Today we want to talk about a recurring topic that we find more and more in Startups and companies with a certain international presence, and that is Intercompany agreements (or rather the absence of these).
In the first weeks of onboarding, when we carry out a small legal and tax Due Diligence on our clients, we almost always find the same problems, and one that is repeated very often is not having a defined transfer pricing system with a written policy that establishes a definition of methods, margins and surcharges.
Normally, TravelTech companies in their internalization process seek the creation of structures for three main reasons:
Legal – need to obtain a local license that allows them to operate.
Tax – they may look for countries where the Corporate Tax is lower, or perhaps the volume of transactions in that country is so high that it is worth creating an entity to be able to compensate for the VAT incurred.
Commercial – either to have a local presence, obtain better rates from suppliers or clients in that country, or to improve their image in the eyes of investors.
And although this internalization process is necessary, the administrative part and what it entails at a legal and fiscal level are often forgotten.
But let’s start at the beginning, what is an Intercompany Agreement? Intercompany agreements (or Intercompany) are contracts between associated companies within the same group. These agreements establish the terms and conditions of controlled transactions, such as the provision of services or supply of goods between these entities. These agreements not only formalize transfer pricing arrangements in a legally binding manner, but also serve as evidence before tax authorities and stakeholders, demonstrating the implementation of transfer pricing policies.
And what happens if I don’t have them? If the agreements are not kept up to date, well drafted or do not match the reality of the operations carried out by the company, it can open the door to questions by the tax authorities, which could lead to audits and fines.
Furthermore, it is important not to forget the obligation to document the operations with the corresponding “master file” or “local file” that supports the valuation method used. If the tax authority of a certain country does not agree with the transfer price calculated, a profit correction will have to be made to the companies. If the tax authority of the other country does not accept this correction, double taxation will occur.
In addition to paying more taxes, these discussions with the tax authorities involve consuming personnel resources and administrative costs. If you are inspected, it is up to you to prove that your transfer prices are correctly evaluated and calculated. This means that the ball is in your court, and it is often easier to have everything well tied up from the beginning than to have to defend yourself from what the tax authorities say later.
Therefore, agreements between companies are key to:
