Transfer pricing in France at a glance
|Are there specific transfer pricing regulations?||Yes|
|Submission deadline upon request||30 days|
|Annual update required||no|
|Official language requirements||French (English is accepted)|
|Potential impact of penalties||EUR 5k-25K|
French tax law
Rules for transfer pricing in France are based on:
- General Tax Code Article 57 (profit transfer), Articles 238 A and 209 B (CFC rules)
- Tax Procedure Book: Article L.13 B for specific transfer pricing questions from the tax authorities, Article L.13AA for general transfer pricing documentation requirements and Article L.13AB for additional requirements for transactions with “uncooperative havens” as defined in Article 238-0-A of the French Tax Code; Article L 80 B 7 (APAs)
- Supreme Tax Court case law on Abnormal Act of Management, L. 188A (extension of statute of limitations when FTA makes request from foreign tax authorities)
- Administrative Doctrine on Article 57 (BOI-BIC- BASE-80-20)
- Adopted Procedures L.13AA and L.13AB (22 December 2009)
- Administrative Instruction on the MAP (BOI-INT-DG-20-30)
- Administrative Instructions on APAs (BOI-SJ-RES-20)
- OECD Transfer Pricing Guidelines (generally accepted in practice)
Rules for transfer pricing in France are generally in line with the OECD TP Guidelines.
Accepted methods for transfer pricing in France are:
- the comparable uncontrolled profits (CUP) method
- the resale price method
- the cost plus method
- the profit split method
- the transactional net margin method
In France there is no priority of the accepted methods. However, in case of equal reliability of the CUP method and a different method, the CUP method is to be preferred.
Information that should be provided:
- Business and organizational structure overview
- Functional analysis, contracts, legal and management account information
- Method selected and economic analysis (including identification of competitors and comparables, depending upon the transfer pricing method)
English documentation is accepted, however, if the tax authorities require documentation in French, such should be provided for.
As of fiscal year 2010, contemporaneous transfer pricing documentation must be made available to the tax inspector as of the first day of the tax audit. For companies whose fiscal year ends after September 8, 2013, extracts from the full transfer pricing documentation must be sent to the French tax authorities within six months of filing the income tax return.
Deadline to submit upon request
Documentation should be provided to the French tax authorities the day a tax audit begins. If documentation is not available, the tax authorities will send an official request to provide the documentation within the next 30 days. Failure to do so will trigger a penalty.
Advance Pricing Agreements
Bilateral and, under certain circumstances, unilateral, Advance Pricing Agreement’s (APAs) are available (Article L 80 B 7° of the FPTC). No fees are required. This section was provided by the Finance Amendment Act for 2004 and came into force as of 1 January 2005. It incorporates existing procedures as described by the French administrative guideline #4 A-8-99, dated 7 September 1999. A specific procedure also exists for certain activities (e.g., headquarter profile).
On November 28, 2006, the tax authorities released a new administrative guideline (#4 A-13-06), adding a simplified APA procedure for small and medium-sized enterprises, and presenting an online guide pertaining to transfer pricing methods.
In theory, the process requires that the request be submitted at least six months before the beginning of the first fiscal year covered. There is no rollback possibility.
APA’s in France should be agreed upon for a period between three and five years.
Penalties specific to a failure to comply with the transfer pricing documentation requirements apply, in addition to the fiscal penalties generally applied as a consequence of a transfer pricing reassessment. Indeed, transfer pricing reassessments from the FTA trigger an adjustment of the taxable profit for corporate income tax purposes (and other taxes, depending on the case).
Specific transfer pricing penalties are applicable in situations where the taxpayer failed to answer the tax authorities’ request for documentation, either on the basis of Article L 13B FPTC (which relates to general transfer pricing documentation requirements, provided the FTA can give evidence of transfer pricing problems before it applies this Article), or on the basis of Articles L 13AA and L 13AB FPTC (which relate to newly published special transfer pricing documentation requirements):
Failure in providing complete information in the framework of Article L 13 BFPTC may result in:
- a reassessment of the company’s taxable profit based on information the tax authorities possess, and
- the application of a EUR 10,000 penalty for each year audited.
Failure to provide sufficient transfer pricing documentation under the framework of Articles L 13AA and L 13AB, FPTC will trigger penalties from EUR 10,000 up to 5% of the transfer pricing reassessment potentially identified afterwards, depending on the “seriousness of the breach.” Such penalties are due per fiscal year audited.
The maximum penalty of 5% of gross amounts reassessed would be applied if the taxpayer does not have any transfer pricing documentation. Further, it is not tax-based; i.e., the penalty for having no or insufficient transfer pricing documentation is calculated on the gross amount reassessed and not on the (potential) additional tax due as a result of the reassessment.