Cross-border, intra-group transactions have become a hot issue in international taxation over the past few years. Not only have multinational entities (MNEs) gained a better understanding of transfer pricing as a tax planning tool, but tax authorities have also increased their focus on the issue and their scrutiny is tougher than ever before.

The Scandinavian authorities have implemented a new transfer pricing documentation regime. In addition, tax authorities have intensified their controls with increased tax investigations through joint audits across the region.

This article aims to highlight the new legislation and give a brief outline of the enforcement level in the Scandinavian countries in regard to transfer pricing. As 'one market', the reader will find more similarity in the legislation than the tax authorities would like to believe. However, from a legal perspective this is not a unified market and, although tax audits have similar approaches, they may not result in similar conclusions.

Across Scandinavia there are some differences in local legislation and, not the least, in enforcement. Nevertheless, based on the significant similarities, one documentation package for Scandinavia should be considered, preferably compliant to the European Union (EU) Transfer Pricing Code of Conduct (EU TPCC).

However, regardless of the chosen approach, a common sense-based documentation would most likely be sufficient in all the Scandinavian countries. None of the countries are strong believers in comparable economic searches finding third-party prices. As a consequence, an adequate and sufficient documentation package only needs to have comparable reasoning based on the Organisation for Economic Co-operation and Development (OECD) Guidelines.

Scandinavian tax barometer

The most aggressive tax authority is probably the one in Norway, with its strong focus on inbound investments in the oil and gas industry. However, both the Danish and Swedish authorities have announced intense scrutiny of transfer pricing over the coming years.

During the past seven years, the Danish Government has taken a proactive role with regard to transfer pricing issues, and is recognised as a guiding star among the other Nordic countries. This can be explained by the Parliament's focus on the issue and the legal changes affecting income year 2006. Moreover, the Danish tax authority has issued several guidelines on transfer pricing issues, focusing evidently on the issue and building up capability. Transfer pricing has also been declared a tax audit assessment theme for the income year 2004 and onwards. From 2002 to 2006 the number of upward adjustments of taxable profits went from 19 to 38, with an increased adjustment value jumping from DKK48m (£4.5m) to DKK4.496bn (£421.2m) over that period.

In Sweden, a new bill on the documentation regime for intra-group transactions came into force in January 2007. In addition, transfer pricing-related issues have increasingly been on the Swedish tax authority's agenda, resulting in, among other things, standardised questions in tax audits.

In Norway, new documentation requirements for intra-group transactions have been announced several times over the past years. A bill has been passed by Parliament and will come into effect in 2008. In the meantime the tax authority is widening its focus from the oil and gas industry to a more general scope, including financial institutions, intangibles and basic transfer pricing issues related to entrepreneurial business models.

The collaboration among the Scandinavian tax authorities has not been limited to an exchange of information, but also includes meetings where the authorities have discussed transfer pricing issues for MNEs with operations across the region. Therefore, when doing business in Scandinavia it is important to have consistent documentation.

Required documentation in the Scandinavian countries is, for all practical purposes, similar. First, a description of the MNE and the involved entities with their financial performance is necessary. Secondly, the provision of intra-group transactions, along with an analysis of the performed functions and assumed risks is statutory. Thirdly, a comparability analysis of the transaction is required. Fourthly, the selection of the transfer pricing method must be described. In addition written agreements or contractual terms must be enclosed.

However, tax authorities in all Scandinavian countries emphasise that complex and significant transactions may require more comprehensive documentation than less complex or significant ones. Thus, this element of relativity in the requirements must be taken into account.

Documentation prepared on the basis of the EU TPCC is accepted as sufficient documentation in all the Scandinavian countries. This is explicitly stated by the Scandinavian tax authorities.

Denmark

The Danish transfer pricing regulations are found in section two of the Danish Tax Assessments Act. The section provides application of the arm's length principle for taxable Danish entities that:

- are controlled by an individual or by legal entities;

- control legal entities;

- are related to a legal entity;

- have a permanent establishment (PE) situated abroad; or

- are foreign individuals or foreign legal entities with permanent establishments in Denmark.

Furthermore, it should be underlined that the arm's length principle applies to non-cross-border transactions.

In addition to a limited disclosure requirement, the entities qualifying for the arm's length principle are obliged to prepare documentation related to the transactions. The deadline for submitting the documentation is 60 days after receiving a petition from the tax authority.

There is a decrease in requirements for small and medium-sized companies. Such entities are only obliged to prepare documentation for cross-border controlled transactions with individuals and corporations or PEs residents out of the EU or the European Economic Area, and residents in countries which Denmark has not concluded or signed any tax treaty with.

Non-fulfilment of the documentation requirement may, in addition to an assessment of the transfer pricing income, cause penalties provided that a matter of intent or gross negligence can be determined. It is assumed that no or inadequate documentation reduces the burden of proof for the tax authority.

Norway

The applicable Norwegian transfer pricing regulation is found in section 13-1 of the Norwegian Tax Act. The section provides application of the arm's length principle for transactions with subjects directly or indirectly related with the taxpayer. There is no statutory definition of such related subjects.

The proposed effective date of the new documentation regime is 1 January, 2008. Accordingly, documentation is first required for the fiscal year 2008, or more precisely, spring 2009.

The new documentation requirements only apply for transactions between taxable legal entities. Secondly, the parties in the transactions must be closely related. Furthermore, non cross-border transactions are included as well as transactions with permanent establishments.

A 'closely-related' party is considered to be an entity that directly or indirectly owns or controls at least 50% of another legal entity, or is owned or controlled with at least 50% by an entity.

To simplify the documentation regime, some entities are exempted from the documentation requirements. Qualifying entities, on consolidated basis, have to employ less then 250 employees and the turnover must be less NOK400m (£35.8m), or the assets must be less than NOK350m (£31.4m).

The taxable entity is required to submit documentation of controlled transactions within 45 days after request by the tax authority.

Failure to submit the transfer pricing documentation within 45 days after the request or failure to meet the quality standard on the documentation will give the tax authority discretionary rights to assess the transfer price, and the right to complain to the supreme authority will be lost. The tax authority may levy additional penalty taxes up to a maximum 60% of the tax increase.

Sweden

According to the Swedish Income Tax Act, the arm's length principle is applicable for transactions between economical associated enterprises.

Documentation requirements are applicable to cross-border transactions with associated enterprises provided that a Swedish entity owns more than 50% in the foreign enterprise, or a foreign enterprise owns more than 50% in the a Swedish entity. Documentation requirements apply to indirect ownership under the same rules as direct ownership. Permanent establishments are not bound by the documentation requirements.

Documentation is required for transactions fulfilled in 2007. The documentation shall only be submitted after a petition from the Swedish Tax Authority. The taxpayer is given a reasonable time to put together the necessary documentation.

For transactions of smaller value, sale of tangible goods less than SEK25m (£1.9m) and other transactions under SEK5m (£378,000), a simplified documentation regime is applicable. However, transactions of intangibles are not covered by this simplified regime, regardless of the value of the transaction.

The normal tax surcharge of 40% is applicable to transfer pricing adjustments. Further, penalties may be levied for not filing tax returns in a timely manner or for not responding to information requests from the tax authorities.

Ulf Henning Sordal is a partner and Yngve Ueland a solicitor at DLA Piper Norway.