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Правовое обеспечение налогового контроля при совершении сделок между
взаимозависимыми лицами в РФ
Legal framework for tax control in transactions between related parties in the Russian
Federation
Сизова Мария Олеговна
Студент 4 курса Факультет право
Национальный исследовательский университет Высшая школа экономики
Б. Трехсвятительский переулок, 3 e-mail: sizova. maria. olegovna@yandex. ru
Sizova Maria Olegovna
Student 4 term Faculty of law
National Research University Higher School of Economics
B. Trekhsvyatitelsky Lane, 3 e-mail: sizova. maria. olegovna@yandex. ru
Аннотация.
В современных условиях интеграции хозяйствующих субъектов в предпринимательской деятельности важным институтом, оказывающим позитивное воздействие и на экономику страны, и в тоже время создающим комфортные условия для развития предпринимательской деятельности является налоговое администрирование, в частности, контроль за трансфертным ценообразованием.
Annotation.
In the modern context of enterprises integration an important institution that has a positive impact on the country's economy and at the same time creates comfortable conditions for business development is tax administration, in particular, control over transfer pricing.
Ключевые слова: налоговое администрирование, налоговый контроль между взаимозависимыми организациями, контроль над трансфертным ценообразованием.
Key words: tax administration, tax control over companies, transfer pricing.
Presently, the intensification of entrepreneurial activities in the Russian Federation leads to the fact that it becomes increasingly difficult for tax authorities to exercise tax control over companies. Large holding companies manipulate the contract prices internally, trying to minimize the total profit, which leads to financial losses in the country's budget. According to estimates of the Accounts Chamber of the Russian Federation as at the end of 2018, the unaccounted turnover of tax revenues of 300 thousand commercial organizations amounted to RUB 4.24 trillion.
The purpose of the thesis is to comprehensively and fully consider the specifics, forms and methods of legal groundwork for tax control in transactions between related parties in the Russian Federation, to develop new approaches to improving the legal framework for tax administration in the field of transfer pricing.
The object of the research is the public relations arising in the course of tax audits.
The subject of the research is the current legislation of the Russian Federation, the doctrine, the judicial practice governing the legal groundwork for tax control in transactions between related parties in the Russian Federation.
International practice, Russian legislation, judicial practice and doctrine were analyzed for a comprehensive and complete study of tax control in transactions between related parties.
The main hypotheses are:
1) The concept of "related parties" is special in relation to the concept of "affiliated persons", "group of persons" and other concepts of economic connectivity.
2) The method of establishing price comparability is the complex, resource-intensive and time consuming process of economic analysis of market price ranges.
3) The institution of consolidated groups of taxpayers is an essential institution for creating an effective tax administration model.
Before considering the international experience, it is necessary to define transfer pricing. It should be noted that the concept of transfer pricing is not enshrined in the legislation of the Russian Federation, however, in foreign legal literature this concept has been studied by the following scientists: Jack Hirschleifer, Edwards, Benke, Eden L., Karl W., Eccles, Robert and others.
Transfer pricing should be understood as any suspicious, overestimated, underestimated prices comparatively to market prices, which are subject to control by tax authorities, in respect of which there is reason to believe that their value is determined by the parties to the transaction in a non-market way.
Let's pay attention to the Tax Code of the Russian Federation which enshrined the presumption stating that in the case of transfer pricing the market price between related parties establishing commercial or financial advantages is compared with the price of the transaction between non-related parties.
It should be noted that in the development of Section V. 1 of the Tax Code of the Russian Federation, the experience of the OECD Guidelines has been analyzed and taken into account. In these Guidelines the generally accepted international "arm's length principle" has been formulated, which should be understood to mean that financial and commercial relations between associated companies should be similar with the relations between non-related organizations. This principle is directly enshrined in Art. 105.5 of the Tax Code of the Russian Federation.
However, it is necessary to pay attention to the implementation of this principle in international practice. The negative effect of establishing price comparability is the complex, resource-intensive process of economic analysis of market price ranges. Vivid examples of this point of view are the legal disputes of Glaxo Smith Kline lasted from 1992 to 2006 with the result that only fourteen years afterwards the US court decided to charge USD 3.4 billion in additional tax, or General Electric Canada case where in the course of judicial proceedings 20 witnesses and 13 experts were involved.
According to the FATF-led "Money Laundering in Trade" Typologies Study, it has been established that the most common tax crimes in the Russian Federation are: manipulation of accounting documents and use of collusion between companies; issuing and using fake invoices; transfer pricing.
In terms of the integration of economic entities in the Russian Federation, a significant legislative problem arises in the field of determining economic dependence. Today, there are several related concepts in Russian legislation reflecting the dependence between each other, in particular, affiliates (Article 4 of the Federal Law "On Protection of Competition"), a group of people (Article 9 of the Federal Law "On Protection of Competition"), controlled and controlled entities (Article 2 of the Federal Law "On the Securities Market").
The main problem in the regulation of economic dependence is the lack of uniform legislative bases, as a result of which, in fact, similar concepts are designated and regulated in legislation in different ways. For example, the concepts: "main and subsidiary company" - in corporate law, "group of persons" - in antitrust laws, "affiliated persons" - in civil law, "interdependent persons" - in tax law.
The company is recognized as "dependent if another business company has more than 20% of the authorized capital of the first company". As discussed above, interdependent parties are recognized if the organization participates in the charter capital of another organization, and the share of such participation is more than 25%.
From the above examples, inconsistency can be traced: in one case interdependence can be established with a 20 percent participation share in another organization, and in another case with participation with a pain share of 25%. Thus, this example shows that the criteria for recognizing individuals as interdependent in each branch of law are different.
However, various criteria for determining economic dependence in branches of law do not contradict Art. 105.1 of the Tax Code. In this case, it is necessary to note that the court primarily determines the presence or absence of economic dependence between related parties, that is, determines the criteria of interdependence in accordance with paragraph 1 of Art. 105.1 of the Tax Code.
Thus, paragraph 7 of Art. 105.1 of the Russian Federation does not provide the court with a large scope for actions recognizing individuals as interdependent, since other criteria of economic dependence are additional signs proving the interdependence of persons.
The concept of "interdependent persons" is a special concept, since for the recognition of persons interdependent as an obligatory criterion is the establishment of economic dependence between related parties, which is defined by paragraph 1 of Art. 105.1 of the Tax Code of the Russian Federation, and only if this fact is proved, the court can use another related concept of economic dependence.
Thus, from the above studies it is necessary to conclude that the concept of "interdependent persons", fixed in the Tax Code of the Russian Federation, is a special concept in relation to other concepts governing economic dependence, which respectively are general concepts.
However, it is necessary to pay attention to the fact that in international practice, tax control between associated (interdependent) companies is a rather complicated and resource-intensive process, which consists in establishing the comparability of prices between interdependent and independent organizations. Vivid examples supporting this viewpoint are the lawsuits of Glaxo Smith Kl^ which lasted from 1992 to 2006, as a result of which, only fourteen years later, the US court decided on the additional charge of $ 3.4 billion in tax, or General Electric Canada, in During the process in which 20 witnesses were involved, 13 experts.
As a result of the study of legal groundwork for tax control in transactions between related parties, a significant legislative defect was found in the field of transfer pricing, i.e. the introduction of a moratorium on the actions of consolidated groups of taxpayers.
The purpose of the introduction of the institute of consolidated groups of taxpayers is to obtain a special tax payment regime. It is worth noting that the institute of consolidated groups of taxpayers did not take root in the Russian Federation; currently, the registration consolidated groups of taxpayers is temporarily suspended, which was caused by a decrease in the amount of revenues to the consolidated budgets of the constituent entities of the Russian Federation. The institute of consolidated groups of taxpayers has a huge amount of advantages, as a result of which it is necessary to modernize this institute with the help of foreign experience, however, today in the Russian Federation, unfortunately, there is an opinion about its liquidation in 2023.
It should be noted that the key advantage of creating consolidated groups of taxpayers for the state is the reduction in the use of tax evasion schemes through transfer pricing, as a result of which the state does not need to exercise complex, long-term control over related organizations. This advantage protects business entities against additional charge of tax, bringing to responsibility for underpricing. Consequently, the institution of consolidated groups of taxpayers has a huge amount of advantages both for the state and for legal entities; therefore, the thesis provides ways to modernize this institution. Among other things it is the ability of combining taxpayers in relation to VAT payment, the ability to create consolidated groups of taxpayers between non-residents of the Russian Federation, to place the consolidated groups of taxpayers under an obligation to enter into pricing agreement with regulatory agencies.
Список используемой литературы:
1. Tax Code of Russian Federation part 1 (2018).
2. OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations OECD Committee on Fiscal Affairs of 1979 (2012).
3. Port K. (2012). On Nontraditional Trademarks. Northern Kentucky Law Review.
4. Steeves C. (2018) Derivatives and financial instruments.
5. Hirshleifer J. (2011). Speculation and Equilibrium: Information, risk and markets.
6. Dispute of Glaxo Smith Kline [Electronic resource]. URL: http://www.irs.gov/uac/IRS-Accepts-Settiement-Offer-in-Largest-Transfer-Pricing-Dispute. (Accessed 31.03.2019).
7. Dispute of General Electric Canada [Electronic resource]. URL: http://online.ibfd.org/kbase. (Accessed 31.03.2019).
