É possível conciliar as normas Brasileiras de preços de transferência com as diretrizes da OCDE?

Abstract

Brazil as a non-member of the OECD – Organization for Economic Co-operation and Development – does not have to follow the OECD Model Tax Convention and its Commentary, neither does it have to stick to the OECD Guidelines for transfer pricing matters. However, the OECD recommendations, in particular the adoption of the arm’s length principle to set up prices of international transactions between members of a multinational enterprise (MNE) for tax purposes, have influenced considerably Brazilian transfer pricing domestic rules. It is important to highlight, nonetheless, that Brazilian legislation contains some peculiarities that one will not find in the OECD documents, especially the use of fixed margins of profits to find the arm’s length price. Therefore, the scope of this dissertation is, given the adoption of the arm’s length principle by Brazilian law, to comment on the extent that the tax authorities can require an extensive list of documents from the taxpayers through the use of infra-legal statutes in order to allow them to derogate from the fixed profit margins set by the law for the use of resale price and cost plus methods. This requirement may make the burden of proof born by taxpayers almost impossible, consequently, infringing upon the arm’s length principle