Related parties and controlled transactions: positions and recommendations. Tax risks: is it possible to conclude transactions between “own” firms and individual entrepreneurs Transactions between related parties
Controlled transactions- these are transactions between related parties and equated to them.
According to such transactions, the tax authorities have the right to check the compliance of prices with market prices, as well as the completeness of the calculation and payment of a number of taxes.
Criteria for controlled transactions
The Tax Code of the Russian Federation establishes, in particular, the following criteria for the controllability of transactions:
on transactions between related persons - 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;
one of the parties to the transaction is a MET payer, while the amount of transactions for the calendar year exceeds 60 million rubles;
at least one of the parties to the transaction is a UTII or UAT payer, while the amount of transactions for a calendar year exceeds 100 million rubles;
at least one of the parties to the transaction is exempted from the obligation to pay income tax or applies a 0% tax rate to the income tax base, while the amount of transactions for a calendar year exceeds 60 million rubles;
at least one of the parties to the transaction is a resident of a special economic zone or a participant in a free economic zone, the tax regime in which provides for special benefits for income tax, while the amount of transactions for a calendar year exceeds 60 million rubles;
one of the parties to the transaction is an organization that owns licenses for the use of a subsoil block within which a new offshore hydrocarbon deposit is located, or an operator of a new offshore hydrocarbon deposit, while the amount of transactions for a calendar year exceeds 60 million rubles;
at least one of the parties to the transaction is a participant in a regional investment project applying a 0% rate for income tax to the federal budget or a reduced rate for income tax to the budget of a constituent entity of the Russian Federation, and the amount of income from transactions exceeds 60 million rubles;
on foreign trade transactions with a resident of an offshore zone more than 60 million rubles;
on foreign trade transactions between related parties, regardless of the amount.
At the same time, the Tax Code of the Russian Federation specifies transactions that are not recognized as controlled transactions, regardless of whether they satisfy the above conditions.
Such transactions, in particular, include transactions between organizations that simultaneously meet the following requirements:
- Completing a notice of controlled transactions
The report may be a notice of controlled transactions, which is not always required to be submitted ... the report may be a notice of controlled transactions, which is not always required to be submitted ... ”and, in fact, the “Notice of controlled transactions” itself. Having opened the assistant, we immediately understand... the convenience of filtering positions involved in controlled trades. We go into the nomenclature card, in ... check this item. The item "Controlled transactions to be included in the notification" will generate...
- How to correctly fill out a notice of a controlled transaction if a large range of various goods is sold under the contract
In the Russian Federation, information on controlled transactions is indicated in notifications on controlled transactions (hereinafter referred to as the Notification ... Notifications, information is indicated on each controlled transaction (group of homogeneous transactions). ... obligations arising as a result of a controlled transaction (group of homogeneous transactions), information .. ... information regarding the subject of execution of a controlled transaction (a group of homogeneous transactions) ... Taxpayers who are required to submit notifications of controlled transactions The answer was prepared by: Service Expert ...
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If loan agreements are not controlled transactions (including agreements with non-interdependent ... while if a loan agreement is a controlled transaction, the taxpayer has the right to recognize as income ... RF. For tax purposes, controlled transactions are transactions between interdependent ... loans between interdependent organizations is controlled deal only if... - Encyclopedia of Decisions Interest on Controlled Transactions for Profit Tax Purposes - Encyclopedia of...
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- Digest of important changes in tax legislation for November 2019
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- Accounting and tax implications of a change in the transaction price
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- New in legislation in 2019
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organizations are registered in one subject of the Russian Federation, do not have separate subdivisions in the territories of other subjects of the Russian Federation, as well as abroad;
Controlled transactions: details for an accountant
The state, represented by fiscal authorities, has 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 that allow transactions to be given such a special status will be considered 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:
- transactions of interdependent entities;
- related transactions.
To answer the question under consideration, first of all, it is necessary to understand which subjects are recognized as interdependent.
Related persons
The generally accepted criteria for interdependence for tax purposes are contained in the Tax Code of the Russian Federation. Here are some of them:
- participation of one legal persons in another, if the share of participation exceeds 25 percent;
- interdependence due to official subordination;
- family relationships.
The Tax Code of the Russian Federation directly indicates that this list of criteria is not exhaustive and may be supplemented by the court.
Recognition of business entities as such entails special tax control of 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 Sec. 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:
- preventing the transfer of the tax base to 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 that do not fall under the criteria of interdependence, if these persons:
- carry only the function of organizing resale between interdependent entities;
- do not take risks in the sense given to the concept of entrepreneurial activity.
In addition, control extends to transactions with companies - residents of the countries of a specially established list and some others.
Interdependent 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 Sec. 25 of the Tax Code of the Russian Federation, and the other - no;
- 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 run the risk of becoming the object of the control in question.
The implementation of controlled transactions in itself does not entail liability.
It is also important to know the list of grounds excluding 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 a 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.
- parties to transactions are registered in the territory of our country, etc.
Having completed the transaction in question, the subjects of control are required to send a notification of controlled transactions. A sample notification form can be found online. You must use the form provided by the tax office. It can be downloaded from the official website of the department.
The deadline for submitting the notice of controlled transactions for 2015 is May 20, 2016. We wrote about which transactions are recognized as controlled in accordance with Chapter 14.4 of the Tax Code of the Russian Federation, and how to prepare a notification of such transactions in the 1C: Accounting 8 CORP version 3.0 program, we wrote in issue 4 (April) on p. » for 2015*. In this article, 1C experts consider the features of accounting for certain types of controlled transactions in the program using specific examples.
Note:
* An article by 1C experts “Controlled transactions: preparation of a notice for 2014 in “1C: Accounting 8 CORP” (rev. 3.0)” can also be found on the website /articles/documents/40751/.
Controlled Transaction Law and Notification
Controlled transactions for tax purposes are transactions between related parties subject to the provisions provided for in Article 105.14 of the RF Tax Code, as well as transactions equated to them that meet the criteria listed in paragraph 1 of Article 105.14 of the RF Tax Code.
The criteria for the interdependence of persons, as well as the procedure for determining the share of participation of one organization in another organization or an individual in an organization, are established by Chapter 14.1. NK RF.
IS 1C:ITS
All information about which persons are recognized as interdependent, and transactions are recognized as controlled, what consequences the conclusion of such transactions may lead to can be found in the "Business Directory: Legal Aspects" in the "Legal Support" section at http://its.1c. en/db/bizlegsup#content:18:hdoc .
According to paragraph 2 of Article 105.16 of the Russian Tax Code, information on controlled transactions must be indicated in notifications of controlled transactions (hereinafter referred to as the Notification). Such Notifications shall be sent by the taxpayer to the tax authority at its location (place of residence). For the largest taxpayers - at the place of their registration in this capacity.
Notifications of transactions, income and (or) expenses for which are recognized in accordance with Chapter 25 of the Tax Code of the Russian Federation in 2015, must be submitted no later than May 20 of this year in the form approved. Order of the Federal Tax Service of Russia dated July 27, 2012 No. ММВ-7-13/ [email protected]
Examples of preparation in 1C notification of controlled transactions for 2015
We remind you that the specialized subsystem for preparing a notification of controlled transactions, developed in "1C: Accounting 8 CORP" version 3.0, allows you to automatically fill out, check, print and upload a notification in electronic form.
In the program, for the convenience of using the specified subsystem, Controlled Transaction Notification Preparation Assistant(Further - Assistant), which is available via the hyperlink of the same name from the section Accounting, taxes, reporting(group of reports Controlled transactions). In the interface Taxi Access to Assistant carried out by the hyperlink of the same name from the section Reports(group of reports Controlled transactions).
When calculating the sum criterion for recognizing transactions as controlled in the program "1C: Accounting 8 CORP" version 3.0, the features of accounting for transactions are implemented in accordance with letters and clarifications from the Ministry of Finance of Russia and the Federal Tax Service of Russia.
Such features include, for example, returns of goods of inadequate quality and adjustments to sales (receipts), acquisition of depreciable property, transactions in foreign currency or conventional units, transactions involving intermediaries, income from transactions that are not taken into account when determining the income tax base, etc. d.
Consider what needs to be considered when preparing and filling out a notice in various situations (in all examples, the notice is filled out on behalf of the conditional organization Konfetprom LLC).
Example 1
In 2015, Konfetprom LLC sold the goods of the interdependent company Saturn LLC in the amount of 58 million rubles. (excluding VAT). LLC "Konfetprom" applies a general taxation system, LLC "Saturn" - a simplified system of taxation. In 2016, the parties entered into an additional agreement, according to which the cost of goods shipped in 2015 changed upward and amounted to 61 million rubles. (excluding VAT). The supplementary agreement was concluded before the date of submission to the tax office of the notice of controlled transactions for 2015.
In this case, transactions were made between Russian related parties in the presence of the following circumstance: one of the parties to the transaction is exempt from the obligations of a taxpayer of income tax, and the other party is not exempt from these obligations. Such transactions are recognized as controlled if the amount of income from transactions between these persons for the corresponding calendar year exceeds RUB 60 million. (clause 4 clause 2 and clause 3 article 105.14 of the Tax Code of the Russian Federation).
The agreement on changing the price of goods, concluded by the parties, is not an independent transaction, but introduces changes to the original transaction for 2015, despite the fact that such an agreement was executed already in the next year, 2016. This conclusion is consistent with the explanations set out in the letter of the Federal Tax Service of Russia dated October 26, 2012 No. OA-4-13 / 18182 (answers to questions 10, 11 in the said letter):
- the seller in accounting, when the cost of goods changes, must change the amount of revenue. When filling out Section 1B “Information on the subject of the transaction (groups of homogeneous transactions)” of the Notification, the actual quantity of goods and the changed price of the subject of the transaction, that is, taking into account the changes, are indicated;
- the buyer in accounting when the cost of goods changes must change the purchase price of goods. When filling out Section 1B of the Notification, the actual cost of the goods is indicated, that is, taking into account changes in price or quantity;
- the amounts of income/expenses in Section 1A "Information on a controlled transaction (a group of homogeneous transactions)" are reflected in the Notice also taking into account all changes and additions to the terms of the transaction;
- if changes in the quantity, price and value of the goods occurred after the end of the reporting period, but before the submission of information on controlled transactions, then the Notification shows already adjusted data on the price and value;
- if changes in the quantity, price and cost of the goods occurred after the end of the reporting period and after the submission of the Notification, then an amended Notification is drawn up.
Therefore, the 2015 controlled transactions notice should include adjustments that occurred in 2016 but relate to shipments in 2015.
In order for the transactions with an interdependent counterparty Saturn LLC to be correctly qualified during the preparation of the Notification, the program at the first stage Controlled Transaction Notification Preparation Assistant it is necessary to fill in or check the correctness of filling in the information register Related persons.
In the form of a register entry element Related persons for Saturn LLC, the following details must be indicated:
- the start date of applying the information specified in the register (when changing the value of at least one attribute in the register, it is necessary to create a new register entry indicating the start date of such a change);
- type of interdependence;
- country of registration;
- information about taxes paid and applicable tax regimes. Since Saturn LLC uses the USN, the flag Is a payer of income tax should be turned off.
Let us first consider how the list of transactions and the Notice for 2015 will be generated in the program before the parties have entered into an additional agreement on changing the price of the goods. At the first stage Assistant by button Generate a list of deals based on document Implementation (act, invoice) with an interdependent counterparty Saturn LLC, for each line of the document, accumulation register entries are automatically created . The initial list of transactions can be viewed by clicking on the hyperlink List of controlled transactions and pressing the button Form.
If, however, a list is formed taking into account the sum criteria at the third stage Assistant(hyperlink ), then the report will indicate that the transaction with Saturn LLC is not included in the notification (Fig. 1).
Rice. 1. The transaction did not pass the sum criterion
After the parties agree on the terms of the transaction, taking into account the increase in the price of the goods, the seller LLC "Konfetprom" must reflect the increase in revenue in accounting. This operation is registered in the program using a document Implementation adjustment(with operation type Adjustment by agreement of the parties) on the date of signing the primary document confirming the buyer's consent to change the price of the goods. In our example, this happens already in 2016.
In order to generate a notification for 2015, taking into account all the changes and additions to the terms of the transaction in 2015, you must return to the first stage Assistant and re-create accumulation register entries Controlled transactions of organizations. The updated list includes the deal with Saturn LLC with a changed amount. Report Controlled transactions to be included in the notification from the third stage Assistant will show that the deal with Saturn LLC has now passed the amount threshold and is included in the notification of controlled transactions (Fig. 2).
Rice. 2. The transaction has passed the sum criterion and is included in the Notice
Pay attention: despite the fact that the dates of the documents of the accounting system Implementation (act, invoice) and Implementation adjustment differ, register entries Controlled transactions of organizations generated on the basis of these primary documents will be created on the implementation date, since all changes relate to the original transaction. Register entries Controlled transactions of organizations can be viewed from the main menu of the program, or through Universal Report(Fig. 3).
Rice. 3. Records of the accumulation register "Controlled transactions of organizations"
In our example, in the Notice for 2015, one sheet 1B will be created for a transaction in the amount of 61 million rubles. with the date of the transaction 12/20/2015.
Similarly (only in the direction of reducing the amount of the transaction), the program "1C: Accounting 8 CORP" version 3.0 works out the situation with discounts (bonuses / premiums), as well as the situation with the return of goods, if the seller has fulfilled its obligations under the contract improperly .
If the return of goods is due to another reason, then it is drawn up in a separate sales contract, and then both sales transactions must be summed up when calculating the amount thresholds to determine the controllability of the transaction.
Example 2
Under a commission agreement, the organization OOO Konfetprom (principal) sold goods to buyers in 2015 through an independent commission agent OOO Deimos. According to the commissioner's report, there is a foreign company Norway Outlines among the buyers of the goods, which is interdependent in relation to the commissioner. The commission agent in his intermediary activity is only engaged in organizing the resale of the goods of the committent to the buyer (the buyer independently exports the goods from the warehouse of the committent).
The conditions under which transactions under intermediary agreements are recognized as controlled are set out in the clarifications of the Federal Tax Service of Russia. For example, in a letter dated October 26, 2012 No. ОА-4-13/18182 (answer to questions 6, 7), the tax department reported that:
- transactions for the sale of consignment goods are controlled when the committent and the buyer of the goods (final buyer) are interdependent persons;
- a commission payment transaction is controlled if the committent and the commission agent are interdependent persons;
- a commission payment transaction is controlled if the committent and the end buyer are interdependent persons, and the participation of an independent intermediary is of a formal nature (clause 1 clause 1 article 105.14 of the Tax Code of the Russian Federation).
Let's analyze the list of related parties that must be entered in the information register of the same name in order to fill out a notification under the conditions of Example 2.
Firstly, this is the ultimate buyer of Norway Outlines, which is an interdependent entity in relation to the committent LLC "Konfetprom". In the related person card in the field Dependency Type Interdependent under the Code(Clause 2, Article 105.1 of the Tax Code of the Russian Federation). It is also necessary to pay attention to the correct filling of the country of registration of the foreign counterparty (by default, the program suggests the value RUSSIA).
Secondly, since the commission agent does not perform any additional functions, does not assume any risks and does not use any assets to arrange transactions between related parties, then such a set of transactions is equated to transactions between related parties.
In the register of information Related persons an entry must also be made for the counterparty Deimos LLC. In the related person card in the field Dependency Type select from the list and enter a value Not interdependent intermediary(Clause 1.1, Article 105.14 of the Tax Code of the Russian Federation).
At the first stage Assistant by button Generate a list of deals on the basis of documents Report of the commission agent (agent) on sales accumulation register entries are automatically created Controlled transactions of organizations.
The specified register is filled in both in relation to the transaction with the commission agent Deimos LLC (the subject of the transaction is a commission fee), and in relation to the transaction with the end buyer of Norway Outlines (the subject of the transaction is the goods).
Both the related foreign buyer and the commission agent equal to the related person fall into the initial list of controlled transactions.
It is noteworthy that there are no amount thresholds for transactions with such counterparties. Such explanations are given by the Ministry of Finance of Russia:
- transactions with the participation (through mediation) of persons who are not interdependent are recognized as controlled, regardless of the amount of income received from such transactions in the corresponding calendar year (letter No. 03-01-18/6-115 dated 29.08.2012);
- foreign trade transactions between related parties are recognized as controlled according to the general rule, i.e. without taking into account the specifics and regardless of the amount of income (letter dated 26.12.12 No. 03-01-18 / 10-196).
Report Controlled transactions to be included in the notification from the third stage Assistant shows that transactions with Norway Outlines counterparties and Deimos LLC are included in the notice for 2015, despite relatively small amounts (Fig. 4).
Rice. 4. Trades with a zero sum criterion
Example 3
In April 2015, Konfetprom LLC acquired a batch of textile products from an independent foreign counterparty, Druzhba, which is a tax resident of Hong Kong. The final settlement with the supplier was made in December 2015. The contract value of the consignment is USD 1,118,320.00. The official exchange rate of the Central Bank of the Russian Federation was 50.5295 rubles/dollar as of the date of receipt of the goods, and 70.9333 rubles/dollar as of the date of payment for the goods.
If one of the parties to the transaction is a person whose place of registration or place of tax residency is a state or territory included by the Russian Ministry of Finance in the List of countries with preferential taxation (offshore zones), then such a transaction is equated to transactions between related parties (clause 3, clause 1 article 105.14 of the Tax Code of the Russian Federation). According to the List, approved. By order of the Russian Ministry of Finance dated 11/13/2007 No. 108n, offshore zones, in particular, include the Hong Kong Special Administrative Region of the People's Republic of China. Such a transaction is recognized as controlled if the amount of income from transactions with one person for a calendar year exceeds RUB 60 million. (clause 3 clause 1 and clause 7 article 105.14 of the Tax Code of the Russian Federation).
In "1C: Accounting 8 CORP" version 3.0, transactions with entities registered in countries with preferential taxation are determined automatically according to the information system, so information about such entities does not need to be entered in the register Related persons, to no other register. The only condition is that you must correctly indicate the country of registration directly in the form of the directory element Counterparties. Based on the code of the country of registration, the program determines whether the specified country is included in the List approved by the order of the financial department. If you specify the country of registration incorrectly (for example, not Hong Kong, but China), then such a transaction will not be recognized by the program as a transaction with an offshore zone resident.
Now let's analyze whether the transaction from Example 3 will overcome the amount threshold of 60 million rubles. The notice of controlled transactions contains amounts in rubles only, therefore, for transactions in foreign currency or conventional units, the transaction amount must be determined in rubles in accordance with accounting rules. Figure 5 shows an analysis of account 60.21 "Settlements with suppliers and contractors (in foreign currency)" in the context of the counterparty "Friendship". The generated report shows that the ruble amount of goods on the date of shipment amounted to 56.5 million rubles, and the amount of payment is equivalent to 79.3 million rubles.
Rice. 5. Analysis of account 60.21
Exchange differences calculated as a result of the revaluation of liabilities denominated in a foreign currency should not be taken into account when determining the amount criterion for the purpose of recognizing transactions as controlled (letter of the Russian Ministry of Finance dated 09.07.2013 No. 03-01-18/26448).
At the first stage Assistant by button Generate a list of deals based on document Receipt (act, invoice) with a counterparty registered in an offshore zone, register entries are automatically created Controlled transactions of organizations. Therefore, transactions with a Hong Kong tax resident will be included in the initial list of transactions. If the list is formed taking into account the sum criteria at the third stage Assistant, the report will indicate that a transaction with a counterparty registered in a country with preferential taxation is not included in the notification (Fig. 6).
Rice. 6. A deal with a resident of an offshore zone did not pass the sum criterion
From the editor. On March 24, 1C: Lecture Hall hosted a lecture “Transfer pricing: application practice, preparation of a notification on controlled transactions for 2015 in 1C: Enterprise 8” (V.I. Golishevsky, Federal Tax Service of Russia, and E.N. Kalinina, expert 1C ) - see link
The fact that a deal between “their own” organizations and “individual entrepreneurs” controlled by a businessman arouses increased interest of the tax authorities is known, perhaps, to every accountant. At the same time, the specific consequences that such a deal could lead to remain unclear to many. What are these consequences? Let's figure it out.
Under what conditions can transactions be carried out
Let's say right away: the interdependence of the parties is not a reason to refuse to conduct a deal. Such transactions are not illegal and in themselves do not bear any negative consequences for taxpayers. However, this statement is true only under one very important condition, fixed in paragraph 1 of Art. RF Tax Code: transactions between related parties do not establish commercial or financial terms that differ from those that would take place in transactions between unrelated organizations or individual entrepreneurs. This condition is called the "arm's length principle". That is, a deal between related parties must be concluded on exactly the same terms that would apply in an agreement with any of the companies that can be found on the open market (i.e., which is at arm's length from your organization).
Please note that the Tax Code is not only about the transaction price. The rules are much broader: all commercial and financial terms of the transaction must comply with the market ones. That is, this includes the rules for the transfer of goods, and the rules for payment (delay, installment), and the rules for insurance, etc. Absolutely all terms of the contract must comply with the market. Any indulgence that leads to the fact that one of the parties does not receive any income (including due to the fact that it bears extra expenses) is already in the "risk zone". After all, according to the rules of the same paragraph 1 of Art. Tax Code of the Russian Federation, any income that could have been received by one of these persons, but due to the indicated difference was not received by him, are taken into account for tax purposes from this person.
Which persons are interdependent
The list of persons whom the legislator considers interdependent is given in paragraph 2 of Art. NK RF. It should be borne in mind that this list is only exemplary and is used in close conjunction with the general definition of interdependence given in paragraph 1 of Art. NK RF. According to this definition, any persons are recognized as interdependent for taxation purposes if the specifics of the relationship between them can affect the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent.
Simply put, persons can be recognized as interdependent even if they are not listed in paragraph 2 of Art. NK RF. This is directly stated in paragraph 7 of Art. NK RF. This means that companies that are not formally related to each other can also be recognized as interdependent. For example, in the case of friendly relations between their leaders. Provided, of course, that this friendship is transferred to business and the terms of transactions between such companies turn out to be different from the market ones.
Do I need to report transactions?
The next question that arises when concluding a transaction between “one’s own” companies and individual entrepreneurs is whether it is necessary to report separately to the Federal Tax Service on this matter? After all, every accountant at least once heard the phrase “controlled transaction” and is aware that such transactions need to be notified to the tax authorities.
However, not every transaction between related parties is controlled. In particular, when it comes to transactions between Russian related companies, on the contrary, most transactions will not be recognized as controlled.
For more information on which transactions are controlled, see "". Please note that the article was prepared in 2013, when transitional provisions were still in effect and significant amount limits were set for most transactions. Now the amounts of restrictions have become much lower (clause 3, article of the Tax Code of the Russian Federation). You also need to remember that since 2017, interest-free loans between interdependent Russian entities have been excluded from the category of controlled loans (clause 7, clause 4, article of the Tax Code of the Russian Federation).
As part of today's article, we want to dwell on another important issue that affects the classification of a transaction as controlled. We are talking about the norm of paragraph 11 of article of the Tax Code of the Russian Federation. It says that the recognition of transactions as controlled is subject to the provisions of paragraph 13 of Article TC RF. In turn, this rule states that the rules on price control in transactions between related parties are applied only in those agreements, the implementation of which entails the need to take into account at least one of the parties income or expenses that affect the tax base for income tax, personal income tax paid by entrepreneurs, or VAT. Moreover, in the latter case, there is an additional condition: if the party to the transaction is an organization or individual entrepreneur that is not recognized as a VAT taxpayer, or uses an exemption from taxpayer obligations for this tax.
As you can see, the list does not contain a single tax paid under the simplified tax system, as well as the “regular” personal income tax paid by individuals without individual entrepreneur status. This means the following. A transaction between related parties applying the simplified taxation system, or between such a company and a non-entrepreneur individual, will under no circumstances be recognized as controlled. The situation is similar with other special regimes: the transaction will not be controlled if the party to the transaction between the payer of UTII or individual entrepreneur on PSN is not a company or individual entrepreneur on a general regime.
Verification of controlled transactions
Let's move on to the tax consequences of transactions between related parties. The procedure for checking the terms of such transactions and additional tax charges on them (if deviations from market conditions are found) directly depends on the category of the transaction. Or rather, on whether it is controlled.
The fact is that only the central office of the Federal Tax Service of Russia has the right to check the correctness of the calculation of taxes on controlled transactions (Article NK RF). Local tax authorities can only identify such transactions for which no notifications have been submitted. And report this fact to the Federal Tax Service of Russia (clause 1, article of the Tax Code of the Russian Federation).
At the same time, the Federal Tax Service of Russia can only control the correctness of the calculation and payment of the three taxes that we talked about above (income tax, personal income tax paid by individual entrepreneurs, and VAT, if at least one of the parties to the transaction does not pay it). This is the first limitation.
The second limitation is related to the symmetry of additional charges. As stated in the article of the Tax Code of the Russian Federation, if, when checking the level of prices for controlled transactions, the Federal Tax Service of Russia decides to adjust the price for the transaction, then the second party to the transaction can apply the same price. It is clear that in relations between Russian related parties this will in many cases entail an automatic tax reduction for the other party (due to an increase in transaction costs).
So (taking into account the indicated restrictions), the Federal Tax Service of Russia will most likely charge additional taxes on controlled transactions concluded between Russian companies on a sporadic basis. But this does not mean at all that tax abuses on personal income tax and the single tax on the simplified tax system will remain without due attention of the tax authorities. It's just that inspectors from the territorial IFTS will deal with such frauds.
Checking the validity of the tax benefit
The authority to carry out control measures and assess additional taxes in respect of transactions between related parties that are not recognized as controlled, as well as on taxes that are not the responsibility of the central office of the tax service, is in the hands of tax inspectorates. They carry out this work as part of identifying unjustified tax benefits. And there is only one limitation. It is established by paragraph 1 of Article of the Tax Code of the Russian Federation, which states that the market price can be used for tax purposes only if this does not lead to a decrease in the amount of tax payable to the budget system of the Russian Federation, or an increase in the amount of loss. So, in this case, the tax authorities should also take into account the principle of symmetry: an increase in price entails not only an increase in income for one side of the transaction, but also an increase in expenses for the other.
Therefore, even the widespread situation with an interest-free loan agreement between an individual founder (lender) and a company founded by him (borrower) may turn out to be risky. Inspectors may well, as part of the fight against unreasonable tax benefits, charge additional personal income tax to the founder. Especially if the company is on UTII or STS with the object of taxation in the form of income. After all, it is clear that the company could not get a free loan from a third party (and the founder would hardly have issued such a loan). This means that in this case, a decrease in the tax base for personal income tax by the amount of interest on a loan that is not received in connection with the establishment in a loan agreement concluded between related parties of conditions for calculating and paying interest, different from similar transactions concluded between independent parties, may well be recognized as an unjustified tax benefit. According to the results, the court may recognize this condition as aimed solely at evading personal income tax on amounts of income in the form of interest on a loan and, accordingly, charge additional personal income tax based on the amount of interest paid on comparable loans.
We continue the series of articles on the control work of the tax authorities. In the sixth part A.A. Kulikov, Managing Partner of LLC Agency of Tax Attorneys, and E.V. Kulikova, a tax consultant, talk about the tax control of transactions between related parties.
Control of transactions between related parties
Tax control in connection with transactions between related parties (control of transactions between related parties) is a verification of the completeness of the calculation and payment of taxes in connection with the conclusion of controlled transactions between related parties.
Conducted by the tax authority in relation to a taxpayer who is one of the parties to a controlled transaction made by related parties.
Cheat sheet for the article from the editors of BUKH.1C for those who do not have time:
1. The list of grounds on which persons are recognized as interdependent is not closed. The court may recognize persons as interdependent if the relationship between them can influence the conditions and results of transactions made by them.
2. Transactions between related parties are called controlled.
3. The basis for making a decision to conduct an audit in connection with transactions between related parties may be a notification of controlled transactions or a notification of a tax authority conducting a tax audit.
4. The decision to conduct an inspection shall be made no later than two years from the date of receipt of the notification or notice. The Federal Tax Service must inform the taxpayer about the audit within three working days from the date of such a decision.
5. In the course of monitoring transactions between related parties, the tax authority may request documents from the audited company and its counterparties, as well as seize documents and items.
6. During the audit, the completeness of the calculation and payment of income tax, personal income tax, mineral extraction tax, VAT is checked.
7. The Federal Tax Service has the right to check controlled transactions for 3 years preceding the year in which the decision to conduct an audit was made.
8. As a general rule, the period of verification should not exceed six months, but in exceptional cases it may be extended.
9. The Federal Tax Service cannot conduct two or more checks in relation to one controlled transaction in the same calendar year. An exception is repeated checks carried out in the event that a taxpayer submits an amended declaration.
10. On the last day of the inspection, the inspectors draw up a certificate in which the subject of the inspection and the timing of its implementation are recorded.
The main parameters of the event are shown in Table 1.
Table 1.
Control of transactions between related parties. Main parameters of the event
|
No. p / p |
Event Parameter |
Event parameter value |
|
The rule that governs |
Chapter 14.5 of the Tax Code of the Russian Federation |
|
|
For whom is |
Taxpayers in connection with their performance of controlled transactions with related parties |
|
|
The document that initiates |
The decision of the head (deputy head) of the Federal Tax Service to conduct an audit |
|
|
Who is held |
Officials of the Federal Tax Service |
|
|
Location |
Location of the Federal Tax Service |
|
|
Deadline |
No more than 6 months, can be extended up to 12 months |
|
|
Documents that are examined during the event |
Documents on the activities of the taxpayer (persons) who made a controlled transaction (a group of similar transactions) related to this transaction. Information about the methods used to determine prices (if the taxpayer uses the methods provided for in Chapter 14.3 of the Tax Code of the Russian Federation) |
The scheme of the procedure for conducting an on-site inspection is shown in Figure 1.
Actions of the tax authority in the course of control of transactions
In the course of control over transactions between related parties, the tax authority has the right to carry out the following actions (tax control measures):
- request documents from the taxpayer (clauses 1, 2, 5 of article 93 of the Tax Code of the Russian Federation);
- request documents and information from counterparties and other persons (Article 93.1 of the Tax Code of the Russian Federation);
- appoint examinations (Article 95 of the Tax Code of the Russian Federation);
- involve an interpreter (Article 97 of the Tax Code of the Russian Federation);
- engage a specialist to assist in the implementation of tax control (Article 96 of the Tax Code of the Russian Federation);
- carry out the seizure of documents and items (Article 94 of the Tax Code of the Russian Federation).
What you should know
Related persons
Persons are recognized as interdependent persons, the peculiarities of relations between which may affect the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent.
The grounds on which, by virtue of the provisions of Article 105.1 of the Tax Code of the Russian Federation persons are considered interdependent, are shown in Table 2.
At the same time, it should be borne in mind that the list of grounds on which persons are recognized as interdependent, given in Table 2, is not closed. The court may recognize persons as interdependent and on other grounds, if the relationship between these persons may affect the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent.
Table 2.
|
No. p / p |
Persons recognized as interdependent |
Grounds for recognizing persons as interdependent |
|
Individuals |
One individual is subordinate to another individual by official position |
|
|
An individual and his spouse (wife), parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (custodian) and ward |
||
|
Individual and organization |
An individual directly and (or) indirectly participates in the organization, and the share of such participation is more than 25% |
|
| Organizations |
One organization directly and (or) indirectly participates in another organization, and the share of such participation is more than 25% |
|
|
The same person* directly and (or) indirectly participates in these organizations, and the share of such participation in each organization is more than 25% |
||
|
The executive bodies of which or at least 50% of the composition of the collegial executive body or the board of directors (supervisory board) of which are appointed or elected by the decision of the same person (an individual together with his related persons**) |
||
|
In which more than 50% of the composition of the collegial executive body or the board of directors (supervisory board) are the same individuals together with related parties |
||
|
The powers of the sole executive body of organizations are exercised by the same person |
||
|
Organization and person |
A person (including an individual together with his related parties) has the authority to appoint (election) the sole executive body of the organization or to appoint (election) at least 50% of the composition of the collegial executive body or the board of directors (supervisory board) of the organization |
|
|
The person exercises the powers of the sole executive body of the organization |
||
|
Organizations and (or) individuals |
The share of direct participation of each previous person in each subsequent organization is more than 50 percent |
* Persons (person) - organizations and (or) individuals (clause 2, article 11 of the Tax Code of the Russian Federation).
** This refers to the spouse (wife) of an individual, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (custodian) and ward (subparagraph 11 of paragraph 2 article 105.1 of the Tax Code of the Russian Federation).
Controlled transactions
Controlled transactions are transactions between related parties(taking into account the peculiarities of Article 105.14 of the Tax Code of the Russian Federation), as well as a number of transactions equated to them. Conditions (features) under which transactions are considered controlled are presented in Table 3.
Table 3
Conditions for classifying transactions as controlled
|
No. p / p |
Transaction type |
Conditions under which a transaction is recognized as controlled |
The amount of income from the transaction, above which the transaction is recognized as controlled |
|
A transaction between related parties, the place of registration or the place of residence, or the place of tax residence of all parties and beneficiaries in which the Russian Federation is |
The amount of income from transactions (the sum of transaction prices) between these persons for the corresponding calendar year exceeds 1 billion rubles |
1 billion rubles |
|
|
One of the parties to the transaction is a taxpayer of the mineral extraction tax calculated at the tax rate set as a percentage, and the subject of the transaction is the mined mineral |
60 million rubles |
||
|
At least one of the parties to the transaction is a taxpayer applying one of the following special tax regimes: |
100 million rubles |
||
|
At least one of the parties to the transaction is exempt from corporate income tax obligations or applies a 0% tax rate to the tax base for the specified tax in accordance with clause 5.1 of Article 284 of the Tax Code of the Russian Federation, while the other party (parties) of the transaction is not exempt (not exempt) from these obligations and does not apply (do not apply) the 0% tax rate under the specified circumstances |
60 million rubles |
||
|
At least one of the parties to the transaction is a resident of a special economic zone or a participant in a free economic zone, the tax regime in which provides for special benefits for corporate income tax (compared to the general tax regime in the corresponding subject of the Russian Federation), while the other party (parties) of the transaction is not (are not) a resident of such a special economic zone or a participant in such a free economic zone |
60 million rubles |
||
|
The transaction simultaneously satisfies the following conditions: |
60 million rubles |
||
|
At least one of the parties to the transaction is a participant in a regional investment project that applies a tax rate for corporate income tax payable to the federal budget in the amount of 0% and (or) a reduced tax rate for corporate income tax payable to the budget of a constituent entity of the Russian Federation , in the manner and under the conditions provided for by Article 284.3 of the Tax Code of the Russian Federation |
60 million rubles |
||
|
A set of transactions for the sale (resale) of goods (performance of work, provision of services) made with the participation (through mediation) of third parties that are not interdependent. |
Third parties: - do not perform any additional functions in this set of transactions, with the exception of organizing the sale (resale) of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person; | ||
|
Transactions in the field of foreign trade in goods of world exchange trade |
If the subject of such transactions are goods included in one or more of the following product groups: |
60 million rubles |
|
|
Transactions where one of the parties is a person whose place of registration or place of residence or place of tax residence is a state or territory included in the list of states and territories approved by the Russian Ministry of Finance the above list, and the analyzed transaction is related to this activity, then this transaction will be controlled |
The list of states and territories was approved by Order of the Ministry of Finance of Russia No. 108n dated November 13, 2007 and is given in the Appendix to this order. |
60 million rubles |
|
|
Transactions between related parties in which one of the parties is not a tax resident of the Russian Federation*** |
|
* Article 275.2 of the Tax Code of the Russian Federation "Peculiarities of determining the tax base in the implementation of activities related to the production of hydrocarbon raw materials at a new offshore hydrocarbon field."
** The list of codes for the indicated goods in accordance with the Commodity Nomenclature for Foreign Economic Activity was established by Order No. 1598 of the Russian Ministry of Industry and Trade dated October 30, 2012.
*** In fact, all transactions between related parties, in which one of the parties is not a tax resident, will be controlled, regardless of other terms of the transaction and the amount of the transaction.
According to the FTS the transaction can be considered controlled by a court if there are sufficient grounds to believe that the specified transaction is part of a group of homogeneous transactions made in order to create conditions under which such a transaction would not meet the signs of a controlled transaction.
Regardless of whether the transactions satisfy the conditions given in Table 3, the following transactions are not recognized as controlled:
1. The parties to which are members of the same consolidated group of taxpayers (with the exception of transactions, the subject of which is a extracted mineral recognized as an object of taxation by the tax on the extraction of minerals, the extraction of which is taxed at a tax rate established as a percentage).
2. The parties to which are persons who simultaneously meet the following requirements:
- the specified persons are registered in one subject of the Russian Federation;
- these persons do not have separate subdivisions in the territories of other constituent entities of the Russian Federation, as well as outside the Russian Federation;
- these persons do not pay corporate income tax to the budgets of other constituent entities of the Russian Federation;
- these persons do not have losses (including losses of past periods carried forward to future tax periods) taken into account when calculating corporate income tax;
- there are no conditions specified in paragraphs 2 - 7 of Table 3, in the presence of which the transactions are recognized as interdependent.
3. Transactions between the taxpayers specified in paragraph 1 of Article 275.2 of the Tax Code of the Russian Federation, made by them in the course of carrying out activities related to the production of hydrocarbons at a new offshore hydrocarbon field in relation to the same field.
4. Interbank credits (deposits) with a term of up to seven calendar days (inclusive).
5. In the field of military-technical cooperation of the Russian Federation with foreign states, carried out in accordance with Federal Law No. 114-FZ of July 19, 1998.
Inspection decision
The decision to check the completeness of the calculation and payment of taxes in connection with transactions between related parties is made on the basis of:
- Notices of controlled transactions, or
- Notifications of the territorial tax authority conducting an on-site or in-house tax audit, tax monitoring (Article 105.16 of the Tax Code of the Russian Federation);
as well as when a controlled transaction is identified as a result of the Federal Tax Service conducting a repeated field tax audit.
The decision to conduct an inspection may be made no later than two years from the date of receipt of the notification or notification.
If a taxpayer submits an amended tax return, in which the amount of tax calculated by the taxpayer in connection with the independent adjustment of the tax base and the amount of relevant taxes (losses) is reflected in a smaller amount (loss amount in a larger amount) than previously declared, the decision to carry out audits may be issued no later than two years from the date of submission of such revised tax return. In this case, the audit is carried out only in relation to a controlled transaction, for which the taxpayer made an independent adjustment (clause 6, article 105.3 of the Tax Code of the Russian Federation).
The decision to conduct an inspection (form according to KND 1165035, Appendix No. 1 to the order dated November 26, 2012 No. ММВ-7-13 / [email protected], hereinafter - Order No. ММВ-7-13/ [email protected]) is signed by the head (deputy head) of the Federal Tax Service.
The decision must contain the following information:
- full and abbreviated names or surname, name, patronymic of the taxpayer;
- full and abbreviated name of the counterparty;
- name of the transaction being checked, description of homogeneous transactions;
- the type of tax(s) being checked;
- periods for which the audit is carried out;
- positions, surnames and initials of the employees of the tax authority who are entrusted with the audit, indicating the head of the audit team.
The Federal Tax Service must notify the taxpayer of the decision to conduct an audit within three working days from the date of its adoption.
Subject of verification
The subject of the audit is to verify the completeness of the calculation and payment of taxes in connection with transactions between related parties in terms of the compliance of prices applied by these parties in controlled transactions with market prices.
During the audit, the completeness of the calculation and payment of the following taxes is checked:
- corporate income tax;
- personal income tax paid on income received from entrepreneurial activities and other private practice (Article 227 of the Tax Code of the Russian Federation);
- mineral extraction tax (in the event that 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 MET taxation, the extraction of which is taxed at the tax rate established as a percentage);
- value added tax (in the event that one of the parties to the transaction is an organization (individual entrepreneur) that is not (is not) a VAT taxpayer or exempt (released) from fulfilling the duties of a VAT taxpayer).
Check period
As part of the audit, the Federal Tax Service has the right check controlled transactions committed within a period not exceeding three calendar years preceding the year in which the decision to conduct an audit was made.
Time limit for the inspection
The term for conducting an audit is calculated from the day the decision to conduct it is made and until the day the certificate of such an audit is drawn up. The certificate is drawn up on the last day of the check (clause 8 of article 105.17 of the Tax Code of the Russian Federation).
As a general rule, the review period should not exceed six months. In exceptional cases, by decision of the head (deputy head) of the Federal Tax Service, the period may be extended. The grounds on which the verification period may be extended and the terms for the extension are given in Table 4.
Table 4
Grounds and terms for extending the verification of controlled transactions
|
No. p / p |
Grounds for extending the verification period |
The period for which the check can be extended, months |
|
Carrying out an audit in relation to an organization classified in accordance with Article 83 of the Tax Code of the Russian Federation as the largest taxpayer |
max 6 |
|
|
The occurrence of force majeure circumstances at the site of the inspection (flooding, flooding, fire, etc.) |
max 6 |
|
|
Non-submission by the taxpayer within the established time limit* of the documents required for the audit |
max 6 |
|
|
Obtaining information from foreign government bodies | ||
|
Conducting examinations and (or) translation into Russian of documents submitted by the taxpayer in a foreign language |
max 6 |
* 30 days from the date of receipt by the taxpayer of the requirement of the Federal Tax Service (clause 6 of article 105.17 of the Tax Code of the Russian Federation).
A copy of the decision to extend the inspection period (form according to KND 1165036, Appendix No. 2 to Order No. ММВ-7-13 / [email protected]) must be sent to the taxpayer within three working days from the date of its acceptance (can be handed in person or sent by mail).
Frequency of inspection
The Federal Tax Service cannot conduct two or more checks in relation to one controlled transaction(groups of homogeneous transactions) for the same calendar year. The exception is repeated audits carried out in the event that the taxpayer submits an updated tax return, which reflects the amount of tax in a smaller amount (the amount of loss in a larger amount) than previously declared in the tax return submitted in connection with the taxpayer's adjustment of the tax base and the amounts of relevant taxes (losses) (clause 6, article 105.3 of the Tax Code of the Russian Federation).
If, as a result of an audit of a taxpayer who is a party to a controlled transaction (group of homogeneous transactions), it was established that the conditions of the controlled transaction (group of homogeneous transactions) correspond to the conditions of transactions between persons who are not interdependent, the audit of taxpayers who are other parties to the specified transaction (group of homogeneous transactions), cannot be carried out.
At the same time, an audit in respect of a transaction made during a tax period does not prevent the conduct of on-site and (or) cameral tax audits, tax monitoring for the same tax period.
Carrying out an inspection
In the course of the audit, officials of the Federal Tax Service have the right to send to the taxpayer in the manner prescribed by paragraphs 1, 2 and 5 of Article 93 of the Tax Code of the Russian Federation, a requirement (form according to KND 1165013, Appendix No. 15 to Order No. MMV-7-2 of 08.05.2015 / [email protected]) on the submission of documentation (Article 105.15 of the Tax Code of the Russian Federation) in relation to the transaction being checked (group of homogeneous transactions). The required documentation must be submitted by the taxpayer within 30 working days from the date of receipt of the relevant request.
In the situation under consideration, documentation is understood as a set of documents or a single document drawn up by the taxpayer in any form and containing the following information:
1. On the activities of a taxpayer (persons) who has made a controlled transaction (a group of homogeneous transactions) related to this transaction:
- a list of persons (indicating the states and territories of which they are tax residents) with whom the controlled transaction was made, a description of the controlled transaction, its conditions, including a description of the pricing methodology (if any), the terms and conditions for making payments under this transaction, other information about the deal;
- information about the functions of the persons that are parties to the transaction (in the event that the taxpayer conducts a functional analysis), about the assets used by them associated with this controlled transaction, and about the economic (commercial) risks they take, which the taxpayer took into account when concluding it.
2. If the taxpayer uses the methods provided for in Chapter 14.3 of the Tax Code of the Russian Federation, the following information on the methods used:
- justification of the reasons for the choice and method of application of the method used;
- an indication of the sources of information used;
- calculation of the market price interval (profitability interval) for a controlled transaction with a description of the approach used to select comparable transactions;
- the amount of income (profit) received and (or) the amount of expenses incurred (losses incurred) as a result of the controlled transaction, profitability obtained;
- information about the economic benefit received from a controlled transaction by the person who made this transaction as a result of the acquisition of information, results of intellectual activity, rights to designations that individualize the enterprise, its products, works and services (company name, trademarks, service marks), and other exclusive rights (if applicable);
- information about other factors that influenced the price (profitability) applied in the controlled transaction, including information about the market strategy of the person who made the controlled transaction, if this market strategy influenced the price (profitability) used in this controlled transaction ( under relevant circumstances);
- adjustments made by the taxpayer to the tax base and amounts of tax (loss) in accordance with paragraph 6 of Article 105.3 of the Tax Code of the Russian Federation (if they are made).
At the same time, the more complex the transaction and the formation of its price, the more detailed the information submitted by the taxpayer to the tax authority should be.
The official conducting the inspection shall have the right to demand from the participants in the transactions being inspected documents (information) concerning (concerning) these transactions.
Information about the inspection
Certificate of inspection (form according to KND 1165040, Appendix No. 4 to Order No. ММВ-7-13 / [email protected]) is compiled by the inspectors on the last day of the inspection.
In the certificate, the subject of the audit and the timing of its implementation are recorded.
The certificate is handed over to the verified person against signature or sent by registered mail. If the certificate is sent by registered mail, the date of its delivery shall be the sixth day counting from the date of sending the registered letter.
Checking act
Inspection report (form according to KND 1165041, Appendix No. 5 to Order No. ММВ-7-13 / [email protected]) is compiled:
- in the event that the results of the audit revealed facts of deviation of the price applied in the transaction from the market price, which led to an underestimation of the amount of tax (overestimation of the amount of loss);
- within two months from the date of drawing up a certificate of inspection by authorized officials who conducted the inspection.
The Inspection Report is signed by the officials who conducted the inspection and the person in respect of whom such an inspection was carried out, or his representative. An appropriate entry is made in this Act about the refusal of the person in respect of whom the check was carried out, or his representative to sign the Check Report.
The act of inspection within five working days from the date of this Act must be handed over to the person being checked or his representative against receipt or transferred in another way, indicating the date of its receipt by the specified person (his representative). In the case of sending the Certificate of Inspection by registered mail, the date of delivery of this report shall be the sixth day counting from the date of sending the registered letter.
Objections to the Verification Act
If the taxpayer, in respect of whom the audit was carried out, does not agree with the facts set forth in the Audit Report, as well as with the conclusions and proposals of the auditors, then he or his representative has the right to submit written objections to the Federal Tax Service within 20 working days from the date of receipt of the Report, with an attachment documents (their certified copies) confirming the validity of the objections. These documents may be submitted not only simultaneously with objections, but also separately, within the period established for filing objections.
Consideration of the materials of the audit, as well as the adoption of a decision on the results of the audit, is carried out in a manner similar to the procedure for considering the materials of a tax audit (Article 101 of the Tax Code of the Russian Federation).
From the editor: With previous articles by A.A. Kulikova and E.V. Kulikova on the control measures of the Federal Tax Service, as well as materials on inspections of other supervisory authorities, can be found on the BUKH.1C website under the tag " ».