Tax risks: is it possible to conclude transactions between “own” firms and individual entrepreneurs. Related persons and controlled transactions for tax purposes Transactions between related parties

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 required to notify the tax authorities about 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 of clause 2 of 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 domestic 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 for 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 it. Prior to its appearance, 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 claims, disputes arise and judicial practice begins to take shape. 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 persons and transactions between persons who are not related.

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 the 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 of the unified gas supply system. 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, according to the author, 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 contested 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 the controllability of 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 the boundaries of 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 a regional investment project applying a 0% income tax rate to the federal budget or a reduced income tax rate to the budget of a 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 of the 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 A27-5101 / 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 (taking into account the specifics provided for in this article)." But further by the norms of Art. 105.14 of the Tax Code of the Russian Federation, specifics in the form of requirements for the amount of income from transactions between related parties, in which one of the parties is not a tax resident of the Russian Federation, are not provided for in order to recognize such transactions as controlled.

In paragraph 4 of Art. 105.14 specifies 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 simultaneously the following requirements:

• organizations are registered in one constituent entity of the Russian Federation, do not have separate subdivisions in the territories of other constituent entities 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;
• do not have losses (including losses of past periods carried forward to future tax periods), which are taken into account 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 clause 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 of 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 by:

• 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, an 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 must be divided into smaller files using 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 inaccurate 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 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 of 09/02/2014 in case No. 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. an 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 that needs to be reflected in the notification. In particular, according to the Order, it is necessary to indicate the date of the transaction and the date of the contract. If a mistake is made, the tax authorities regard this 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 agreement (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.

In the Resolution of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case No. A27-5101 / 2015, the situation was considered when the organization sold coal to foreign buyers under a commission agreement and submitted a notification, filling it out differently from the one specified in the Letter of the Federal Tax Service of Russia dated April 18, 2014 ОА-4-13 / 7549, which, in turn, refers to the Letter of the Federal Tax Service of Russia dated 01.11.2013 No. ОА-4-13 / 19652 on the procedure for filling out the notification of controlled transactions.

The inspectorate fined the organization, believing that it had 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 has not been allocated from the total amount of the proceeds received by him. 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 inspectorate's decision was unlawful. 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 deliveries) are reflected in the notification. Taking this into account, in the opinion of the court, 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 details 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 dated 15.06.2015 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 the chief accountant.

See, for example, Resolution of the Arkhangelsk Regional Court dated 07.10.2015 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 to the Russian Federation if he has been repeatedly (two or more times) brought to administrative responsibility on the territory of the Russian Federation for committing an administrative offense in the territory of the Russian Federation.

Clause 4 of Art. 26 of the Federal Law of 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 submitted 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 inaccurate. 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 exempt 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 N 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 non-reflection of certain 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, as it sent an updated notification before drawing up an act 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 found by the tax authority in the notification (reflected in the notification inaccurate information). The judges pointed out 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 the later date of drawing up the 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 checking the timeliness of the taxpayer's submission of the notification, reflecting in it all controlled transactions, as well as the reliability of the information specified in this notification. At the same time, the territorial tax authority, within the framework of the 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 stated that the taxpayer is obliged to notify the tax authorities of the controlled transactions he has made in the 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 N 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 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, Obligatory for Application by 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 in effect for the relevant category of transactions in 2013, in connection with which he was obliged to submit the appropriate notification of controlled transactions, which was done.

The intermediary company had a total commission of 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.

The tax inspectorate, outside the framework of a cameral or field tax audit, 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 unlawful 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 clause 6 of Art. 105.16 of the Tax Code of the Russian Federation. The judges noted that this provision directly states the right of the tax authority to reveal the facts of controlled transactions, information about which was not provided, during an on-site or in-house 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 the funds received by the intermediary from the foreign final buyer belong to the principal, and not to 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 a commission agreement, agency agreement or other similar agreement is not taken into account when determining the tax base.

The court noted that according to 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 parties - 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 domestic 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. In this case, 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 completing 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 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 is in no way affected, 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 dated 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 an 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 forth in the Resolution of the Seventh Arbitration Court of Appeal dated 09.09.2015 in case No. A27-5101 / 2015.

Gratuitous transfer of goods to related organizations

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, the Interregional Inspectorate of the Federal Tax Service for the largest taxpayers checked the correctness of filling out 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 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 made the following conclusions:

• the inspection was not entitled 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 gratuitous transfer of goods to related parties, while the counterparties provided information on them in their notifications.

The interdependence of the persons to whom the goods were donated was not disputed by the society and was quite obvious. These were: Gazprom Mezhregiongaz Moscow LLC, Gazprom Mezhregiongaz Kazan CJSC, Gazprom Mezhregiongaz Yaroslavl LLC, Gazprom Mezhregiongaz Ulyanovsk LLC, Gazprom Mezhregiongaz Sever CJSC, Gazprom Mezhregiongaz Saratov LLC, Gazprom Mezhregiongaz Lipetsk LLC ".

The Court of Appeal agreed with the findings of the first instance court. In this case, the judges indicated the following.

Territorial tax authorities are not entitled to carry out 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 the place of 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 for tax control of the activities of interdependent persons on the basis of the submitted notification of controlled persons, which is attributed by 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 lawfully did not take into account the expenses incurred by it for the purpose of calculating income tax in accordance with the rule of clause 16 of Art. 270 of the Tax Code of the Russian Federation, according to which expenses in the form of the cost of property transferred free of charge and expenses associated with such 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 entailed the need to account for at least one party to such transactions income or expenses leading 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 regarding 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 in the course of 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 in 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 N A81-165 / 2015. Based on the results of an on-site audit of the company, the tax inspectorate charged him additional income tax on an interest-free loan issued to a related 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 of certain interest rates in the loan agreement. 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 must be made between related parties; secondly, the transaction must create or establish commercial or financial conditions that are different from those that would take place 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, conclusion of interest-free loan agreements is also 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 legality 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 concluded: 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 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 FTS, which is mandatory for lower tax authorities, can only be checked by the FTS itself, and not by the territorial tax inspectorate.

It follows from some court decisions that all transactions between interdependent persons, and not only controlled ones, without exception, 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: the Supreme Court has not yet expressed its opinion on this matter, and amendments may be made to the RF Tax Code.

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 for granting 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;
• transactions equated to them.

To answer the question under consideration, first of all, one should understand what subjects are recognized as interdependent.

Interdependent persons

Generally accepted criteria of interdependence for tax purposes are contained in the Tax Code of the Russian Federation. Here is 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 economic entities as such entails special tax control of interdependent persons in 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 withdrawal 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 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 run the risk of 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 is 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.
• the parties to the transactions are registered on the territory of our country, etc.

After completing the transaction in question, 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 by the tax office. It can be downloaded from the official website of the department.

The deadline for submission of the controlled transactions notification for 2015 is 20 May 2016. 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 program "1C: Accounting 8 CORP" version 3.0, we wrote in issue 4 (April) on page 16 "ACC.1C "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:
* The article by 1C experts "Controlled transactions: preparation of a notification for 2014 in" 1C: Accounting 8 CORP "(rev. 3.0)" can also be found on the website / articles / documents / 40751 /.

Controlled transaction legislation and notification

Controlled transactions for tax purposes are transactions between related parties, taking into account the provisions stipulated in Article 105.14 of the Tax Code of the Russian Federation, as well as transactions equivalent to them that meet the criteria listed in paragraph 1 of Article 105.14 of the Tax Code of the Russian Federation.

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 in Chapter 14.1. Tax Code of the Russian Federation.

IS 1C: ITS

All information about which persons are recognized as interdependent, and transactions are recognized as controlled, to what consequences the conclusion of such transactions can be found in the "Business Directory: Legal Aspects" in the "Legal Support" section at the link http: //its.1c. ru / db / bizlegsup # content: 18: hdoc.

According to clause 2 of Article 105.16 of the Tax Code of the Russian Federation, information on controlled transactions must be indicated in notifications of controlled transactions (hereinafter referred to as the Notification). Such notifications are sent by the taxpayer to the tax authority at the place of his 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 by by order of the Federal Tax Service of Russia dated July 27, 2012 No. ММВ-7-13 / [email protected]

Examples of preparation in 1C of a notification of controlled transactions for 2015

We remind you that a specialized subsystem for preparing a notification of controlled transactions, developed in "1C: Accounting 8 CORP" version 3.0, allows you to automatically fill in, check, print and upload the notification in electronic form.

In the program, for the convenience of using the specified subsystem, it is intended Assistant for preparing notification of controlled transactions(Further - Assistant), which is available via the hyperlink of the same name from the section Accounting, taxes, reporting(report group Controlled transactions). In the interface Taxi Access to Assistant carried out by the same name hyperlink from the section Reports(report group Controlled transactions).

When calculating the sum criterion for recognizing transactions as controlled in the 1C: Accounting 8 CORP software version 3.0, the features of transactions accounting were implemented in accordance with the letters and explanations of the Ministry of Finance of Russia and the Federal Tax Service of Russia.

These features include, for example, the return of goods of inadequate quality and adjustments to sales (receipts), the 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 base for income tax, etc. etc.

Let's consider what needs to be considered when preparing and filling out a notification in various situations (in all examples, the notification is filled in on behalf of the conditional organization OOO Konfetprom).

Example 1

The organization LLC "Confetprom" sold in 2015 the goods of the interdependent company LLC "Saturn" in the amount of 58 million rubles. (excluding VAT). LLC "Konfetprom" applies a general taxation system, LLC "Saturn" - a simplified taxation system. 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 notification 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 considered controlled if the amount of income from transactions between the specified parties for the relevant calendar year exceeds 60 million rubles. (Clause 4 Clause 2 and Clause 3 of Article 105.14 of the Tax Code of the Russian Federation).

The agreement on changing the price of the goods, concluded by the parties, is not an independent transaction, but makes changes to the original transaction for 2015, despite the fact that such an agreement was signed already in the next year, 2016. This conclusion is consistent with the clarifications set out in the letter of the Federal Tax Service of Russia dated October 26, 2012 No. ОА-4-13 / 18182 (answers to questions 10, 11 in this letter):

• the seller in accounting, when the value of the goods changes, must change the amount of proceeds. When completing Section 1B "Information on the subject of the transaction (group of homogeneous transactions)" of the Notification, the actual quantity of the goods and the changed price of the subject of the transaction are indicated, that is, taking into account the changes;
• the buyer in accounting when changing the value of the goods must change the purchase price of the goods. When completing 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 similar 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 about controlled transactions, then the Notification shows already adjusted data on the price and value;
• if changes in the quantity, price and value of the goods occurred after the end of the reporting period and after the presentation of the Notice, then an updated Notice is drawn up.

Therefore, the 2015 controlled transaction notice should include adjustments that occurred in 2016 but relate to 2015 shipments.

In order for the transactions with the related counterparty Saturn LLC to be correctly qualified during the preparation of the Notice, the program at the first stage Assistant for preparing notifications of controlled transactions it is necessary to fill in or check the correctness of filling in the information register Interdependent persons.

In the form of a register record element Interdependent persons for LLC Saturn, the following details must be specified:

• the date of the beginning of the application of the information specified in the register (if the value of at least one variable in the register is changed, it is necessary to create a new register record indicating the start date of such a change);
• type of interdependence;
• country of registration;
• information about the taxes paid and the applicable tax regimes. Since Saturn LLC applies the simplified taxation system, the flag Is a payer of income tax should be off.

Let us first consider how the program will generate the list of transactions and the Notification for 2015 until the moment when the parties entered into an additional agreement to change the price of the goods. At the first stage Assistant by button Create a list of deals based on document Implementation (act, invoice) with the interdependent counterparty Saturn LLC, accumulation register entries are automatically created for each line of the document ... The initial list of deals can be viewed by clicking on the hyperlink List of controlled transactions and pressing the button To shape.

If, however, to form a list taking into account the sum criteria at the third stage Assistant(hyperlink ), then the report will indicate that the transaction with LLC Saturn is not included in the notification (Fig. 1).

Rice. 1. The deal 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 of OOO Konfetprom must record the increase in revenue. This operation is registered in the program using the document Adjustment of implementation(with type of operation 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 changes and additions to the terms of the 2015 deal, you must return to the first stage Assistant and re-generate the accumulation register entries Controlled transactions of organizations... The deal with LLC Saturn is included in the updated list with the changed amount. Report Controlled trades to be included in the notification from the third stage Assistant will show that the transaction with LLC Saturn has now passed the sum 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 Adjustment of implementation differ, register entries Controlled transactions of organizations generated on the basis of these primary documents will be created on the date of implementation, 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. Entries of the accumulation register "Controlled transactions of organizations"

In our example, in the 2015 Notification, one sheet 1B will be created for a transaction in the amount of RUB 61 million. with the date of the transaction 12/20/2015.

Similarly (only in the direction of reducing the transaction amount) the program "1C: Accounting 8 CORP" version 3.0 works out the situation with discounts (bonuses / bonuses), as well as the situation with the return of goods, if the seller has fulfilled his obligations under the contract in an improper manner ...

If the return of the goods is due to another reason, then it is drawn up in a separate sale and purchase agreement, and then both sales transactions must be summed up when calculating the amount thresholds to determine the controllability of the transaction.

Example 2

Under the commission agreement, the organization OOO Confetprom (consignor) sold the goods to customers 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 consignor. The commission agent in his intermediary activity is only engaged in organizing the resale of the consignor's goods to the buyer (the buyer independently takes out the goods from the consignor's warehouse).

The conditions when transactions under intermediary agreements are recognized as controlled are set out in the explanations of the Federal Tax Service of Russia. For example, in a letter dated 26.10.2012 No. ОА-4-13 / 18182 (answer to questions 6, 7), the tax department reported that:

• transactions for the sale of commissioned goods are controlled when the principal and the buyer of the goods (final buyer) are interdependent persons;
• a transaction for payment of a commission is controlled if the principal and the commission agent are interdependent persons;
• a transaction for payment of a commission is controlled if the principal and the final buyer are interdependent persons, and the participation of an independent intermediary is formal (subparagraph 1 of paragraph 1 of article 105.14 of the Tax Code of the Russian Federation).

Let's analyze the list of interdependent persons that must be entered in the information register of the same name to fill out a notification under the terms of Example 2.

At first, it is the ultimate purchaser of Norway Outlines, which is an interdependent entity with respect to the consignor, OOO Konfetprom. In the card of an interdependent person in the field Dependency type Interdependent by Code(Clause 2 of Article 105.1 of the Tax Code of the Russian Federation). You also need to pay attention to the correct filling of the country of registration of the foreign counterparty (by default, the program offers the value RUSSIA).

Secondly, since the commission agent does not perform any additional functions, does not take any risks and does not use any assets to organize transactions between related parties, such a set of transactions is equated to transactions between related parties.

To the information register Interdependent persons it is necessary to make a record for the counterparty LLC "Deimos". In the card of an interdependent person in the field Dependency type select from the list and specify the value Non-interdependent intermediary(Clause 1.1 of Article 105.14 of the Tax Code of the Russian Federation).

At the first stage Assistant by button Create a list of deals based on documents of the type Sales report of the commission agent (agent) Accumulation register entries are automatically generated Controlled transactions of organizations.

The specified register is filled in both in relation to the transaction with the commission agent Deimos LLC (subject of the transaction - commission), and in relation to the transaction with the final buyer Norway Outlines (subject of the transaction - goods).

Both the interdependent foreign buyer and the commission agent equated to the interdependent person are included in the initial list of controlled transactions.

It is noteworthy that there are no sum 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 dated 29.08.2012 No. 03-01-18 / 6-115);
• foreign trade transactions between related parties are recognized as controlled according to the general rule, that is, 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 counterparties Norway Outlines and with OOO Deimos are included in the 2015 notice, despite the relatively small amounts (Fig. 4).

Rice. 4. Transactions with zero sum criterion

Example 3

In April 2015, OOO Konfetprom acquired a consignment of textile products from Druzhba, an independent foreign counterparty, 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 residence is a state or territory included by the Ministry of Finance of Russia in the List of countries with preferential taxation (offshore zones), then such a transaction is equated to transactions between related parties (clauses 3, p. 1 article 105.14 of the Tax Code of the Russian Federation). According to the List, approved. By order of the Ministry of Finance of Russia dated November 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 considered controlled if the amount of income from transactions with one person for a calendar year exceeds 60 million rubles. (Clause 3 Clause 1 and Clause 7 of 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 data, therefore information about such entities does not need to be entered into the register Interdependent persons, to no other register. The only condition is that you must correctly indicate the country of registration directly in the form of a directory element Contractors... By 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 cannot be recognized by the program as a transaction with a resident of an offshore zone.

Now let's analyze whether the transaction from Example 3 will overcome the sum threshold of 60 million rubles. The notification on controlled transactions contains sum indicators only in rubles, therefore, for operations in foreign currency or conventional units, the transaction amount must be determined in rubles according to the accounting rules. Figure 5 shows the analysis of account 60.21 "Settlements with suppliers and contractors (in foreign currency)" in the context of the counterparty "Druzhba". The generated report shows that the ruble amount of the goods at 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 rate differences calculated as a result of the revaluation of liabilities, the value of which is expressed in foreign currency, should not be taken into account when determining the amount criterion in order to recognize transactions as controlled (letter of the Ministry of Finance of Russia dated 09.07.2013 No. 03-01-18 / 26448).

At the first stage Assistant by button Create 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 you form a list 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. The transaction with a resident of the offshore zone did not pass the sum criterion

From the editor. On March 24, 1C: Lectures hosted a lecture “Transfer pricing: application practice, preparation of a notice of controlled transactions for 2015 in 1C: Enterprise 8” (V.I. Golishevsky, Federal Tax Service of Russia, and E.N. Kalinina, expert 1C ) - see the link

Starting from 01.01.2012 * Federal Law No. 227-FZ of 18.07.2011 “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Principles for Determining Prices for Tax Purposes” came into force.

* Some provisions of the law come into effect from 01.01.2014.

This law enacted Section V.1 of Part 1 of the Tax Code “Interdependent Persons. General provisions on 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 compliance of prices used in controlled transactions with 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 tax authorities about ongoing controlled transactions are described.

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 form via telecommunications 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.

When determining the mutual dependence of persons, the influence that may be exerted due to the participation of one person in the capital of other persons is taken into account.

For this, the agreement concluded between them and other possibilities of one person to influence the decisions made by other persons are analyzed.

In this case, 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 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 individual *, are 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.

1.4. If in organizations the same individuals * account for more than 50% (clause 6, clause 2, article 105.1 of the Tax Code of the Russian Federation):

• the composition of the collegial executive body,
• the board of directors (supervisory board).

* Together with its interdependent persons (subparagraph 11 of paragraph 2 of article 105.1 of the Tax Code of the Russian Federation):

• spouse or spouse,
• parents (including adoptive parents),
• children (including adopted children),
• full and not full brothers and sisters,
• guardians (trustees),
• wards.

1.5 If the powers of the sole executive body in organizations are exercised by the same person (clause 8, clause 2, article 105.1 of the Tax Code of the Russian Federation).

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 (subparagraph 4 of paragraph 2 of 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.

* Including an individual together with his / her interdependent persons (clause 11, clause 2, article 105.1 of the Tax Code of the Russian Federation):

• spouse or spouse,
• parents (including adoptive parents),
• children (including adopted children),
• full and not full brothers and sisters,
• guardians (trustees),
• wards.

3.2 If a person exercises the powers of its sole executive body (subparagraph 7 of paragraph 2 of article 105.1 of the Tax Code of the Russian Federation).

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 clause 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-blooded and not full-blooded brothers and sisters,
• guardian (custodian),
• ward.

TAXATION IN TRANSACTIONS BETWEEN INTERDEPENDENT PERSONS

In accordance with clause 1 of article 105.3 of the Tax Code, if transactions between related parties are established:

• commercial,
• financial,

conditions that differ from the conditions in comparable transactions between persons who are not interdependent, then any income that could have been received by one of these persons, but due to this difference was not received by him, are taken into account for tax purposes with this person.

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 budgetary 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. Tax on the profits of organizations.

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 (IE) 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;
• method of distribution of profits.

In accordance with clause 2 of article 105.7, it is allowed to use a combination of two or more methods.

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 for tax purposes the conformity of prices used in transactions with market prices.

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 of goods, if the characteristics of the final product (semi-finished products) do not differ significantly from the characteristics of the mixed goods.

The other three methods are allowed if the use of the comparable market price method:

• 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.

The method of comparable market prices is used to determine the correspondence of the price applied in the controlled transaction to the market price (in the manner prescribed by Article 105.9 of the Tax Code of the Russian Federation), if available on the relevant market:

• goods,
• works,
• services,

at least one comparable transaction, the subject of which is identical (in their absence - homogeneous) goods (works, services), as well as in the presence of sufficient information about such a transaction.

At the same time, in order 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,

of all parties and beneficiaries of which the Russian Federation is, is recognized as controlled (unless otherwise provided by clause 3, clause 4, clause 6 of article 105.14 of the Tax Code of the Russian Federation) if at least one of the following circumstances exists:

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.

2. One of the parties to the transaction * is a taxpayer of the mineral extraction tax, calculated at the tax rate established as a percentage, and the subject of the transaction is the extracted mineral that falls under this tax (clause 2 of clause 2 of article 105.14 of the Tax Code of the Russian Federation).

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 of clause 2 of article 105.14 of the Tax Code of the Russian Federation):

• taxation system for agricultural producers (unified agricultural tax),
• a taxation system in the form of UTII for certain types of activities (if the relevant transaction is concluded within the framework of such activities),

at the same time, among other persons who are parties to the specified transaction, there is a person who does not apply the specified special tax regimes.

* 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 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 a 0% tax rate to the tax base for the specified tax 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 indicated circumstances (subparagraph 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, the tax regime in which provides for special incentives 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 such a special economic zone (clause 5, clause 2, article 105.14 of the Tax Code of the Russian Federation).

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, performance of work, 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 assume 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.

Note:Regarding the recognition of transactions with taxpayers of the unified agricultural tax or UTII as controlled, the provisions of subparagraph 1 of paragraph 1 of Article 105.14 applied from 01.01.2014.

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.

3. Transactions, one of the parties to which is a person:

• place of registration,
• place of residence,
• place of tax residence,

which is the state or territory included in scroll states and territories, approved by the Order of the Ministry of Finance of 13.11.2007. No. 108n.

If the activity of a Russian organization forms a permanent establishment in a 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 considered 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).

NOTICE TO 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),

no later than May 20 of the year following the calendar year in which the controlled transactions were made.

In case of incomplete information, inaccuracies or errors in filling out the submitted notification on 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.

4. The amount of income received and the amount of expenses incurred (losses incurred) under controlled transactions with the allocation of income (expenses) for transactions, the prices of which are subject to regulation.

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, expert in accounting and taxation of the IA "Klerk.Ru"

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 in 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), concluded 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 specified in clause 2 of Article 105.14 of the Tax Code of the Russian Federation. 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 its products, 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 has 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 submit a notice on time, the 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 discover controlled transactions during the audit, they themselves will notify the Federal Tax Service of Russia about the revealed facts.

Controlled transactions notification form

The form of notification of 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 the controlled transactions were made is 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 Federal Tax Service 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 for 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 ).

The indicator "Code of the type of economic activity according to the OKVED classifier" of the title page of the Notification and paragraph 045 "Code of the subject of the transaction (code according to OKVED)" of Section 1B of the Notification 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.

Advice on filling out the notification was repeatedly given by the Federal Tax Service (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, inspectors often ask companies for clarification that they had no controlled transactions in the past calendar year. 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 of accounting in the context of counterparties. You can also complain about the lack of a license for the extraction of minerals.