Transfer Pricing in Burkina Faso

The legal framework

Burkina Faso's transfer pricing rules sit inside the Code général des impôts, enacted as Loi n°058-2017/AN of 20 December 2017 and built out in two later stages. The 2022 Finance Law (Loi n°042-2021/AN of 16 December 2021) created the annual transfer pricing return — then Article 98(4) — and rewrote Article 99, cutting the documentation threshold from XOF 3 billion to XOF 1 billion, both with effect from 1 January 2022. The 2023 Finance Law (Loi n°029-2022/ALT of 24 December 2022) then rewrote Article 66, repealed Article 98(4) and re-enacted the return as a standalone Article 98-1 alongside new country-by-country reporting at Article 98-2, and opened an advance pricing agreement route at Article 588-1.

Article 66 is drafted in the French tradition rather than the OECD one, and never uses the phrase principe de pleine concurrence. It provides that where an enterprise controls, or is controlled by, enterprises operated in or outside Burkina Faso, profits indirectly transferred — by inflating or deflating purchase or sale prices, or by any other means — are added back to the accounting result, measured against the profits that would have been realised absent the dependence or control relationship.

The control test is majority of capital or voting rights, held directly or through an interposed person, or de facto decision-making power, on either a parent-subsidiary or a sister-company footing. It falls away entirely for a counterparty in a privileged tax regime under Article 65 — untaxed, or bearing less than half the Burkinabè charge — which pulls low-tax counterparties into Article 66 with no ownership link at all.

Fixed-ratio caps run alongside Article 66 and will often bite first: 10% of general expenses for head-office allocations and technical assistance (Article 62), 3.5% of turnover for royalties (Article 64), 5% of purchases for commissions (Article 63). A charge can be priced at arm's length and still be partly non-deductible.

Methods, comparables and benchmarking

No method is prescribed and no hierarchy exists. The official DAPT form names the five OECD methods — comparable uncontrolled price, resale price, cost plus, transactional net margin and profit split — and adds an 'autre méthode' box requiring a description. The Guidelines themselves have no domestic status: the word OCDE appears nowhere in the Code or in the three transfer pricing arrêtés. Their influence is structural rather than formal, in that the master and local file content prescribed by Arrêté 2022-102 tracks BEPS Action 13 Annexes I and II almost item by item.

Two silences matter. First, there is no arm's length range rule anywhere in the framework — no interquartile range, no median, no prescribed adjustment point — so a taxpayer defending a result inside a range is arguing from principle, not from statute. Second, the geographic perimeter of a comparables search is now open. The 2017 version of Article 66(4) directed that, absent precise evidence, prices be compared with those charged in Burkina Faso by similar independent enterprises. Loi n°029-2022/ALT deleted it and put a neutral counterfactual in its place, so regional or pan-African sets are no longer displaced by law — though the DGI has published nothing endorsing them either.

Documentation: what the DGI expects

Article 99(1) obliges every enterprise operated in Burkina Faso to hold documentation justifying its pricing with linked enterprises, domestic as well as cross-border. Article 99(2) sets the entry point: annual turnover excluding tax, or gross assets, of at least XOF 1 billion, or a majority ownership link up or down to an entity of that size. The cut from XOF 3 billion was made by the 2022 Finance Law with effect from 1 January 2022, not by the 2023 Finance Law — so any secondary commentary still quoting XOF 3 billion has been out of date for more than four years.

Arrêté n°2022-102 of 15 April 2022 splits the file in two. The master file covers group structure, business lines and profit drivers, the supply chain for the five largest products or services and anything above 5% of group turnover, intra-group services, intangibles and R&D, significant agreements, unilateral APAs and financing policy. The local file is heavier: transaction-by-transaction description, intra-group payments and receipts broken down by the counterparty's country of tax residence, functional and comparability analysis, the chosen method and the tested party with reasons, the comparables search methodology and its data sources, and annual financial statements with reconciliation schedules.

Timing is unforgiving. Article 99(4) requires the file to be at the administration's disposal on the day the vérification de comptabilité opens. Only then does a mise en demeure give 30 days — that is a remedy for non-production, not a grace period. Article 99(5), the one paragraph the 2023 Finance Law did amend, separately lets the DGI demand relationship and pricing-method information from taxpayers below the thresholds.

Article 98-1 adds an annual return, the DAPT, on the form annexed to Arrêté 2022-101, completed in French and due 30 April for a 31 December year end (31 May for insurers), filed electronically through eSINTAX by taxpayers administered by the large and medium enterprise directorates. The return was repealed and re-enacted in its present form for financial years from 2023.

Audits, penalties and the enforcement climate

The penalty architecture is fixed-fine driven and blunt. Failing to file the DAPT on time, or filing it incompletely or inaccurately, costs XOF 10 million under Article 757(2) — fifty times the ordinary XOF 200,000 filing fine. Failing to answer the 30-day documentation demand costs 0.5% of the transactions covered by the missing material, for each audited year, with a XOF 10 million floor (Article 757(3)). Missing the country-by-country report costs XOF 50 million (Article 757(4)) — and that applies even though the arrêtés fixing the report's content and the exchange-partner list, required by Article 98-2(6) and (8), have never been published.

On the adjustment itself there is no TP-specific charge. Article 755's general surcharges apply at 25% for good faith, 50% where bad faith is established and 100% for fraudulent manoeuvres, doubled on a repeat within the reassessment window. There is no documentation-based penalty protection: a compliant Article 99 file reduces nothing and shifts no burden of proof.

The reassessment period is three years, extended by 24 months where there is a transfer pricing audit or an exchange-of-information request — a five-year exposure, which must be notified in writing. Add the e-filing mandate for large and medium taxpayers, the certified electronic invoice rollout, and the 2022 amendment allowing the administration to copy accounting records without the taxpayer being able to object, and the direction of travel is clear. Extractives are the obvious pressure point, though the DGI publishes no audit statistics broken down by transfer pricing.

Dispute resolution and advance certainty

Advance certainty exists but is narrow. Article 588-1, in force from 1 January 2023 and implemented by Arrêté n°2023-150 of 27 March 2023, allows an application for agreement on the method for pricing future transactions with linked enterprises, for a maximum of four years. The programme is unilateral throughout, with no bilateral or multilateral procedure in the Code, and neither a monetary threshold nor a fee. The application must be lodged at least six months before the first covered year opens, a pre-filing meeting is mandatory, and the content requirements approach a full documentation exercise. An annual monitoring report follows, and the agreement is void from inception where facts were misstated or terms breached. There is no rollback: Article 588-1 is confined to future transactions.

The rescrit route at Article 588(8), which under the 2017 Code could fix an Article 66 price for the year of the agreement plus the four following, was swept away when Loi n°029-2022/ALT replaced Article 588 in its entirety and inserted Article 588-1 in its place. Commentary still offering Article 588(8) as a live option is describing a repealed provision.

Downstream, an adjustment travels the Article 590 adversarial procedure with 30 days to respond, then a mandatory réclamation — questions of fact to the relevant directorate, questions of law to the Director General — before any administrative tribunal.

Treaty relief is thin. Six treaties, four in force, seventeen jurisdictions — and the 1965 France treaty ceased to apply on 31 December 2024. The OECD's March 2025 Action 14 review found fewer than half the minimum standard elements met and no published MAP guidance. Burkina Faso reported no MAP case in the statistics review period, though a treaty partner told reviewers it had two cases open with Burkina Faso started in 2023; statistics were filed for 2021-22 but not for 2016-20.

Pillar Two and what changes in 2026

Neither the 2025 nor the 2026 Finance Law contains a transfer pricing measure. The single relevant item in the 2026 explanatory memorandum is a technical clarification of Article 62, defining frais généraux for the first time so the 10% cap on head-office and technical assistance charges can be applied consistently — a small change with real audit consequences for groups whose service recharges sit near the ceiling.

Pillar Two is not enacted. There is no income inclusion rule, no undertaxed profits rule and no domestic minimum top-up tax, and no draft or announced timetable, notwithstanding Inclusive Framework membership. The CbC threshold of XOF 491 billion is not even aligned to the EUR 750 million GloBE figure. Amount B is the same: Burkina Faso appears on the covered-jurisdiction list settled in June 2024 — the last issue left open after the Amount B report of 19 February 2024 — but it has made no election and issued no implementing instrument. Eligibility is not adoption.

What is moving is the international plumbing — the Multilateral Convention in force since April 2023, the CbC MCAA signed on 29 June 2026, a Global Forum Phase 1 report published on 18 March 2025 finding the exchange framework mostly in place, and a September 2025 Action 13 peer review recording that the legislation still lacks definitions of Group, MNE Group and Constituent Entity.

How practitioners should respond

Three priorities. First, run the threshold arithmetic twice. The documentation test in Article 99 and the return test in Article 98-1 are drafted differently — 'at least' XOF 1 billion with a majority test for the file, 'exceeding' XOF 1 billion with a 'more than half' test for the return — so a group sitting on the line can owe one obligation and not the other.

Second, build the file before the audit letter arrives. The Article 99(4) trigger is the opening of the audit, not the mise en demeure. Because there is no penalty protection, the file's entire value is evidential: it is what keeps a 25% surcharge from becoming a 50% one, and what makes the administration's counterfactual under Article 66 harder to assert.

Third, do not read the absence of reported cases as an absence of risk. There is no reported Burkinabè transfer pricing judgment and Burkina Faso reported no MAP case in the review period — but a treaty partner has two cases open since 2023, publication of administrative-court decisions is incomplete, and the treaty network has just lost France. Groups with French shareholding that assumed treaty relief should reassess exposure now. And model the fixed-ratio caps in Articles 62 to 72 alongside any arm's length analysis — in practice, they bite first.