Ukraine

In Ukraine, each legal entity is taxed individually.

Transfer pricing

Controlled transactions

The transfer pricing rules apply for CIT purposes only. The list of controlled transactions for transfer pricing purposes includes business transactions that may have an impact on taxable profits and that are:

• Business transactions with related parties that are non-residents of Ukraine.
• Cross-border business transactions on sale and/or purchase of goods and/or services through non-resident commissionaires.
• Business transactions with non-residents that are registered in or are residents of jurisdictions determined by the Cabinet of Ministers of Ukraine that meet the following criteria (so-called 'low-tax' jurisdictions):
  • States (territories) where the CIT rate is lower than Ukraine’s CIT rate by 5 and more percentage points or some tax benefits on CIT are available.
  • Countries with no DTT with Ukraine containing provisions on exchange of information.
  • States the competent authorities of which do not accomplish timely and full exchange of tax and financial information upon request of the Ukrainian tax authorities.
• Transactions with non-residents that do not pay CIT, including on revenues received outside of the state of registration of such non-residents, and/or that are not tax residents of the country where they are registered as legal entities. The list of organisational and legal forms of such non-residents in terms of states (territories) is established by the Cabinet of Ministers of Ukraine. If such non-residents pay CIT in the reporting year, the transactions with such non-residents are not considered as controlled if other criteria for the recognition of controlled transactions are not met.
• Transactions (including intra-organizational settlements) performed between a non-resident and its PE in Ukraine.
• If within a chain of business transactions between Ukrainian taxpayer and non-resident, regarding whom the above criteria are met, the ownership of the subject matter of the transaction (or its result) before being transferred from one of the counterparties to another was transferred to one or more intermediaries and transactions between the taxpayer and such non-resident are not considered as controlled (the above criteria are not met), these cross-border transactions between them are considered to be controlled if the intermediary performs no significant functions, employs no significant assets, and/or bears no significant risks in respect of the transactions.

In addition, starting from 23 May 2020, the transfer (full or partial) of functions from one counterparty to another that leads to a decrease in the income/financial result of a Ukrainian taxpayer (in cases where in a relationship between unrelated parties such transfer would not have taken place without compensation) is also subject to transfer pricing rules.

Transactions with the same counterparty are considered to be controlled if the total annual amount of the transactions with any counterparty (calculated according to accounting rules) exceeds UAH 10 million (net of indirect taxes), provided the total annual income (calculated according to the accounting rules) of the taxpayer received as a result of any type of activity exceeds UAH 150 million (net of indirect taxes).

Transactions performed between a non-resident and its PE in Ukraine are considered to be controlled if their value, determined in accordance with the accounting rules, exceeds UAH 10 million (net of indirect taxes) for the corresponding tax (reporting) year.

For all cases listed above, the value criteria for recognition of transactions as controlled should be calculated at prices that are in line with the arm’s-length principle.

Some transactions are considered to be at arm’s-length (i.e. transactions in which prices are subject to state regulation, transactions subject to mandatory valuation, transactions in which prices are determined by mandatory auction, transactions on forced sale of collateral) if the conditions of transactions meet the respective legislation requirements.

Transfer pricing methods

The Tax Code of Ukraine provides five methods for determining the arm's-length nature of controlled transactions:

• Comparable uncontrolled price (CUP) method.
• Resale price method.
• Cost plus method.
• Net profit method.
• Profit split method.

According to the Tax Code, the selected transfer pricing method should be the one that the taxpayer reasonably considers as being most appropriate according to the facts and circumstances of the controlled transaction unless the Tax Code specifies the requirements for the application of a specific method of justification of the arm’s-length nature of the controlled transactions of a certain type.

The most appropriate method of transfer pricing is selected taking into account the following criteria:

• The appropriateness of the chosen method in accordance with the nature of the controlled transaction, which is determined on the basis of the results of functional analysis of the controlled transaction (taking into account the functions performed, assets used, and risks incurred).
• Availability of complete and reliable information necessary for the application of the chosen method and/or transfer pricing methods.
• The degree of comparability between controlled and uncontrolled transactions, including the reliability of comparability adjustments, if they are applied, that can be used to resolve differences between such transactions.

The taxpayer, taking into account these criteria, uses any method that the taxpayer deems most appropriate; however, if there is a possibility to apply both the CUP and any other method, the CUP method is used.

Where, subject to such criteria, the resale price method or the cost plus method and the net profit or profit split method can be applied by the taxpayer with equal reliability, the resale price method or the cost plus method shall be used.

The taxpayer may not use more than one method to determine whether the nature of a controlled transaction is at arm’s length.

For controlled transactions on transfer of functions from one counterparty to another where it is not possible to apply one of the methods prescribed above the special methodology is prescribed. However, the CUP method is a priority for controlled commodity transactions. The list of commodities is defined and published by the Cabinet of Ministers of Ukraine. When applying the CUP method for these transactions, the taxpayer may compare the prices within the controlled transactions with the prices of comparable uncontrolled transactions (actually performed by the taxpayer or other unrelated parties) and/or with commodity quotations. The State Tax Service of Ukraine publishes a recommended (non-exclusive) list of data sources for obtaining commodity quotations on its official web portal before the beginning of the reporting year.

If the taxpayer decides to apply methods other than CUP for commodities transactions, the taxpayer should include in its transfer pricing documentation (Local File):

• the profitability of all related parties (and certain other types of non-residents) involved in the chain of such business transactions and
• justification that the CUP method cannot be applied or that the CUP method is not the most appropriate method considering the facts and circumstances of the controlled transactions.

The Tax Code also provides the possibility for the use of several transfer pricing methods (or a combination thereof) to substantiate the arm's-length nature of controlled transactions. The application of methods that are not prescribed by the Tax Code (see above) is prohibited.

For the purposes of applying transfer pricing methods, the following information may be used:

• Information on comparable transactions of the taxpayer as well as its counterparty with non-related parties (internal comparables).
• Any publicly available sources that provide information on comparable transactions and parties.
• Other sources from which information was received by the taxpayer in compliance with the law, if such information was provided to the tax authorities.
• Information received by the tax authorities under the international agreements in effect concluded by the Parliament of Ukraine.

Transfer pricing documentation/reporting

All taxpayers performing controlled transactions in the reporting year should file a report on controlled transactions (transfer pricing notification) by 1 October of the year following the reporting year.

All taxpayers belonging to an international group of companies and performing controlled transactions in the reporting year should file a notification on participation in an international group of companies (CbCR Notification) by 1 October of the year following the reporting year.

Starting from 23 May 2020, three-tier transfer pricing documentation is introduced in Ukraine, which includes the following:

• Country-by-country report (CbCR): The CbCR is mandatory if the taxpayer belongs to the international group of companies and the total consolidated income of such group for the financial year preceding the reporting year is equal to or exceeds 750 million euros (EUR) (or other amount of the total consolidated income of the international group of companies determined by the legislation of the foreign jurisdiction of tax residence of the parent company of the international group of companies or an authorised member of the parent company [if appointed by the parent company] for the purposes of CbC reporting and if one of the other additional circumstances prescribed by the Tax Code is satisfied).

  The taxpayer submits the CbCR to the tax authorities within 12 months after the last day of the financial year, which is defined by the parent company of the international group of companies (within 12 months after the end of the calendar year in the absence of information on the financial year defined by the parent company of the international group of companies).

  Note that the first reporting period for submitting the CbCR is:

  • The financial year ending in a period from 1 January 2022 to 31 December 2022 for the residents of Ukraine that are parent companies of an international group of companies.
  • The financial year that begins in a period from 1 January to 31 December of year in which the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports entered into force with at least one foreign jurisdiction for the rest of taxpayers.

  As of 4 December 2023, for Ukraine the Multilateral Competent Authority Agreement on the Exchange of Country-by-Country Reports has not yet entered into force with any foreign jurisdiction. Consequently, for the rest of taxpayers, the first reporting period for submitting the CbCR has not yet been established.

• Global transfer pricing documentation (Master File) (submitted for the first time for the financial year ending in 2021): Master File is mandatory if the taxpayer belongs to the international group of companies and the total consolidated income of such group for the financial year preceding the reporting year is equal to or exceeds EUR 50 million. The taxpayer submits the Master File only upon request of the tax authorities within 90 calendar days upon its receipt. Such request should be sent not earlier than 12 months and not later than 36 months from the date of the end of the financial year that is established by the international group of companies to which the taxpayer belongs.
• Transfer pricing documentation (Local File) is mandatory if the taxpayer performed controlled transactions in the reporting year. It should be submitted only upon request of the tax authorities within 30 calendar days upon its receipt. The request on the provision of transfer pricing documentation can be sent to the taxpayer not earlier than on 1 October of the year following the calendar year in which the controlled transaction was performed.

Transfer pricing documentation and global transfer pricing documentation (Master File) should be prepared in Ukrainian only in any format (either a single document or a set of documents).

The Tax Code of Ukraine contains a detailed list of information to be included in transfer pricing documentation (Local File), global transfer pricing documentation (Master File), CbCR, and notification on participation in an international group of companies.

Business purpose

Starting from 23 May 2020, the requirements for the content of transfer pricing documentation (Local File) were extended. The most important changes are that the taxpayer should include in the Local File a justification of the business purpose (economic benefits resulting from the controlled transactions compared to realistically available alternatives between unrelated parties) for controlled transactions on the purchase (sale) of goods, works (services), intangible assets (including licenses), and items of business transactions other than goods. If the taxpayer fails to justify the business purpose/economic benefit within the controlled transactions, there is a risk that the Ukrainian tax authorities will not recognise such controlled transactions when calculating the taxpayer’s financial result or the controlled transactions may be replaced by an alternative option between unrelated parties acting commercially in comparable conditions.

From 1 January 2022, the concept of 'business purpose' is also applied to the uncontrolled transactions with non-residents from 'low-tax' jurisdictions or of special organisational and legal forms, which are included in the list of the Cabinet of Ministers of Ukraine, as well as royalty charges with all non-residents. 

Transfer pricing adjustments

If the prices/profitability of the controlled transaction do not correspond with the arm's-length principle, the taxpayer should perform the respective transfer pricing adjustment and pay additional tax. The parties to the controlled transaction are entitled to perform a proportional transfer pricing adjustment. The proportional adjustment for Ukrainian taxpayers is allowed if the counterparty is a related party to the taxpayer and has made an actual adjustment of its tax liabilities. In addition, there should be an effective DTT between Ukraine and the jurisdiction of the non-resident related party.

Starting from 1 January 2021, the amount of controlled transactions that does not correspond with the arm's-length principle (range) will be determined as deemed dividends paid to the non-resident. Additional exposure of 15% WHT (unless a lower rate is provided by the DTT), as well as advance CIT payment, may be applicable in such a case.

The interquartile range of benchmark prices/price level index (PLI) is considered to be a yardstick used for substantiation of the arm’s-length nature of the transactions. The taxpayers should adjust the financial result/prices of the transactions to the levels corresponding with the lower/higher quartiles, while the adjustments, assessed by the tax authorities, are made to the median of the interquartile range. The adjustments are made based on the results of the reporting (tax) year.

Transfer pricing audit

The Tax Code also provides for a specialised transfer pricing audit as the tax authorities are not allowed to examine pricing in controlled transactions during normal full-scope tax audits. The audit duration cannot exceed 18 months, although extension is possible for another 12 months. Such a period is also suspended until the completion of court proceedings on claims by the taxpayer regarding issues related to the assignment, conduct or subject of such audit.

The tax authorities cannot conduct more than one transfer pricing audit within one calendar year, although other (non-transfer pricing) tax audits can be conducted during this period. The statutory limitation period for transfer pricing assessments is seven years.

The tax authorities have the right to use the information obtained in the course of transfer pricing audit from the taxpayers who were parties to the tested controlled transactions or were involved in supply chain with regard to the subject of controlled transactions. In case of failure to provide information, the tax authorities have the right to cross-audit such taxpayers.

With the introduction of martial law on 24 February 2022, transfer pricing audits were not initiated, and the initiated audits were suspended.

However, starting from 25 November 2022 (according to The Law of Ukraine No. 8045), the following unscheduled transfer pricing audits were resumed for the period until martial law is terminated or cancelled in Ukraine:

• In case of failing to file the report on controlled transactions, notification on participation in an international group of companies, transfer pricing documentation (Local File), global transfer pricing documentation (Master File), and CbCR.
• In case of receiving evidence of non-compliance of the controlled transactions with the arm's-length principle.
• In case of failing to file or non-compliant filing of the report on controlled transactions and/or transfer pricing documentation (Local File).
• In case of receiving the report on controlled transactions by the tax authorities.

Responsibility under the Tax Code (including the responsibility for ongoing violations committed before 25 November 2022) will apply for taxpayers starting from 25 November 2022 as a result of the above audits for any non-compliance identified. In this case, the moratorium on financial penalties/fines for the duration of martial law, the state of emergency, and/or quarantine does not apply.

In addition, the deadline for submission of transfer pricing documentation (Local File) and global transfer pricing documentation (Master File) requested by the tax authorities, as well as the report on controlled transactions, notification on participation in an international group of companies, and CbCR has been reinstated until martial law is terminated or cancelled in Ukraine.

Starting from 1 January 2019, the 'substance over form' principle was introduced in the Tax Code, which means that commercial and/or financial characteristics of the controlled transactions are determined by the actual actions of the parties thereto and the actual conditions/circumstances of its conduct even in the absence of documentary evidence or in case of contradiction with terms and conditions of the relevant agreement.

If the parties to the controlled transaction do not provide sufficient justification for the actual actions of the parties to the transaction and the actual conditions of its conduct, then the functions, risks, and assets are distributed in favour of the party to the controlled transaction who is a resident of Ukraine.

Penalties in transfer pricing

The Tax Code defines penalties for non-compliance with the following transfer pricing rules:

• Non-submission (or late submission) of the report on controlled transactions, notification on participation in an international group of companies, transfer pricing documentation (Local File), global transfer pricing documentation (Master File), and CbCR.
• Omission of certain controlled transactions in the report on controlled transaction and/or omission of certain information in the CbCR.
• Provision of inaccurate information in notification on participation in an international group of companies and/or in the CbCR.

Payment of such penalties does not exempt the taxpayer from the obligation to file the transfer pricing documents prescribed above.

Advance Pricing Agreements (APAs)

Large taxpayers have the right to enter into APAs with the tax authorities in order to agree on certain terms of controlled transactions in advance. For a large taxpayer, it is also possible to pre-align pricing in controlled transactions that are or will be carried out by those large taxpayers.

For the period from June 2023 through December 2023, there were no significant changes in the Tax Code regarding transfer pricing rules (except for the abovementioned changes with respect to CbC reporting).

Thin capitalisation

Starting from 1 January 2021, the following rules apply to legal entities whose debts to all non-residents (not only related parties) exceed equity by 3.5 times:

• The deduction of interest expense under transaction with all counterparties for these taxpayers is limited by the amount of 30% of the CIT base increased by the amount of financial expenses under accounting rules and tax depreciation.
• Interest that has been capitalised as part of the value of non-current assets shall be included with interest expenses proportionately to the depreciation of such assets for the respective reporting period.
• If the amount of interest expenses within a controlled transaction exceeds the amount determined in accordance with the arm’s-length principle, then thin capitalisation rules will apply only to the amount of interest that corresponds with the arm’s-length principle.
• The thin capitalisation rules will no longer apply to financial institutions and companies engaged exclusively in leasing activities.

Controlled foreign companies (CFCs)

The CFC rules in Ukraine will come into force on 1 January 2022. The first reporting period is 2022. The first report is allowed to be submitted in 2024 for the first two reporting periods.

Broadly, under the CFC regime, a Ukraine resident company or individual may be taxed on a proportion of the profits of certain entities that are owned or controlled by a Ukrainian tax resident. The profits of a CFC are included into the taxable income of the controlling person and are taxed at standard income tax rate and rules. Please note there are a few specific tax rates for individuals.

Definition of a CFC

An entity is deemed to be a CFC if it is:

• not considered to be a Ukrainian resident for tax purposes or PE, but
• controlled by a Ukrainian tax resident (either a natural person or a legal entity). Control is determined based on ownership share and other criteria.

Foreign establishments without the status of a legal entity (e.g. partnerships, trusts, funds, foundations) are also equated to an entity for CFC purposes.

A controlling person of a foreign company is defined as:

• a person who holds a share in a foreign company of more than 50%
• a person who owns more than 10% (25% for years of 2022 and 2023) of a foreign company, provided several Ukrainian residents hold 50% and more of shares in such a foreign company, or
• a person who exercises actual control over a foreign company.

Control may be established directly or through a chain of indirect ownership.

Available CFC exemptions

Profits of CFCs should be exempt from taxation under the CFC rules in Ukraine under the following conditions:

• There is a DTT or a treaty for exchange of tax information between Ukraine and the state of registration (location) of the CFC and the CFC pays income tax at the effective rate of not less than 13% or the share of passive income of the CFC is not more than 50% of its total income (and specific substance criteria are met).
• The total aggregated income from all CFCs owned by one controlling person does not exceed the equivalent of EUR 2 million at the end of the reporting period.
• The CFC is a public company, the shares of which are traded on a recognised stock exchange.
• The CFC is a non-profit organisation that does not distribute profits.

Determining taxable profits

A CFC's taxable profits are calculated as net profits before tax as per its unconsolidated financial statements for a relevant calendar year, prepared under domestic GAAP or IFRS adjusted per specific list of tax adjustments. The Tax Code does not provide for a mandatory audit of financial statements; however, the tax authorities may request an audit report if they have doubts.

Losses incurred by a CFC may be carried forward and decrease taxable profits of this CFC in the future. Loss from revaluation of securities is non-deductible; only loss from trading operations can be deducted.

Foreign taxes paid on the profits of a CFC, either under Ukrainian law or the laws of a foreign jurisdiction, may be offset against the Ukrainian PIT liabilities charged on the CFC’s profits (i.e. only for individuals).

Implications for affected entities

If none of the available exemptions may be applied, the CFC’s chargeable profits must be apportioned among the relevant Ukrainian controlling persons in proportion to their interest(s) in the CFC as at the final day of the reporting period. Such persons should be taxed on their portion(s) at the applicable rate of income tax. However, the Ukrainian CFC rules have no implications for the CFC itself.

Treatment of inter-company items

Ukrainian tax legislation provides the following treatment for inter-company items:

• Dividends received by a Ukrainian entity from another Ukrainian entity that is a CIT payer are exempt from CIT. Dividends received by a Ukrainian entity from a non-resident are exempt from CIT only if: (i) the Ukrainian entity owns at least a 10% share in the equity of such non-resident during the calendar year and (ii) such non-resident is not registered in a low-tax jurisdiction, or even if such non-resident is registered in a low tax jurisdiction but Ukraine has a DTT concluded with the respective low-tax jurisdiction.
• There is no limitation on the deduction of expenses in relation to the financing of management bodies, including holding companies (except for the limitations mentioned below).
• The deduction of cost-sharing and similar intra-group payments, other than remuneration for services actually rendered, is not specifically limited for CIT purposes (except for the limitations mentioned below).

In addition to the above:

• Certain limitations apply to deduction of royalties paid to non-residents (see Payments to foreign affiliates in the Deductions section for more information).
• Transactions for the receipt (provision) of financial aid between a taxpayer and its branches and other separate units without legal entity status located in Ukraine shall not affect their taxable income or deductible expenses (except for non-repayable financial aid that was provided free of charge for the benefit of its recipients that are not CIT payers or that are taxed at a 0% CIT rate).
• Interest on loans is limited (see Thin capitalisation and Transfer pricing above).
• Certain limitations apply to payments to residents of low-tax jurisdictions and non-resident entities established under certain legal forms (see Payments to foreign affiliates and Other significant items in the Deductions section for more information).
• Expenses incurred in transactions that are subject to transfer pricing control will be deductible only in the part that corresponds with the arm’s-length principle (see Transfer pricing above).
• Expenses incurred in transactions with non-residents are not tax deductible if they do not have business purpose (for information on business purpose, see Other significant items in the Deductions section).