April 22, 2020
2020-5624 Gabon postpones transfer pricing documentation filing deadline Executive summary The Gabonese Tax Administration has postponed the transfer pricing documentation filing deadline of 30 April 2020 to 31 July 2020.1 This exceptional measure is in line with the tax measures adopted by the Government to mitigate the impact of the COVID-19 crisis on the national economy. Despite the new filing deadline, the scope of the documentation remains unchanged. This Alert summarizes transfer pricing obligations in Gabon. Detailed discussion Transfer pricing documentation scope - Gabonese companies carrying out transactions with “associated enterprises” established outside Gabon, in the form of payment, expenses, any form of advantages or help granted without related or equivalent compensation, deemed as an irregular act of management have an annual obligation to prepare transfer pricing documentation.
- Under domestic tax law, “associated enterprises” are companies or a group of companies which participate directly or indirectly, or through one or more intermediaries, in the management, the control or the capital of the Gabonese company. There is no minimum percentage for capital ownership but the law considers the holding of a majority of the capital to assess ownership. The status of “associated enterprises” is not required when transactions are carried out with companies established in non-cooperative countries or countries with alleviated tax regime, i.e., – an absence of taxation or – taxation lower than more than 50% of the standard taxation rate applicable in Gabon.
Transfer pricing documentation content - Master File/Local File – In accordance with the transfer pricing instruction N°0001 issued by the Gabonese Tax Administration in June 2018, the documentation to prepare and file annually by 30 April must contain the Master File, the Local File (OECD BEPS Action 13 format) and the transfer pricing returns “PT01” and “PT02.” All documents have to be prepared and filed in French.
- Country-by-Country (CbC) Report – In addition to this package, there is also an obligation to file a CbC report as follows: “Group parent companies or ultimate companies are required to file a country-by-country return within 12 (twelve) months of the end of the tax year, if the annual consolidated turnover, excluding tax, of the previous financial year equals or exceeds XAF491,967,750,000 (Eq. EUR 750,000).” However, by Communication n°0006/MEPPDPIPP/SG/DGI/DLC dated 20 February 2019, the Tax Administration has suspended the obligation to file the CbC report.
Penalties for non-compliance - Not filing the documentation or providing an incomplete documentation exposes a company to a penalty corresponding to 5% of the total amount of intercompany transactions, with a minimum of XAF65 million (eq. €100,000) per fiscal year. The tax authorities may issue a formal notice to request the documentation before applying penalties. However, this is not interpreted as a firm obligation but rather as a possibility for the tax administration. The guidance is, therefore, to file documentation by the legal deadline.
- Not filing the CbC report, when the suspension is lifted, triggers a penalty corresponding to 0.5‰ of the consolidated turnover excluding tax, capped at XAF100 million per fiscal year.
Endnote 1. By official Communication n°146/MEF/SG/DGI dated 14 April 2020. ______________________________________________________________________________________ For additional information with respect to this Alert, please contact the following: - Rendani Neluvhalani | rendani.mabel.neluvhalani@uk.ey.com
- Byron Thomas | bthomas4@uk.ey.com
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