Since 2012, a new section V.1 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) entered into force, which specialists refer to as "Transfer pricing". Now the provisions of articles 20 and 40 of the Tax Code are applied exclusively to transactions, incomes and expenses, which were recognized until 2012. As for the innovations introduced in section V.1 of the Tax Code, many tax advisers, upon reading them, concluded that:
- Since 2012, most organizations and entrepreneurs may not be afraid of tax control of the market price of transactions, made after 2012;
- now a very large business under the price control, (the largest taxpayers and holdings) falls mainly;
- Only employees of the Federal Tax Service will check prices.
Meanwhile, in official explanations of the Ministry of Finance and the Federal Tax Service Russian Federation, there is a clear trace of the intention to check prices for any transactions that appear suspicious under on-site and cameral inspections.
in October 2012, the Ministry of Finance of Russia issued two clarifications on the procedure for conducting tax control in relation to controlled and other transactions between interdependent persons (Letters of 10/18/2012 N 03-01-18 / 8-145, of 26.10.2012 N 03-01- 18 / 8-149). The Federal Tax Service has brought this position to the territorial tax authorities, so that they used it in their work. (Letter of the Federal Tax Service of Russia dated 02.11.2012 N ЕД-4-3 / 18615).
For effectively fight with the manipulation of prices, officials provisionally identified two groups of transactions between interdependent persons.
The first category includes operations, recognized as controlled by the Tax Code Russian Federation (Article 105.14 of the Tax Code of the Russian Federation). The check the prices for such transactions is authorized only by the Federal Tax Service. While territorial inspections under a desk or on-site inspection are not entitled to exercise such control (Article 105.17 of the Tax Code of the Russian Federation). At the same time, in case of detection of a controlled transaction, they are obliged to notify the FTS about this (paragraph 6 of Article 105.16 of the Tax Code of the Russian Federation).
To the second group, the financiers referred to "other transactions between interdependent persons", against whom the inspectors were offered to inspect prices for transactions, that do not contain any signs of control established by the Tax Code of the Russian Federation under desk and on-site tax audits. Such an instruction means that any transaction made by taxpayers may be subject to verification provided that its parties are interdependent persons. To reveal the tax benefit, inspectors will analyze the price for its conformity to the market, including using the methods established by Chapter 14.3 of the Tax Code. If there is a discrepancy between the applied prices for transactions of interdependent persons from market prices, the tax authorities are entitled to sellers to charge additional taxes, based on market prices, and buyers are denied recognition of VAT expenses and deductions for these transactions in tax accounting.
Such actions of tax authorities will inevitably lead to disputes in which taxpayers already in court will have to prove their case, that in the absence of established judicial practice on this issue, is a factor that leads to greater tax risks for small and medium-sized businesses and contributes to the deterioration of the investment climate in the Russian Federation, as well as a decrease in business activity.
Meanwhile, we believe that the Finance Ministry and the Federal Tax Service Russian Federation, giving the above explanations, clearly abuse their rights and assign to the territorial tax authorities the power to control prices between all interdependent persons whom they have actually been deprived since 2012 with the entry into force of Federal Law No. 227 -FZ of July 18, 2011.
We will analyze the norms "On Transfer Pricing" introduced by Federal Law No. 227-FZ of July 18, 2011.
So, according to paragraph 2 of Art. 105.3 of the Tax Code of the Russian Federation, the definition for the purposes of taxation of the income (income, proceeds) of interdependent persons who are parties to a transaction that could have been received by these persons but were not received due to a difference in commercial and/or financial terms of the transaction from commercial and financial terms of the same transaction, to which the parties are persons, who are not recognized as interdependent, is made by the federal executive body authorized to control and supervise in the branch of taxes and fees, using methods according with Ch. 14.3 of the Tax Code.
According with paragraph 3 of Art. 105.3 of the Tax Code of the Russian Federation when determining the tax base, taking into account the price of the goods (work, services), the party to the transaction used for tax purposes, the price is recognized as market price, unless the federal executive body authorized to control and supervise the area of taxes and charges, has proven otherwise, or if the taxpayer hasn`t independently adjusted the amount of tax in accordance with paragraph 6 of this article. That is, the provision of paragraph 3 of Art. 105.3 of the Tax Code establishes the presumption that the price of the contract corresponds to the level of market prices and the possibility of proving the reverse is possible only by the Federal Tax Service of Russia, by conducting an independent audit.
In case of an underestimation of the amounts specified in art. 105.3 of the Tax Code of the Russian Federation by the federal executive body authorized to control and supervise taxes and levies, adjustments are made to the relevant tax bases (clause 5, Article 105.3 of the Tax Code of the Russian Federation).
In paragraph 1 of Art. 105.17 of the Tax Code of the Russian Federation contains the following provisions: "The verification of the completeness of the calculation and payment of taxes in connection with the transactions between interdependent persons is carried out by the federal executive body, authorized to control and supervise in the branch of taxes and fees at the place of its location, applied in controlled transactions, market prices, can`t be subject to exit and desk inspections. "
In result, we can draw the following conclusions:
1) It can`t be the subject of field and desk inspections, conducted by territorial tax authorities to control the compliance of prices applied between interdependent market persons;
2) Price control is conducted only for transactions that are recognized as controlled;
3) Price control can be subject only to an independent audit conducted by the federal executive body, authorized to control and supervise in the branch of taxes and fees.