ORDER OF THE CHIEF OF THE STATE TAW INSPECTORATE UNDER THE MINISTRY OF FINANCE OF THE REPUBLIC OF LITHUANIA ON THE APPROVAL OF THE RULES FOR THE SUBMISSION OF A TAXPAYER S REQUEST TO CONSENT TO THE PRINCIPLES OF PRICING OF A FUTURE CONTROLLED TRANSACTION, ADOPTION AND AMENDMENT OF THE DECISION OBLIGATING THE TAX ADMINISTRATOR 21 October 2011 No. VA-106 Vilnius Pursuant to Article 37 1 of the Law on Tax Administration of the Republic of Lithuania (Official Gazette, 2004, No. 63-2243; 2007, No. 80-3220) and paragraph 18.11 of the Regulations of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania approved by Order No. 110 of the Ministry of Finance of the Republic of Lithuania of 29 July 1997 (Official Gazette, No. 87-2212; 2004, No. 82-2966), I hereby: 1. a p p r o v e the enclosed: 1.1. Rules for the Submission of a Taxpayer s Request to Consent to the Principles of Pricing of a Future Controlled Transaction, Adoption and Amendment of the Decision Obligating the Tax Administrator. 1.2. A form of the decision on the principles of pricing of a future controlled transaction (form FR1096). 2. d e t e r m i n e this Order to take effect as from 1 January 2012. CHIEF MODESTAS KASELIAUSKAS APPROVED by Order No. VA-106 of the Chief of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania of 21 October 2011 RULES FOR THE SUBMISSION OF A TAXPAYER S REQUEST TO CONSENT TO THE PRINCIPLES OF PRICING OF A FUTURE CONTROLLED TRANSACTION, ADOPTION AND AMENDMENT OF THE DECISION OBLIGATING THE TAX ADMINISTRATOR I. GENERAL PROVISIONS 1. The Rules for the Submission of a Taxpayer s Request to Consent to the Principles of Pricing of a Future Controlled Transaction, Adoption and Amendment of the Decision Obligating the Tax Administrator (hereinafter - the Rules) lay down the procedure for the referral to the tax administrator for the approval of the principles of pricing of a future controlled transaction and making a decision (form FR1096, hereinafter the decision). 2. The Rules were drawn up pursuant to the Law on Tax Administration of the Republic of Lithuania (Official Gazette, 2004, No. 63-2243, hereinafter TAL), the Law on Public Administration of the Republic of Lithuania (Official Gazette, 1999, No. 60-1945; 2006, No. 77-2975), the Law on Profit Tax of the Republic of Lithuania (Official Gazette, 2001, No. 110-3992), the Rules for the Implementation of Article 40(2) of the Law on Profit Tax of the Republic of Lithuania and Article 15(2) of the Law on Income Tax of the Republic of Lithuania approved by Order No. 1K-123 of the Minister of Finance of the Republic of Lithuania of 9 April 2004. 3. Concepts used in the Rules: Future transaction shall mean a taxpayer s transaction, economic operation or any group thereof, the execution whereof will be started after the day of the submission of the request to consent to the principles of pricing of a future controlled transaction (hereinafter - the request) to the tax administrator. In case a long-term transaction was concluded before the submission of the request to the tax administrator, economic transaction executed after the day of the submission of the request to the tax administrator shall be attributed to a future transaction. Approval of the principles of pricing of a future controlled transaction shall mean the approval of the principles of pricing of a future controlled transaction, i.e. a pricing method, comparability, critical assumptions, in presence whereof the chosen policy of pricing is possible and of other issues related to the justification of the compliance of a future controlled transaction with the arm s length principle, with the tax administrator. Other concepts used in the Rules correspond to concepts used in laws.
2 II. SUBMISSION OF A REQUEST 4. A request may be submitted by a taxpayer (hereinafter - the taxpayer) or his authorized person. If a request is submitted by an authorized person, documents evidencing his authorization must accompany the request. 5. The taxpayer may submit a request for future controlled transactions only. A request cannot included controlled transactions, which have already been concluded, i.e. principles of pricing of already concluded transactions cannot be approved with the tax administrator. A request may not be submitted for a tax rate. 6. The taxpayer shall submit a request to the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (hereinafter - the STI under FM). 7. A request may be submitted for one or several future controlled transactions. The taxpayer may select the future controlled transactions he will refer for to the tax administrator. It is recommended that these were transactions, the price setting whereof is complex due to the complexity, uniqueness of the transactions, limited possibilities to find comparable uncontrolled transactions, possible double taxation and disputes with a tax administrator of another foreign country arising therefrom, etc., it raises reasonable doubt of correctness and reliability of the setting of principles of pricing of such transactions. 8. Before submitting a request, the taxpayer man apply to the STI under FM for arranging a meeting for discussing issues related to the submission of a request and approval of the principles of pricing of a future controlled transaction. When applying for the meeting, the taxpayer shall also present information (indicating the activities, transactions planned to be included in the request, transaction parties, the planned principles of pricing of a future controlled transaction, duration, etc.,), which would allow the tax administrator to evaluate the expediency of the submission of a request, possible problems and risk. 9. A request submitted by the taxpayer shall contain: 9.1. an indicated name of the taxpayer, identification number (code), office or permanent residency address, contact telephone number, e-mail address, 9.2. name of each participant in the future controlled transaction indicated in the request, its identification number (code), office address (indicating country name), 9.3. information on mutual legal and/or economic relations of participants in the future controlled transaction (i.e. information on the emergence (change) of relations, associates persons, group, which participants in the transaction belong to, structure and mutual relations of entities belonging to the group (percent of ownership rights, control), description of monetary, financial or other data flows between associated persons, etc.), 9.4. information on the business of counterparties (group which participants in the controlled transaction belong to) in the future controlled transaction: analysis of a respective branch of economy and market trends, which could have an impact on group s business in the future (for example, financial, marketing studies, etc.), business strategy planned to be applied for the validity period of the approval of the principles of pricing of the controlled transaction (a business strategy of the previous year can also be indicated, if it is different from the future business strategy). The said strategy can list various forecasts used for drawing up future plans, information on the expected trends, possible competition effects, marketing, production, research and development strategy, etc., 9.5. information on the future controlled transaction giving rise to the request: 9.5.1. object of the transaction; 9.5.2. function performed by parties (participants) to the transaction; 9.5.3. risk assumed by parties (participants) to the transaction; 9.5.4. assets used by the parties (participants) for the execution of the transaction; 9.6. reasons giving rise to the necessity of the approval of the principles of pricing of a future controlled transaction, inclusion of specific types of transactions and/or associated persons (for example, in case of a difficulty to find comparative uncontrolled transactions, necessity to apply a profit distribution method, etc.), 9.7. a tax period, during which the taxpayer is willing to apply approved principles of pricing of a future controlled transaction, 9.8. justification of the compliance of a controlled transaction with the arm s length principle: 9.8.1. the chosen method of pricing, justification for the selection thereof (reasons for the selection); 9.8.2. performed selection and analysis of possible comparabilities (indicating applied search criteria, methodology, data on the used comparative uncontrolled transactions and/or companies and data sources). If an adjustment of comparative transaction differences was made, calculations on how this was done must be submitted; 9.8.3. adaptation of the pricing method (calculations and adjustments made using the presented financial information, forecasts, comparabilities and other data; 9.8.4. interval of numbers received in application of the selected pricing method, which will be considered compliant with the arm s length principle;
3 9.9. critical assumptions (validity conditions), i.e. economic, legal, administrative, managerial and other circumstances, which determine whether the selected pricing method will allow to properly set the prices of a future controlled transaction in line with the arm s length principle and the validity of the approval of a future controlled transaction. Critical assumptions must be based on reliable and verifiable data, they must be adapted to a specific situation examined in the request (type of controlled transactions, pricing methods, business conditions, etc.) and they have to be substantial. 10. The taxpayer can also submit some other information or data important for the approval of the principles of pricing of a future controlled transaction available to him. 11. The taxpayer shall confirm in his request the correctness of the presented data (information) and indicate that all circumstances important for the approval of the principles of pricing of a future controlled transaction have been listed. A request shall be signed by the taxpayer or his authorized person. 12. The taxpayer shall present along with his request financial data (annual financial statements, the available analysis (trends) of respective (depending on the type of a controlled transaction) indicators (such as total, operating profitability) of the past (before the submission of a request) three tax periods of participants in the future controlled transaction and inform about ongoing tax disputes, which may affect the setting of the principles of pricing of a future controlled transaction giving rise to the request. 13. Documents or copies thereof (evidence) verifying the circumstances indicated in the request and substantiating the data presented in the request shall be enclosed with the request (for example, a concluded licensing, marketing and similar contract, drawn up draft contract, protocol of intension and other documents). 14. A request and annexes enclosed thereto shall be in the Lithuanian language. The taxpayer can also submit a request and/or annexes thereto (documents) drawn up in some other than the Lithuanian language, however, in such a case the tax administrator may request the documents to be translated into the Lithuanian language. III. EXAMINATION OF A REQUEST 15. A tax administrator shall examine the request no later than within 60 calendar days from the day of its receipt. Additional 30 calendar days shall be granted for the examination of requests received before 1 July 2013. 16. The deadline for examining requests may upon the tax administrator s decision be extended for another 60 calendar days, if an additional investigation is necessary for examining a request. The taxpayer or his authorized person shall be informed about the extension of the period for the examination of the request in writing. 17. Examination of a request shall be suspended in the following cases: 17.1. when there are ongoing tax disputes on the compliance of the pricing of a controlled transaction with the arm s length principle, the outcome whereof is related to (can have an impact on) the setting of the principles of pricing of future controlled transactions. The taxpayer shall be informed about the suspension of the examination of his request in writing; 17.2. when the tax administrator addresses the taxpayer having submitted a request for the receipt of additional information in accordance with the provisions of paragraphs 20 and 21 of the Rules. The sending date of a notification for the submission of additional data drawn up by the tax administrator shall be considered the day of the suspension of the tax examination process. 18. The suspended examination of a request shall be resumed: 18.1. upon the adoption of a decision of a competent authority on the dispute indicated in paragraph 17.1 of the Rules; 18.2. when the STI under FM received all documents and/or data laid down in the notice addressed to the taxpayer. The date of the resumption of the examination of a request shall be the date when the said documents and/or data were received by the STI under FM. 19. At the time of the examination of a request, the taxpayer shall have the right to submit additional documents necessary for making a decision. Additional documents shall be presented to the tax administrator no later than 20 calendar days before the expiry of the deadline for the examination of a request. 20. When examining a request, the tax administrator shall have the right to request the taxpayer to present additional information, documents and/or data necessary for proper assessment of the taxpayer s position, which could reveal any circumstances important for the approval of the principles of pricing of a controlled transaction, or to submit a clarification. Should it be necessary to clear up any facts or data presented in the request, the tax administrator may pay a visit to the company, communicate with taxpayer s representatives, also, ask the taxpayer to submit a short review of his business prospects. 21. The tax administrator shall indicate data and/or documents to be submitted in addition, the deadline for the submission thereof, also documents, which have to be translated and deadline for the translation thereof in a notification addressed to the taxpayer. 22. Should the taxpayer fail to submit the requested information, documents and/or data, or a
4 translation within a reasonable period of time indicated by the tax administrator, the examination of the request shall be terminated. The taxpayer shall be informed about that in writing no later than 14 calendar days from the expiry of the deadline for the submission of documents and/or data to the tax administrator. 23. The tax administrator shall not examine a request and shall inform the taxpayer about that in writing, indicating reasons for that, if: 23.1. a request was submitted with regard to the tax rate or the already occurred controlled transactions; 23.2. a request does not meet requirements laid down in the Rules. 24. The tax administrator may refuse to examine the taxpayer s request, if the request has been submitted for future controlled transactions, both participants whereof are taxpayers registered in Lithuania, justification of the compliance of the price of a controlled transaction with the arm s length principle raises no doubts and/or is simple. IV. MAKING A DECISION OBLIGATING THE TAX ADMINISTRATOR 25. Having examined the taxpayer s request and evaluated material presented along with the request, the tax administrator shall make a decision whereby: 25.1. he consents to the principles of pricing of a future controlled transaction indicated in the request; 25.2. he dissents to the principles of pricing of a future controlled transaction indicated in the request. 26. A decision consenting to the principles of pricing of a future controlled transaction shall have an indicated: 26.1. venue and date of the adoption of the decision, its number and bases for the adoption of the decision; 26.2. name, identification number (code) and office address of the taxpayer the decision in respect of whom is made; 26.3. validity period of the decision; 26.4. information on the future controlled transaction (participants, object, conditions, etc. of the transaction); 26.5. information substantiating the compliance of a future controlled transaction with the arm s length principle (pricing method, formula for calculating the value (price) of the transaction, comparative data, interval of expected results, etc.); 26.6. validity conditions (critical assumptions) of the future controlled transaction. The decision may also indicate any other information important for the substantiation of the compliance of principles of a future controlled transaction with the arm s length principle. 27. In case a decision to dissent to the principles of pricing of a future controlled transaction is made, the decision shall respectively indicate: 27.1. venue and date of the adoption of the decision, its number and bases for the adoption of the decision; 27.2. name, identification number (code) and office address of the taxpayer the decision in respect of whom is made; 27.3. reasons (circumstances) forming the basis for the adoption of such a decision. 28. A decision shall be signed by the Chief of the STI under FM or his authorized person. 29. A decision shall be registered in two copies, one of which shall be presented to the taxpayer and another one shall stay with the tax administrator. An original request and other documents related thereto shall stay with the tax administrator. 30. Decision and material enclosed thereto shall be transferred to the taxpayer s case. A copy of the decision shall be sent to the county state tax inspectorate, in the territory whereof the taxpayer has been registered. In cases a decision is made on the major taxpayer, a copy of the decision shall be presented to the Major Taxpayers Monitoring and Consultation Department of the STI under FM. 31. The tax administrator shall comply with the decision made, however, a decision shall not be binding on the taxpayer. County state tax inspectorates shall also follow the decision made by the STI under FM. 32. The tax administrator shall undertake to comply with the decision only in respect of the taxpayer having submitted the request. V. VALIDITY AND MONITORING OF A DECISION OBLIGATING THE TAX ADMINISTRATOR 33. A decision shall take effect on its adoption date and be valid throughout the entire execution period of the transaction, but no longer than the current year and five calendar years after the decisionmaking date. 34. The tax administrator shall have the right to inspect in the procedure prescribed by law whether
5 the taxpayer follows the principles of pricing of the future controlled transaction approved by the decision or to ask the taxpayer to submit information on the actual compliance with the principles of pricing of the approved controlled transaction. 35. The tax administrator shall not be obligated to comply with the decision indicated in paragraph 25.1 of the Rules: 35.1. should it turn out that the taxpayer has submitted incorrect, inaccurate or incomplete information/ data on the future controlled transaction or indicated not all the circumstance important for the assessment of the principles of pricing of a future controlled transaction, which were important in the evaluation of the position of the taxpayer; 35.2. factual circumstances of the execution of a transaction, which had a material influence on making a decision on the principles of pricing of a future controlled transaction, do not comply with the circumstances indicated in the taxpayer s request; 35.3. should it be determined that critical assumptions, business conditions, economic circumstances or other conditions agreed upon with the tax administrator related to the price setting of a controlled transaction changed, unless the taxpayer proves that these changes could not affect and/or did not affect the principles of setting the price of a controlled transaction. 36. If during the validity period of a decision provisions of tax laws directly related to and directly impacting the decision have been amended, the decision shall lapse as from the effective date of the new provisions of tax laws. 37. If having made a decision interpretations of laws or other tax legal acts of the Supreme Administrative Court of Lithuania or European Union judicial authorities in conflict to the decision made are published in the Bulletin of the Supreme Administrative Court of Lithuania or Official Journal of the European Union, the decision shall be valid till the publication date of these interpretations. The tax administrator shall inform the taxpayer in writing indicating the validity term of the decision, if the validity term of the decision has not expired. 38. A decision shall be valid for the future controlled transaction indicated in the taxpayer s request only. VI. FINAL PROVISIONS 39. If the taxpayer presents a request for the approval of the principles of pricing of future controlled transactions and a conclusion of an agreement with a tax administrator (competent person) of another foreign country, a mutual agreement procedure shall be initiated in the procedure prescribed by laws. In such a case, provisions of these Rules shall apply to the extent they do not conflict with double taxation agreements concluded by the Republic of Lithuania and other international legal acts. Form FR1096 approved by Order No. VA-106 of the Chief of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania of 21 October 2011 (Name of the document drafter) (Data of the institution) DECISION ON THE PRINCIPLES OF PRICING OF A FUTURE CONTROLLED TRANSACTION... No.... (date) (registration number)... (place of conclusion) Having examined the request (request date) (request No.) of the ta payer (taxpayer s title or name and surname, taxpayer s
6, identification number (code), office or permanent residency address) and pursuant to Article 37¹ of the Law on Tax Administration of the Republic of Lithuania (Official Gazette, 2004, No. 63-2243; 2007, No. 80-3220), the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (code, address) hereby decides (please indicate the decision made (to consent / dissent to the principles of pricing of a future controlled transaction), Information on the future controlled transaction and substantiation of its compliance with the arm s length principle, critical assumptions. validity period of the decision, reasons having led to the dissent to the principles of pricing of a future controlled transaction) (position title) (signature) (name, surname) Place of seal