Features of transfer pricing. What is transfer pricing? Transfer pricing methods in the Russian Federation

The concept of transfer pricing appeared at the beginning of the twentieth century in the conditions of the formation of market relations.

History of origin

With the development of capitalism, general approaches to determining the final value of a transaction were gradually developed. At a time when the general growth of companies and their entry into international markets was reflected in the active formation of corporations and holdings, certain rules were developed, and such a concept as transfer pricing appeared.

The first country that, back in the middle of the last century, managed to consolidate the main provisions of this process at the legislative level was the United States. Many states, including Russia, much later consolidated their transfer pricing standards, based on the experience of the United States. In our country, this concept received its development after the collapse of the USSR, namely with the advent of market relations in the economy in the nineties of the twentieth century.

What does transfer pricing mean?

This concept represents the most optimal system for minimizing the tax burden. Moreover, it is used not only by large taxpayers, but also by representatives of medium and small businesses.

In conditions of market relations between counterparties, payment for goods, works and services is carried out within the framework of contracts at market prices. But this doesn't always happen. To optimize taxation, some counterparties set their own internal (transfer) prices, which helps to significantly save on taxes.

Any type of economic activity is aimed at making a profit, that is, at enrichment. By acting within the law, companies strive to gain even greater profits by reducing the tax burden.

The concept of transfer price

This is a price formed according to subjective characteristics, which allows you to manage and redistribute both income and expenses of “connected” counterparties. It can be used within dependent companies, such as holdings and corporations, as well as between branches and structural divisions within a company.

Features of transfer pricing in the Russian Federation

Various “transfer” pricing schemes, of course, do not suit the state, whose main function is to collect taxes for the budget. Therefore, in order to implement proper control, a Federal Law was adopted (No. 227-FZ dated July 18, 2011), regulating this process, which came into force on January 1, 2012 (as amended on April 5, 2013), and Section V.1 of the Tax Code of the Russian Federation. They reveal the basic concept within the framework of controlled transfer pricing transactions in the Russian Federation.

• The market price comparability method is traditional and is based on gross profit. Due to the fact that a unified position of tax authorities and taxpayers has not yet been developed on what prices should be taken into account, constant disputes arise. Judicial practice on this issue is also heterogeneous. Before you start using it, you need to analyze the prices within the company with similar prices among unrelated parties.
• The cost method of pricing is carried out taking into account costs. The profitability value must be within a certain interval, then the price will be recognized as market price by the regulatory authorities. If the value is set beyond the minimum, then the price will be calculated based on actual costs, subject to the profitability of costs at the lowest value of the interval.
• The resale method is based on a comparison of gross margins within the market interval resulting from resale.
• The comparable profitability method means comparing operating profitability taking into account the market interval.
• Profit distribution method. The profit received is compared and distributed among all participants in the transaction in proportion to: contribution to the total profit, distribution of profitability and distribution between the parties. Combining methods is allowed.

Types of companies covered by Federal Law No. 227

Within the framework of current legislation, the following types of companies can be distinguished:

• Organizations that have a direct connection, that is, interdependent, which can affect not only the result, but also the process of activity itself.
• Organizations carrying out transactions that are considered interdependent. This includes formal intermediaries, transactions on exchanges and transactions with non-residents.

Purposes of using transfer prices

The main goals of transfer pricing are to move the taxable base with the help of affiliates to companies registered in areas with the most favorable tax regime. This procedure can be carried out by changing the transaction price.

With the development of production, the emergence of large taxpayers and their access to the international level, transfer pricing has become relevant.

From the point of view of the regulatory authority, the objectives are aimed at the following:

• preventing the use of transfer prices for tax evasion;
• countering their use for the purpose of transferring money outside the country.

Objectives of transfer pricing

The peculiarity of the development of such prices lies in the unified approach of the management team and is somewhat different from the usual price formation.

The following tasks are performed:

These transactions do not apply to property rights, intellectual activity and information. The object of control is goods, works, services. Such operations exist in order to optimize taxation from the point of view of replenishment of the budget.

Features of taxation

Transfer pricing taxation has certain properties. If the actual price in a transaction does not correspond to the market parameters, then, in accordance with the legislation of the Russian Federation, the taxpayer has the right to independently determine its size. The main thing is that such calculations do not entail underestimation of taxes or increased costs. This will naturally arouse interest from the inspection authorities. If an error is discovered, the taxpayer must make the necessary adjustments, submit a clarifying tax return with the obligatory attachment of an explanation, on the basis of which a specific transaction can be identified.

Transfer pricing and tax control

Every year, before May 20, organizations are required to report to the tax office by submitting a corresponding notification, which must contain detailed information about all transactions that have controlled status. All parties to the transaction are required to submit this notification. Thus, double control is carried out. Inspection authorities can independently verify the existence of such transactions.

To exercise control on the part of tax authorities, the very fact of a transaction that falls under the controlled status is sufficient. The main purpose of this check is to identify compliance or non-compliance with the level of market prices when carrying out a transaction.

Entering the international market

International transfer pricing received active development in the 60s of the last century. Some of the largest companies with transnational status have developed a more subtle and civilized way of “robbing” the former colonial states, which by this period had gained their independence. Prices for purchasing raw materials in these countries were deliberately low.

In the global economy, generally accepted international principles, documents, and manuals have been developed. They are advisory in nature and help resolve many issues in the field of transfer pricing.

Each country has the right to independently determine the control and adjustment of transfer prices. Moreover, the fact becomes quite obvious when the process of adjusting the above prices of the inspected company is carried out by the regulatory authorities of two countries (based on the submitted reports). If such procedures are not followed, the controlled organization finds itself in a situation of double taxation. According to the legislation of the Russian Federation, the competent authorities can do the following:

In this situation, it is important to provide assistance in the procedure for adjusting the transfer price between regulatory authorities of different countries. For any state in the international arena, the priority is the profitability of its own budget. Therefore, the question arises: how ready are countries to cooperate in the process of forming transfer pricing?

Recently, there has been a tendency for inspection bodies to intervene in the transfer process. Such actions by tax authorities provoke transfer pricing risks, which:

• increase the costs associated with carrying out the counter-controlling functions of the authorities;
• may provoke the risk of double taxation;
• embroiled in litigation and costs;
• will suffer financial losses if adjustments are made at the initiative of another state.

In general, the emerging trends of attention from fiscal authorities have developed certain regulatory mechanisms, thanks to which it is possible not only to increase budget revenues, but also to strengthen the tax system in the country.

Transfer pricing in production. What to consider in the new transfer pricing rules (Volovik E.)

Article posted date: 10/18/2017

A new edition of the Organization for Economic Co-operation and Development (OECD) Transfer Pricing Guidelines and the OECD/G20 Base Erosion and Profit Shifting (BEPS) Program has been released. The document gave rise to global changes in the field of control over international financial transactions. Taxpayers now need to be much more careful in preparing documentation accompanying foreign economic transactions, in particular pricing documentation.

All over the world, transfer pricing audits are actively used by tax authorities to mobilize additional funds into government budgets. Serious disputes with tax authorities regarding transfer pricing can arise in international organizations engaged in production activities. Let us pay attention to issues related to the adoption of the new edition of the Transfer Pricing Guidelines and the BEPS Program.

What type of production are you involved in?

Any production structure is usually classified into one of the following standard categories: tolling, contract or full-fledged, that is, owning valuable intangible assets or having received them under a license. This classification is closely related to the assets, functions and risks of the manufacturing enterprise. The revised OECD Transfer Pricing Guidelines have significantly increased the room for tax authorities to challenge the specific category into which a manufacturing enterprise is classified depending on the business conduct of the relevant parties.
Gone are the days when a contract, which was usually considered the main document when dealing with situations with third parties (for example, a tolling agreement), remained immune to questions from the tax authorities. In the new BEPS-regulated world, everything depends on what is actually done “on the ground,” as they say. If, under the contract, the enterprise is a conventional manufacturer of intermediate products and is supposed to be remunerated on the basis of the added value created, then it is very important that the functions it performs are consistent with the contractual agreement. Particular attention should be paid to functions that relate to the control and supervision of major operational risks, as well as the development of new processes and products. Going by logic or expediency alone can result in unwanted and costly tax consequences if the nature of the production activity does not comply with the contractual relationship. The business may need to consider reviewing contracts and related transfer pricing arrangements.

Are product liability risks properly compensated?

Product liability risks have a significant impact on production linkages between parties (the value chain), for example in the automotive or mobile phone industries. In the supply chain, the manufacturer's role in managing product liability risks is critical. Remuneration for performing these functions should be distributed according to the arm's length principle. In a situation of unaffiliated parties, only the party that controls these risks can assume the risks of liability for the product. For this, it usually receives a reward. The solution to the problem is that Which party in an international group performs functions relevant to product liability risks (and therefore should be remunerated accordingly) can be tricky.
Managing product liability risks may require functions such as quality control of raw materials, implementation of rigorous testing procedures, and so on. It is not always easy to determine which party is responsible for a specific outcome or end goal, and which party is simply receiving advice or information about important functions associated with product liability risks. With the adoption of the new OECD Guidelines, the importance of conducting a RACI analysis of the functions, assets and threats associated with product liability risks has increased, as the results of this analysis provide the basis for compensating parties for taking risks.

Note. 4 key roles in each project or RACI matrix
The reason for project failure is often the incorrect distribution of functions between team members. Then, at the slightest difficulty, participants begin to look for those to blame and shift responsibility onto each other, instead of solving the problem. In such situations, the RACI matrix will help out - a simple and effective human resource planning tool. According to this methodology, regardless of the complexity and volume of work, a team member of any project performs one of four roles:
R - responsible - responsible;
A - accountable - accountable;
C - being consulted - being consulted;
I - being informed - informed.

Who owns valuable intangible assets

The production of goods often involves a range of valuable intangible assets. From a legal perspective, they may be owned by a production plant or other legal entity, and depending on the type of production plant, royalties or other payments may (or may not) be required. In addition, intangible assets may be patents or other registered intellectual property, they may represent trade secrets, know-how, or other items that can only be identified through detailed functional analysis. The starting point in determining the entity within a group of companies to which the “profit” attributable to intangible assets should be attributed remains the ownership of the intangible assets.
However, the analysis of the situation when attributing profit to a specific enterprise should not be limited only to the study of property rights. In this case, it is necessary to analyze which legal entities perform the so-called DEMPE - functions related to intangible objects.
Where DEMPE functions diverge from ownership rights, the entity may need to adjust its transfer pricing policies. A particular area of ​​focus for tax authorities is the performance of DEMPE functions by manufacturing plants that are expected to carry out routine, low-risk operations (manufacturers of intermediate products and subcontractors). If such entities are found to perform DEMPE functions or engage in related activities, and if these parties are involved in the creation of an intangible asset or value, then tax authorities often question the appropriateness of the relevant transfer pricing policies.

Note. D - Development - development function;
E - Enhancement - enhancement function;
M - Maintenance - maintenance function;
P - Protection - protection function;
E - Exploitation - exploitation function.

What to do with difficult to value intangible assets

The OECD defines hard-to-value intangible assets as assets for which, at the time of the transaction between affiliated enterprises, there were no reliable analogues. Or there were no reliable forecasts of the cash flows or income expected from the transfer of the asset. Also, the assumptions made in valuing the asset could be subject to great uncertainty. To assess the validity of the taxpayer's ex-ante pricing methodology in such a situation, the OECD recommends that tax authorities use the so-called ex-post "evidence" approach.
The taxpayer will be able to challenge the result of the tax authorities applying this approach if they prove the reliability of the data they used to set the price. In particular, the retrospective approach will not work if:
- the taxpayer will provide detailed data regarding price forecasts and risk accounting;
- the taxpayer will prove that any significant differences between the financial forecast and the actual result arose due to unforeseen or exceptional events that could not be foreseen at the time the prices were set;
- intangible assets are transferred by a bilateral or multilateral pricing agreement;
- the taxpayer will provide indisputable evidence of an analysis of alternative pricing schemes in order to take into account possible significant deviations from the forecast at the time of the transaction.

How should the benefits of centralized purchasing activities be shared among group parties?

Centralization of purchasing activities has become common practice in international groups. It is believed that centralization can create significant additional group value through lower prices for bulk purchases, improved management of the supplier network, increased efficiency, etc. The OECD Transfer Pricing Guidelines provide new rules for sharing the benefits associated with centralizing procurement activities.
The discussion on this issue did not arise today, but it is important that the tax authorities treat this area with increased attention. Therefore, international groups must exercise caution in ongoing procurement activities where savings are achieved primarily through purchasing volumes. It may be that the benefits arising from bulk purchasing must be distributed among production subsidiaries based on their payment obligations.
It may not be appropriate to allocate rewards to centralized purchasing organizations based on their share of purchases. In fact, their remuneration should be based on an adequate examination of functions, assets and risks (functional analysis) and an economic benchmarking analysis that reflects the functional profile of the enterprise.

What level of certainty can be achieved in relations with the tax service?

Transfer pricing is known to be an area of ​​uncertainty for businesses, and BEPS procedures generally increase tax authorities' awareness and guidance in this area. Disputes with tax authorities regarding transfer pricing can result in significant expenditure of time and money for the taxpayer, as well as double taxation. The first step to avoiding these disputes is to control the contractual arrangements.
They need to accurately reflect the taxpayer's actual behavior "on the ground." It is especially important to have reliable transfer pricing documentation that demonstrates the position taken by the international group. Unfortunately, the arm's length principle can be interpreted broadly and there is no guarantee that the local tax authority will accept it. The only way to achieve certainty regarding transfer pricing arrangements in the "new tax environment" is to enter into an advance agreement on pricing for tax purposes with the tax authorities of one or more countries.In many countries, there has been an increase in the number of advance pricing agreements entered into by international groups as a way for businesses to reduce high levels of uncertainty and increase transparency in their dealings with tax authorities.

1. Analyze enforcement trends in each country where the transnational group operates. The situation is constantly changing as the BEPS project develops.
2. Study the recommendations of relevant international organizations. They will clarify the basic requirements and alleviate the plight of taxpayers and tax authorities.
This summer, the OECD released a new edition of its guidance (a lengthy book of 612 pages) on transfer pricing. The 2017 edition contains changes that occurred during the BEPS project. This may include adjustments to BEPS reporting under Actions 8 to 10 in relation to transfer pricing reconciliation and value creation, and in Action 13 in relation to transfer pricing documentation and country reporting. Section IV adjusts the “safe harbor” provisions. This is a set of rules and requirements. If transactions meet these requirements, then their prices are automatically recognized as market prices. The advantages of a safe harbor approach to transfer pricing are obvious:
- simplification of procedures for taxpayers and tax authorities;
- increasing the certainty of law enforcement;
- reducing the administrative burden during inspections.
In June of this year, the OECD, UN, IMF and World Bank published the results of their joint project, created to help developing economies solve the problem of the lack of “analogues”. Lack of information on analogues is a common problem in countries with emerging markets that arises when implementing transfer pricing regimes. In fact, the document goes beyond solely the actions of the taxpayer in the absence of data on analogues, since it aims to assist in the practical implementation of the transfer pricing regime and the principle of lack of interest, taking into account the realities of many emerging markets.
The OECD, UN, IMF and WB document (237 pages) is entitled "A Toolkit for Addressing Difficulties in Accessing Comparables Data for Transfer Pricing Analyses." It consists of 4 parts:
Part I - an introduction to dealing with the difficulties of analyzing price comparability;
Part II - outlines the problems that arise during comparability analysis;
Part III - approaches to the application of recognized international principles;
Part IV - conclusion and recommendations for further work, examples.
It is planned to release other sets of tools, including transfer pricing.

The material was provided by the corporate publication for clients of the IRBiS Group of Companies “System of Success”

Since 2012, the Federal Law of July 18, 2011 N 227-FZ “On amendments to certain legislative acts of the Russian Federation in connection with improving the principles of determining prices for tax purposes” (hereinafter referred to as Law N 227-FZ) has come into force, which introduces significant amendments to the procedure for regulating the taxation of prices on transactions between interdependent and equivalent entities.

Currently, the criteria for interdependence for tax purposes and the principles for determining market prices are regulated by the provisions of Articles 20 and 40 of the Tax Code of the Russian Federation. The specified norms will continue to be applied for tax purposes on transactions, income and expenses for which must be recognized in accordance with Chapter 25 of the Tax Code of the Russian Federation until 2012.

As for the new rules, they will apply to transactions, income or expenses for which must be recognized in tax accounting starting from 2012, while the dates of conclusion of agreements on these transactions do not matter (clause 5 of Article 4 of Law No. 227-FZ ).

Law N 227-FZ supplements the Tax Code of the Russian Federation with a new section V.1., which will include six chapters: “Interdependent persons”, “General provisions on prices and taxation”, “Methods used in determining income for tax purposes (profits, revenue) in transactions the parties to which are interdependent persons”, “Controlled transactions. Preparation and submission of documentation for tax control purposes. Notification of controlled transactions”, “Tax control in connection with transactions between related parties”, “Pricing agreement”.

As stated in the “Main Directions of Tax Policy of the Russian Federation for 2012 and for the Planning Period of 2013 and 2014,” Law No. 227-FZ is aimed, “on the one hand, at effectively countering the use of transfer prices in transactions between organizations operating in jurisdictions with different tax regimes, for the purpose of tax evasion. On the other hand, there should be no obstacles created for the activities of bona fide taxpayers on the territory of the Russian Federation, including large holding companies.”

Thus, the commented amendments establish the regulation of transfer pricing according to the “arm’s length principle”, generally accepted in world practice. According to this principle, for tax purposes, the value of prices (payments) for transactions between interdependent and equivalent persons is recalculated back to market values, as if the companies were independent.

In our article we will consider which transactions will fall under the control of the tax authorities, which persons will be recognized as interdependent for tax purposes, how the tax authority will exercise control over transfer pricing and what adverse consequences may occur for taxpayers if they do not comply with the norms of the Tax Code of the Russian Federation, which will come into force next year.

1. Controlled transactions

The concept of a “controlled transaction” is new to the Tax Code of the Russian Federation and is introduced by the commented Law No. 227-FZ.

In accordance with Art. 105.14. The Tax Code of the Russian Federation recognizes controlled transactions as transactions between related parties (taking into account the specifics provided for in this article).

In other words, a “controlled transaction” is a transaction that the tax authorities have the right to check to ensure that the price of the transaction itself corresponds to the market price.

1.1.Types of controlled transactions

Law No. 227-FZ establishes four types of controlled transactions:

1. transactions between related parties (this type of transaction will be discussed in more detail in the next section).

2. transactions for the sale of goods (works, services) that are carried out with the participation of third parties who are not interdependent parties, however, the following conditions must be met:

a. these third parties do not perform any additional functions in this set of transactions, with the exception of organizing the sale (resale) of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person;

b. do not assume any risks and do not use any assets to organize the sale (resale) of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person.

3. transactions in the field of foreign trade in goods of world exchange trade: oil and petroleum products, ferrous and non-ferrous metals, mineral fertilizers, precious metals and precious stones;

4. transactions between Russian organizations (foreign organizations - through their permanent representative offices in the Russian Federation, individuals who are tax residents of the Russian Federation) and persons whose location (place of residence) is offshore zones. Currently, the list of offshore zones is approved by Order of the Ministry of Finance of Russia dated November 13, 2007 N 108n.

Please note that transactions under paragraphs 3 and 4 of this article are considered controlled only if their annual income is more than 60 million rubles. (clause 7 of article 105.14 of the Tax Code of the Russian Federation).

In addition, with regard to transactions between related parties, such transactions are considered controlled if at least one of the following conditions is met:

- at least one of the parties to the transaction is a resident of the SEZ, the tax regime in which provides special benefits for corporate income tax (compared to the general tax regime in the corresponding constituent entity of the Russian Federation), while the other party (other parties) to the transaction is not (are not) ) a resident of such a SEZ (this condition comes into force from 01/01/2014).

- the amount of income from transactions for a calendar year exceeds 1 billion rubles. Income for 2012 should be above 3 billion rubles, and for 2013 - 2 billion rubles. (Clause 3 of Article 4 of Law No. 227-FZ);

- one of the parties to the transaction is a payer of the mineral extraction tax, calculated at a percentage tax rate, the subject of the transaction is the extracted mineral resource, which is recognized for the specified party to the transaction as an object of taxation of the mineral extraction tax, the extraction of which is taxed at a tax rate established as a percentage;

- at least one of the parties to the transaction applies the unified agricultural tax or UTII (if the corresponding transaction was concluded as part of such an activity), while among the other persons who are parties to the specified transaction, there is a person who does not apply the specified special tax regimes. The transaction amount must exceed 100 million rubles. (paragraph 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 corporate income tax payer or applies a 0% tax rate to the tax base for the specified tax, while the other party (other parties) to the transaction is not exempt from these obligations and does not apply ( do not apply) a 0% tax rate in the specified circumstances.

The last three types of transactions will be controlled if the total amount of income from them for the year exceeds 60 million rubles. (Clause 3 of Article 105.14 of the Tax Code of the Russian Federation).

Draw your attention to! 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 the calendar year, taking into account the procedure for recognizing income established by Chapter. 25 of the Tax Code of the Russian Federation (clause 9 of Article 105.14 of the Tax Code of the Russian Federation).

1.2. "Uncontrolled" transactions

The legislator has determined a closed list of transactions that are not controlled (see paragraph 4 of Article 104.14 of the Tax Code of the Russian Federation). These include:

a) transactions the parties to which are participants of the same consolidated group of taxpayers formed in accordance with the law;

b) transactions the parties to which are persons who simultaneously satisfy the following conditions:

- persons are registered in one subject of the Russian Federation;

- persons do not have separate units in the territories of other constituent entities of the Russian Federation, as well as outside the Russian Federation;

- persons do not pay corporate income tax to the budgets of other constituent entities of the Russian Federation;

- these persons do not have losses (including losses from previous periods carried forward to future tax periods) accepted when calculating corporate income tax;

- the party to the transaction does not pay the mineral extraction tax, unified agricultural tax, UTII, is not exempt from profit taxation and is not a resident of the SEZ, which provides a preferential regime for profit taxation.

2. Interdependence of persons

Currently, the interpretation of the interdependence of persons for tax purposes is given in paragraph 1 of Article 20 of the Tax Code of the Russian Federation.

In accordance with this norm, persons are considered interdependent if the following conditions are met:

- one organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20%;

- one individual is subordinate to another individual by official position;

- persons are in relationships of kinship or affinity, adoptive parent and adopted child, as well as trustee and ward.

According to the new rules, which will be applied from 2012, three grounds are established for recognizing persons as interdependent:

1.by law (if such persons are named in the Tax Code of the Russian Federation);

2.by court (if the persons are recognized as interdependent by the court);

3.by independently recognizing themselves as taxpayers.

The list of grounds for recognizing interdependence in accordance with the norms of the Tax Code of the Russian Federation is closed.

2.1.List of interdependent parties

Law No. 227-FZ has significantly expanded the list of persons who are interdependent for tax purposes (see paragraph 2 of Article 105.1 of the Tax Code of the Russian Federation). Such a detailed indication may eliminate the current arbitrary interpretation of interdependence by tax authorities.

So, let's look at the new criteria for interdependence.

2.1.1. Interdependence betweenby individuals:

- on the basis of kinship (an individual, his spouse), parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (trustee) and ward (clause 11 p. 2, Article 105.1 of the Tax Code of the Russian Federation).In the current version of Article 20 of the Tax Code of the Russian Federation, there is a reference to the norms of the Family Code of the Russian Federation;

- by official position (individuals if one person is subordinate to another person by official position) (clause 10, clause 2, article 105.1 of the Tax Code of the Russian Federation). Left unchanged compared to Article 20 of the Tax Code of the Russian Federation.

2.2.2.Interdependence between legal entities.

Organizations are recognized as interdependent in the following cases:

If one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25% (clause 1, clause 2, article 105.1 of the Tax Code of the Russian Federation). In the regulations currently in force, the participation rate is more than 20%;

If the same person directly and (or) indirectly participates in these organizations and the share of such participation in each organization is more than 25% (clause 3, clause 2, article 105.1 of the Tax Code of the Russian Federation);

If in organizations the sole executive bodies or at least 50% of the composition of the collegial executive body or board of directors (supervisory board) are appointed or elected by decision of the same person (an individual jointly with his interdependent persons specified in paragraph 11 of the paragraph in question) ( subparagraph 5, paragraph 2, article 105.1 of the Tax Code of the Russian Federation);

If more than 50% of the composition of the collegial executive body or board of directors (supervisory board) of the organization consists of the same individuals together with its interdependent persons specified in subclause 11 of the clause in question (clause 6, clause 2, article 105.1 of the Tax Code of the Russian Federation);

If the powers of the sole executive body of the organization are exercised by the same person (clause 7, clause 2, article 105.1 of the Tax Code of the Russian Federation).

2.2.3. Interdependence between an individual and an organization arises in the following cases:

If such an individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25% (clause 2, clause 2, article 105.1 of the Tax Code of the Russian Federation). When determining the participation shares of an individual, it is necessary to take into account not only the share of his direct participation, but also the share of participation of his interdependent persons;

If the share of direct participation of each previous person in each subsequent organization is more than 50% (clause 9, clause 2, article 105.1 of the Tax Code of the Russian Federation);

An organization and a person (including an individual together with his interdependent persons specified in subclause 11 of the clause in question), when the person has the authority to appoint (elect) the sole executive body of this organization or to appoint (elect) at least 50% percent of the composition of the collegial the executive body or board of directors (supervisory board) of this organization (clause 4, clause 2, article 105.1 of the Tax Code of the Russian Federation);

When a person exercises the powers of the sole executive body of an organization (clause 7, clause 2, article 105.1 of the Tax Code of the Russian Federation).

It is important that the principle of presumption of good faith of the taxpayer is still preserved, which means that until the tax authority proves otherwise, for tax purposes, prices in transactions between persons that are not interdependent are recognized as market prices (clauses 1, 3 of Article 105.3 Tax Code of the Russian Federation).

3. New obligation for taxpayers

Law No. 227-FZ expanded the range of responsibilities of taxpayers. So, Art. Art. 105.15 and 105.16 of the Tax Code of the Russian Federation provide for the following obligations for taxpayers who have entered into a controlled transaction (a group of such transactions):

1) provide, based on the requirement of the Federal Tax Service of Russia, documentation regarding a specific transaction (group of transactions), including information about the activities of the taxpayer and the methods used to assess income (profit, revenue);

2) notify the tax authorities at the location of the taxpayer about controlled transactions completed in the calendar year no later than May 20 of the year following the previous year. Then the tax authority at the taxpayer’s location sends such a notification electronically to the Federal Tax Service of Russia.

If the tax authority independently identified facts of controlled transactions without taxpayers submitting a corresponding notification, then the tax authority independently notifies the Federal Tax Service of Russia about the facts of controlled transactions.

Please note that, taking into account clause 7 of Article 4 of Law No. 227-FZ, new taxpayer obligations arise before 2014 only if the amount of income from all controlled transactions exceeds 100 million rubles in 2012 and 80 million in 2013 million rubles.

4. Procedure for determining the market price

From the meaning of the new Chapter 14.2 of the Tax Code of the Russian Federation it follows that in transactions between related parties market prices should be used.

At the same time, clause 1 of Article 105.3 of the Tax Code of the Russian Federation enshrines an interesting principle, according to which during the year the taxpayer can use the prices actually applied in transactions between related parties. The main thing is that in the event of a deviation in prices at the end of the year in transactions between interdependent persons, the taxpayer promptly adjusts the amount of his tax obligations to the budget.

So, in accordance with paragraph 6 of Art. 105.3 of the Tax Code of the Russian Federation, adjustments for VAT and mineral extraction tax are reflected in the updated tax returns for each tax period in which there was a price deviation, submitted simultaneously with the tax return for corporate income tax (for individuals - personal income tax).

The amount of arrears identified by the taxpayer independently based on the results of the adjustments made must be repaid no later than the date of payment of corporate income tax (for individuals - personal income tax) for the corresponding tax period.

Important! For the period from the date of occurrence of the arrears to the date of expiration of the established period for its repayment, penalties on the amount of the arrears are not accrued (clause 4, clause 6, article 105.3 of the Tax Code of the Russian Federation).

In fact, the legislator provides the taxpayer with a kind of deferment in paying taxes, the main thing is that at the end of the year all obligations to the budget are adjusted.

Prices are always recognized as market prices in the following cases (clauses 8-12 of Article 105.3 of the Tax Code of the Russian Federation):

1.If a particular price level is prescribed by the antimonopoly authority.

2.If the transaction is concluded based on the results of exchange trading.

3. If the transaction price is determined on the basis of an assessment by an appraiser (if the assessment is mandatory).

4.If the price is determined in accordance with the pricing agreement.

5. Comparability of transaction terms

In order to determine whether the price of a transaction between related parties is market price, tax authorities compare such transactions with transactions in which the parties are not related parties.

For such transactions, the Tax Code of the Russian Federation introduces the concept of “comparable transactions”. This issue is addressed in Art. 105.5 Tax Code of the Russian Federation.

In order to identify comparable transactions, tax authorities can analyze the following conditions (clause 4 of Article 105.5 of the Tax Code of the Russian Federation):

- characteristics of goods (works, services);

- characteristics of the functions performed by the parties to the transaction in accordance with business customs;

- terms of contracts that affect the prices of goods (works, services);

- characteristics of the economic conditions of the parties to the transaction;

- characteristics of the market (commercial) strategies of the parties to the transaction.

In addition, the quantity of goods (volume of services) under the transaction, the deadline for fulfilling obligations under the transaction, terms of payment, the foreign exchange rate used in the transaction, characteristics of the market for goods (works, services), as well as other distributions of rights and obligations between the parties to the transaction are analyzed.

It is also necessary to carefully take into account the functions performed by the parties to the transaction and the risks assumed, since the acceptance of additional commercial (economic) risks by the parties to the transaction in accordance with the market (commercial) strategy, ceteris paribus, is accompanied by an increase in expected income (profit, revenue) for such a transaction .

A complete list of functions is contained in clause 6 of Article 105.4 of the Tax Code of the Russian Federation.

6. Sources of price information

From 2012, the Tax Code of the Russian Federation will have a separate article (105.6) dedicated to sources of information that can be used when comparing transactions between related parties.

Primarily sources of price information include:

- information on prices and exchange quotes;

- customs statistics of foreign trade of the Russian Federation;

- information on prices (price fluctuation limits) and stock exchange quotations contained in official sources of information;

- data from information and pricing agencies;

- information about transactions made by the taxpayer.

If the above sources are not available, then price information can be found in the following sources:

- information on prices (price fluctuation limits) and quotes contained in published and (or) publicly available publications and information systems;

- information obtained from the accounting and statistical reporting of organizations, published in publicly available publications or on company websites;

- information on the market value of valuation objects, determined in accordance with the legislation of the Russian Federation or foreign states on valuation activities;

- other information used in accordance with Chapter. 14.3 Tax Code of the Russian Federation.

7. Methods for assessing income (profit, revenue)

An entire chapter is devoted to the methodology for assessing income from transactions between related parties for tax purposes. 14.3 Tax Code of the Russian Federation.

When checking, the Federal Tax Service may use the following methods for assessing income:

1. the method of comparable market prices (it has priority over other methods and can be used if there is at least one comparable transaction on the relevant market), as well as if the required amount of information about such a transaction is available;

2. subsequent sales price method (is a priority when purchasing goods from a related party and its subsequent resale without processing to an independent party);

3. cost method (is a priority in transactions for the provision of services);

4. the comparable profitability method (can be used in the absence or insufficiency of information on the basis of which one can reasonably conclude that there is a necessary degree of comparability of the commercial and (or) financial conditions of the compared transactions and use the subsequent sales method and the cost method);

5. profit distribution method (used when it is impossible to use other methods or when the parties to the analyzed transaction have rights to intangible assets in their ownership (use).

The features of the use of each of these methods are disclosed in detail in Art. 105.9-105.13 Tax Code of the Russian Federation.

8. New type of check

Since 2012, in addition to the already familiar on-site, desk and “counter” audits, a new type of tax control has been introduced, which is dedicated to verifying the completeness of the calculation and payment of taxes in connection with transactions between related parties. A separate chapter 14.5 of the Tax Code of the Russian Federation is devoted to this type of inspection.

From the norms of this chapter it follows that the authorized body for carrying out such inspections is the Federal Tax Service of Russia.

In addition, the Tax Code of the Russian Federation establishes a ban on monitoring the compliance of prices applied in controlled transactions with market prices during on-site and desk inspections (clause 1 of Article 105.17 of the Tax Code of the Russian Federation).

The basis for conducting an inspection will be only the decision of the head or deputy head of the Federal Tax Service of Russia to conduct an inspection.

A decision to conduct an audit of the completeness of calculation and payment of taxes in connection with transactions between related parties may be made by the Federal Tax Service of Russia no later than two years from the date of receipt of a notification from the taxpayer or a notification from the tax authorities about the facts of controlled transactions.

The inspection period is 6 months. At the same time, it is possible to extend the period up to 12 months, and if it is necessary to translate documents into Russian, the verification is extended for another 3 months.

Control applies to a limited list of taxes:

- corporate income tax;

- Personal income tax, which is paid in accordance with Article 227 of the Tax Code of the Russian Federation (payers: entrepreneurs, notaries, lawyers and other persons engaged in private practice);

- mineral extraction tax (if one of the parties to the transaction is a mineral extraction tax payer, and the subject of the transaction is an extracted mineral resource, which is recognized for the taxpayer as subject to this tax, and taxation of the extracted mineral resource must be carried out at an interest rate);

- VAT (if one of the parties to the transaction is not a VAT payer or is exempt from VAT).

The inspection ends with the issuance of a certificate indicating the subject of the inspection and the timing of its implementation.

If during an audit the tax authority reveals facts that the price used in the transaction deviates from the market price, then a report is drawn up within two months from the date of completion of the audit.

If the taxpayer does not agree with the facts stated in the audit report, he can submit his objections to the tax authority within 20 working days from the date of receipt of the report.

The procedure for considering inspection materials and making a decision based on the results of the inspection is carried out on the basis of the general norms enshrined in Article 101 of the Tax Code of the Russian Federation, and is similar to this procedure when conducting on-site and desk inspections.

A special feature of the audit is that its results concern not only the taxpayer in respect of whom the audit was carried out, but also taxpayers who are other parties to a controlled transaction, since clause 1 of Article 105.18 of the Tax Code provides for the possibility of adjusting the tax base and tax amount for the latter (reducing amounts of accrued and paid taxes). The new edition of the Tax Code of the Russian Federation defines such an adjustment and calls it “symmetrical”.

Symmetrical adjustments are carried out only if the decision of the Federal Tax Service on additional tax assessment is executed by the taxpayer in respect of whom the corresponding audit was carried out. Symmetrical adjustments are carried out on the basis of a notification from the Federal Tax Service of Russia about the possibility of symmetrical adjustments.

9. Responsibility

For non-compliance by taxpayers with the requirements of the Tax Code of the Russian Federation regarding controlled transactions, penalties are provided.

1. In accordance with Article 129.3 of the Tax Code of the Russian Federation, in case of non-payment or incomplete payment of tax amounts as a result of the use of “non-market” prices, a fine is levied in the amount of 20% of the unpaid tax amount from 2014, and from 2017 - in the amount of 40% from the unpaid amount of tax, but not less than 30,000 rubles;

2. In accordance with Article 129.4 of the Tax Code of the Russian Federation, for failure to submit notification of controlled transactions within the prescribed period, the taxpayer will be fined 5,000 rubles.

10. Agreement with the tax authority on pricing

For the largest Russian taxpayers, Law No. 277-FZ provides for the possibility of concluding pricing agreements with tax authorities. The said agreement sets out the procedure for determining prices and (or) applying pricing methods in controlled transactions for tax purposes.

In order to submit an application to the tax authority to conclude a pricing agreement, you must pay a state duty in the amount of 1,500,000 rubles (clause 133, clause 1, article 333.33 of the Tax Code of the Russian Federation). And it is not a fact that after paying the state duty and submitting an application, the tax authority will agree to enter into a pricing agreement with you.

But if you are lucky and you have concluded this agreement with the tax authority, then for no more than three years (this is the maximum period for which the agreement is concluded), the taxpayer is relieved of the obligation to prove the compliance of the prices applied by him in a transaction with a related party to the level of market prices.

Conclusion

In conclusion, it should be noted that the new transfer pricing procedure will affect large transactions of taxpayers, the taxation of which has a significant impact on budget formation.

Now it is difficult to assess how effective the innovations being commented on will be, but one thing is for sure - these innovations are unlikely to evoke positive emotions among taxpayers, since the list of grounds on which persons are recognized as interdependent has expanded significantly, and, therefore, there will be more checks. But the procedure and grounds for recognizing transactions as controlled will become more transparent, since they are detailed in Section V.1. Tax Code of the Russian Federation, so you can understand in advance what you should prepare for.

The development and growth of vertically integrated structures in the form of global transnational corporations, holdings, and associations have led to the emergence of various types of price transactions, including within the structures themselves. The legal aspects of tax control when applying transfer prices for multinational companies and tax authorities are reflected in special recommendations of the Organization for Economic Co-operation and Development (OECD). In the article we propose to consider the issues of transfer pricing, determination of interdependent persons, as well as types of controlled transactions, methods used in determining for tax purposes income in transactions to which the parties are interdependent persons.

Transfer pricing: basic provisions

Transfer pricing(English: Funds transfer pricing) - the sale of goods and services to members of one’s organization at intra-company prices that differ from market prices.

The use of transfer prices by a corporation is an objective process of carrying out commercial activities. It allows you to minimize tax obligations, which sometimes negatively affects budget revenues.

Transfer pricing in world practice represents rules established by tax legislation that require that the level of prices applied in transactions between related parties correspond to the level of market prices. In its turn, transfer price represents the price for goods (services) that differs from the objectively formed market price when making transactions between participants of a single group of companies (holding). At the same time, transfer prices are used not only to optimize taxation, but also as a tool for managing the financial resources of the corporation as a whole.

In international practice, when exercising control over transfer pricing, the “arm's length” principle applies, according to which the transaction price is the market price (or range of prices) established between independent companies in the market of comparable (homogeneous, identical) goods (works, services) between comparable companies in the same economic conditions. The arm's length principle is applied both when comparing the price of transactions between independent companies and when comparing the level of profitability of companies carrying out such transactions.

In the Russian Federation, based on the recommendations of the OECD, Federal Law No. 227-FZ dated July 18, 2011 was adopted “On amendments to certain legislative acts of the Russian Federation in connection with improving the principles of determining prices for tax purposes” (hereinafter referred to as Federal Law No. 227-FZ) .

Related Persons

Note! Since 2012, Section V.1 “Interdependent Persons” has been in force. General provisions on prices and taxation. Tax control in connection with transactions between related parties. Pricing Agreement" of the Tax Code of the Russian Federation, which contains the main provisions concerning: determining the circle of interdependent persons, types of controlled transactions and the procedure for informing tax authorities about the nature of such transactions, methods used in determining for tax purposes income in transactions to which the parties are interdependent persons. This section of the Tax Code of the Russian Federation also introduced a new type of tax audits for transactions between related parties.

Related parties for tax purposes, persons are recognized who can influence the conditions or results of transactions carried out by these persons and (or) the economic results of the activities of these persons or the activities of the persons they represent. Tax legislation establishes a closed list for determining the share of direct or indirect participation of one company in another or an individual in an organization under various circumstances.

For example, the following are recognized as interdependent persons: organizations if one organization directly or indirectly participates in another organization and the share of participation exceeds 25%; an individual and an organization, if the individual directly or indirectly participates in such an organization and the share of such participation exceeds 25%; companies in which most of the management was appointed by the same persons.

For taxpayers, three grounds have been established for recognizing persons as interdependent: according to current legislation, by a court decision, or in the event of an independent decision being made by the taxpayer himself.

Federal Law No. 227-FZ established a new procedure for tax control over the compliance of transaction prices with market prices. It applies to value added tax (VAT), corporate income tax, personal income tax (NDFL) and mineral extraction tax (MET), subject to transactions between related parties.

Transaction price between business entities is recognized as a market one, unless the Federal Tax Service of Russia proves the opposite through tax control or the taxpayer himself has not independently adjusted the tax base. Prices are also recognized as market prices in the following cases:

• their regulation by the state;
• formed as a result of exchange trading;
• determined by the property value appraiser;
• provided for in the pricing agreement.

Prices are also recognized as market prices between non-interdependent persons upon receipt of income (profit, revenue) by the parties to such transactions.

When determining income (profit, revenue) in transactions to which the parties are interdependent persons, the Federal Tax Service of Russia compares such transactions or a set of them (analyzed transaction) with one or more transactions to which the parties are not interdependent persons (comparable transactions).

Comparable transactions- these are transactions made under the same commercial and (or) financial conditions with the analyzed transaction. If the relevant terms of the comparable transactions differ from the terms of the transaction being analyzed, such conditions can be considered comparable when the differences between them do not have a significant impact on their results or the differences can be taken into account when applying appropriate adjustments. In this case, we are talking about adjustments to the conditions and (or) results of comparable transactions or the analyzed transaction for tax purposes.

To check the comparability of transaction prices to the market level, publicly available sources of information are used, in particular statistics, information and pricing agencies, accounting and statistical reports of organizations, including those published in Russian or foreign publications, as well as on their official websites.

Important! Control over pricing has been moved beyond the powers of territorial tax authorities. Now it is entrusted to the Federal Tax Service of Russia, namely to the Department of Transfer Pricing and International Cooperation.

When exercising control over pricing, the Federal Tax Service of Russia uses:

• method of comparable market prices;
• subsequent sale price method;
• cost method;
• comparable profitability method;
• profit distribution method.

The first three methods are traditional (they were previously used), two subsequent methods were added to them. The priority is the method of comparable market prices. A combination of two or more methods may be used. All of them require a deep economic analysis of all factors affecting the financial results of the transaction.

In this regard, it is necessary to dwell on the profitability indicators used in determining prices for income (profit, revenue) taxation purposes in transactions between related parties. These indicators include:

• gross profitability;
• profitability of sales;
• cost effectiveness;
• profitability of commercial and administrative expenses;
• return on assets.

The indicated profitability indicators are determined on the basis of financial statements. In this case, the calculation is made based on the results of at least four comparable transactions, including those made by the taxpayer with non-interdependent persons in relation to him, or on the basis of the financial statements of at least four comparable organizations.

In the absence of such information, the profitability interval can be calculated based on data on a smaller number of comparable transactions or the financial statements of a smaller number of organizations.

The selection of organizations is carried out taking into account their industry specifics and relevant types of activities in comparable economic (commercial) conditions relative to the transaction being analyzed.

Note! Regardless of the method used, when determining income (profit, revenue) when carrying out transactions between related parties for tax purposes, it is necessary to calculate the minimum and maximum value of the profitability interval.

Before calculating the minimum and maximum value of the profitability interval, it is necessary to carry out a sample. For this purpose, the total profitability value is ordered. Each profitability value, starting from the minimum, is assigned a serial number. If the sample contains two or more identical profitability values, then all such values ​​are included in it. This does not take into account the profitability of the analyzed transaction.

Algorithms for determining the minimum and maximum profitability values ​​are presented in Fig. 12.

Rice. 1. Algorithm for determining the minimum profitability value

Rice. 2. Algorithm for determining the maximum profitability value

When calculating the profitability interval, information is used at the time of the controlled transaction, but no later than December 31 of the calendar year in which the controlled transaction was completed. You can also use financial statements for the three calendar years immediately preceding the calendar year in which the transaction was made. In addition, such information may include information from the taxpayer about transactions he has made with non-related parties.

Using a specific example, we will show the calculation of the profitability interval at which the level of prices used in transactions is recognized as market.

Example

In order to check the consistency of prices for a transaction between interdependent organizations, the tax authority used information on similar transactions made by four comparable organizations with their independent partners. For sampling purposes, we will order the level of profitability for eight transactions in ascending order (Table 1).

Using the appropriate algorithms, we calculate:

• minimum profitability value:

1) find the quotient of the values ​​in the sample divided by four numbers: 8 / 4 = 2;

2) since the result is an integer, the minimum profitability value is the arithmetic average of the profitability value. From the sample, an ordinal number equal to this number is taken, and a profitability value that has the next highest ordinal number in the sample is 13.2%;

3) the minimum profitability value will be: ((12.1 + 13.2) / 2) = 12.15%;

• maximum profitability value:

1) find the product of 0.75 and the number of profitability values ​​in the sample: 8 × 0.75 = 6;

2) since the product is equal to an integer, then the maximum value of the profitability interval is the arithmetic mean value of profitability, which has a serial number in the sample equal to this integer (14.6%) and the next value of profitability in ascending order (15%);

3) the maximum profitability value will be: ((14.6 + 15) / 2) = 14.8%.

Thus, the profitability range at which the level of prices used in transactions is considered market is from 12.15% to 14.8%.

It should be noted that the profitability interval is used in all methods used for tax purposes of income (profit, revenue) in transactions of related parties.

Controlled transactions

Controlled transactions- these are transactions whose prices can be checked by tax authorities. Controlled transactions for tax control purposes have been taken into account since 2012.

At the request of the Federal Tax Service of Russia, the court may recognize a transaction as controlled, even if it does not correspond to those discussed in Table. 2 conditions. However, there must be sufficient grounds for this (the transaction is part of a group of similar transactions in order to conceal a controlled transaction).

However, there are exceptions when transactions, even if they comply with those discussed in the table. 2 conditions are not considered controlled. This should include:

1) transactions between participants of the same consolidated group of taxpayers;

2) transactions, the parties to which are persons who simultaneously satisfy the following requirements:

• the parties to the transaction are registered in one constituent entity of the Russian Federation;
• the parties to the transaction do not have separate divisions in other regions, as well as outside the Russian Federation;
• the parties to the transaction do not pay income tax to the budgets of other constituent entities of the Russian Federation;
• the parties to the transaction do not have losses taken into account when calculating the tax base for income tax;
• There are no circumstances for recognizing transactions as controlled in accordance with Art. 105.14 Tax Code of the Russian Federation.

Taxpayers are required to notify regulatory authorities about controlled transactions they have completed in a calendar year if the amount of income from all such transactions with one person (several persons - parties to the transaction) in 2012 exceeded 100 million rubles, in 2013 - 80 million rubles.

The notification must be submitted no later than May 20 of the year following the reporting calendar year. If the notification is submitted untimely and contains false information, the taxpayer will have to pay a fine of 5,000 rubles.

Since 2012, a new type of tax audit has been introduced for participants in controlled transactions - verification of the completeness of calculation and payment of taxes in connection with transactions between related parties.

Note! Tax authorities are not allowed to check whether prices correspond to market prices as part of an on-site or desk audit.

The basis for conducting a price compliance check is:

• notice of controlled transactions filed by the taxpayer;
• notification to the territorial inspection, which during the inspection revealed facts of undeclared controlled transactions;
• identification of a controlled transaction by the Federal Tax Service of Russia on the basis of a repeat on-site tax audit conducted in order to monitor the activities of the tax authority that conducted the audit.

Checking the correctness of the application of prices does not prevent the conduct of on-site and desk tax audits for the same period.

If, based on the results of the audit, additional tax is assessed to one of the participants in the transaction, then the other participant in the transaction will be able to adjust its tax base. For example, if, as a result of an audit, one party to a transaction has increased their income based on their market prices, then the other party has the right to increase their expenses. This adjustment is called symmetrical.

A symmetrical adjustment can be made only after the taxpayer complies with the decision of the Federal Tax Service of Russia on additional tax assessment. In this case, it is necessary to receive a notification from the Federal Tax Service of Russia about the possibility of symmetrical adjustments.

A symmetrical adjustment to the tax base can be made for the tax period:

• organizations - when submitting a tax return for corporate income tax for the tax period (for VAT and mineral extraction tax, similar updated returns are submitted for the corresponding tax period);
• by individuals - when submitting a personal income tax return.

If the taxpayer, as a result of a symmetrical adjustment, receives the right to a refund of the tax amount, then the rules for offset or refund of overpaid (collected) taxes are applied in accordance with current legislation.

It should be noted that the taxpayer has the right to contact the tax authority to make a symmetrical tax adjustment. The supervisory authority is obliged to consider such an application and make one of the following decisions within 15 days:

• issue a notification about the possibility of applying symmetrical adjustments;
• refuse to issue a notification due to non-compliance with the procedure for filing an application or failure to confirm information;
• inform the taxpayer about the suspension of the deadline for issuing a notice in the event of an appeal against the decision on additional tax assessment, on the basis of which symmetrical adjustments are made.

An important innovation for taxpayers is the possibility of concluding pricing agreements with the Federal Tax Service of Russia, which regulate the procedure for determining prices and applying pricing methods in controlled transactions. But before the Federal Tax Service of Russia considers the application for concluding a pricing agreement, the taxpayer must pay a state duty in the amount of 1.5 million rubles. Of course, only large companies will be able to enter into such agreements.

A tax audit of the completeness of calculation and payment of taxes in connection with transactions between related parties is carried out by officials of the Federal Tax Service of Russia on the basis of a decision made. The period for conducting the inspection is no later than two years from the date of receipt of the notification or notice of controlled transactions. Federal Law No. 227-FZ provides for a phased transition in relation to establishing the period for conducting an inspection. Thus, for controlled transactions, income and expenses for which were incurred in 2012, the deadline for making a decision is no later than December 31, 2013.

As part of an audit of a taxpayer, tax authorities have the right to audit transactions made over a period not exceeding three calendar years, not counting the year in which the decision to conduct the audit was made. The issues of tax audits by the Federal Tax Service of Russia are summarized in Table. 3.

At the request of the Federal Tax Service of Russia, the taxpayer is obliged to provide relevant information (documentation) regarding a specific controlled transaction (group of similar transactions). Under documentation refers to a set of documents or a single document. If the preparation of such documents in the prescribed form is not provided for by law, the taxpayer has the right to provide the relevant information in any form. In particular, the following must be reported information about the nature of the controlled transaction:

• type of activity of the taxpayer or persons associated with the controlled transaction (list of parties involved, indicating states and territories, description and terms of the transaction, selected pricing methodology, etc.);
• information about the profitability methods used (justification of the reasons for choosing and the method of one or another method, calculation of the market price interval (profitability interval), the amount of income received (profit) or expenses incurred (losses received), information about the economic benefits of the transaction, etc.) . If the tax base and the corresponding tax amounts have been adjusted for the current tax period, this information should also be indicated.

Important! Taxpayers are required to provide documentation when conducting an audit of the completeness of calculation and payment of taxes when making transactions between related parties within 30 days from the date of receipt of the relevant request.

The Federal Tax Service of Russia in letter No. OA-4-13/14433@ dated August 30, 2012 “On the preparation and submission of documentation for tax control purposes” recommended the main stages of documentation preparation for a controlled transaction (groups of similar transactions), the main of which are:

• identification and analysis of controlled transactions (monitoring the level of income received on an accrual basis for controlled transactions during the calendar year);
• planning and determining the expected volume of documentation, time for its preparation (estimating the size of future tax liabilities);
• description of the main characteristics of the sphere (type) of activity of the person who has completed a controlled transaction (identification of factors influencing the company’s pricing policy, analysis of the current level of competition in the industry, collection of statistical data);
• conducting a functional analysis (identifying the features of the transaction being analyzed, analyzing the nature and content of business agreements (contracts) concluded between the parties to the transaction that affect the prices of goods (works, services));
• description of interdependent persons participating in the transaction (depending on the functions performed, the amount of assets used and the financial risks assumed by the parties to the transaction). For example, by type of activity, organizations relate to the sphere of production, sales, performing auxiliary functions, carrying out R&D, etc.;
• selection of the appropriate pricing method (combination of methods);
• economic analysis, search for comparable transactions or comparable organizations (depending on the method chosen by the taxpayer) and calculation of the market price interval (profitability interval); determining whether the prices (profitability) of the analyzed transaction correspond to the market range of prices or profitability; justifying the correspondence of the price (profitability) for a controlled transaction to the calculated range of market prices (profitability) or making appropriate adjustments.

Thus, Federal Law No. 227-FZ introduced a clear mechanism defining the circle of taxpayers for controlled transactions, new pricing methods taken into account for tax purposes, as well as the possibility of making symmetrical adjustments to tax obligations for all participants in transactions.

At the same time, this law does not properly reflect such provisions as the accounting of prices for tax purposes for transactions and supplies for state and municipal needs, as well as for transactions carried out within the framework of exchange trading and trading between Russian taxpayers.

Of course, the introduction of new additional tax controls on transactions between related parties will lead to:

• increasing tax administration for major federal taxes;
• additional burden on taxpayers to prove the compliance or non-compliance of transaction prices with market prices;
• establishing additional penalties for non-compliance with tax legislation in terms of non-compliance of transaction prices with market prices.

G. A. Gorina, prof. Department of Taxes and Tax Policy, RGTEU, Ph.D. econ. sciences; R. G. Akhmadeev, associate professor Department of Taxes and Tax Policy, RGTEU, Ph.D. econ. sciences

The price of goods and services can be determined in various ways. One of these methods is transfer pricing (TP). Let's look at all its features.

What is transfer pricing?

Transfer pricing is the setting of value based on intercompany prices. They may differ from market prices. The main advantage of this method is the maximum reduction in company taxes. Its essence lies in the fact that there is a transfer of total profits in favor of firms located in countries with a minimum tax burden. Setting transfer prices has the following advantages:

• Distribution of spheres of influence between different branches of companies.
• Withdrawal of funds earned by subsidiaries from states with restrictions on the withdrawal of capital.
• Capturing a large part of the market by artificially reducing the cost of products.

Transfer pricing is relevant not only for large holdings, but also for representatives of small and medium-sized businesses. Reducing taxation and, as a result, increasing profits is achieved in completely legal ways. The final value is formed on the basis of the subjective properties of the object.

Regulation of transfer prices

The first laws relating to transfer pricing were adopted in the United States more than half a century ago. In the 90s, corresponding international standards appeared. In Russia, laws were adopted only in 2012. Transfer pricing is regulated by Chapter 6.1 of the Tax Code of the Russian Federation, as well as Articles 20 and 40 of the Tax Code of the Russian Federation. The regulations list situations in which tax authorities have the right to check the prices set by the company. Let's consider the goals of pricing regulation:

• Creating obstacles to artificially lower the profit received by the company.
• Elimination of barriers for companies that are bona fide taxpayers.

The laws of the Russian Federation are based on international experience. In particular, an important principle applies: comparing the prices set by interdependent firms with the prices that would be generated by independent companies.

In what case will transfer pricing be controlled?

Additional control is introduced regarding transactions with the following characteristics:

• Transactions between parties that depend on each other (including those involving a supporter).
• Transactions between Russian companies and representative offices of other countries.
• Transactions carried out on the foreign market with exchange-traded products (this includes, for example, metals). Additional verification is carried out only when the company’s annual revenue exceeds 60 million rubles.
• One of the counterparties is located in a zone with preferential taxation.
• For one of the counterparties the tax rate is 0%.
• The transaction is carried out with the participation of an entity that extracts natural resources and transfers funds to the mineral extraction tax treasury.
• Transactions between sister companies if their share of participation in the parent company is 25% or more.
• Transactions between the entity and its CEO.
• Transactions between enterprises in which the general director is the same person.

There may be other reasons for inspections. However, all of them must be confirmed by law. Control is carried out only when the transaction amount exceeds a certain level. As a rule, this is 60-100 million rubles.

In what cases will there be no control?

The list of transactions in respect of which additional control is not performed is determined by Article 104.4 of the Tax Code of the Russian Federation:

• Operations performed by representatives of the consolidated group that comply with the laws of the Russian Federation.
• Transactions carried out between persons with legal addresses within the same region.
• Transactions between enterprises that do not have separate divisions in other regions of the country or other states.
• Transactions between parties who pay tax to the budget of the same region.
• One of the parties does not have losses for the previous period, which reduce the tax burden.
• None of the participants switched to a special tax regime.

Regulations assume that the value of transactions between independent firms is a priori.

Who are the related parties within the framework of transfer pricing?

TP involves calculating costs based on prices established between interdependent parties. But what is meant by interdependent persons? These are companies that can influence each other's financial performance. Such firms are subject to special control by the tax authorities, since they have the ability to reduce the fiscal burden and remove profits from taxation.

Related persons can influence the following indicators of each other:

• Cost of transactions.
• Amounts of income and profit.
• Other economic parameters.

The interconnectedness of persons is determined according to the following principles:

• Direct or indirect participation of individuals or legal entities in the capital of the company, amounting to at least 25%.
• Family connection between FL.
• Availability of official subordination.

If there are other signs of interconnection, the tax authorities have the right to go to court and establish them. The characteristics can be recognized by companies on a voluntary basis.

Responsibilities of transfer pricing participants

Companies that create transfer prices have the following responsibilities:

• Annual submission to the Federal Tax Service on transactions subject to additional control. Notification must be sent by May 20 of the next period.
• At the request of the tax authorities, the company must provide all documents related to the transaction.

The company can be checked at any time for the objectivity of pricing.

Transfer pricing methods

Comparable market price method

The comparable market prices method is considered priority. That is, it can be used in all cases, excluding situations with legal restrictions. Its essence is to establish value based on prices for similar objects. This method is relevant only if there is information from open sources about prices for identical products. Let's consider situations in which the SRC method must be used:

• A transaction with a counterparty, the terms of which are identical to the terms of internal transactions carried out by the entity.
• Issuing a loan.
• Trademark development.
• Transactions with products for which there are stock quotes or other statistical data.

In all these cases, you can find information about the prices of objects that are comparable to the object being sold.

Resale price method and cost method

The principle of applying the subsequent sale price method and the cost method lies in the fact that in this case the market range of profitability of independent persons is compared with the gross profitability acquired as a result of a transaction with a person who is dependent on the company.

For example, a company purchases products from a related party and then sells them to an independent party. In this situation, the subsequent sales price method is relevant. Within its framework, the distributor’s receipt of gross profitability (GR) and the objectivity of purchase prices are checked. The resulting value must be compared with the BP of independent distributors. If the BP within the transaction is within the market interval, the purchase price is recognized as market value.

The cost method involves analyzing not purchase prices, but selling prices. It is necessary to compare the BP of spending with the market interval of independent persons.

The listed methods are used quite rarely. This is due to the fact that it is quite difficult for the company to find data on the BP of independent persons. In addition, the transactions being compared must be comparable.

Comparable profitability method

The comparable profitability method is quite popular. Within its framework, the parameters of operating profitability are taken into account. Let's consider the stages of applying the method:

1. Conducting functional analysis.
2. Selecting the participant to be tested.
3. Selection of financial indicator.
4. Finding the source of data.
5. Search for companies whose performance is comparable.
6. Determination of the market profitability interval.
7. Comparing the profitability of the tested participant with the market interval.

Let's look at an example. The company is engaged in wholesale purchases. That is, you need to find organizations that also specialize in wholesale purchasing. Then, companies whose information is not publicly available are excluded from the resulting list. After this, the market interval is determined. After this, the profitability of the entity is compared with the profitability of comparable organizations.

IMPORTANT! The method will be relevant if there is no completeness of data to apply the above methods.

Profit distribution method

This method is used extremely rarely. This is due to the fact that it is very complex. Its essence lies in the redistribution of profits of all participants in the operation in proportion to the functions they performed. When making distributions, you can focus on the features of distribution between independent participants within a comparable transaction.

Sources of information

TC involves the use of a certain list of data. The necessary information can be taken from sources such as:

• Data on prices of stock and commodity exchanges.
• Customs statistics.
• Information posted on government resources.
• Information received by information and pricing organizations.
• Data on comparable transactions already carried out by entities.
• Financial and statistical reporting.
• Conclusion received from independent appraisers.

The company also has the right to use other information that is needed for adequate pricing.

ATTENTION! The sources used must be verifiable. This is required to ensure the possibility of checking the adequacy of the shopping center.

Main tasks of transfer pricing management

The tax service is responsible for managing the shopping center. Management is necessary to solve the following tasks:

• Ensuring work to verify established prices by local tax authorities.
• Analysis and assessment of processes occurring in the market.
• Control over compliance with the law of the country.
• Review of applications regarding pricing agreements.
• Formation of proposals to improve legislation in the area under consideration.
• Informing enterprises about innovations.
• Ensuring the stable operation of regulatory authorities.

Tax authorities have the right to inspect companies and request the necessary documents. Based on the completed inspection, fines are issued.

Required documents

An enterprise must maintain documentation on a shopping center when the amount of its income from transactions with the same participant is more than 100 million rubles. The form of documents is not established by law, but the papers must contain the following information:

• Activities of participants in controlled transactions.
• List of participants in operations.
• Information about the transaction: conditions, selected pricing method, payment receipt deadlines.
• Information about the parties to the transaction: their functions, existing risks.
• Explanation of the choice of price formation method.
• Links to data sources used in pricing.
• Data on income and expenses for the operation.
• Data on adjustments made to the tax amount.

The documents must contain information that could affect the pricing of the transaction.

ATTENTION! The tax service has the right to request transfer pricing documentation from the company. Documents must be submitted to the service within a month from the date of the request.

Reporting

The new rules oblige the company to submit reports on transactions performed to the tax service only if the income from the transaction amounted to more than 100 million rubles. Documentation must be submitted no later than May 20 of the following year. The document must include the following information:

• Subject of the operation.
• Information about the participants in the transaction.
• Data on income arising from the transaction.

Tax authorities have the right to check the accuracy of the trading price. This is necessary to control the payment of taxes in full.

ATTENTION! The burden of proof of the adequacy of transfer prices lies with the tax authorities, not the company. That is, the tax service cannot oblige the enterprise to prove the validity of the trading price.

Legal liability of the company

If the audit reveals a discrepancy between the established prices and the market prices, the tax authorities may oblige the company to pay additional tax taking into account the completed transaction. The company may also be subject to a certain fine. If a discrepancy is detected for the years 2014-2016, the fine will be 20% of the amount of unpaid tax, for 2017 - up to 40%. To establish a fine, the enterprise's violation must be proven. For this purpose, organization documents and other sources can be used.