FIRS Publishes Nigeria’s Revised Transfer Pricing Regulations
Federal Inland Revenue Service has published Nigeria’s revised Transfer Pricing Regulations (NTPR). The NTPR is effective for basis periods commencing after 12 March 2018 and
incorporates BEPS outcomes and suggestions from The African Tax Administration Forum.
The NTPR includes significant penalties for non-compliance
(a) failure to file TP declaration = ₦10million + ₦10,000/month
(b) failure to file updated TP declaration/notification = ₦25,000/day.
(c) failure to file TP disclosure = ₦10million or 1% of the value of related party transactions (RPT) not disclosed + ₦10,000/day
(d) filing incorrect disclosure = ₦10million or 1% of the value of RPT incorrectly disclosed.
(e) failure to file TP documentation upon request = ₦10million or 1% of the total value of RPTs + ₦10,000/day (f) failure to furnish information upon request = 1% of the value of each RPT for which information relates + ₦10,000/day
NTPR follows The African Tax Administration Forum suggested approach and introduces a cap of 5% of EBITDA on tax deductibility of royalty payments. This is not consistent with the arm’s length principle. It also questionable if such a change can be made via Regulations.
NTPR requires taxpayers to prepare BEPS Master File and Local File as part of TP document.
Also, exempts taxpayers with total RPT values less than ₦300million from preparing TP document. However, they must submit the TP document within 90 days’ notice from Federal Inland Revenue Service
NTPR suggests FIRS will not automatically accept prices accepted for Nigeria customs valuation purposes. This could expose taxpayers to double taxation.
The NTPR gives effect to the anti-avoidance provisions in CITA, PITA, PPTA, CGTA and VATA. This suggests FIRS may be signaling its intention to look into the VAT impact of TP adjustments.
NTPR expands definition of persons covered under the regulations (connected persons) to include persons considered related or associated in VATA, and OECD taxand UN TP guidelines.
FIRS will publish specific guidelines on safe harbors from time-to-time
Head of FIRS TP unit will now have the power to make decision on whether a case/assessment should be referred to the Decision Review Panel. Taxpayer will no longer have this right.
NTPR introduces provision similar to BEPS provision on capital-rich, low-function companies.