*******************************************************************

 

Maliyat journal (Iranian Tax Review)

 

No. 25 - Autumn 1999

 

 

IN THE NAME OF ALLAH

 

FROM THE PRESIDENT

 

The issue of transfer pricing has attracted greatly the attention of tax authorities of developed countries over the last two decades. A considerable part of the world tax literature has also been devoted to the same subject, so that a number of specialized magazines and publications are created exclusively for this purpose and for the study of the issues in the field of transfer pricing. In recent years the scope of these studies has been extended outside the developed world and has become of great appeal to the developing countries as well.

The international economic and trade relations have been so expanded and interwoven that there is no way to keep oneself beyond its sphere, nor such an action may be considered as wise and reasonable. There was a time where the national economies could survive in isolation from each other without facing serious problems. But, by the lapse of time this traditional state of affairs was dramatically changed, so that today we can sensibly speak about the existence of a global economy. Besides that, the goal of continuing the globalization process of world economy and enhancing its benefits is followed everywhere?

As regards our country, the expansion of economic and trade relations with the outside world and attraction of foreign investment and technology constitute a pillar of the government's foreign policy. This attitude was emphasized by the Parliament as well, when deliberations were going on in respect of the current year budget.

Parallel with development of relations and cooperation, however, various problems would also arise, which should be taken care of to be directed into a sound and rational route. One of such problems that has been the focal point of tax administration in many countries and has given rise to many discussions and controversies during the recent decades is the same issue of transfer pricing. The giant enterprises engaged in huge commercial and industrial activities, whose role may not be denied in economic and technical developments of today's world, are mostly multinational and supranational. They control a wide net of active and dynamic companies and establishments all over the world, that run various industrial, commercial, financial a service businesses.

The nature of these enterprises' business, like any other large or small trade, is based on the attraction of more customers on one hand, and securing more profits for themselves and their affiliates on the other. To achieve these ends, they spare no efforts and tricks. One of devices they resort to is the use of tax avoidance techniques with the aim of paying as less tax as possible.

Among such techniques the transfer pricing manipulations is the widest spread one and outpaces all other similar tricks. The inter-company transactions among these trade complexes are mostly priced in a way to direct to final profits of the family to the regions where the tax burden is lighter than any where else. Thus, the family as a whole pays less tax.

The tax administration on the other hand, has not turned a blind eye to the above circumstances. Debates and deliberations on the subject of transfer pricing is going on everywhere and counter devices and invented to offset of effects of the aforesaid tricks and techniques. Evolution of tricks and counter tricks is on progress and this process have advanced in such a way that one may properly conclude that a new branch of studies or a complicated and intricate art of counter balancing play has developed between the fisc and taxpayers.

Special attention is paid in today's world to the training of tax official to deal with the transfer pricing issues. High level consultants, attorneys and accountants have also turned up on the opposite side and these two groups of experts confront and challenge each other. The issue is of great appeal to the academic centers as well.

As far as our country is concerned, different aspects of the issue should be carefully studied. Care must also be taken of development needs and strategy of the country. Particular attention is to be paid to the filling of expertise gap and training of specialists in this delicate field.

What concerns this journal is the presentation of various features of the transfer pricing with the aim of acquainting its readership with this important subject.

Fortunately, there are ample number of the interested groups, namely tax officials, consultants and academics among our readers. We will do our best to achieve this purpose.

 

Dr. Aliakbar Arabmazar

 

 

 

An Introduction to the Iranian Tax System

 

(Part 5)

 

As we mentioned earlier, this essay is devoted to the study of the direct taxes as are reflected in the Iranian Direct Taxes Act (DTA). We begun our work with the substantial provisions of DTA first, and analyzed its regulations regarding the annual taxes on real properties, tax on unoccupied dwelling real estates, tax on idle lands and inheritance tax. All these taxes are, under the Iranian tax law, considered to be various types of property taxes, and are presented under the common title of property taxes (Title B, DTA).

There remains another type of property taxes, namely the Stamp Duties, which is to be reviewed in the present issue.

 

Stamp Duty

The Iranian tax law considers the stamp duty as a kind of property tax. If we define the property tax as a tax imposed on properties owned by natural and juridical persons, then categorizing all levies referred to as stamp duties under the DTA as a group of property tax, might not be easily acceptable in all cases. There are, of course, some cases of stamp duties that are really imposed on certain types of properties. For instance, the stamp duty collected from negotiable instruments (Article 46) can fairly be accepted as a tax imposed on a kind of property. But certain documents, for example the form of acceptance of general conditions of current accounts (signed by the persons applying for opening of such accounts in banks), are also subject to stamp duty, while a document of this kind may not be considered a "property" at all.

The cases subject to stamp duty are as follows:

1.

 

Endowment, tying up, vowing and willing

 ???????????????????????????

 

 

Tax Regulations of the Budget of 1378 (199-2000)

 

The Budget of the Iranian year of 1378 (March 21, 1999 to March 19, 2000) received the parliament's approval on 2 February 1999. Besides figures, The Budget contains different regulations on revenues and expenditures, which are termed as "Notes". There are 60 Notes appended to the Budget, a number of which embody tax provisions. The most important Notes of the latter kind are examined below:

 

Note 2

Paragraphs C, S and 4 of the Note 2 announce the following tax implications with regard to public organizations and companies:

1.  Under the paragraph C of the Note 2, the state companies are deprived from setting aside the reserves envisaged in the Article 138 of The Direct Taxes Act (DTA) , and also from making certain expenditures referred to in the Article 172 of the same Act, unless they satisfy certain conditions.

 

Article 138, DTA. This Article provides that any part of the declared profit of companies derived from industrial and mining activities, which the companies reserve for the purpose of reconstruction, development or completion of their existing industrial and mining units, or for establishing new (Industrial and mining)units, shall be exempted from taxation. The same exemption shall also be granted if the profit of such companies is allocated to a reserve for construction of houses for their employees.

"Now the paragraph C of the Note 2 of the Budget how stipulates that The Industrial Development and Reconstruction Organization (IDRO) and its affiliated companies are prohibited from allocating their profits to the reserves described above, unless a precondition is satisfied: the amount of taxes and dividends payable by IDRO and its affiliates should not be reduced (as a result of such reserving) from the relevant force acts of the Budget, IDRO is a vast and important government organization encompassing a large number of industrial entities.

 

Article 172, DTA.  This Article provides that certain charitable payments to special accounts declared by the Government shall be deductible from the taxable income of the respective taxpayers.

Paragraph C of the Note 2 states that the charitable payments of the Article 172 of DTA must not result in reduction of income tax of the state companies and their dividends payable to the government from the forecasts of the Budget.

The restrictions imposed by the paragraph C of the Note 2 on IDRO, its affiliates and other government companies reflect the prevailing negative attitude towards the public sector companies. They absorb 65 % of the government's budget without producing comparable results.

Ironically, two big state owned companies, namely National Iranian Steel Company and National Company of Iranian Copper Industries are treated completely in a different manner. When discussing about the Note 58, we shall tough upon this subject.

 

Paragraph S

Paragraph S of the Note 2 requires all companies, banks and entities affiliated with the government to remit to the Treasury up to 5 % of the funds accorded to them under the Budget for their current expenditures, and also up to 7 % of the funds allocated for their development projects. Any remittance of this kind shall be treated, for tax purposes as acceptable expenses. The exact percentage of refund (between zero to 5 or to 7respectively) in respect of individual entities shall be determined by The Council of Ministers on basis of the Plan and Budget Organizations' proposal.

The wording of the Paragraph S conveys nothing except a kind of budget cut. It orders the government companies, etc. to vive back a percentage of the funds allocated to them under the Budget. The case being so, one can ask: why forecasting funds and immediately taken it back? The same question was raised in the course of the Parliament's deliberations. But no convincing answer can be during the same deliberations.

 

Paragraph U

The Paragraph U presents a unique and unprecedented subject. It reads as follows:

"For the purpose of creating possibilities of competition for the private sector, all tax exemptions of ministries, organizations, executive bodies, government companies, public institutions, foundations and profit seeking entities affiliated with the government who are engaged in economic activities, shall be nullified in the year 1378 (1999-2000) and all of them will be subject to taxation. Excepted is the exemption of the Article 138of The Direct Taxes Act giving effect to the provisions of this paragraph in respect of those institutions that have permission of or of the High Spiritual Leader shall be subject to the agreement of the High Spiritual Leader". Several points are remarkable in this paragraph:

1.  This is the first time that a legal text highlights the significance of the private sector's competitiveness vis-ŕ-vis the public sector and grants such a considerable advantage to give effect to this matter.

2.  The Scope of the paragraph in question is so vast, that no government organization or entity can escape from its domain.

3.  All types of tax exemption are annulled by this paragraph. Even those provided under the laws other than The Direct Taxes Act have also been nullified, since the wording of the paragraph covers those other exemptions as well. The only tax exemption excluded is that of the Article 138, DTA, which was described earlier.

4.  The most important aspect of this paragraph is the fact that its coverage extends to the concerns that are called in Iran as Nahads (institutions) and Bonyds (foundations). These are complexes of a wide range of entities mostly engaged in business activities. Annulling tax exemption of these institutions and foundations may lead (if it is finalized) to huge contribution to the government revenue; leave aside the competitiveness of the private sector.

 

Note 8.

Paragraph B of the Note 8 concerns the persons (whether natural or juridical) who spend money for construction or completion of buildings for educational, cultural, medical and similar purposes, or for construction of roads, bridges and the like. Such contributions shall be treated as acceptable expenses for tax purposes. The transfer of such buildings and constructed facilities to the relevant organizations shall be exempt from the tax on transfer of real properties.

According to the Paragraph C of the same Note, the persons donating their properties to the Education Departments shall be exempt from the payment of the tax on transfer of properties.

 

Note 14

The last part of the Note 14 authorizes the government to refund the consumption tax on the goods bought and carried abroad by foreign passengers. The tax is refundable to the passenger at the exit terminal (like airports or other departure points). This rule is obviously enacted to encourage tourism and exportation of goods at the same time.

The term "consumption tax”, however, is not very clear in this country. We have a series of direct taxes, some of which can be characterized as consumption taxes. Few sales taxes have also been recently imposed. But, it is not so easy to individualize certain taxes and label them as consumption tax.

 

Note 33

Under the Paragraph A of the Note 33, The Technical and Mechanical Soil Laboratories Company (an affiliate of the Roads and Transportation Ministry, and also The Railroad Company of the Islamic Republic of Iran are allowed to use any extra income they may derive in excess of the relevant amounts forecasted in the budgets their annual income, for investment purposes. Certain ceiling has also been envisaged for the investment in question. Such extra income so invested shall be exempt from taxation.

The exemption provided in the Note 33 is an obvious deviation from the rule of the paragraph U of the Note 2, on which we commented earlier, and which nullifies all tax exemptions for government organizations and entities, in the course of the budget year.

 

Note 58

Note 58 imposes certain sales taxes on style (whether produced internally or imported), copper, cars, new telephone lines, imported cigarettes and soft drinks produced inside the country. The taxes of each month’s sales are to be paid by the producers and importers not later than 15 day from the end of the relevant month. Any delay in the payment will cause a fine equal to 5 % of the deferred tax per each month of delay. No sales tax will apply if the goods subject to taxation are exported. Collection of the tax will be effected in accordance with the executive regulations of the Direct Taxes Act.

 

Steel and Copper

The Note 58 rules also that the turnover (declared profit) of the National Iranian Steel Company and its affiliates, as well as that of the National Iranian Copper Industries Company for the year 1378 (1999-2000)shall be subject to the provisions of the Article 138 of the Direct Taxes Act.

The phrase "turnover (declared profit)" of the year 1378 is vague. If it means the declared profit arising from the turnover of 1378, then the effect of the rule will extend to the year 1379, since the profit of a year is usually assessed and taxed in the subsequent year. Then it will be in contradiction with the Note 60 which limits the operation of the Budget Law to the year 1378.

But if the profit declared in the year 1378 is intended, then the profit should be ascribed to the turnover of the year 1377, and not to 1378.

As mentioned earlier, the Note 2 of the Budget Law imposes restrictions on the government companies willing to take benefit from the facility provided under the Article 138 of the Direct Taxes Act. But, the Note 58 treats the Steel and Copper companies in a different way. They are free from the restrictions of the Note 2, and more than that they are required to take measures envisaged under the Article 138, that is to allocate all their profits to the uses enumerated in the same Article.

(The full text of tax provisions of the Budget Law is provided at the end of the Persian section of the journal).

 

 

ABSTRACTS OF PERSIAN ARTICLES

 

Editorial

 

Transfer pricing is the subject to which the editorial of the present issue (both in English and Persian sections) is devoted. The international background in this connection is portrayed and the measures needed to be taken by this country in this respect are also described.

 

State Budget of the current year

Tax regulations of the budget of the Iranian year 1378 (1999-2000) are reviewed in this article. The impact of the actual priorities and bottlenecks on these regulations are analyzed and comparisons have also been made with the previous years; budgets. The same article has been summarily presented in the English section under a similar heading.

 

Tensions Arising from Tax Treaties and the Idea of Establishment of an International Tax Court

This is a translation of the article written by J. Azzi in the IBFD Bulletin. The author advocates the idea of an international tax court to introduce certainty and uniformity into tax treaty practice and thus facilitate the conduct of international trade.

 

Accounting Practice and Profit Assessment of Buyback and B. O. T. Transactions

Emphasis has been put on buy back, B. O. T. and some other similar methods of financial and technical cooperation as the means of attraction of foreign capital and technology with the aim of accelerating the process of the country's development. The author describes these types of contracts and reflects on accounting practice as well as on the assessment of taxable income of such transactions.

 

Model Tax Convention on Estates, Inheritances and Gifts

In the previous issue of this journal some general remarks were made on inheritance and gifts tax treaties. In the present issue we have commenced a series of articles regarding the OECD Model Convention for avoidance of double taxation with respect to tax on estates, inheritances and gifts. Special attention has been paid to the regulations of the Iranian Tax Law with regard to the same subjects.

 

Transfer Pricing

Following rapid process of globalization of the world economy and expansion of the geographical sphere of multinational and supranational companies' operations, the issues connected with this process become more anymore globalize as well. The economic development policy of our country on the other hand is inclining, more than before, towards the attraction of foreign capital and technology. These considerations necessitate that the issues like transfer pricing be taken more seriously into account. But, the subject of transfer pricing is a new topic in this country, and, therefore should be studied in all its dimensions. That is why this journal has started a series of articles in this regard, the first of which is provided in this issue.

 

Some Examples of Transfer Pricing Regulations.

Taking into account the considerations just referred to, this journal will introduce examples of transfer pricing regulations of other countries, in each issue, with the aim of acquainting its readership with this subject. The first example provided in this issue of the journal is an enclosure published by Danish tax administration which accompanies the tax return on cross-border inter-company transactions

 

Selected Tax Cases

Space permitting, we introduce some international tax cases in each issue of the journal. The case provided in the present issue is the famous case of Mr. and Mrs. Jilly v. Directeur des Services Fiscaux du Bas-Rhin (France) and the Judgment of the European Court of Justice delivered in this regard.

 

Rulings and Regulations

The text of new tax laws and regulations, circular letters of the tax administration, rulings of the Supreme Tax Council and verdicts of the Administrative Court of Justice are presented in the Persian section of the journal. Some of these rulings and regulations are also provided in the English section under the heading "Tax news".

 

Tax Glossary

Several tax terms and expressions are presented and defined in each issue of Maliyat journal.

 

The End

 

*******************************************************************