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22IMPROVING THE EFFICIENCY OF CONTROL OVER TRANSFER PRICING IN THE RUSSIAN
FEDERATION
Krokhina Y.A.
Doctor of Law, Professor, Head of the Department of Legal Disciplines of the Higher School of State Audit
(faculty) Moscow State University named after Lomonosov
Abstract
Transfer pricing as an economic and legal phenomenon is currently one of the most discussed topics affecting a large number of aspects of legal regulation and currently Transfer pricing is one of the most serious and urgent problems of international taxation. The tax (fiscal) authorities have a priority task to find out whether the use of transfer prices in taxpayers' transactions does not lead to the minimization of tax liabilities. The article makes an attempt to appreciate the impact of international legislation on legislation and foreign experience on the tax legislation of Russia in the field of control over transfer pricing.
Keywords: transfer pricing; price control; tax control; minimization of taxes; international taxation.
Tax control of transfer pricing as an object of research is associated with the rapid growth of internationalization of production, globalization and the strengthening of the position of transnational companies that operate in several jurisdictions, have a complex corporate structure, and whose activities fall under the regulation of various legal systems. As researchers of tax and corporate law note, fiscal control over transfer pricing is necessary in a situation where a group of companies has the opportunity to register a parent (parent) organization in a state with the most favorable tax system (low-tax jurisdiction). In addition to the primary public goal of control over transfer pricing, an important role for a business entity - a taxpayer is played by understanding the rules and policies of transfer pricing as a factor determining the initial investment decisions of an enterprise.
The main reasons which formed the basis of the tax control TCI, this desire gov't rstv etc. edotvratit distortion of the tax base as a result of the random movement of multinational corporations taxable profits.
Despite more than five years of experience in the application of transfer pricing norms in the Russian Federation, the theoretical and regulatory framework is constantly being revised . The main for the purposes of control is not the legal form of the transaction, but its actual content (economic essence).
The efficiency of tax control of transfer pricing determines tax revenues to the budgets of the budgetary system and protects the movement of revenues to foreign jurisdictions [ 1 , p. 12 ] .
At the international level, transfer pricing issues are always associated with significant amounts of money , because national legislation, as a rule, sets thresholds of significance for recognizing transactions as controlled [ 2 , p. 40 ] . On the other hand, transfer pricing audits are complex, labor-intensive and require a lot of detailed information and functional analysis. In this connection , the amount of additional charges should cover the costs of tax control and administration . By warning light Dolj e n be effective.
By ak practice of application of laws on the transfer mu pricing, often taken to account the recommendation About RGANIZATION Economic Cooperation
and Development [ 6 , 35 ] . These recommendations were taken as a basis for writing Russian legislation on this issue.
The indirect impact of the new transfer pricing regulation is manifested in structural changes in holdings, including both a change in the "subordination" of organizations in the group, and the business model. Organizations are abandoning relationships with offshore jurisdictions and rebuilding cash flows in relationships with group companies. This is evidenced by the growth of participants in consolidated taxpayer groups and the interest of the largest taxpayers in pricing agreements for tax purposes.
The influence of the transfer pricing legislation on changing the business model by taxpayers is characteristic [ 4 , p. 71 ] , in which:
• revision (change) of the structure of relations within the group;
• conclusion of direct contractual obligations with the manufacturer , bypassing offshore;
• an increase in the number of organizations undergoing reorganization,
• the return of part of the assets from states with preferential terms for doing business;
• splitting the authorized capital of companies upon re-registration of owners;
• revision of price formulas in contracts between related parties;
• change in the structure of the production process .
It is relevant today that the OECD, within the framework of the project on reforming the international tax system, also known as the Base Erosion and Profit Shifting (BEPS) plan, completed work on revising the recommendations on transfer pricing.
The BEPS resolution plan covers 15 areas. OECD has made global changes to Chapters I, II, VI, VII, VIII of the Guidelines.
In Chapter I provides a number of amendments, the need to assess the actual fixing functions and risks of side deals. If the actual circumstances do not correspond to the terms of the agreement, the transaction may be re-qualified for tax purposes. That is, the doctrine of "being over form" (the concept of "substance over form") is enshrined.
Within the framework of Chapters I and VI of the OECD Guidelines, the procedure for determining the remuneration of financial companies that do not perform additional functions is regulated as a minimum . The reward may be based on a risk - free rate for the funding provided ( risk-free return).
At the same time, as the practice of applying transfer pricing laws shows, most often, the OECD Recommendations are also taken into account, which, as you can see, if you look at the relevant materials, were taken as the basis for writing Russian legislation on this issue.
A detailed analysis was devoted to transactions in intangible assets in Chapter VI of the OECD Guidelines. Significant changes are related to the concept of "economic owner" of an intangible asset. It is also determined that the profit from the use of an intangible asset should be distributed among the parties contributing to the creation of the value of the intangible asset. To assess the conformity of prices in transactions with intangible assets, it is proposed to use valuation methods, in particular, it is allowed to use income methods, for example, the discounted cash flow method (Discount cash flow - DCF) [ 3, p. 12 ].
Changes in transfer pricing methods related to the analysis of commodity transactions (Chapter II of the OECD Guidelines). It was pointed out directly to the possibility of using market quotes and, if necessary, adjusting the conditions, both increasing the value of the market indicator and decreasing it.
When using the profit distribution method, only those risks are assessed that are actually borne by the party to the transaction. An example is a financial company that performs the function of intragroup financing, which does not control financial risk, so its remuneration cannot exceed the risk-free rate of return.
The OECD points out that transactions involving commodities for determining sootvets tons Wii prices in the transaction market level is a priority method of comparable market prices. The possibility of using quotations from information-price agencies and exchanges is also directly defined. At the same time, in order to apply the method of comparable market prices, it is necessary to ensure the proper comparability of the market indicator. To bring the characteristics of the goods, terms of delivery and sale into a comparable form, it is necessary to make reasonable adjustments. In addition, it is important to correctly determine the date on which the market price level is determined.
The market indicator can be determined on the date of the transaction, that is, the transfer of ownership, if in the analyzed transaction the price is determined by the formula or with reference to the quote [3, p. 29 ] .
The definition of the concept of "groups of persons" is given through the prism of the material and / or legal relationship between such persons. Should be balanced communication of legal entities, which in turn are part of the group, to determine how and why the legislator separates the corresponding concepts (affiliated persons, groups, interdependent entity, international group of companies, and t . Etc. ).
In the case of the establishment of a fixed price in the analyzed contract market indicator to be determined
on the date of pricing, ie on the date preceding the date of the contract, an additional agreement, and so on . e. The procedure for determining the market price and making appropriate adjustments should be based on the analogy of the behavior of independent persons.
In Russia, the control work of transfer pricing consists in the formation of law enforcement practice in the main areas of the economy, fiscal industries - oil and oil products, ferrous and non-ferrous metals, as well as mineral fertilizers. All the checks carried out reinforce the approaches to analyzing the correspondence of prices in transactions, typical for all participants in the industry, to the market level. The generated analysis methodology applies to all industry players to identify risky transactions and a risk profile is developed to automatically detect price manipulation in transactions [5, p. 52 ].
Tax control of transfer pricing as an independent type of tax control is characterized by special procedures for this type of control, namely: timing, legislative restrictions on the number of checks, the right to conclude a pricing agreement, the right to symmetric adjustment .
It is necessary to evaluate in more detail the possibility of changing the legislation of the Russian Federation in order to improve tax regulation of transfer pricing, based on the reform of the international taxation system (BEPS Plan) [2 , p. 13 ].
To achieve the effectiveness of transfer pricing regulation in Russia, in addition to the importance of studying the international trend in the development of price control in transactions between related parties, it is necessary to analyze the directions of modernization and optimization of national legislation a .
Federal law from 26.12.2008 N 294-FZ "On protection of rights of legal entities and individual entrepreneurs during state control (supervision) and municipal control" approved the use of rice to- focused approach in the implementation of state control . This is necessary to reduce the hell m and trative expenses of the state and in order to optimize the load on the business structure .
The risk-based approach implies the differentiation of risks in accordance with their significance. The costs (labor, administrative, financial) for identifying and proving the risk should be cost-effective and dictated by the high risk hazard.
Within the framework of Law No. 294-FZ in Russia, the Action Plan of the Federal Tax Service of Russia was approved to introduce a risk-based approach in the implementation of control and supervisory activities.
The control work of transfer pricing is aimed at forming risk profiles . It is proposed to fix the figure k oriented approach in the implementation of tax control of transactions between related parties. The developed risk selection criteria will optimize labor and administrative resources for tax authorities, on the one hand, and provide timely documentation justifying the price level for taxpayers, on the other hand.
The R- claim-oriented approach allows you to identify risky transactions for in-depth analysis. At the same time, the identified deviations by means of risk
analysis do not always indicate manipulation of the transaction price, since they can be caused by special characteristics and conditions of the transaction. The tax authorities and taxpayers in relation to the risk transactions selected using the criteria should conduct a functional analysis, analyze the risks carried out by the parties, study the business model and features of economic relations in a group of interdependent persons.
To develop risk selection criteria , it is necessary to study the existing approaches to the analysis of financial and economic results of companies' activities. The OECD proposes two types of approaches that are opposite to each other :
• "bottom up". The analysis is based on a detailed study of the features of the terms of the transaction, influencing and depending on it other financial flows between counterparties, as well as changes in the aggregate tax base due to the tax benefits provided by the territory of registration of the parties to the transaction;
• "top to bottom" . The analysis is based on determining the group's total profitability, the share of profitability that each area of the group's activities brings. The comparison of the profitability of the party to the transaction with the indicators identified for the group is carried out. The impact of tax preferences in the territory of registration of a party to the transaction is assessed . If there are deviations from the group-wide indicators and indicators of comparable organizations, a decision is made to check the transfer pricing.
The source of information on controlled transactions in the Russian Federation is the notification on controlled transactions. Taxpayers are required to report on transactions completed in a calendar year that meet the criteria for controlled transactions.
The basis for control is the notification of controlled transactions submitted by the taxpayer or the notification of the territorial tax authority. A notification is drawn up if the territorial tax authority has identified a controlled transaction that was not declared in the notification by the taxpayer himself. Unreported transactions can be established within the framework of ongoing field and cameral tax audits, tax monitoring or repeated audits of higher tax authorities.
The territorial tax authorities verify the completeness and reliability of the information reflected in the notifications of controlled transactions. Thus, having all the information about the activities of the taxpayer, based on the data of the customs authorities and currency control, the tax authorities identify transactions that meet the criteria of controlled ones. It is proposed to form a risk-based approach by grouping controlled transactions in two directions:
1) Foreign economic transactions, that is, transactions of which the parties are persons registered in different jurisdictions.
2) Internal Russian transactions, the parties to which are Russian taxpayers.
In accordance with the specified grouping, the criteria for risk a are established .
For the first group, the risk of using transfer prices is significant for the budget of the Russian Federation, since it is possible to move profits abroad [ 5 , p. 46 ]:
- transactions with offshore jurisdictions, which are equivalent to transactions between related parties. Since preferential taxation is provided in offshore zones, and there is no exchange of information at the request of a foreign tax authority, transactions with counterparties from such zones are subject to primary analysis as highly risky;
- transactions with non-classical offshore companies. These territories are not equated to transactions between related parties, that is, there is no special provision for control for them, and therefore, counterparties from such countries are often used for business optimization schemes;
- transactions with goods of the world exchange trade. D To such goods are published quotes of market prices information and pricing agencies or exchange, so analyze the transaction can be in semi-automatic mode. For a commodity country, risk analysis is very important and will allow you to analyze a large volume of controlled transactions.
- with q tree with intangible assets . Transactions with intangible assets are very complex, complex, and therefore, the terms of the agreement may actually not coincide with the functions and risks of the parties to the transaction. Otsuts t Wie market indicators also allows you to manipulate the price of the transaction with intangible assets . In this connection, for the purpose of risk analysis serves decree and nnye transaction analyze, based on the level of profitability of the organization.
- with Delco claim p edostavleniyu (attract) in cash - loans.
The risk criterion is that the loan rate does not correspond to the interest rate intervals provided for in Article 269 of the Tax Code of the Russian Federation. For corporate income tax purposes, the actual interest rate on loans is recognized as a reasonable expense if it falls within the established intervals.
- transactions in which the counterparty, a Russian taxpayer, has been unprofitable for several years. The main purpose of commercial activity is to make a profit. In the case when a taxpayer carries out foreign trade operations, the amount of expenses is greater than or equal to the proceeds for several years, it becomes necessary to verify the purpose of carrying out activities and prevent the formation of a cost center in the territory of the Russian Federation.
For the second group, the risk of applying transfer prices is subject to analysis based on the understatement of the amount of tax paid to the consolidated budget of the Russian Federation. Profit transfer between the budgets of the constituent entities of the Russian Federation is not considered as a risk criterion:
- one of the parties to transactions is an unprofitable taxpayer. When assessing losses, it is necessary to take into account the losses of previous years carried forward to future tax periods.
- on the bottom of the parties to the transactions applies a reduced rate of corporate income tax. When assessing this criterion, it is necessary to take into account exemptions from taxation on income tax, special tax territories, as well as the right of the constituent
entities of the Russian Federation to lower the regional part of the income tax rate;
- transactions recognized as controlled according to special tax rules .
Thus, careful control over prices in controlled transactions, both past and future, is necessary to optimize the risks associated with the possibility of additional tax charges, as well as penalties and corresponding fines during audits carried out by tax authorities. In Russia, the current stage of regulation of tax control of transfer pricing can be called a generalization of the experience of legal regulation formed during the 20th century and which made it possible to develop the most acceptable forms of tax control that ensure the balance of private and public interests.
References
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