Tax risks: is it possible to conclude transactions between “own” firms and individual entrepreneurs. Tax risks: is it possible to conclude transactions between “own” firms and individual entrepreneurs Transactions between related parties tax risks
Starting from 01.01.2012 * Federal Law No. 227-FZ of 18.07.2011 “On Amendments to Certain legislative acts Russian Federation in connection with the improvement of the principles for determining prices for tax purposes ”.
* Some provisions of the law come into effect from 01.01.2014.
This law enters into force Section V.1 of Part 1 Of the Tax Code “Interdependent persons. General Provisions about prices and taxation. Tax control in connection with transactions between related parties. Pricing Agreement ".
The new section of the Tax Code of the Russian Federation has changed the principles for determining the price of goods for tax purposes.
So, previously used for these purposes, article 40 of the Tax Code "Principles for determining the price of goods, works or services for tax purposes" is currently valid only in relation to transactions, income or expenses for which were recognized in accordance with Chapter 25 of the Tax Code of the Russian Federation before the date the entry into force of Law No. 227-FZ.
The situation is similar with article 20 of the Tax Code "Dependent persons".
The innovations introduced by Law No. 227-FZ to the Tax Code entailed a change in the basis for determining the correspondence of prices used in controlled transactions to market prices.
Now the Tax Code contains an expanded list of interdependent persons, as well as describes the procedure for determining direct and indirect participation and ownership in interdependent companies.
The features of controlled transactions and the procedure for informing organizations are described tax authorities about ongoing controlled transactions.
Currently, the tax authorities have developed a draft Order « On the approval of the forms and formats for notification of controlled transactions provided for in paragraph 2 of Article 105 of the Tax Code of the Russian Federation, as well as the procedure for filling out the notification form for controlled transactions and the procedure for submitting notification of controlled transactions in electronic format via telecommunication channels ", but it has not yet entered into legal force.
The article will consider new methods for determining the compliance of prices with market prices, signs of interdependence, as well as the procedure and timing for informing tax authorities about controlled transactions.
INTERDEPENDENCE AND ITS FEATURES IN ACCORDANCE WITH THE TAX CODE
Persons are recognized as interdependent for tax purposes in accordance with the provisions of the Tax Code if the specifics of the relationship between them may affect:
- on the conditions, results of transactions made by these persons,
- the economic results of their activities or the activities of the persons they represent.
For this, the agreement concluded between them and other possibilities of one person to influence the decisions made by other persons are analyzed.
At the same time, such influence is taken into account regardless of whether it can be provided by one person directly and independently or together with its interdependent persons.
Note:In accordance with clause 5 of article 105.1 of the Tax Code of the Russian Federation, organizations and / or individuals who are parties to the transaction, have the right to independently recognize oneself for tax purposes interdependent by persons on grounds not provided for in clause 2 of article 105.1 of the Tax Code of the Russian Federation.
Signs of interdependence are governed by the provisions of clause 2 of article 105.1 of the Tax Code.
However, in accordance with clause 7 of article 105.1 of the Tax Code, the court may recognize persons as interdependent on other grounds not provided for in clause 2 of article 105.1 of the Tax Code of the Russian Federation, if the relationship between these persons has signs of interdependence in accordance with clause 1 of article 105.1 Tax Code of the Russian Federation.
For the purposes of the Tax Code, interdependent persons are recognized (clause 2 of article 105.1 of the Tax Code of the Russian Federation):
1. Organizations
1.1 If one organization directly or indirectly participates in another organization and the share of such participation is more than 25% (clause 1 of clause 2 of article 105.1 of the Tax Code of the Russian Federation).
1.2 If the same person directly or indirectly participates in these organizations and the share of such participation in each organization is more than 25% (clause 3 of clause 2 of article 105.1 of the Tax Code of the Russian Federation).
1.3 If in organizations by the decision of the same natural person* appointed or elected (clause 5, clause 2, article 105.1 of the Tax Code of the Russian Federation):
- sole executive bodies of organizations,
- or at least 50% of the composition of the collegial executive body,
- spouse or spouse,
- guardians (trustees),
- wards.
- the composition of the collegial executive body,
- the board of directors (supervisory board).
- spouse or spouse,
- parents (including adoptive parents),
- children (including adopted children),
- full and not full brothers and sisters,
- guardians (trustees),
- wards.
2. Individual and organization
2.1 If an individual directly or indirectly participates in such an organization and the share of such participation is more than 25% (clause 2 of clause 2 of article 105.1 of the Tax Code of the Russian Federation).
3. Organization and person
3.1 If the person * has the authority (clause 4, clause 2, article 105.1 of the Tax Code of the Russian Federation):
- By appointment or election of the sole executive body of the organization.
- By appointment or election, at least 50% of the composition of the collegial executive body or the board of directors (supervisory board) of the organization.
- spouse or spouse,
- parents (including adoptive parents),
- children (including adopted children),
- full and not full brothers and sisters,
- guardians (trustees),
- wards.
4. Organizations and / or individuals
4.1 If the share of direct participation of each previous person in each subsequent organization is more than 50%.
5. Individuals
5.1 If one natural person is subordinate to another natural person by official position.
5.2 Dependent persons of an individual (subparagraph 11 of paragraph 2 of article 105.1 of the Tax Code of the Russian Federation):
- his spouse or spouse,
- parents (including adoptive parents),
- children (including adopted children),
- full and not full brothers and sisters,
- guardian (custodian),
- ward.
In accordance with clause 1 of article 105.3 of the Tax Code, if transactions between related parties establish:
- commercial,
- financial,
Accounting for tax purposes of income in accordance with clause 1 of article 105.3 of the Tax Code of the Russian Federation is carried out if this does not lead to a decrease in the amount of tax payable to the budget system of the Russian Federation.
The exception is cases when the taxpayer applies symmetrical adjustment* in accordance with article 105.18 of the Tax Code.
* If the tax inspectorate, based on the results of checking transactions between related parties, additionally charges the organization with taxes based on market prices, then Russian organizations that are other parties to such transactions can apply such prices when calculating the following taxes (clause 4 of article 105.3 of the Tax Code of the Russian Federation):
1. Corporate income tax.
2. Personal income tax, paid in accordance with Article 227 of the Tax Code of the Russian Federation.
3. Tax on the extraction of minerals (if one of the parties to the transaction is a taxpayer of the specified tax and the subject of the transaction is a extracted mineral, recognized for the taxpayer as an object of taxation as a tax on the extraction of minerals, upon extraction of which taxation is carried out at the tax rate established in percent).
4. VAT (if one of the parties to the transaction is an organization (IP) that is not a VAT taxpayer or is exempt from the duties of a VAT taxpayer).
Such use by taxpayers of market prices, on the basis of which a decision was made to charge additional tax in accordance with Article 105.17 of the Tax Code of the Russian Federation, is recognized symmetrical adjustment.
At the same time, prices used in transactions to which parties are persons who are not recognized as interdependent, as well as income received by persons who are parties to such transactions are recognized as market prices.
METHODS FOR DETERMINING INCOME
In accordance with Article 105.7 of the Tax Code, when conducting tax control of transactions between related parties, the tax authorities use the following methods:
- method of comparable market prices;
- subsequent sale price method;
- costly method;
- method of comparable profitability;
- profit distribution method.
At the same time, in accordance with clause 3 of Article 105.7, the method of comparable market prices is a priority in most cases of determining the conformity of prices used in transactions with market prices for tax purposes.
An exception is the determination of the conformity to market prices of the prices at which the goods are purchased within the analyzed transaction and resold without processing within the framework of the transaction, the parties to which are persons who are not recognized as interdependent.
In this case, the priority is to use the subsequent sale price method *.
* The specified method is used if the person carrying out the resale does not own the intangible assets that have a significant impact on the level of its gross profitability.
The subsequent sale price method can also be used in cases when the following operations are carried out during the resale of goods:
- preparation of goods for resale and transportation (division of goods into batches, formation of shipments, sorting, repackaging);
- mixing goods, if the characteristics of the final product (semi-finished products) do not differ significantly from the characteristics of the mixed goods.
- impossible,
- does not allow to reasonably draw a conclusion about the conformity or inconsistency of the prices used in transactions with market prices for tax purposes.
- goods,
- works,
- services,
In this case, to apply the method of comparable market prices to prices applied in a controlled transaction, it is possible to use a transaction made by this taxpayer with persons who are not interdependent as a comparable transaction.
This is possible provided that such a transaction is comparable to the analyzed transaction (clause 3 of article 105.7).
CONTROLLED TRANSACTIONS
In accordance with clause 1 of article 105.14, controlled transactions are transactions between related parties and transactions comparable to them.
1. Transactions with related parties
In accordance with clause 2 of article 105.14 of the Tax Code of the Russian Federation, a transaction between related parties:
- place of registration,
- place of residence,
1. The amount of income from transactions (the sum of transaction prices) between the specified persons for the corresponding calendar year exceeds 1 billion rubles * (subparagraph 2 of paragraph 2 of article 105.14 of the Tax Code of the Russian Federation).
* In accordance with clause 3 of article 4 of the law of 18.07.2011. No. 227-FZ:
- for 2012 - 3 billion rubles,
- for 2013 - 2 billion rubles.
exceeds 60 million rubles.
3. At least one of the parties to the transaction * is a taxpayer applying one of the following special tax regimes (clause 3, clause 2, article 105.14 of the RF Tax Code):
- a taxation system for agricultural producers (unified agricultural tax),
- taxation system in the form of UTII for certain types activities (if the relevant transaction is concluded within the framework of such activities),
* In accordance with clause 105.14 of the Tax Code of the Russian Federation, these transactions are recognized as controlled if the amount of income from transactions between the specified parties for the corresponding calendar year exceeds 100 million rubles.
4. At least one of the parties to the transaction * is exempt from the obligations of a taxpayer of corporate income tax or applies to the tax base for the specified tax tax rate 0% in accordance with paragraph 5.1 of Article 284 of the Tax Code of the Russian Federation, while the other party (parties) to the transaction is not exempt from these obligations and does not apply the 0% tax rate for the specified circumstances (paragraph 4 of paragraph 2 of Article 105.14 of the Tax Code of the Russian Federation).
*In accordance with clause 105.14 of the Tax Code of the Russian Federation, these transactions are considered controlled if the amount of income from transactions between the specified persons for the corresponding calendar year exceeds 60 million rubles.
5. At least one of the parties to the transaction is a resident of a special economic zone, tax regime which provides for special benefits for corporate income tax (compared to the general tax regime in the corresponding constituent entity of the Russian Federation), while the other party (parties) to the transaction is not a resident of such a special economic zone (clause 5, clause 2, article 105.14 of the RF Tax Code ).
In accordance with clause 4 of article 4 of Law No. 227-FZ, the provision of clause 5 of clause 2 of article 105.14 of the Tax Code of the Russian Federation applies from 01.01.2014
2. Transactions equivalent to transactions with related parties
In addition, for tax purposes, the following are equated to transactions between related parties:
1. A set of transactions for the sale of goods, the performance of work, the provision of services, made with the participation or through the mediation of persons who are not interdependent, taking into account the following features:
The specified aggregate is equated to a transaction between interdependent persons, without taking into account the presence of third parties with the participation or through which it is carried out, provided that such third parties, not recognized as interdependent and taking part in the specified aggregate of transactions:
- do not perform any additional functions in this set of transactions, except for the organization of the sale of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person;
- do not take on any risks and do not use any assets to organize the sale of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person.
2. Transactions in the field of foreign trade in goods of the world exchange trade.
These transactions are recognized as controlled:
2.1. If the amount of income from such transactions concluded with one person for the corresponding calendar year exceeds 60 million rubles (clause 7 of article 105.14 of the Tax Code of the Russian Federation).2.2 If the subject of such transactions are goods that are part of one or more of the following product groups (clause 5 of article 105.14 of the Tax Code of the Russian Federation):
- oil and oil products;
- black metals;
- non-ferrous metals;
- mineral fertilizers;
- precious metals and precious stones.
- place of registration,
- place of residence,
- place of tax residence,
If the activity of a Russian organization forms a permanent establishment in the state or territory included in the list and the analyzed transaction is related to this activity, then in terms of this analyzed transaction such an organization is considered as a person whose place of registration is the state or territory included in the specified list.
These transactions are recognized as controlled if the amount of income from such transactions concluded with one person for the corresponding calendar year exceeds 60 million rubles (clause 7 of article 105.14 of the Tax Code of the Russian Federation).
NOTIFICATION TO THE TAX BODIES ON CONTROLLED TRANSACTIONS
In accordance with the provisions of Article 105.15 of the Tax Code, taxpayers are obliged to notify the tax authorities of the controlled transactions they have made in a calendar year, specified in Article 105.14 of the Tax Code of the Russian Federation.
Information on controlled transactions is indicated in the notifications of controlled transactions sent by the taxpayer to the tax authority:
- at the place of its location,
- at your place of residence,
- at the place of registration as the largest taxpayers (largest taxpayers),
In the event that information is incomplete, inaccuracies or errors in filling out the submitted notification of controlled transactions, the taxpayer has the right to send an updated notification.
Information on controlled transactions must contain the following information:
1. The calendar year for which information is provided on controlled transactions made by the taxpayer.
2. Subjects of transactions.
3. Information about the participants in the transactions:
- full name of the organization, TIN (if the organization is registered with the tax authorities in the Russian Federation);
- surname, name, patronymic of the individual entrepreneur and his TIN;
- surname, name, patronymic and citizenship of an individual who is not an individual entrepreneur.
Information on controlled transactions can be prepared for a group of similar transactions (clause 4 of article 105.15).
Ekaterina Annenkova, auditor certified by the Ministry of Finance of the Russian Federation, an expert in accounting and taxation of the IA "Klerk.Ru"
The state, represented by the fiscal authorities, takes a special approach to control over transactions between related parties. For this purpose, the Tax Code of the Russian Federation provides for the concept of “controlled transactions”. The list of criteria allowing to assign such a special status to transactions is discussed in this article.
What is a controlled transaction
The definition of this concept is contained in Art. 105.14 of the Tax Code of the Russian Federation. Such transactions are recognized:
- transactions of related subjects;
- equated transactions.
To answer the question under consideration, first of all, it is necessary to understand which subjects are recognized as interdependent.
Interdependent persons
The generally accepted criteria for interdependence for tax purposes are contained in the RF Tax Code. Here are some of them:
- participation of one legal entity persons in another, if the share of participation exceeds 25 percent;
- interdependence due to official subordination;
- family relationship.
The Tax Code of the Russian Federation directly indicates that this list of criteria is not exhaustive and can be supplemented by the court.
Recognition of business entities as such entails a special tax control interdependent persons in the cases established by the Tax Code of the Russian Federation, it is possible to recalculate prices by tax authorities in accordance with the provisions of Section V.1 of the Tax Code of the Russian Federation and the corresponding additional charges to the budget.
Controlled transaction between related parties
Considering the criteria for controlled and uncontrolled transactions, we can conclude that they, in particular, are aimed at:
- avoidance of withdrawal tax base offshore;
- a more equitable distribution of the tax base across the regions of our country.
As controlled by the Tax Code of the Russian Federation, in particular, it provides for transactions involving persons who do not fall under the criteria of interdependence, if these persons:
- have only the function of organizing resale between interdependent entities;
- do not take risks in the sense attached to the concept of entrepreneurial activity.
In addition, control applies to transactions with companies - residents of countries of a specially established list and some others.
Dependent entities may become subject to special control by entering into a transaction if:
- income from transactions of related parties is over 1 billion rubles;
- one party (or several parties) of the transaction is a special regime, and the other party (parties) is not;
- one party calculates income tax in accordance with ch. 25 of the Tax Code of the Russian Federation, and the other is not;
- the party to the transaction participates in the investment project, as a result of which it has income tax benefits.
For specific types of transactions from among those specified in Art. 105.14 of the Tax Code of the Russian Federation provides for limits of tens of millions of rubles. Only by exceeding these limits, the parties risk becoming the object of the considered control.
The execution of controlled transactions does not in itself entail liability.
It is also important to know the list of grounds that exclude the possibility of the considered control over transactions (clause 4 of article 105.14 of the Tax Code of the Russian Federation).
Here are some of them:
- if the parties to the transaction are part of consolidated group;
- if the parties are simultaneously registered in one region, do not have branches and representative offices in other regions, do not pay corporate income tax in other regions, do not show losses, there are no circumstances provided for in paragraphs. 2 - 7 p. 2 Art. 105.14 of the Tax Code of the Russian Federation.
- the parties to the transactions are registered in our country, etc.
After completing the transaction under consideration, the subjects of control are obliged to send a notification of controlled transactions. A sample of filling out the notification can be found on the Internet. You must use the form provided tax service... It can be downloaded from the official website of the department.
Companies will have to file a notification of controlled transactions for 2015 with the tax authorities no later than May 20, 2016. Our tips will help you figure out in what form to submit a notification on controlled transactions, what needs to be reported to the inspection, the criteria for controlled transactions 2015, whether it is possible to clarify an erroneous notification.
Let us recall the key points regarding controlled transactions.
Criteria for controlled transactions 2015
Controlled transactions are transactions between related parties. Such transactions are equated to transactions for the sale (resale) of goods (performance of work, provision of services), made with the participation (through mediation) of persons who are not interdependent.
The types of transactions and the amount of income from transactions concluded with one person (related parties) for a calendar year, in excess of which these transactions are considered controlled, are listed in article 105.14 of the Tax Code of the Russian Federation.
The amount of income from transactions for a calendar year is calculated by adding the amounts of income received from such transactions with one person (related parties) for a calendar year.
Domestic controlled transactions
Domestic transactions between related parties are listed in clause 2 of Article 105.14 of the RF Tax Code. For them, there are limits on the amount of income from transactions, in excess of which transactions are recognized as controlled:
- 1 billion rubles -the amount of income from transactions with one person (related parties) for a calendar year (subparagraph 1 of paragraph 2 of article 105.14 of the Tax Code of the Russian Federation).
- 100 million rubles - the amount of income from transactions, one of the parties to which is the person applying the unified agricultural tax or UTII.
- 60 million rubles - the amount of income from transactions with mineral extraction tax payers; with organizations exempted from paying income tax or applying a zero rate for this tax; with SEZ residents.
Foreign economic controlled transactions
Foreign economic transactions between related parties are recognized as controlled, regardless of the amount of income from such transactions.
Also subject to control are transactions with oil and products of its processing, ferrous and non-ferrous metals, mineral fertilizers, precious metals and precious stones, transactions with offshore companies (Order of the Ministry of Finance of Russia dated November 13, 2007 No. 108n).
Controlled transactions notification
It is necessary to report to the inspection of the head office of the company. Moreover, the order will not change if the company has separate divisions, the representative of which entered into contracts. And these transactions became controlled (letter of the Federal Tax Service of Russia dated April 10, 2013 No. ОА-4-13 / [email protected]).
For failure to provide a notice on time, inspectors have the right to fine the company 5,000 rubles (Article 129.4 of the Tax Code of the Russian Federation).
If the company does not submit the document, and in the future the inspectors find controlled transactions during the audit, they themselves will notify the Federal Tax Service of Russia about the revealed facts.
Controlled transactions notification form
The notification form on controlled transactions was approved by order of the Federal Tax Service of Russia dated July 27, 2013 No. ММВ-7-13 / [email protected] ... Information can be submitted both on paper and in electronic form.
If the company found an error in the already submitted notification or the information in the document is incomplete, then the notification can be clarified (letter of the Federal Tax Service of Russia dated October 29, 2013 No. ОА-4-13 / [email protected]). It is necessary to write down the correction number in it - by analogy with declarations. For example, 001 if the company is updating the notification for the first time.
June 1 of the year following the calendar year in which controlled transactions were made - the date from which the tax authorities have the right to demand documents regarding a specific transaction or a group of similar transactions (clause 3 of article 105.15 of the Tax Code of the Russian Federation).
The FTS announced the procedure for preparing and submitting documentation in a letter dated 30.08.2012 No. ОА-4-13 / [email protected]
Filling out the notification of controlled transactions
In the notification of controlled transactions, codes must be indicated in accordance with OK 005-93 and OKVED OK 029-2001 (letter of the Federal Tax Service of Russia dated 08.10.2014 No. ED-4-13 / [email protected]).
According to clause 5.6 of the Procedure for filling out the Notification of controlled transactions (approved by order of the Federal Tax Service of Russia dated July 27, 2012 No. ММВ-7-13 / [email protected]), in clause 043 "Code of the subject of the transaction (code according to OKP)" section 1B Notifications when making transactions that are not foreign trade, it is necessary to indicate the code of the type of goods in accordance with OK 005-93 (approved by Resolution of the Gosstandart of Russia dated 30.12.1993 No. 301 ).
Indicator "Type code economic activity according to the OKVED classifier " title page Notifications and clause 045 "Code of the subject of the transaction (code according to OKVED)" Section 1B of the Notice indicates the code of the type of activity according to OKVED OK 029-2001 (approved by the resolution of the State Standard of Russia dated 06.11.2001 No. 454-st). In the notification of controlled transactions for 2015, codes should be indicated according to the current classifiers approved by Resolutions No. 301 and No. 454-st.
The Federal Tax Service has repeatedly given advice on filling out the notification (letters dated 05.15.2014 No. ОА-4-13 / [email protected], dated April 18, 2014 No. ОА-4-13 / 7549).
Clarification of the absence of controlled transactions
In practice, it is not uncommon for inspectors to ask companies for clarification that they had no controlled transactions in the past calendar year. The legislation does not provide for a form of response to such a request. In this case, you can give explanations in any form and attach supporting documents to it.
The absence of transactions with related parties will be confirmed, for example, by a list of contracts with counterparties. And the non-exceeding of the limits on the amounts of transactions can be justified by printouts of account cards 60 and 62 accounting by counterparties. You can also complain about the lack of a license for the extraction of minerals.
On February 16, 2017, the Presidium of the Supreme Court of the Russian Federation approved the Review of the practice of consideration by the courts of cases related to the application of certain provisions of Section V.1 and Art. 269 \u200b\u200bof the Tax Code of the Russian Federation (hereinafter - Review). The court summarized the practice on issues arising from the mutual dependence of persons and the control of transactions. In this article, we will analyze the basic rules for applying the provisions of Section V.1 of the Tax Code of the Russian Federation, reflected in the specified Review.
Rule 1 (paragraph 1 of the Review)
The control over the conformity of prices used in controlled transactions is carried out by the Federal Tax Service of Russia and cannot be the subject of visiting and office checks subordinate tax authorities 1. This rule contains two important exceptions.
Exception 1 (clause 2 of the Review): methods for determining income using market prices (in accordance with Chapter 14.3 of the Tax Code of the Russian Federation) can be applied in the course of a regular tax audit, if this is provided for by chapters of Part 2 of the Tax Code of the Russian Federation. This conclusion is illustrated by the reference norms of the Tax Code of the Russian Federation, which provide for the possibility of determining the tax base for VAT and income tax, taking into account Art. 105.3 of the Tax Code of the Russian Federation when:
- sale of goods (works, services) on commodity exchange transactions or on a gratuitous basis, upon transfer of ownership of the pledged item to the pledgee in case of failure to fulfill the obligation secured by the pledge, upon transfer of goods (results of work, provision of services) upon payment of labor in kind (clause 2 Article 154 of the Tax Code of the Russian Federation);
–In the case of gratuitous receipt of property (work, services), property rights (clause 8 of article 250 of the Tax Code of the Russian Federation);
–The receipt by the taxpayer of income in kind (clauses 4–6 of article 274 of the RF Tax Code).
However, even within the chapters on income tax and VAT, the Review contains a far from complete list of cases. A reference to Art. 105.3 of the Tax Code of the Russian Federation is also contained when determining the tax base for other taxes / fees. Therefore, the above listing of the RF Armed Forces can be safely supplemented - for the purposes of:
–The calculation of personal income tax 2 –the receipt by the taxpayer of income from organizations and individual entrepreneurs in kind in the form of goods (works, services) and other property, determining the value valuable papers, determining the value of assets (clause 1 of article 211, clause 13.2 of article 214.1, article 220 of the Tax Code of the Russian Federation);
- calculation of mineral extraction tax 3 - determination of proceeds from the sale of the extracted mineral (clauses 2-3, article 340 of the Tax Code of the Russian Federation);
–Application of the simplified taxation system 4 –the receipt of income in kind (clause 4 of article 346.18 of the Tax Code of the Russian Federation);
–Application of the patent system of taxation –payment of income in kind (clause 5 of article 346.53);
–Determining the basis for calculating insurance premiums –– making payments and other remuneration in kind in the form of goods (works, services), other property (clause 7 of article 421 of the RF Tax Code).
Furthermore, general rule determining the tax base for value added tax in the sale of goods, works, services provides for the calculation of their value based on prices determined in accordance with Art. 105.3 of the Tax Code of the Russian Federation (Clause 1 of Article 154 of the Tax Code of the Russian Federation). The Ministry of Finance of the Russian Federation also drew attention to this in its Letter dated 15.02.2017 No. 03-07-11 / 8356.
The guarantee of the protection of the taxpayer's rights from unjustified tax control in the above cases is the provision of par. 3 p. 1 of Art. 105.3 of the Tax Code of the Russian Federation, according to which the prices used in transactions to which parties are persons who are not recognized as interdependent, as well as income received by persons who are parties to such transactions, are recognized as market prices for the purposes of the Tax Code.
Exception 2 (clause 3 of the Review): within the framework of tax audits by regional inspectorates, we will allow monitoring the compliance of the transaction price with market prices to identify cases of obtaining an unjustified tax benefit. In this case, the discrepancy between the transaction price and market prices should be multiple, and the receipt of an unjustified tax benefit should be confirmed by other evidence discrediting the business purpose of the transaction 5.
For example, when conducting an audit of a taxpayer, the tax authority considered the price of purchase and sale transactions to be understated and determined the tax base based on the market value of the alienated property.
When considering the dispute, the court found that the tax authority did not prove the mutual dependence of the parties to the transaction, the parties to the contractual relationship confirmed the presence of a commercial interest in the conclusion of contracts.
Analyzing judicial acts, the RF Armed Forces noted that multiple deviations of the transaction price from the market level can be taken into account as one of the signs of obtaining an unjustified tax benefit only in the aggregate and interrelation with other circumstances that discredit the business purpose of the transaction (interdependence of the parties to the transaction, the creation of an organization shortly before the conclusion business transaction, the use of special forms of payment and payment terms, etc.). The final judicial act was passed in favor of the taxpayer (Determination of the RF Armed Forces dated 01.12.2016 No. 308-KG16-10862 in case No. А32-2277 / 2015).
Here's another example. When carrying out an audit of a taxpayer, the tax authority considered the price of purchase and sale transactions to be understated and determined the tax base based on the market value of the alienated property.
During the consideration of the case, it was established that the parties to the transaction are interdependent persons, the transaction price deviates from the market price many times, the actual purpose of the transaction is to obtain an unjustified tax benefit.
When considering this dispute, the Armed Forces of the Russian Federation noted that the materiality and severity of the deviation of the price applied by the taxpayer from the market level, together with other circumstances of the disputed transactions, may have legal significance if signs of receiving an unjustified tax benefit were established during a cameral or field tax audit.
The final judicial act was passed in favor of the tax authority (Definition of the RF Armed Forces dated July 22, 2016 No. 305-KG16-4920 in case No. A40-63374 / 2015).
Thus, the formal non-compliance of the transaction with the characteristics of the controlled one is not a guarantee of the taxpayer's safety from additional tax charges based on the market price of the transaction.
VEGAS LEX recommends: when entering into transactions that deviate from the market, it is necessary to understand what business purpose this agreement pursues. Try to record your commercial interest in correspondence, protocols, memorandums and other documents, the decision on the provision of which during the audit or to the court can be made by the taxpayer on a case-by-case basis. When protecting your interests in a tax dispute, you must pay due attention to the collection and analysis of the evidence base, which will be assessed by the court.
Rule 2 (paragraph 4 of the Review)
The court has the right to recognize persons as interdependent for tax purposes in cases not specified in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, if the counterparty of the taxpayer (related parties of the counterparty) had the opportunity to influence the decisions made by the taxpayer in the field of its financial and economic activities. The burden of proving these circumstances lies with the tax authority.
The purpose of applying this rule is to identify transactions financial content which differs from the conditions that the parties would define in their interaction as independent counterparties acting in their own economic interests.
The court included some signs of mutual dependence in the Review:
- another person (including the counterparty to the transaction) has the ability to determine the decisions made by the taxpayer;
- the taxpayer acted in the general economic interests of the group to which he belongs (to the benefit of third parties);
- the lack of freedom in making decisions should have affected the conditions and results of the execution of the relevant transactions.
Often, the tax authority does not even try to prove that the mutual dependence of the parties directly influenced the results of the transaction.
An exception: the influence exerted for economic reasons, for example, due to the predominant position in the market of one of the participants in the transaction, should not be taken into account when deciding on the recognition of persons as interdependent (clause 4 of article 105.1 of the Tax Code of the Russian Federation).
Rule 3 (paragraph 5 of the Review)
The interdependence of the parties to the transaction may be the basis for adjusting their income (profit, proceeds) according to the rules of Section V.1 of the Tax Code of the Russian Federation, if in relation to this transaction the entire set of conditions is observed, under which it is recognized as controlled.
Apparently, the Review sets out the essence of the dispute in case No. A53-30653 / 2014 with the participation of Flash Energy LLC. However, in the RF Armed Forces Decision No. 308-KG15-16651 dated 11.04.2016, the court also drew attention to the fact that the Tax Code excluded from the number of transactions between related parties subject to control in the manner prescribed by Section V.1 of the RF Tax Code, transactions that do not correspond the criterion of controlled transactions, as well as transactions for which the volume of income does not exceed the established art. 105.14 of the Tax Code of the Russian Federation, sum criteria.
Classification of the transaction as controlled on the basis of clause 1 of Art. 105.14 of the Tax Code of the Russian Federation without taking into account the criteria reflected in paragraphs 2 and 3 of Art. 105.14 of the Tax Code of the Russian Federation is not lawful.
For example, when conducting an audit, the tax authority revealed a set of transactions of a taxpayer for the purchase of goods and materials from an interdependent person with the involvement of a chain of intermediaries that fall under the criteria of sub. 1 p. 1 of Art. 105.14 of the Tax Code of the Russian Federation. In this connection, the company was held liable under Art. 129.4 of the Tax Code of the Russian Federation for failure to submit a notification of a controlled transaction.
When considering the dispute, the court found that the amount of income on the transaction is lower than the established amount threshold, provided for in paragraph 2 of Art. 105.14 of the Tax Code of the Russian Federation, while the inspection did not provide evidence of the compliance of any party with the other conditions provided for by this paragraph of the article.
In addition, the court drew attention to the fact that the tax authority did not prove that the transaction does not fall under the criteria of agreements, which, by virtue of paragraph 4 of Art. 105.14 of the Tax Code of the Russian Federation are not recognized as controlled (for example, it did not reveal that the parties to the transaction have separate subdivisions on the territory of other subjects of the Russian Federation or pay taxes there). The dispute was resolved in favor of the taxpayer (Resolution of the Arbitration Court PO dated 02.02.2016 in case No. A55-6922 / 2015).
Do not forget that from 01/01/2017 new norms of sub. 6-7, clause 4 of Art. 105.14 of the Tax Code of the Russian Federation, according to which transactions on the presentation of sureties / guarantees between Russian organizations (with the exception of banks (subparagraph 6 of paragraph 4 of Article 105.14 of the Tax Code of the Russian Federation), as well as transactions on the issuance interest-free loans between Russian interdependent persons. This greatly facilitates intra-corporate financing and reduces the administrative burden on the business.
VEGAS LEX recommends: when protecting their interests in a tax dispute, check the compliance of the transaction with all the criteria established by Art. 105.14 of the Tax Code of the Russian Federation. Consider that even with the formal compliance of the terms of the transaction with the signs provided for in paragraphs 1-3 of Art. 105.14 of the Tax Code of the Russian Federation, the agreement will not be controlled in the cases listed in clause 4 of this article.
Rule 4 (paragraph 6 of the Review)
Provided for in clause 11 of Art. 105.7 of the Tax Code of the Russian Federation, the right of the court to take into account any circumstances that are significant for determining the compliance of the price applied by the taxpayer with the market level cannot serve as a basis for deviating from the rules for calculating taxes on controlled transactions established by law.
The court drew attention to the fact that the provisions of section V.1 contain not only the rules that should be guided by the inspectorate, but also the rules for calculating taxes that taxpayers must follow when making controlled transactions. The rules applied by tax authorities and taxpayers should not differ due to the principle of legal certainty of taxation (clause 6 of article 3 of the Tax Code of the Russian Federation).
Prior to that, the position of the Constitutional Court of the Russian Federation, reflected in the definitions of 12/04/2003 No. 442-O and of September 18, 2014 No. 1822-O (when considering a similar norm of clause 12 of Article 40 of the Tax Code of the Russian Federation), on the possibility of the court to take into account any circumstances when determining market price has often been interpreted broadly. For example, the courts considered it possible to accept as evidence the calculation of the market price, carried out in violation of the rules of paragraphs 4-11 of Art. 40 of the Tax Code of the Russian Federation (Resolution of the Arbitration Court of the SZO dated 03/10/2016 in case No. A13-17750 / 2014).
Now the Review explicitly states that when using paragraph 11 of Art. 105.7 of the Tax Code of the Russian Federation, the court should not facilitate deviation from the rules:
–Determining the comparability of commercial and financial terms of transactions (Article 105.5 of the Tax Code of the Russian Federation);
–Selection of information to determine the comparability of transactions (Article 105.6 of the Tax Code of the Russian Federation);
–Selection priority method determination of income (profit, revenue) (clause 3 of article 105.7 of the Tax Code of the Russian Federation);
- the procedure for applying calculation methods (Articles 105.8–105.13 of the RF Tax Code).
VEGAS LEX recommends: on the basis of paragraph 11 of Art. 105.7 of the Tax Code of the Russian Federation, the taxpayer has the right to provide evidence that the non-application of the market price was not a consequence of the mutual dependence of the parties to the controlled transaction, but had other economic reasons refer to accounting for imputed economic benefits for tax purposes when performing other transactions, etc.
Rule 5 (paragraphs 7, 8 of the Review)
The report on the assessment of the market value can be accepted as evidence in disputes related to the adjustment of the tax base in accordance with Section V.1 of the Tax Code of the Russian Federation, only in the cases specified in this section.
Namely:
–In the absence or insufficiency of the sources of information listed in paragraph 1 of Art. 105.6 of the Tax Code of the Russian Federation (subparagraph 3, clause 2, article 105.6 of the Tax Code of the Russian Federation);
- when making one-off transactions, if the methods provided for in Chapter 14.3 of the Tax Code of the Russian Federation do not allow determining whether the price corresponds to the market level (clause 9 of Article 105.7 of the Tax Code of the Russian Federation);
- when making transactions when the assessment is mandatory (clause 10 of article 105.3 of the Tax Code of the Russian Federation).
The court also drew attention to the conditions for the acceptance of the appraiser's report from the point of view of its admissibility and reliability:
- the report should allow making a conclusion about the level of income that could actually be received by the taxpayer;
–The conclusion must be prepared by a person who meets the requirements for subjects of professional appraisal activities;
- the expert should not deviate from the principles of identity and comparability of analog objects.
For example, based on the results of a tax audit, the company was charged taxes based on the market value rentdetermined by the appraiser engaged by the inspection, and not on the basis of the prices applied by the taxpayer.
After examining the appraisal document, the court concluded that the concept of market value, defined in accordance with Federal Law No. 135-FZ of 29.07.1998 "On Appraisal Activity in the Russian Federation", has a probabilistic nature. The expert's opinion did not take into account all the factors influencing the determination of the market value of the rent for the above premises. In such circumstances, an expert opinion cannot be an unconditional confirmation of the established deviation in the amount of rent.
As a result, the dispute was resolved in favor of the taxpayer (Resolution of the Arbitration Court of the UO dated 05.19.2015 in case No. A07-5319 / 2014).
The court also noted some principles for the appointment of a forensic examination in the considered category of disputes:
–Examination should not be appointed to fill the shortcomings of the tax audit;
–Examination may be appointed in order to resolve unrecoverable disagreements about the correctness of the application of methods for determining income or in order to eliminate doubts about the reliability of conflicting evidence.
Rule 6 (paragraphs 9-11 of the Review)
Bringing to responsibility under Art. 129.4 of the Tax Code of the Russian Federation for unlawful failure to submit a notification of controlled transactions or the reflection of false information in them should be carried out taking into account the following circumstances:
–The amount of the fine does not depend on the number of transactions that must be indicated in the notification (that is, RUB 5,000 regardless of the number of transactions) 6;
- inaccurate filling of certain details of the notification is not a basis for prosecution, if this does not prevent identification of the controlled transaction;
–Resolving the issue of bringing to tax liability under Art. 129.4 of the Tax Code of the Russian Federation falls within the competence of the tax inspectorate, to which such a notification was or should be submitted by the taxpayer 7.
The specified clarifications on the application of Art. 129.4 of the Tax Code of the Russian Federation significantly simplifies interaction between tax authorities and taxpayers on the issues of submitting notifications of controlled transactions.
In conclusion, I would like to note that 2017 is an important era in the regulation of transfer pricing. In addition to the Review of the judicial practice of the Supreme Court of the Russian Federation, which is of exceptional importance in law enforcement, the norms of subpara. 6-7, clause 4 of Art. 105.14 of the Tax Code of the Russian Federation, reducing the number of controlled transactions, and the possibility of introducing cross-country reporting is being considered. In order to minimize tax risks, taxpayers should conduct an audit of completed transactions, and when implementing current transactions, do not forget to adapt them to dynamically changing realities.
1 Determination of the RF Armed Forces dated February 26, 2016 No. 308-KG15-16651 in case No. A63-11506 / 2014.
2 Personal income tax.
3 Mineral extraction tax.
4 Simplified taxation system.
20.02.2016
Andrey Mikhailovich Rostoshinsky
Chief Consultant of the Consulting Department of the ICRC
"Construction: accounting and taxation", 2016, N 1
According to the current Russian legislation, organizations are obliged to notify the tax authorities of controlled transactions (Article 105.16 of the Tax Code of the Russian Federation), which are transactions between related parties under certain conditions (Article 105.14 of the Tax Code of the Russian Federation). Organizations are recognized as interdependent, in particular, if one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25% (clause 1, clause 2, article 105.1 of the Tax Code of the Russian Federation).
The Russian concept of "controlled transactions" is very close to such a concept as "transfer (transfer) pricing" (English: Funds Transfer Pricing, FTP), which is widely used abroad and which means the sale of goods or services by related parties at internal prices that differ from market. Given the significant number of companies with foreign participation, the concepts of "controlled transactions", "transfer transactions" and "transfer pricing" have become almost synonymous.
In international practice, the main recommendation and methodological document on the regulation of transfer pricing is the Organization for Economic Cooperation and Development (OECD) 1995 Guidelines "On Transfer Pricing for Multinational Enterprises and Tax Authorities" (Transfer pricing guidelines for multinational enterprises and tax administrations).
Unlike many foreign countries, where control over transfer pricing was introduced much earlier (for example, in the United States - in the mid-1960s), in Russia the relevant provisions of the Tax Code were introduced relatively recently (since 2012), so the judicial there was no practice in their application - it took time to form. Before it appeared, taxpayers had only one source of information on the application of the new rules: explanatory letters from the Ministry of Finance and the Federal Tax Service.
As is often the case, new regulations are not always understood in the same way by taxpayers and regulatory authorities. After some time, the tax authorities naturally have complaints, disputes arise and begin to take shape arbitrage practice... The texts of all the judicial acts mentioned in this article can be viewed in the file of arbitration cases (http://kad.arbitr.ru/).
Conditions (criteria) of controlled transactions
According to paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, for the purposes of tax control, all transactions concluded by economic entities are subdivided into transactions between related parties and transactions between non-related parties.
At the same time, based on the totality of the norms of the Tax Code of the Russian Federation, transactions between related parties can be divided into two groups, namely:
Resolution of the Ninth Arbitration Court of Appeal dated 30.09.2015 in case N А40-204810 / 14.
The procedure for determining the share of participation of one organization in another is established by Art. 105.2 of the Tax Code of the Russian Federation. Clause 3 of this article sets out the procedure for determining the share of indirect participation of one organization in another, the essence of which is as follows:
1) all sequences of participation of one organization in another are determined through the direct participation of each previous organization in each subsequent organization of the corresponding sequence;
2) the shares of direct participation of each previous organization in each subsequent organization of the corresponding sequence are determined;
3) the products of the shares of direct participation of one organization in another organization are summed up through the participation of each previous organization in each subsequent organization of all sequences.
For your information. Practical application by the tax authority of clause 3 of Art. 105.2 of the Tax Code of the Russian Federation when calculating the share of indirect participation in a branched system of ownership is well described (with a table and figures) in the Decision of the AU of Moscow dated 03.09.2015 in case N A40-10501 / 15.
This Decision considered a dispute over the mineral extraction tax, the calculation of which depends on the share of direct or indirect participation of the owner unified system gas supply. This share is also determined in the manner prescribed by Art. 105.2 of the Tax Code of the Russian Federation. The decision was contested in the Ninth Arbitration Court of Appeal, at the time of this writing, the appeal has not been considered, but nevertheless, in the author's opinion, it can serve as an example of the application of paragraph 3 of Art. 105.2 of the Tax Code of the Russian Federation.
Transactions between related parties with the participation of intermediaries are a special case of transactions between related parties (clause 1 of clause 1 of article 105.14 of the Tax Code of the Russian Federation).
Resolution of the Fifteenth Arbitration Court of Appeal dated September 17, 2015 in case No. A53-30653 / 2014. The decision was challenged in the court of cassation and at the time of this writing was not considered.
Article 105.14 of the Tax Code of the Russian Federation establishes, in particular, the following criteria for controlling transactions:
1) for transactions between related parties - residents of the Russian Federation in the presence of at least one circumstance:
- the amount of income (the sum of transaction prices) for the year exceeds 1 billion rubles. (subparagraph 1 of paragraph 2 of article 105.14 of the Tax Code of the Russian Federation);
- one of the parties to the transaction is a mineral extraction tax payer exceeds 60 million rubles. (Clause 2 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
- payer UTII or Unified agricultural tax, while the amount of transactions for the calendar year exceeds 100 million rubles... (Clause 3 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
- at least one of the parties to the transaction is exempt from the obligations of a payer of income tax or applies a 0% tax rate to the tax base on profits, while the amount of transactions for a calendar year exceeds 60 million rubles. (Clause 4 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
- at least one of the parties to the transaction is a resident of a special economic zone or a member of a free economic zone, the tax regime in which provides for special income tax benefits, while the amount of transactions for a calendar year exceeds 60 million rubles. (Clause 5 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
- one of the parties to the transaction is an organization that owns licenses for the use of a subsoil plot within which a new offshore hydrocarbon deposit is located, or an operator new offshore hydrocarbon field, while the amount of transactions for a calendar year exceeds 60 million rubles. (Clause 6 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
- at least one of the parties to the transaction is a participant in the regional investment project applying a 0% income tax rate in federal budget or reduced rate for income tax to the budget of the constituent entity of the Russian Federation, and the amount of income from transactions exceeds 60 million rubles. (Clause 7 Clause 2, Clause 3 Article 105.14 of the Tax Code of the Russian Federation);
2) on foreign trade transactions with a resident offshore zone - more than 60 million rubles. since 2014 (subparagraph 3 of paragraph 1, paragraph 7 of article 105.14 of the Tax Code of the Russian Federation);
3) on foreign trade transactions between related parties - since 2014, regardless of the amount (Clause 1 of Article 105.14 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated October 14, 2015 N 03-01-18 / 58760, Resolution of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case N А27-5101 / 2015).
Article 105.14 of the Tax Code of the Russian Federation also establishes other criteria, in the presence of which transactions can be controlled. In paragraph 4 of Art. 105.14 specifies transactions that are not considered controlled regardless of whether they meet the conditions of clauses 1 - 3 of this article.
In Art. 105.14 of the Tax Code of the Russian Federation, such a criterion is not directly specified. It follows from her analysis. The first sentence of clause 1 states: "... for the purposes of this Code, controlled transactions are transactions between related parties (subject to the specifics provided for in this article)." But further by the norms of Art. 105.14 of the Tax Code of the Russian Federation, especially in the form of requirements for the amount of income from transactions between related parties, in which one of the parties is not tax resident RF, in order to recognize such transactions as controlled are not provided.
In paragraph 4 of Art. 105.14 indicates transactions that are not recognized as controlled regardless of whether they meet the conditions of clauses 1 - 3 of this article... Such transactions, in particular, include transactions between organizations that satisfy at the same time the following requirements:
- organizations are registered in one subject of the Russian Federation, do not have separate divisions on the territories of other subjects of the Russian Federation, as well as abroad;
- organizations do not pay corporate income tax to the budgets of other constituent entities of the Russian Federation;
- have no losses (including past losses carried forward to future tax periods), taken when calculating income tax;
- transactions between these organizations are not subject to paragraphs. 2 - 7 p. 2 Art. 105.14 of the Tax Code of the Russian Federation.
Not only the listed transactions are indicated in paragraph 4 of Art. 105.14 of the Tax Code of the Russian Federation, there are others, for example, transactions between members of the same consolidated group of taxpayers.
Whom, when and how to notify?
The notification on controlled transactions is sent to the tax office at the main place of registration of the organization no later than May 20 of the year following the calendar year in which the controlled transactions were made. By order of the Federal Tax Service of Russia dated July 27, 2012 N ММВ-7-13 / [email protected] approved:
- controlled transactions notification form;
- Format for submission of notification of controlled transactions in electronic form;
- The procedure for filling out the notification form for controlled transactions;
- Procedure for Taxpayer Submission of Electronic Notice of Controlled Transactions.
Note. At its choice, the organization can send a notification in paper or electronic form (clause 2 of article 105.16 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service of Russia dated 05.15.2014 N ОА-4-13 / [email protected]).
If the volume of the generated file containing the notification exceeds the size limit established by clause 3.1.3 of the Order of the Federal Tax Service of Russia dated 09.11.2010 N ММВ-7-6 / [email protected], then it needs to be divided into smaller files using the free software (Letter of the Federal Tax Service of Russia dated 05.15.2014 N ОА-4-13 / [email protected]).
For unlawful failure to submit a notice of controlled transactions within the prescribed period or the submission of such a notice with false information, Art. 129.4 of the Tax Code of the Russian Federation provides for liability: a fine of 5000 rubles.
In the Letters of the Ministry of Finance of Russia dated 06.08.2013 N 03-01-18 / 31681 and dated 31.05.2013 N 03-01-18 / 19976 it is explained: the organization that is obliged to pay taxes in connection with the income received must submit a notification of controlled transactions. for such transactions. However, in clause 3 of the Letter of the Federal Tax Service of Russia dated 04.24.2015 N ED-4-13 / [email protected] indicated that each party to the controlled transaction must submit a notification.
Posted on the official website of the Federal Tax Service (http://www.nalog.ru) in the section "Clarifications of the Federal Tax Service, Mandatory for Tax Authorities."
If the organization submits a notification later than the established time, then the inspection at the main place of registration will fine it (Resolution of the Fourteenth Arbitration Court of Appeal dated 02.09.2014 in case No. A05-3448 / 2014, Determination of the Armed Forces of the Russian Federation dated 03.08.2015 No. 307-KG15-8280 in the case N A56-35791 / 2014).
The list of information that must be contained in the notification of controlled transactions is established by clause 3 of Art. 105.16 of the Tax Code of the Russian Federation. According to this paragraph, the following information must be indicated in the notification:
List of information that must be present in the notification | |||
Calendar year for which information is provided on controlled transactions made by the taxpayer | Deal items | Information about the participants in the transactions: the full name of the organization and its TIN (if it is registered with the tax authorities in the Russian Federation); FULL NAME. individual entrepreneur and his TIN; FULL NAME. and citizenship of an individual who is not an individual entrepreneur | The amount of income received and (or) the amount of expenses incurred (incurred losses) on controlled transactions with the allocation of income (expenses) on transactions whose prices are subject to regulation |
No other additional information that must be indicated in the notification of controlled transactions, paragraph 3 of Art. 105.16 of the Tax Code of the Russian Federation does not contain. But the Order of the Federal Tax Service of Russia dated July 27, 2012 N ММВ-7-13 / [email protected] establishes a broader list of information to be reflected in the notification. In particular, according to the Order, the date of the transaction and the date of the contract must be indicated. If a mistake is made, the tax authorities regard it as the presentation of inaccurate (distorted) information and, therefore, penalize.
However, some courts disagree with this approach. For example, in the Resolution of the Third Arbitration Court of Appeal of 12.02.2015 in case N A33-14179 / 2014, the court noted that the content of the notification of controlled transactions submitted by the taxpayer corresponds to Art. 105.16 of the Tax Code of the Russian Federation, since the notification indicates the year for which the information is provided; information about the subject and participants of the transaction; the amounts of income received. Consequently, an error in indicating the date of the transaction and the date of the contract (the need to reflect which is provided for by Order of the Federal Tax Service of Russia N ММВ-7-13 / [email protected], not st. 105.16 of the Tax Code of the Russian Federation) does not indicate the submission of inaccurate information on controlled transactions.
The Decree of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case No. A27-5101 / 2015 considered the situation when an organization sold coal to foreign buyers under a commission agreement and filed a notification, filling it out differently from the one specified in the Letter of the Federal Tax Service of Russia dated 18.04.2014 OA-4-13 / 7549, which, in turn, refers to the Letter of the Federal Tax Service of Russia dated 01.11.2013 N OA-4-13 / 19652 on the procedure for filling out the notification of controlled transactions.
The inspectorate fined the organization, believing that it inaccurately reflected information about the controlled transaction in the notification: instead of the commission agreement, the supply agreement, the corresponding agreement code and the transaction participant were indicated; the size of the commission is not allocated from total amount the proceeds he received. Information about contracts for the delivery of the commission agent with third parties is reflected excessively, they should have been reflected not by the committing organization, but by the commission agent.
The court ruled that the inspection's decision was illegal. The court noted that other information in the notification is correct: information about the product, its volume and value, place of shipment, delivery and delivery conditions; both contracts (commissions and supplies) are reflected in the notification. Taking this into account, in the court's opinion, the incorrect indication of the contract code (delivery, not the commission) does not indicate the inaccuracy of the information itself in essence. The court also noted that the tax authority, having the requisites of the commission agreement, was not misled about the essence of economic relations, had the opportunity to make all the necessary inquiries to exercise tax control on the basis of Art. Art. 105.15, 93.1 of the Tax Code of the Russian Federation.
See the Decision of the Arbitration Court of the Kemerovo Region of June 15, 2015 in case No. A27-5101 / 2015.
For your information. For failure to submit, untimely submission of a notice of controlled transactions, as well as for submission of a notice containing incomplete or distorted information, in addition to the organizations themselves, may be fined under Art. 15.6 of the Code of Administrative Offenses of the Russian Federation also their officials: the head of the organization and chief Accountant.
See, for example, Resolution of the Arkhangelsk Regional Court dated 10/07/2015 in case No. 4a-316/2015.
See, for example, the Resolution of the Kemerovo Regional Court dated April 21, 2015 in case No. 4a-301/2015.
In companies with foreign participation, the head of the organization is often a foreign citizen. A foreign citizen may be limited in the period of his stay in the Russian Federation or denied entry into the Russian Federation if he has been repeatedly (two or more times) brought to administrative responsibility on the territory of the Russian Federation in the territory of the Russian Federation for committing an administrative offense.
Clause 4 of Art. 26 Federal law dated 15.08.1996 N 114-FZ "On the procedure for leaving the Russian Federation and entering the Russian Federation"; clause 14.2 of the Procedure for making a decision on the extension or reduction of the period of temporary stay of a foreign citizen or stateless person in the Russian Federation, approved. By order of the FMS of Russia dated June 29, 2015 N 321.
Clarified notification
The organization has the right to submit an updated notification of controlled transactions. Moreover, if she filed it before she learned that the tax authority found false information in the previously filed notification, then she is exempt from the liability established by Art. 129.4 of the Tax Code of the Russian Federation (the last paragraph of clause 2 of article 105.16 of the Tax Code of the Russian Federation). According to this paragraph, it is important that when the organization learned that the tax authority discovered that the information was unreliable. That is, the tax authority could have discovered inaccuracies earlier, but the organization did not know about this, therefore, by submitting an updated notification, it is released from liability.
Let's see how this rule is applied by the courts. Consider the Resolution of the Ninth Arbitration Court of Appeal dated 01.10.2015 in case No. A40-71494 / 15. In this case, the tax authority fined the organization for submitting an updated notice after receiving a written notification from the inspectorate about the inaccuracy of the information provided, in particular about not reflecting some transactions with a foreign partner company. The organization sent an updated notification to the inspectorate, and the inspectorate brought it to justice. The organization objected, arguing that there were no grounds for bringing it to justice, since it sent an updated notification before drawing up the report on the violation found.
The court did not agree with the organization and recognized the actions of the inspection as legal, since the organization sent an updated notification after it learned about the error in the notification discovered by the tax authority (reflection of false information in the notification). The judges indicated that the moment when the organization learned about the establishment by the tax authority of the fact of incomplete reflection of information in the notification is the date of receipt of the message, and not more late date drawing up an act.
The organization also believed that the territorial tax authority lacked the authority to hold it accountable. To which the judges indicated that it is the territorial tax authority at the place of registration of the taxpayer that is responsible for verifying the timeliness of the taxpayer's submission of the notification, reflecting all controlled transactions in it, as well as the reliability of the information specified in this notification. At the same time, the territorial tax authority, within the framework of consideration, analysis and verification of the notification, does not exercise tax control in the field of the correctness of the application of prices using the methods listed in Ch. 14.3 of the Tax Code of the Russian Federation, since this belongs exclusively to the competence of the Federal Tax Service.
Agent notification
According to the Ministry of Finance, the obligation to notify the tax authorities of completed controlled transactions arises from the person who is obliged to pay taxes in connection with the income received from such transactions (Letters dated 06.08.2013 N 03-01-18 / 31681, dated 31.05.2013 N 03 -01-18 / 19976). At the same time, in clause 3 of the Letter of the Federal Tax Service of Russia dated 04.24.2015 N ED-4-13 / [email protected] it is specified that the taxpayer is obliged to notify the tax authorities of the controlled transactions made by him in a calendar year, regardless of whether he is a party to such transactions that received income or incurred expenses.
The Letter of the Federal Tax Service of Russia dated April 18, 2014 No. ОА-4-13 / 7549, dedicated to filling out the notification on controlled transactions, also says about the specifics of filling out the notification for agency transactions (clause 4). From this point, as well as numerous oral explanations of representatives of the official bodies, it follows that when concluding an intermediary transaction, when the intermediary is interdependent with the seller who instructed him to sell the goods, the intermediary is also obliged to submit a notification, like the seller, guided by the amount sold.
This Letter is posted on the official website of the Federal Tax Service (http://www.nalog.ru) in the section "Clarifications of the Federal Tax Service, Mandatory for Tax Authorities."
What do the courts think about this? Consider the Resolution of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case No. A27-7216 / 2015. In 2013, the intermediary company (commission agent) sold chemical products to a foreign buyer (Switzerland) under agency agreements. All three organizations (commission agent, consignor and foreign buyer) were related parties.
The total amount of income received by the principal was 15,292,917,906 rubles. and exceeded the sum criterion of RUB 80 million, effective for the relevant category of transactions in 2013, in connection with which he was obliged to submit a corresponding notification of controlled transactions, which was done.
At the intermediary society overall size the commission fee amounted to 292,239,273 rubles. At the same time, the society decided that it did not have an obligation to submit a notification, and the society did not submit it.
Tax office outside the framework of a cameral or field tax audit, she drew up an act and fined the intermediary company for failure to submit a notice of controlled transactions. The society did not agree with this and went to court.
The court declared the actions of the inspection illegal on two grounds:
- the intermediary has no obligation to submit a notification;
- the inspectorate was not entitled to reveal this violation outside the framework of a cameral or field tax audit.
Let us consider in more detail the circumstances of the case and the arguments of the parties. Pointing out that the tax inspectorate was not entitled to reveal this violation outside the framework of a cameral or field tax audit, the courts referred to paragraph 6 of Art. 105.16 of the Tax Code of the Russian Federation. The judges noted that this provision explicitly states the right of the tax authority to reveal the facts of conducting controlled transactions, information about which was not provided, during an on-site or office audit.
After analyzing the norms of the Civil Code of the Russian Federation, the judges indicated that the commission agreement and the agreement concluded in its execution are independent transactions and do not form a single multilateral transaction.
Based on the norms of the Civil Code of the Russian Federation, the court noted that cashreceived by the intermediary from the foreign final purchaser belong to the principal, not the intermediary, and form the principal's income. The intermediary only owns the income in the form of a commission.
The judges also referred to nn. 9 p. 1 of Art. 251 of the Tax Code of the Russian Federation, according to which income in the form of property (including cash) received by the commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under the commission agreement is not taken into account when determining the tax base, agency agreement or another similar agreement.
The court noted that in accordance with paragraph 1 of Art. 105.16 of the Tax Code of the Russian Federation, taxpayers are obliged to notify the tax authorities of the controlled transactions they have made in the calendar year, named in Art. 105.14 of the Tax Code of the Russian Federation, taking into account the specifics provided for by this article.
The court indicated that Art. 105.14 of the Tax Code of the Russian Federation established the following criteria for the controllability of transactions:
1) for transactions between related persons - residents of the Russian Federation - more than 1 billion rubles. since 2014, taking into account the transitional provisions in 2013 - more than 2 billion rubles. (Clause 3, Article 4 of the Federal Law of 18.07.2011 N 227-FZ);
2) for foreign trade transactions between related parties - since 2014, regardless of the amount, in 2013 - more than 80 million rubles;
3) for foreign trade transactions with a resident of the offshore zone - more than 60 million rubles. since 2014, in 2013 - more than 80 million rubles.
The court indicated that the total amount of the intermediary's commission was 292,239,273 rubles. and did not exceed the sum criterion of 2 billion rubles, in force in 2013 for internal Russian transactions between related parties.
Thus, the court concluded that the obligation to submit a notification arose only with the principal in relation to the commission agreements. The intermediary society did not have an obligation to submit a notification, therefore, bringing it to responsibility under Art. 129.4 of the Tax Code of the Russian Federation is illegal. At the same time, the court also referred to the Letters of the Ministry of Finance of Russia dated 06.08.2013 N 03-01-18 / 31681, dated 15.10.2012 N 03-01-18 / 7-141.
Arguing its position, the inspectorate referred to the Letters of the Federal Tax Service of Russia dated April 18, 2014 N ОА-4-13 / 7549 "On filling in the Notice of Controlled Transactions" and dated 01.11.2013 N ОА-4-13 / 19652, but the court did not accept these arguments ... The judges indicated that these Letters were not published in official print media and were not registered with the Ministry of Justice.
The judges also noted that Letter of the Federal Tax Service of Russia dated 04/18/2014 N ОА-4-13 / 7549 cannot be considered as changing the subject composition of persons required to submit notifications established by the Tax Code of the Russian Federation. In particular, this obligation cannot be assigned to the commission agent, if in relation to him the sum or other criteria established by Art. 105.14 of the Tax Code of the Russian Federation.
The panel of judges clarified: the commission agreement can be a controlled transaction, however, an essential condition under which the commission is considered controlled income and is subject to reflection in the notification is compliance with the conditions provided for in Art. 105.14 of the Tax Code of the Russian Federation, including exceeding the threshold.
As the judges pointed out, the state's right to exercise tax control does not in any way suffer, since the obligation to provide all the necessary information about the controlled transaction is vested in the principal, as a taxpayer receiving income. This obligation is guaranteed by the principal's right to full information on transactions concluded under a commission agreement (Article 999 of the Civil Code of the Russian Federation). In clause 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 2004 N 85, it is indicated that if the commission agent refuses to provide the principal with data on transactions concluded pursuant to the commission order for the sale of goods, the commission agent has the right to demand compensation for the full market value of all goods transferred to the commission agent without payment commission. The tax authority, having from the principal the details of the commission agreement and information that the company is an agent, had the opportunity to make all the necessary inquiries to exercise tax control on the basis of Art. Art. 105.15, 93.1 of the Tax Code of the Russian Federation.
The conclusion that the transactions of the interdependent commission agent (intermediary), made by him in pursuance of the commissioner's instructions, are controllable for the intermediary in case of exceeding the sum threshold of his remuneration, is also set out in the Resolution of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case No. A27-5101 / 2015.
Free transfer of goods to related organizations
Let us consider the cases when there is a free transfer of goods between related parties. Can such transactions be controlled?
Let us refer to the Resolution of the Ninth Arbitration Court of Appeal dated August 17, 2015 in case No. A40-24458 / 15. In this case Interregional IFTS by the largest taxpayers checked the correctness of filling in the notification on controlled transactions for 2012 submitted by OOO Gazprom mezhregiongaz. Based on the results of the inspection, the inspectorate drew up an act and made a decision to hold the company liable under Art. 129.4 of the Tax Code of the Russian Federation for the submission to the tax authority of a notification of controlled transactions containing incomplete (inaccurate) information: the notification did not indicate transactions for the free transfer of goods to related parties.
Considering the dispute, the Moscow Arbitration Court concluded:
- the inspection did not have the right to check the correctness of filling out the notification and, therefore, impose a fine;
- these transactions for the free transfer of goods to related organizations were not controlled.
The Court of Appeal agreed with the decision of the first instance court. Let us consider in more detail the arguments of the parties and the circumstances of this case.
During the audit, the inspectorate compared the data contained in the notification submitted by the company with the information contained in the notifications submitted by its counterparties. Discrepancies were identified. The company did not reflect in its notification transactions for the free transfer of goods to related parties, while counterparties provided information on them in their notifications.
The interdependence of the persons to whom the goods were transferred free of charge was not disputed by the society and was quite obvious. These were: OOO Gazprom mezhregiongaz Moscow, ZAO Gazprom mezhregiongaz Kazan, OOO Gazprom mezhregiongaz Yaroslavl, OOO Gazprom mezhregiongaz Ulyanovsk, ZAO Gazprom mezhregiongaz Sever, OOO Gazprom mezhregiongaz Saratov, OOO Gazprom mezhregiongaz Lipetsk ".
The Court of Appeal agreed with the findings of the first instance court. In this case, the judges indicated the following.
Territorial tax authorities do not have the right to conduct tax control in the field of the correctness of the application of prices for tax purposes, since by virtue of the direct indication of Art. 105.17 of the Tax Code of the Russian Federation, such an audit is carried out by the Federal Tax Service (at its location). Since a taxpayer and his interdependent persons located in different regions of the Russian Federation may be registered with different territorial tax authorities, it is obvious that one of these territorial tax authorities is deprived of the opportunity to check the correctness of the calculation and payment of taxes on transactions between all interdependent persons, since the norms The Tax Code of the Russian Federation did not give him the right to demand the relevant documents from them.
In this case, the inspectorate carried out measures of tax control of the activities of interdependent persons on the basis of the submitted notification of controlled persons, which is attributed to the Tax Code of the Russian Federation to the exclusive competence of the Federal Tax Service. The judges noted that such a legal position is consistent with the position set forth in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 25, 2014 N 18588/13.
Arguing their conclusion that the disputed transactions are not controllable, the courts indicated the following. The company rightfully did not take into account the expenses incurred by it for the purpose of calculating income tax in accordance with the rule of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, according to which expenses in the form of the cost of property donated and expenses associated with such a transfer are not taken into account for tax purposes. According to paragraph 11 of Art. 105.14 of the Tax Code of the Russian Federation, the recognition of transactions as controlled is carried out taking into account the provisions of clause 13 of Art. 105.3 of the Tax Code of the Russian Federation, which, in turn, provides that the rules of Sec. V.1 of the Tax Code of the Russian Federation apply to transactions that entail the need to account for at least one party of such transactions income or expensesleading to an increase or decrease in the tax base for taxes provided for in paragraph 4 of Art. 105.3 of the Tax Code of the Russian Federation. Consequently, if the transaction does not entail the need to account for income and expenses by the parties to the transaction and, accordingly, does not entail an increase (decrease) in the tax base, such a transaction, by virtue of paragraph 11 of Art. 105.14 of the Tax Code of the Russian Federation is not controlled.
Interest-free loans between related parties
By letter of the Federal Tax Service of Russia dated 02.11.2012 N ED-4-3 / 18615, the Letter of the Ministry of Finance of Russia dated 18.10.2012 N 03-01-18 / 8-145 was sent for information and use in the work of lower tax authorities with regard to the application of certain provisions of Art. 105.3 of the Tax Code of the Russian Federation. In it, the Ministry of Finance explained that for controlled transactions in accordance with paragraph 1 of Art. 105.17 of the Tax Code of the Russian Federation, verification of the completeness of the calculation and payment of taxes between interdependent persons is carried out by the federal executive body authorized for control and supervision in the field of taxes and fees (CA FTS of Russia). At the same time, control over the compliance of prices used in controlled transactions with market prices cannot be the subject of on-site and in-house inspections. And in relation to transactions between interdependent persons that do not fall under the criteria of controlled, tax control is entitled to exercise territorial tax authorities during field and office audits.
In their Letters and oral explanations, officials of the Ministry of Finance and the Federal Tax Service, referring to the norms of paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, they conclude that the lender's income from transactions of an interest-free loan with an interdependent person is determined based on the amount of interest that would have been received by the lender under a comparable transaction between non-related parties.
See Letters of the Ministry of Finance of Russia dated 02.10.2013 N 03-01-18 / 40821, dated 13.08.2013 N 03-01-18 / 32745.
Consider the Resolution of the Eighth Arbitration Court of Appeal dated 09/08/2015 in case No. A81-165 / 2015. Tax inspection by results on-site inspection company additionally assessed income tax on interest-free loanissued by an interdependent organization. As a basis for calculating the lost profit, the inspectorate took the rates of ruble loans for a period from 181 days to a year, published on the official website of the Bank of Russia. At the same time, in the opinion of the inspectorate, it took into account such mandatory requirements as the identity (homogeneity) of services, the date of the transaction, the currency of the operation, the term of the operation.
This decision was appealed to the court of the cassation instance; at the time of this writing, the cassation appeal had not been considered.
The court disagreed with the inspection. The court noted that the Tax Code of the Russian Federation does not contain a prohibition on the issuance of interest-free loans, as well as requirements for the establishment in the loan agreement of certain interest rates... The court indicated: from the literal content of paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation it follows that, firstly, the transaction should be made between related parties; second, the transaction must create or establish commercial or financial terms different from those that would occur in transactions recognized as comparable between persons who are not interdependent.
The judges made the following arguments. A loan agreement can be either compensated, that is, providing for the payment of interest for the use of borrowed funds, or gratuitous, when the borrower's fulfillment of the obligation is limited only by the repayment of the debt (clause 1 of article 809 of the Civil Code of the Russian Federation). Since the current civil legislation directly enshrines the possibility of concluding a gratuitous loan agreement, the conclusion of contracts of interest-free loan is possible between persons who are not interdependent.
Thus, the second condition, provided for in paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation, namely the creation of commercial or financial conditions different from those that would take place in transactions recognized as comparable between persons who are not interdependent, and therefore this provision is not applicable.
Despite the fact that the company did not dispute the legitimacy of the tax audit carried out by the inspectorate, the courts indicated that the inspectorate was not entitled to check the taxation of transactions between related parties.
Having analyzed the norms of the Tax Code of the Russian Federation, including Art. 105.17 of the Tax Code of the Russian Federation, the judges came to the conclusion: control over the compliance of prices used in transactions between related parties with market prices can only be the subject of an independent audit conducted by the Federal Tax Service, and cannot be the subject of field and cameral tax audits conducted by territorial tax authorities, since their powers are limited to identifying controlled transactions during the audit and notifying the Federal Tax Service if the taxpayer fails to provide information about them.
As a conclusion
At the time of this writing, we have not found a single case considered by the Supreme Court in a tax dispute based on the results of checking the validity of prices in controlled transactions. Therefore, the arbitration practice cannot yet be considered mature, and it is premature to draw any firm conclusions. However, from the very fact of the litigation, it is clear that the tax authorities firmly adhere to the positions formulated by the Federal Tax Service, and do not intend to retreat yet. It follows from this that it is safest for taxpayers to comply with the requirements established by the Federal Tax Service for filling out notifications of controlled transactions.
This conclusion may seem rather unexpected, but it turns out that in case of doubt, it is more profitable for the taxpayer to indicate the transaction as controlled and declare it in the notification. In this case, taxes on such a transaction, in the opinion of the Federal Tax Service, which is mandatory for lower tax authorities, can only be checked by the Federal Tax Service itself, and not by the territorial tax inspectorate.
Of some judgments it follows that all, without exception, transactions between related parties, and not only controlled ones, can be subject to verification only by the central office of the Federal Tax Service. However, according to the author, this conclusion is too optimistic: Supreme Court has not yet expressed his opinion on this matter, and amendments may be made to the RF Tax Code.
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