УРЕГУЛИРОВАНИЕ ПОРЯДКА НАЛОГООБЛОЖЕНИЯ КОНТРОЛИРУЕМЫХ СДЕЛОК
Пономарев О.В.1, Жукова И.В.2, Цымбал Е.А.3, Суглоб О.В.4
1Соискатель, 2ORCID: 0000-0002-7880-7336, Студент, 3ORCID: 0000-0001-8395-5117, Студент, 4ORCID: 0000-0003-1504-5220, Студент, Дальневосточный Федеральный Университет
УРЕГУЛИРОВАНИЕ ПОРЯДКА НАЛОГООБЛОЖЕНИЯ КОНТРОЛИРУЕМЫХ СДЕЛОК
В данной статье рассматривается механизм трансфертного ценообразования, что означает порядок урегулирования налогообложения контролируемых сделок. Раскрыты основы понятия взаимозависимых лиц. Определены существенные условия налогообложения взаимозависимых лиц. Проанализированы различные ситуации, при которых, как правило, организации становятся зависимыми. Дан анализ ситуаций, при которых используется механизм оптимизации налогообложения с применением трансфертного ценообразования. Обусловлен механизм контроля цен сделок между взаимозависимыми лицами. Основным источником исследования послужил Налоговый кодекс Российской Федерации.
Ключевые слова: взаимозависимые лица, контролируемые сделки, трансфертное ценообразование, налоги, налогообложение взаимозависимых лиц, особенности контролируемых сделок.
Ponomarev O.V.1, Zhukova I.V.2, Tsymbal E.A.3, Suglob O.V.4
1Postgraduate student, 2ORCID: 0000-0002-7880-7336, Student, 3ORCID: 0000-0001-8395-5117, Student, 4ORCID: 0000-0003-1504-5220, Student, Far Eastern Federal University
REGUALTION PROCEDURE FOR TAXATION OF CONTROLLED TRANSACTIONS
This paper considers the mechanism of transfer pricing, which means the procedure for the taxation regulation of controlled transactions. The basis of the concept of related parties is determined in the work. The essential terms of the taxation of related parties are defined as well. The authors analyzed various situations in which organizations, as a rule, become related. The work also contains the analysis of situations in which the tax optimization mechanism with transfer pricing is used. The mechanism of price control of transactions between related parties is given as well. The main source of the study was the Tax Code of the Russian Federation.
Keywords: related parties, controlled transactions, transfer pricing, tax, taxation of related parties, features of controlled transactions.
Analyzing controllable transactions and revealing the features of affiliated parties in the Russian Federation we need to understand what transfer pricing is. There is no such notion as transfer pricing in the Tax Code of the Russian Federation, though it is actually about this notion.
«Transfer pricing is realization of goods or services by related parties at transfer prices, different from market prices», wrote Perevozchikova E.M. .
From author’s words, we can understand, that price-gouging in transactions between affiliated parties is in fact transfer pricing. For transactions between each other these parties use prices that significantly differ from market prices. The result of such “gouging” is that profit is accumulated by party in low tax economic area (state or region).
Section V.1 of Tax Code of the Russian Federation contains six chapters (chapters 14.1 – 14.6), dedicated to the affiliated parties and controllable transactions between them . This section has been amended for the following three years. Meanwhile the notion of controllable transactions has not been changed since then. It should be noted that controllable transactions are considered to be transactions in which tax authorities have a right to verify the correspondence of prices to the market ones, as well as the fullness of computation and payment of such taxes as TIPI, MET, VAT and of course profit tax.
According to the article 105.14 of the Tax Code of the Russian Federation, two types of transaction get under transaction – transactions with affiliated parties and transactions equaled to transactions with affiliated parties . Besides it involves transactions with goods, works or services. Therefore, none of the transactions with property laws, information and intellectual property are controllable.
Let’s focus on the determination of affiliated parties.
Affiliated parties are parties who can influence not only on economic activity of each other, but also on the terms of the contracts concluded between them, by virtue of relationship existed between them. It is entities that can be presented either by citizens either by organizations .
Let’s examine current statutes of the law which regulate the order of recognition of parties to a transaction as affiliated ones as well as laws that regulate the ordering of legal consequences for these transactions.
By affiliated parties Russian legislator means two or more parties to a legal relationship each of which can influence on the conclusion of transactions by others, as well as on economic results of activity undertaking by other or others parties (clause 1 article 105 of Tax Code of the Russian Federation) .
According to clause 2 article 105 of Tax Code of the Russian Federation affiliated parties can include the following :
- Legal entities if one entity has not less than 25% of another entity capital;
- Private and legal entity if private entity has more than 25% of legal entity capital;
- 2 and more legal entities, if one and only private entity has more than 25% of capital in every respective legal entity;
- Private or legal entity, if private entity has a right to appoint director or not less than 50% of legal entity senior management;
- 2 and more legal entities that have directors (not less than 50% of senior management), appointed by the same private entity;
- 2 or more legal entities that have aboard 50% of which are the same private entities;
- Legal or private entity if private entity is the director of legal entity;
- 2 or more legal entities, the director of which is the same private entity;
- 3 and more legal entities, if the first one has not less than 50% of the second one’s capital while the second one has not less than 50% of the third one’s capital (who in its turn can have not less than 50% of the fourth one capital, and so on and so forth);
- Private entity as well as two or more legal entities if private entity has not less than 50% of the first legal entity capital, and this legal entity has not less than 50% of the first legal entity (which in its turn can have not less than 50% of the third legal entity capital, and so on and so forth);
- 2 private entities if one of them is subordinated to another due to employment status;
- Close relatives — married couple, children and parents, brothers and sisters, legal custodians and persons under care .
The share of close relatives in the capital of same legal entity is summarized and if it reaches the values indicated in the above list, all of them are considered to be entities of linked transactions (clause 3 article 105.1 Tax Code of the Russian Federation) .
Interdependence of entities can be determined in separate agreements between them or by any other possibility preventing the influence of one entity on another (clause 1 article 105.1 Tax Code of the Russian Federation) .
One of the criteria predetermining the corresponding consequences is the controllability of transactions with affiliated persons. Let’s examine this aspect in more detail.
So, the transaction with participation of affiliated persons can have legal consequences if it is recognized as controllable. It will mean that Federal Tax Service will pay close attention to it and review underpricing or overpricing in sums transferred from one entity to another. Differences in transaction prices can be used for understatement of tax base in order to decrease the tax sum; overstatement of tax base in order to get more great value of tax deduction.
When controlling transaction, Federal Tax Service has a right to carry out the accuracy of income taxes computation; TIPI (for private entrepreneur), MET, VAT.
Organizations are considered to be affiliated in 6 cases, private and legal entities – inn 4 cases, private entities – in two cases.
When should we determine the fact of interdependence?
Indeed, it is possible that for the moment of consummation of the transaction parties were independent, and then, during its execution, the connection between them developed. Or vice versa, it is possible that parties become independent after they fulfill all transaction obligations.
Law prescribes that transactions between affiliated persons is controllable because the terms and results of transactions depend on the relationship between affiliated entities. The affiliation should be determined for the moment of transaction consummation, as exactly at this moment parties determine the final terms of the transaction and sign appropriate document (contract or addendum to a contract) . That is why if at the moment of contract signature parties were independent, then such transaction must further be considered as the transaction between independent entities, even if parties become affiliated afterwards. This confirmation will be correct only if parties don’t change terms of the contract after they become affiliated.
The important moment here is the determination of participation share. Direct participation is the share of one organization in charter capital of another. It should be noted that affiliation presents only when the participation share of one organization in another one is more than 25% limit. Organizations wouldn’t be affiliated if the share is 25 % sharp.
Indirect participation is the participation in another organization via third parties (participation share is more than 25%) .
Now let’s have a close look on what transactions between affiliated entities are controllable, because not all of them are under the state control.
Nominally transactions between affiliated entities can be divided into two types: foreign trade transactions (transactions where at least one of the parties or beneficiary party are not tax resident of the Russian Federation, including transactions with representative office of foreign affiliated entity) and internal transactions (transactions where all the parties including beneficiary parties are tax residents of the Russian Federation).
Currently the following internal transactions between affiliated entities are considered as controllable:
- transactions amount of income for which for calendar year will exceed 3 billion rubles;
- transactions with natural resources, the extraction of which bears MET at ad. Val rate (in per cent from price), if the amount of income for parties from these transactions exceed 60 million rubles per year;
- transactions where one of the parties is relieved from taxpayer duties related to the income tax, and the other party (parties) pays the income tax. In addition to that the amount of income from the transactions between these entities exceeds 60 million rubles;
- transactions, where one of the parties is the participant of “Skolkovo” project and use 0% income tax rate, and the other party (parties) pays income taxes. Amount of income from transactions between these entities must exceed 60 million rubles per year.
Example: Company 1 is the participant of «Skolkovo» project, and company 2 is not. Companies are affiliated, because the general director of them is the same person .
In 2015 company 1 supplied to company 2 goods in the amount of 35 million rubles. And company 2 sold to company 1 equipment in the amount of 26 million rubles.
The amount of income of companies from transactions is 61 million rubles (35 million + 26 million). All transactions between companies 1 and 2 are controllable, because parties exceeded the cum criteria for such transactions (60 million rubles).
- transactions where one of the parties pays UTII or Single Agricultural Tax, and the other party uses general taxation system.
In addition to that transactions themselves must be concluded within the activity subjected to UTII or Single Agricultural Tax. In order to make this transaction controllable the sum of income from transaction must exceed 100 million rubles per year.
Controllable transactions also include transactions equal to the transactions between affiliated persons, and, as a whole, let’s emphasize the following: any goods selling transactions (performance of work, rendering services) between affiliated parties with participation of “independent” intermediate agents; transactions of world exchange trade goods in the field of foreign trade.
Tax Code provides the exact list of goods, selling of which gets under control regardless the existence of affiliation. Such goods include oil, petroleum products, mineral fertilizers, nonferrous metals, ferrous metals, precious metals and gem stones .
However transactions with these goods would be controllable only if the sum of income exceeds 60 million rubles per one year.
- transactions with non-resident companies, registered in off-shore countries (40 countries and territories)  and territories with the same condition that in the previous case.
Thus, Russian Tax Code provides specific taxation rules for controllable transactions. Their basic meaning is in the fact that the market price of such transactions is accepted for taxation purposes, even if in fact parties fix other prices. To determine tax base for controllable transactions we need to use methods applied for determination of income tax purposes (income, profit). These methods allow to determine tax base on the assumption of transaction market price.
Controllable transactions include transactions between affiliated parties, as well as the ones equal to transactions between affiliated parties in case of their correspondence to the criteria provided by Tax Code of the Russian Federation (indicated in clause 2 article. 105.14 of Tax Code of the Russian Federation ).
The control procedure for prices of transactions between affiliated parties is focused on prevention of group of companies from manipulating prices to remove tax base from Russia into off-shore countries or into preferential enterprises. Such procedure is used by many countries of the world. Transfer prices (i.e. internal prices) are often used by transnational holding companies to minimize income tax. Transfer prices can help to redistribute the total income of the group of people for the benefit of persons residing in states with lower taxes.
Список литературы на английском языке / References in English
- Tax Code of the Russian Federation dated 31.07.1998. – 1998. № 146 . – 15 feb.
- Volvach D.V. Practical aspects of application of transfer pricing rules / D.V. Volvach // «Taxation policy and practice » Magazine. – 2015. – № 6. – P.17.
- Volvach D.V. Notifications about controllable transactions / D.V. Volvach // «Modern accountant» Magazine. – 2016. – № 5. – P29-31.
- Perevozchikova E.M. Transfer pricing and taxation control / Е.М. Perevozchikova // «Russian accountant» Magazine. – 2015. – № 4. – P.20-22.
- Mechalkin V.K. Price control for taxation / V.K. Mechalkin // ICGroup. –2016. – № 7. – P.6-7.
- Pinskaya М.R., Milogolov N.S., Tserenova К.N. New approaches for transfer prices documentation / М.R. Pinskaya // «Taxes and taxation policy» Magazine. 2015. № 5. P.28.