Transfer Pricing in the Republic of the Congo

The legal framework

Transfer pricing in the Republic of the Congo lives in a short sub-section of the Code Général des Impôts, Livre 1, headed Prix de transferts. From 1 January 2026 those provisions are Articles 77 to 85, renumbered by the Finance Law for 2026 (Loi n° 42 du 31 décembre 2025) when Chapters 1 to 3 of Book 1 were recast to transpose CEMAC Directive n° 0119/25-UEAC-177-CM-42. The substance carried over almost verbatim from Articles 120 and 120 A to 120 I. Most commentary in circulation, including the OECD's own Action 13 peer review material, still cites Article 120 et suivants, so a file spanning FY2025 and FY2026 should carry both citations.

Article 77 does the heavy lifting. Profits indirectly transferred to enterprises outside Congo — by inflating purchase prices, deflating sale prices, or by any other means — are added back to the accounting result. Where the administration lacks precise elements, taxable profit is set by applying the arm's length principle on a functional, comparability or industry analysis, or any other analysis based on the OECD transfer pricing principles. The article catches enterprises that control, or are controlled by, foreign enterprises, and enterprises under common control. Under its third paragraph, no dependence or control is needed where the counterparty sits in a territory with a privileged tax regime. Neither dependence, control nor privileged regime is defined by percentage or blacklist, so the perimeter is set by the auditor rather than by the statute.

Methods, comparables and benchmarking

Article 85 lists five methods — comparable uncontrolled price, cost plus, resale price, the transactional net margin method and profit split — and then adds a catch-all. There is no hierarchy and no most-appropriate-method test. Any method the enterprise adopts may be accepted provided it is justified, consistent with the functions performed and risks assumed, and productive of an arm's length return. In practice TNMM dominates, for the usual reason: the price-based methods depend on comparable data the Congolese market does not generate.

Article 77 tells the administration to determine profits by comparison with similar enterprises normally operating in Congo, while Article 81 II-2 requires a comparability analysis where the chosen method needs one. The recast Article 77 in fact contains two successive and inconsistent default rules — comparison with Congolese enterprises, then the OECD-based arm's length analysis — a drafting artefact of merging the pre-2012 text with the 2023 amendment. It hands the DGID an express statutory hook for demanding local comparables that essentially do not exist. Regional, pan-African or adjusted European sets are what actually gets filed; expect to defend the choice on the record.

Nothing in the Code prescribes an interquartile range, a point of adjustment, a tested-party convention or a database. Practice imports those conventions from the OECD Guidelines through the reference in Article 77. They carry professional, not legal, authority, and an auditor remains free to argue for a full-range or median-point outcome.

Documentation: what the DGID expects

The obligation bites at entity level on an either/or test. A legal person established in Congo with annual turnover excluding tax, or gross balance-sheet assets, of at least XAF 500,000,000 must hold documentation justifying its transfer pricing policy for transactions of any nature with related entities outside Congo (Article 81 I). There is no group-level threshold and no relief for a small local subsidiary of a large group.

Article 81 II-1 sets a master-file equivalent: business description and its changes, the group's legal and operational structure, the associated enterprises engaged in controlled transactions, functions and risks where they affect the year's result, the main intangibles held, and the group's transfer pricing policy. It is not an OECD master file — no group financials, no intra-group financing schedule, no list of the group's APAs and rulings. Article 81 II-2 sets the local file, in which transactions must be described by category once the aggregate for that category exceeds XAF 50,000,000.

Two features separate Congo from its neighbours. First, Article 81 III requires the file to be at the administration's disposal on the date the accounting audit is commenced. There is no 30, 45 or 60-day production window; the file must be complete on day one. Second, the annual filing is a separate exercise: Article 81 IV-1 requires a spontaneous declaration on the model prescribed by the administration, accompanied by the documentation and by a country-by-country declaration, within six months of the results-return deadline. Everything is filed electronically through E-TAX under Article 130, in French — a missing translation costs XAF 2,000,000 per document under Article 373 ter — with a ten-year retention rule under Article 131(13).

The deadline itself is unsettled. Practitioners work to 20 November, being the historic 20 May results deadline plus six months. The recast Article 86 F requires the results return within four months of year-end, which on its face moves the TP filing to 31 October for a calendar-year taxpayer, and new Article 461 bis fixes declaration deadlines at the 15th of each month by reference to a fiscal calendar that has not surfaced. Confirm the date with the DGID rather than assuming it.

Audits, penalties and the enforcement climate

Audits began to reach transfer pricing around 2019-2020, initially with Tax Inspectors Without Borders support, and practitioners describe an administration that adjusts aggressively and is reluctant to accept justifications produced after the adjustment notice has issued. Exposure concentrates in oil and gas, mining, forestry, telecoms and infrastructure. Article 78 extends the audit to the analysis, programming and execution of computerised accounting processing, so the systems behind the numbers are in scope alongside the numbers.

Failure to produce the documentation or the declaration costs XAF 5,000,000 after an unanswered eight-day mise en demeure; failure to have the complete file available when the audit opens costs XAF 25,000,000; late CbC filing costs XAF 5,000,000. But the provision to fear is the penultimate paragraph of Article 81 IV-2: failure to produce the country-by-country declaration, once the eight-day notice has run, entails the calling into question of the transfer prices applied in the controlled transactions of the period. That is not a fine — it puts the whole year's intra-group pricing back on the table for unilateral reconstruction, and no peer jurisdiction in the region has an equivalent.

Article 374 adds 50% where good faith is accepted and 100% where it is not; Article 372 adds 100% on an ex officio assessment; and a failure to answer an Article 82 request lets the administration assess on the information available to it. A primary adjustment then triggers a second layer: Article 104(f) treats non-deductible charges paid to a shareholder or group company as income from movable capital, so IRCM at 15% follows the adjustment as a deemed distribution — 35% if the administration characterises the sums as revenus occultes.

Dispute resolution and advance certainty

Advance certainty exists but is narrow. Article 84 permits unilateral or bilateral APAs for a maximum of three years, renewable, conditional on payment of XAF 10,000,000. A unilateral agreement may be confined to one transaction type, business line, function or even product. There is no rollback, no multilateral route, no reduced-fee track and no published processing timetable, which makes an APA worth the price only for a material and durable flow.

MAP is available only under treaty. Congo's network is the CEMAC multilateral convention plus bilateral treaties with China, France, Italy and Mauritius; it has signed neither the BEPS Multilateral Instrument, the CbC MCAA, nor the Convention on Mutual Administrative Assistance. The revised CEMAC convention carries a full Article 9(2) corresponding-adjustment obligation and, at Article 26(6), a mandatory backstop: unresolved questions go to the CEMAC Commission and then to the Community Court of Justice. The France treaty's Article 9 has no corresponding-adjustment paragraph at all, so relief depends entirely on the Article 27 MAP, opened within three years of first notification.

Domestically, a recours hiérarchique must now be dealt with in 30 working days (Article 422 ter); a contentious claim must reach the DGID within three months of the collection notice on pain of forclusion, with a copy to the Minister where disputed duties exceed XAF 1,000,000,000 — the Finance Law for 2025 raised that threshold from XAF 500,000,000 and set the competence tiers in Article 430 bis — and proceedings follow within three months of the decision. No Congolese transfer pricing judgment is traceable in public sources: matters resolve administratively, often by transaction fiscale under Article 422 bis.

Pillar Two, Amount B and what changed in 2026

The Finance Law for 2026 is the significant recent event, though not for transfer pricing substance. Alongside the renumbering it cut the corporate rate from 30% to 28%, extended loss carry-forward from three to five years, replaced the taxe spéciale sur les sociétés with a 1% minimum tax paid in four instalments, introduced a 15% investment credit and renamed the IRVM as IRCM. The related-party deduction caps that shape most Congolese adjustments survive intact: Article 37 restricts head-office charges, technical assistance, commissions, royalties and interest paid abroad to 20% of pre-charge taxable profit, and Article 49 caps shareholder interest at the BEAC rate plus three points and net interest at 20% of OHADA gross operating surplus.

Pillar Two has not been enacted and nothing is in draft; Congo signed the October 2021 statement and stopped there. Congo is on the OECD's June 2024 list of covered jurisdictions for the Amount B political commitment, running from 2025 to 2029, but has not adopted Amount B domestically: Article 85 neither names nor accommodates the simplified and streamlined approach, and its open catch-all for any justified method is not a substitute for the prescribed pricing matrix. Nor is the Congolese country-by-country declaration an Action 13 CbCR: it has no EUR 750 million threshold, no ultimate-parent filing concept and no exchange route, and the peer review recommendation to build one remains outstanding.

How practitioners should respond

The practical priorities follow from the statute's edges rather than from its ordinary requirements. Build the file before the audit letter arrives: the day-one production rule in Article 81 III converts documentation from a compliance exercise into a readiness one, with no window in which to catch up. File the country-by-country declaration even where the group sits far below any international threshold and the report can go nowhere — the sanction for not filing is reconstruction of the year's pricing, wholly out of proportion to the effort. Keep both the old and new article numbers in the file.

Assume the benchmarking will be challenged for its lack of Congolese comparables, and document in advance why regional data was used and what adjustments were made. Model the IRCM consequence of any adjustment, not merely the corporate tax. Confirm the filing date with the DGID each year until the fiscal calendar under Article 461 bis is published. And where a flow is material and durable — a management fee, a marketing services charge, an intra-group loan — weigh a three-year unilateral APA against the XAF 10,000,000 fee, remembering that within CEMAC, unlike with France, the bilateral route ends in a binding decision.