The Supreme Court, in its recent Judgement No. 19512/2024 dated July 16th, clarified that, in the context of transfer pricing, with reference to the benchmark analyses, it is not possible to exclude potentially comparable companies just because they had losses in some years. Such companies, as provided by the OECD Guidelines, can be excluded if they are in special circumstances (start-up stages, bankrupt companies, etc.).
The judges, however, have not taken any position about the additional objections made by the Company against the approach of the Tax Authorities, namely:
– use of the median, without adducing supporting arguments that took into account, for example, the characteristics of the Company and the context in which it operates;
– rejection of the arithmetic mean, whose application would have determined margins closer to those achieved by the Company;
– inclusion of entities that by size and/or activities performed should not be considered as comparable;
– non-valuation of the lower risks and costs incurred by the Company in comparison with companies deemed to be comparable.
In addition, with reference to the provision of low value-added services, the Supreme Court has stated that, in order to meet the criteria of inherence, objective determinability, certainty and effectiveness and allow their deduction, it is sufficient to provide intercompany agreements, in which the services received and the way of determination of the respective consideration are provided and regulated.