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Article 21
When filing income tax returns or making their current final report, profit-seeking enterprises shall stand on the prescribed format; disclose the information regarding Affiliated Enterprises or Related Parties set forth in Subparagraph 1 and 2, Paragraph 1 of Article 4 hereof, respectively, the structure chart of the affiliated or controlling relationship with shareholding ratio, as well as the information regarding the transactions between the profit-seeking enterprises and such Affiliated Enterprises and Related Parties. In the case of a constituent entity of an MNE Group, the profit-seeking enterprise shall disclose the following information: the domestic entity appointed by the MNE Group to submit the master file, as set forth in Paragraph 1, Article 21-1 hereof; the Ultimate Parent Entity, the domestic entity appointed by the MNE Group to submit the country-by-country report or the Surrogate Parent Entity, as set forth in Paragraphs 1, 2 and 3 of Article 22-1 hereof, when filing income tax returns.
Article 21-1
Where a profit-seeking enterprise that is resident in the ROC is a constituent entity of an MNE Group, it shall prepare a master file containing the following information when filing income tax returns and submit the same to the local tax authority within one year after the end of the fiscal year; if there are two or more constituent entities of the same MNE Group that are resident in the ROC, the MNE Group may designate one of such constituent entities to submit the master file:
1. Organizational structure:
Chart illustrating the MNE’s legal and affiliated or controlling relationship or ownership structure and operating geographical location of entities.
2. General description of MNE’s businesses:
(1) Important drivers of business profit.
(2) A description of the supply chain and the main geographic markets for the group’s five largest products and/or service offerings by turnover plus any other products and/or services amounting to more than 5% of group turnover.
(3) A list and brief description of important service arrangements between members of the MNE Group, other than research and development (R&D) services, including a description of the capabilities of the principal locations providing important services and transfer pricing policies for allocating services costs and determining prices to be paid for intra-group services.
(4) An analysis describing the principal contributions to value creation by individual entities within the group, i.e., key functions performed, important risks assumed, and important assets used.
(5) A description of important business restructuring transactions, acquisitions, and divestitures occurring during the fiscal year.
3. MNE Group’s intangibles:
(1) A general description of the MNE’s overall strategy for the development, ownership, and exploitation of intangibles, including location of principal R&D facilities and location of R&D management.
(2) A list of intangibles of the MNE Group that are important for transfer pricing purposes and which entities legally own them.
(3) A list of important agreements among constituent entities related to intangibles, including cost contribution arrangements, principal research service agreements, and license agreements.
(4) A general description of the group’s transfer pricing policies related to R&D and intangibles.
(5) A general description of any important transfers of interests in intangibles among constituent entities during the fiscal year concerned, including the entities, countries or jurisdictions, and compensation involved.
4. MNE’s intercompany financial activities:
(1) A general description of how the group is financed, including important financing arrangements with non-members of the MNE Group.
(2) The identification of any members of the MNE Group that provide a central financing function for the group, including the country or jurisdiction under whose laws the entity is organised and the place of effective management of such entities.
(3) A general description of the MNE’s general transfer pricing policies related to financing arrangements between constituent entities.
5. MNE Group’s financial and tax positions:
(1) The MNE Group’s annual consolidated financial statement for the fiscal year concerned if otherwise prepared for financial reporting, regulatory, internal management, tax, or other purposes.
(2) A list and brief description of the MNE Group’s existing unilateral advance pricing agreements and other tax rulings relating to the allocation of income among countries.
Chinese translation of the file shall be attached if the master file in the preceding paragraph is provided in a foreign language. If the master file is in English, the Chinese translation of the file may be provided within one month following the delivery of the tax collection authorities’ written notice requiring the translation. In the event that the required translation cannot be provided within the prescribed time limit, the profit-seeking enterprise may apply for an extension with the reason to the tax collection authority prior to the deadline. The extension can be granted only once and cannot exceed one month.
A profit-seeking enterprise within the ROC being a constituent entity of an MNE Group may be exempt from the provisions in the preceding two paragraphs if the enterprise's total revenue, the amount of cross-border controlled transactions, or other relevant matter is below the criteria prescribed by the MOF.
Article 22
A profit-seeking enterprise undertaking Controlled Transactions, when filing the current-year income tax returns or making a current-year final report, shall prepare a transfer pricing report containing at least the following information of the profit-seeking enterprise:
1. A comprehensive business overview, including history, a detailed description of business activities and business strategies pursued by the enterprise, analysis of industry and economic conditions, major competitors, and analysis of economic and legal factors that affect transfer pricing, as well as an indication whether the enterprise has been involved in or affected by business restructuring or intangible transfers in the present or immediately past year and an explanation of those aspects of such transactions affecting the enterprise.
2. A description of group organization and management structure, including the management structure and organizational chart, a description of the individuals to whom local management reports and the countries in which such individuals maintain their principal offices, register of directors, supervisors, and managers and data of change one year before and after the current year.
3. Summaries of Controlled Transactions, including:
(1) A description of the types of major transactions and their backgrounds, including procedures, dates, transaction subjects, quantities, terms of sale, contract clauses and purposes of the assets or services of the transactions. The description shall explain the sale or use and benefits concerned.
(2) The parties involved in each type of Controlled Transactions and the relationship amongst them.
(3) The amount of payments and receipts for each type of Controlled Transaction involving the enterprise broken down by country or jurisdiction of the payor or recipient.
(4) Copies or their abridged versions of all material intergroup agreements concluded by the enterprise.
4. Controlled Transaction analysis:
(1) An analysis on the function and risk of each party involved in the Controlled Transaction, including any changes compared to prior years.
(2) A description of an instance complied by the principle of Article 7;
(3) Comparability analysis, a description of comparables and comparable uncontrolled transactions selected by the principle of Article 8, and related information thereof ;
(4) An analysis on the most appropriate Arm's-length Method determined in accordance with Article 9;
(5) An estimation of whether the allocation of profits in the Controlled Transaction is at arm’s length while the Business Restructuring is involved, in accordance with Article 9-1;
(6) A description of the tested party and the most appropriate Arm’s-length Method selected, the reasons for this selection, and an explanation of why alternative methods were not selected;
(7) Transfer Pricing method of related parties for conducting controlled transactions and relevant data;
(8) The conclusion of measurement of the method selected by the most appropriate method including the information of selected comparables and comparable uncontrolled transactions (including profit level indicators), and the source of such information, the adjustments made to eliminate the difference prescribed in Subparagraph 1 of Article 9, assumptions used, arm’s length range, the result of the conformation of the arm’s length and the adjustments based upon the results of the arm’s length transactions, as well as a summary of financial information used in applying the Arm's-length Method. An explanation of the reasons for performing a multi-year analysis under the proviso of Subparagraph 4 of Article 7; and
(9) A copy of existing unilateral advance pricing agreements and any advance rulings concerning cross-border income distribution with other countries or jurisdictions, and which are related to Controlled Transactions described above.
5. Statements and consolidated reports of the Affiliated Enterprises and other materials as required pursuant to Article 369-12 of the Company Law.
6. Other documents in relation to related parties or controlled transactions, which may affect pricing, if any.
In the event that the relationship between two profit-seeking enterprises, due to special market or economic conditions, satisfies the criteria prescribed in Item 3 to 5, Subparagraph 8, Article 3 hereinabove, but nevertheless do not have de facto controlling or subordination relationships, the taxpayers may, prior to filing their annual income tax returns, produce sufficient evidentiary documents to the tax collection authorities for ratification. Once the documents provided have been ratified, the requirements of the transfer pricing report set forth in the preceding paragraphs shall not apply.
Where the total amount of revenue and the amount of Controlled Transactions of a profit-seeking enterprise engaged in Controlled Transactions below the standards as prescribed by the MOF, the transfer pricing report as described in Subparagraph 4, Paragraph 1 of this Article can be replaced with other substitute document that prove the pricing of the Controlled Transactions are at an arm’s-length result. The amount of Controlled Transactions excludes the amount of any transaction that is signed in an Advance Pricing Arrangement with the tax collection authorities.
When the tax collection authorities conduct the investigation pursuant to the Regulations, the profit-seeking enterprises shall produce the required transfer pricing report or the substitute document set forth in the preceding subparagraph within one month after receipt of a notice of investigation sent by the tax collection authorities. In the event that the required transfer pricing report or substitute document cannot be produced within the prescribed time limit, the taxpayer should apply for an extension prior to the deadline. The extension can be granted only once and cannot exceed one month. The profit-seeking enterprise should, within one month, provide additional supporting documents as deemed necessary by the tax collection authorities after reviewing the provided transfer pricing report or the substitute document.
The transfer pricing report or the substitute document in the preceding subparagraph provided by profit-seeking enterprises pursuant to the preceding paragraphs should contain a table of contents and an index. Chinese translation shall be attached if the materials provided are in a foreign language, unless otherwise agreed by the tax collection authorities with the provision of the English documents.
Article 22-1
Where a profit-seeking enterprise that is resident in the ROC is the Ultimate Parent Entity of an MNE Group, it shall prepare a country-by-country report of the current fiscal year in accordance with the prescribed format and submit the same to the local tax collection authority within one year after the end of the fiscal year.
Where an MNE group whose UPE is not resident in the ROC, its constituent entity which is resident in the ROC shall submit the country-by-country report prescribed in the preceding paragraph if one of the following conditions applies; where there are two or more constituent entities of the same MNE Group that are resident in the ROC, the MNE Group may designate one of such constituent entities to submit the country-by-country report:
1. The Ultimate Parent Entity of the MNE Group is not obligated to file a country-by-country report in its jurisdiction of tax residence; or,
2. The Ultimate Parent Entity has filed a country-by-country report in its jurisdiction of tax residence, but such jurisdiction does not have an agreement in effect that requires the exchange of country-by-country reports to which the ROC is a party by the time specified in the preceding paragraph for submitting the country-by-country report; or,
3. The Ultimate Parent Entity has filed a country-by-country report in its jurisdiction, and such jurisdiction has an agreement that requires the exchange of country-by-country reports in effect with the ROC; however, the tax collection authority is unable to acquire the country-by-country report in accordance with the agreement.
If one constituent entity is appointed by the MNE Group referred to in the preceding paragraph as a sole substitute for the Ultimate Parent Entity, to submit the country-by-country report (hereinafter referred to as the "Surrogate Parent Entity") and is resident outside of the ROC, any profit-seeking entity of the MNE Group which is resident in the ROC shall not be required to submit a country-by-country report to the local tax collection authority if the MNE Group satisfies the following conditions:
1. The jurisdiction of tax residence of the Surrogate Parent Entity requires filing of country-by-country reports.
2. The jurisdiction in the preceding subparagraph has an agreement that requires the exchange of country-by-country reports in effect with the ROC by the time specified in the first paragraph for submitting the country-by-country report, and the tax collection authority is able to acquire the country-by-country report in accordance with the agreement.
3. The profit-seeking enterprise has disclosed the relevant information of the Ultimate Parent Entity and Surrogate Parent Entity in accordance with Article 21.
If the Surrogate Parent Entity appointed by the MNE Group is a profit-seeking enterprise which is resident in the ROC, it shall submit the country-by-country report in accordance with the first paragraph.
The members and contents of the country-by-country report in the preceding four paragraphs are as follows:
1. “Constituent entity of the country-by-country report” shall mean an entity that meets any one of the following conditions:
(1) Any profit-seeking enterprise that is included in the consolidated financial statements of the MNE Group under the law or accounting principles generally applied in its jurisdiction of tax residence of the Ultimate Parent Entity;
(2) Any profit-seeking enterprise that is not included in the consolidated financial statements in the preceding item, but would be so required if equity interests in the Ultimate Parent Entity were traded on a public securities exchange in its jurisdiction of tax residence;
(3) Any such profit-seeking enterprise that is excluded from the MNE Group’s consolidated financial statements in the preceding two items solely on size or materiality grounds; and
(4) Any permanent establishment of any profit-seeking enterprise of the MNE group included in the preceding three items provided the profit-seeking enterprise prepares a separate financial statement for such permanent establishment for financial reporting, regulatory, tax reporting, or internal management control purposes.
2. Content of the country-by-country report:
(1) Aggregate information relating to the amount of revenue, profit (loss) before income tax, income tax paid, income tax accrued, stated capital, accumulated earnings, number of employees, and tangible assets other than cash or cash equivalents with regard to each jurisdiction in which the MNE Group operates.
(2) An identification of each constituent entity of the MNE Group setting out the jurisdiction of tax residence of such constituent entity mentioned under the preceding item, and the jurisdiction under the laws of which such constituent entity is organized, and the nature of the main business activity or activities of such constituent entity, which shall include: research and development; holding or managing intellectual property; purchasing or procurement; manufacturing or production; sales, marketing or distribution; administrative, management or support services; provision of services to unrelated parties; internal group finance; regulated financial services; insurance; holding shares or other equity instruments; dormant.
(3) A description of any activity engaged by constituent entities other than the preceding item.
A profit-seeking enterprise that is resident in the ROC being a constituent entity of an MNE Group may be exempt from the submission of country-by-country report in accordance with Paragraphs 1, 2, or 4 hereof if the group's total consolidated revenue during the fiscal year immediately preceding the reporting fiscal year is below the standards prescribed by the MOF.
In the case where the tax collection authority is unable to acquire the country-by-country report as set forth in Subparagraph 3, Paragraph 2 hereof, or where the tax collection authority is able to acquire the country-by-country report in accordance with the agreement as set forth in Subparagraph 2, Paragraph 3 hereof, the country or jurisdiction concerned shall be determined in accordance with a list of countries or jurisdictions with whom the ROC may not effectively carry out the exchange of country-by-country reports as released by the MOF before the submission deadline prescribed in Paragraph 1. However, in a case where the tax collection authority is unable to acquire the country-by-country report of an MNE Group despite the ROC has entered into an information exchange agreement with the country or jurisdiction which is not in the prescribed list, the profit-seeking enterprise shall submit the country-by-country report within one month after receipt of a written notice sent by the tax collection authority. If the profit-seeking enterprise cannot submit the report within the prescribed time limit, it may apply for an extension before the deadline. The extension can be granted only once and cannot exceed one month.
Article 33
Tax collection authorities shall conduct investigations on the Transfer Pricing of profit-seeking enterprises in accordance with the following rules:
1. Provided that the profit-seeking enterprises have produced the transfer pricing report or the substitute document as required by Article 22 hereof, the competent tax authorities shall assess the Arm's-length result of the Controlled Transactions pursuant to the Regulations, and assess the taxable income of related taxpayers.
2. Provided that the profit-seeking enterprises have not or cannot produce the transfer pricing report or the substitute document pursuant to Article 22 hereof, the tax collection authorities may make an assessment in light of available data. In the event that no available data and the transfer pricing report or the substitute document which the profit-seeking enterprises failed to produce are relevant to the revenue, costs, or expenses, the tax collection authorities may refer to the relevant business net profit, operating cost and operating expense to compute the taxable income according to the profit standard of the same trade concerned pursuant to Article 83 of the ITA and Article 81 of the Enforcement Rules of the ITA.
3. If the profit-seeking enterprises fail to submit or provide the information or document related to their taxable income, the tax collection authorities may handle the case pursuant to Article 46 of the Tax Collection Act.