Consortium and transfer pricing obligations
The conclusion of a consortium agreement between unrelated entities will not automatically trigger transfer pricing documentation obligations, according to the interpretation of 20 September 2023 No. 0114-KDIP2-2.4010.375.2023.1.RK.
In the case analysed by the Director of the KIS, two companies entered into a cooperation agreement (consortium) in order to jointly participate in a tender procedure. Doubts arose here as to whether, in such a case, the conclusion of a consortium agreement would result in the companies being related parties and it would be necessary, inter alia, to prepare transfer pricing documentation.
– As the head of the KIS explained, in connection with the concluded consortium agreement, the companies will not be obliged to prepare local transfer price documentation because the consortium agreement was concluded between unrelated entities and, therefore, the terms and conditions of the agreement were not established or imposed as a result of the existing relationships. On the other hand – in the opinion of the head of the KIS – transactions carried out since the conclusion of the consortium agreement between the participants in this agreement will be treated as transactions between related parties, for which the documentation obligation may arise, explains Jakub Matla, senior analyst at Thedy & Partners.