the indicator at the gross level, expressing the importance of justifying and documenting any adjustment or rejection thereof and reiterating that the fact that a database makes automatic adjustments is not a reason for not verifying public financial information in accordance with the regulations in force.


On the use of the local comparable with information from the Panama Stock Exchange, the controversy centres on two points. First, the local comparable was only included for one of the two periods under analysis, because the taxpayer was classified in the same economic sector as the local comparable for only one period. The taxpayer argues that this was a mistake and the TAH agrees with the Administration that this comparable should be included in the analysis of both periods.

The second issue discussed is the use of non-consolidated financial information for the transfer pricing analysis. The taxpayer uses unconsolidated information from the local comparable, arguing that it excludes the information corresponding to the subsidiaries of this company because it comes from markets other than its own. In this regard, the tax authority considers that because the non-consolidated financial information includes transactions with related parties, it does not comply with the independence criterion and therefore the taxpayer should have used the consolidated financial information to avoid distortions in the calculation of the profit indicator.

In this regard, the TAH points out that considering existing jurisprudence regarding the segmentation of financial information and that because there are unique conditions of the Panamanian market that must be taken into account, it agrees with the taxpayer that the non-consolidated financial information is sufficient to be used in the analysis. Translated with (free version)



This ruling generated an unprecedented jurisprudence on transfer pricing and, at the same time, it showed the degree of development and technical specialisation reached by the Tax Administration and the Administrative Tax Court in the administration of the transfer pricing tax control regime.

Likewise, with this ruling, the TAH pronounced itself on issues of form and substance never before addressed or exposed, concerning the application of the principle of free competition in the country. However, there was no pronouncement in this ruling on whether or not there was any manipulation of transfer prices that eroded the Panamanian source tax base.

In this regard, we consider the Tax Administration's and especially the TAH's approach to the technical aspects of the case to be noteworthy. This jurisprudence becomes an obligatory reference for multinational companies operating in Panama and the tax community in general, since it sets a guideline in central methodological aspects for the determination of transfer prices in accordance with the arm's length principle. Likewise, the criteria set out in this jurisprudence will be a technical reference to improve the supports in the taxpayers' supporting documentation and the comparability analyses of intra-group transactions.

By virtue of this ruling of the TAH, it is appropriate and necessary to make the following recommendations to taxpayers in order to mitigate the tax risks and contingencies that their intra-group transactions may face:

  • It should be considered that transfer pricing analysis is not an exact science, however, it has as a general frame of reference the methodology contained in the legal regulations that regulate it, the application of which is not optional but mandatory.

  • A proper review of the supporting documentation used to support the transfer pricing methodology applied should be carried out in order to ensure its reliability. Any inaccuracies and inconsistencies in the information provided to the Tax Administration could lead to a transfer pricing audit and, in the worst case scenario, to a potential case of criminal tax fraud under the provisions of the Tax Procedure Code.

  • With regard to the use of commercial databases used to locate, select and extract information from external comparables, it is recommended to check with the original sources of such information.

  • The method to be selected should be appropriately weighted according to the nature and scope of the transactions to be assessed, as well as the information available. Once the method has been selected, it should be applied in a consistent manner, respecting comparability criteria. This reduces the potential risks of tax contingencies.

  • The coherence and consistency of the accounting criteria of the financial information of both the taxpayer and its potential comparables must be guaranteed, in order to reliably calculate the profit indicator, otherwise there is a risk of obtaining a range that does not comply with the arm's length principle.

  • Given that the Tax Code provides for a period of 45 working days to provide the transfer pricing study to the Tax Administration, it is not recommended that taxpayers attempt to submit as new evidence, in the appeals provided for by the Panamanian legal system, a methodology different from that applied in the transfer pricing studies previously submitted to the Tax Administration.


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