Transfer pricing is a critical issue for Georgian companies engaging in controlled operations with foreign-related entities or offshore firms. The latest regulations highlight the importance of ensuring such transactions are in line with market conditions to prevent untaxed outflows of funds from Georgia.
Transfer Pricing and Controlled Operations
Georgia's transfer pricing legislation requires interdependent entities to conduct transactions at market prices. This prevents the misuse of pricing strategies to shift profits untaxed to offshore jurisdictions. A pivotal aspect of these rules involves determining whether financial transactions, such as loans from foreign investors, qualify as genuine loans or should be classified as capital contributions.
Why Reclassification Matters
On October 2, 2024, the Minister of Finance issued Order No. 331, introducing criteria for requalifying loans from non-resident related entities as capital contributions. This change can have significant tax implications:
- Loans: Interest payments to non-resident entities are taxed at 5%. This rate can drop to 0% under double taxation treaties.
- Capital Contributions: If a loan is reclassified, interest payments are treated as dividends, subject to a 15% profit tax and possibly a 5% withholding tax.
For loans issued in foreign currency, lenders can receive the principal amount tax-free in the original currency. However, capital contributions are fixed in Georgian Lari (GEL) based on the exchange rate at the time of deposit. Upon withdrawal, exchange rate gains are considered dividends and taxed.
Criteria for Loan Qualification
Order No. 331 outlines specific benchmarks for determining whether a transaction is a loan:
- Repayment Schedule: Is there a defined repayment schedule consistent with market conditions?
- Interest Obligations: Are interest payments explicitly required and actually made?
- Financial Capacity: Does the borrower have the means to repay principal and interest?
- Capital Structure: Is the borrower's loan-to-equity ratio within acceptable market limits?
These criteria aim to ensure that loans between related parties mirror arm's-length terms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
