Beginning in 2020, certain taxpayers are required to submit a transfer pricing disclosure form. The information on the transfer pricing disclosure form may increase the customs valuation risk with regard to certain imports.
Transfer pricing disclosure
The Thai Revenue Department in November 2019 released guidance (a notification) concerning a transfer pricing disclosure form. The transfer pricing disclosure form requires the reporting of information concerning the relationships between related parties and the value of related-party transactions. Taxpayers required to submit a transfer pricing disclosure form are those with related-party transactions, total annual operating revenue of at least THB 200 million or more, and an accounting period starting from 1 January 2019.
Intercompany payments made in accordance with a group’s transfer pricing policy or intercompany agreements that must be listed in the transfer pricing disclosure (e.g., agreements concerning royalties, license fees, technical service fees, management fees, and commission fees) may also be reflected in the customs value of imported goods if they meet the conditions prescribed under the customs regulation.
Related-party transactions have been one of the key areas of focus for post-clearance audit conducted by the Thai Customs Department. The information obtained from the tax authority—such as withholding tax returns (Form P.N.D. 54) and self-assessed VAT returns (Form P.P. 36)—may be a primary source of information for the customs authority to identify whether the importers have significant intercompany payments. The customs authority has been using such information, together with the importers’ information available in its database, to decide if the customs authority needs to scrutinize importers and specifically whether their related-party transactions have any implications on the customs value of imported goods.
In 2020, when taxpayers begin to submit the transfer pricing disclosure form to the Thai Revenue Department, the Thai Customs Department will be able to collect complete data with regard to related-party transactions of the taxpayer. The disclosure form could become the most transparent source of information for the customs authority to scrutinize importers regarding their related-party transactions and may lead to further inspections on customs valuation issues.
It appears that the customs authority’s surveillance of related-party transactions could be enhanced with the information provided to the tax authority on the transfer pricing disclosure form. If an importer is unable to provide clarification about the related-party transactions or fails to include the value of related-party transactions in the customs value of the imported goods, the importer may be accused of customs duty evasion (the penalty for which includes imprisonment as well as a penalty ranging between 50% to 400% of the customs duty shortfall.
With the customs authority’s increasing awareness of related-party transaction issues, it may be prudent to take preventive steps in order to address potential customs risks—in particular, those entities that have:
To be thoroughly prepared, such taxpayers need to consider the following actions before submitting their transfer pricing disclosure form:
Read a December 2019 report prepared by the KPMG member firm in Thailand
The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. For more information, contact KPMG's Federal Tax Legislative and Regulatory Services Group at: + 1 202 533 4366, 1801 K Street NW, Washington, DC 20006.