Fine levels set for non-compliance with transfer pricing documentation obligation

From tax year 2017 and, more specifically, the implementation of the mandatory transfer pricing documentation obligation, there was an immediate indication that, from a second violation of non-compliance with the transfer pricing obligations, a fine of between 1,250 EUR and 25,000 EUR (Article 445, §3 Income Tax Code 1992) could be imposed.

The scales of the administrative fines and their application methods had not been elaborated, however, in the Royal Decree. The relevant Royal Decree was recently published on 9 July 2018 in the Belgian Official Gazette.The maximum fine levels that can be imposed by the fiscal administration depend on the nature of the violation and its frequency or whether it has been repeated.

A distinction must be made between (1) involuntary violations (that are not sanctioned), (2) violations that cannot be attributed to dishonesty or the deliberate attempt by the tax-payer to avoid paying taxes and (3) violations that are due to dishonesty or the deliberate attempt to avoid paying taxes. It goes without saying that violations of this latter variety will result in a higher level of fine than the second type.

Please note that, in the context of this legislation, a failure to submit the transfer pricing documentation or submitting late, incomplete or inaccurate documentation will also be regarded as a violation, whether or not there has been a deliberate attempt to avoid taxes.

In summary:

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