Analytics Publications

The Federal Law of 08.06.2015 № 150-FZ (hereinafter - the Law № 150-FZ) introduced further changes in the first and second parts of the Tax Code, the majority of which came into force from the date of publication of the law. The main amendments relate c taxation of controlled foreign companies symmetrical adjustments of the controlled transactions, as well as an increase in the threshold value of the property for the recognition of its depreciable.

Exemption from income tax CIC

Recall that the controlled foreign company (hereinafter - CEC) recognizes a foreign organization (structure without legal personality) is not a tax resident of the Russian Federation, but controlled by the Russian tax residents.

Control for the purposes determined by the CEC, in particular, the size of the participation of the controlling entity (n. 3 of Art. 25.13 of the Tax Code):

25% - the share of the natural or legal persons in a foreign organization;

10% - if the share of the participation of all persons recognized as tax residents of the Russian Federation in the organization (for individuals - together with their spouses and minor children) is more than 50%.

Law № 150-FZ amended, extended the grounds under which CIC income is not taxable in the Russian Federation. These changes are retroactive and apply to the legal relations arising from January 1, 2015

So, we list the new base.

1. Possession of CIC through public Russian companies (p. 4 of Art. 25.13 of the Tax Code). Not recognized control vladenieinostrannoy organization through one or more public Russian companies. Due to the lack of control over the foreign entity retained earnings are not subject to taxation in the territory of the Russian Federation according to the rules of KMC. This law number 150-FZ does not set a minimum number of members of a public company.

2. CIC is either active foreign company or holding an active or active subholdingovoy company (p. 1, Article 8. 25.13-1 Tax Code). It is necessary to define the concepts.

Active foreign company recognized a foreign organization, which share passive income (dividends, interest, royalties and other income provided signature. 1-12 p. 4 of Art. 309.1 of the Tax Code) for the fiscal year shall not exceed 20% of the total sum of all income (p. 3 of Art. 25.13-1 Tax Code).

Active foreign company must have permanent residence in the state with which the Russian Federation has the current agreement on the avoidance of double taxation, while such a state is not in the list of countries that do not ensure exchange of information, approved by the Federal Tax Service of Russia (p. 7, Art. 25.13-1 NC Code). At the time of such a list of material not approved.

Active foreign holding company recognized a foreign organization, while meeting the following criteria:

Russia's share of the controlling entity in the foreign holding is at least 75% for 365 consecutive calendar days (p. 4 of Art. 25.13-1 Tax Code);

income from a foreign holding absent or proportion of passive income (except for dividends from the activity of foreign companies and foreign companies subholdingovyh) does not exceed 5% for the fiscal year;

the share of foreign direct holding in each active foreign company is at least 50% for 365 consecutive calendar days;

the share of foreign direct holding in the company is active subholdingovoy at least 75% for 365 consecutive calendar days.

Active subholdingovoy foreign company is considered a foreign entity, in which:

the share of foreign holding company is at least 75% for 365 consecutive calendar days;

revenue from foreign sub-holding absent or percentage of passive income (except for dividends from foreign companies active) does not exceed 5% for the fiscal year;

the share of foreign direct holding in each active foreign company is at least 50% for 365 consecutive calendar days.

An additional condition for active and foreign holding companies is not finding subholdingovyh in one of the offshore list, approved by order of the Russian Finance Ministry of 13.11.2007 № 108n (n. 7, Art. 25.13-1 Tax Code).

3. CIC is irrevocable trust irrevocable or that structure without a legal entity. Law № 150-FZ introduced the rule that the founder (Founder) structure without forming a legal entity shall be deemed a default controlling the structure (p. 9 Art. 25.13 of the Tax Code).

In turn, the founder (Founder) of the foreign structure without forming a legal entity will be recognized as the controlling person, if against him at the same time conditions are met:

such person shall not be entitled to receive (to require) directly or indirectly profit (income) of this structure and to exercise control over such a structure;

such person shall not be entitled to dispose of profit (income) of the structure or part of it;

the property is transferred under the terms of this structure irrevocability.

The above criteria will be applied only in case the founder (Founder) of the foreign structure without forming a legal entity and does not retain the right to receive any of the rights listed above, including the elimination of structure (p. 10 Art. 25.13 of the Tax Code) .

Note that the other person, in addition to the founder (the founder), may be recognized as the controlling entity if it controls the structure and in relation to that person satisfies at least one of the following conditions (p. 12, Art. 25.13 of the Tax Code):

that person is the beneficial owner of the income (part) of the resulting structure;

such person shall have the right to dispose of property of the structure;

such person shall be entitled to receive the property of the structure in the event of termination (liquidation, termination of the contract).

In addition, it is worth noting that foreign legal entities that do not have equity equated Law number 150-FZ to foreign entities without legal personality (p. 15, Art. 25.13 of the Tax Code). Thus, the legislator has removed the flaw last edition of the Tax Code of the declaration of foreign private foundations (foundation).

Note: Law № 150-FZ introduced the rule that in determining the profits of KMC are not considered income in the form of dividends received from CIC Russian organizations (para. 3 para. 1, Art. 25.15 of the Tax Code). It is important to KMC had a beneficial owner of the dividends.

The tax effect of the voluntary declaration of assets and accounts

Law № 150-FZ, introduced rules that provide guarantees to persons planning to declare their assets in accordance with the Federal Law of 08.06.2015 № 140-FZ "On the voluntary declaration of assets by individuals and accounts (deposits) at banks and on amendments to certain legislative Acts of the Russian Federation "(hereinafter - the Law on voluntary declaration).

It is important to note that the rules have the effect of easing in respect of acts committed by the declarant and (or) the nominal owner of the property before 1 January 2015 (p. 13, Art. 4 of the voluntary declaration). Thereby eliminating the risk of the tax control measures in relation to possible violations that occurred after January 1, 2015

What are the tax consequences of a voluntary declaration?

1. Do not recognized the implementation of the transfer of property from the nominee in the address of the actual (signature. 8.2 para. 3 of Art. 39 of the Tax Code), and are not recognized as income (economic benefit) to obtain the actual owner of the property by the nominee, if such property and its nominee the owner specified in the special declaration filed with the tax authorities in accordance with the Law on voluntary declaration (Sec. 2, Art. 41 of the Tax Code).

2. According to the new paragraph. Article 60. 217 of the Tax Code, taxpayers - individuals who are shareholders, members, shareholders, founders or controlling persons of foreign structures without a legal entity shall be exempt from taxation on personal income tax in respect of income (other than cash), obtained by the elimination of the foreign organization (structure without education legal entity). For the application of this exemption must simultaneously meet the following conditions:

the taxpayer together with the declaration must submit an application in any form for the release of such proceeds from taxation and provide data of the property (property rights) and the liquidation of a foreign organization (structures without legal personality), and attach documents containing information about the value of the property at the date of liquidation ;

the procedure of liquidation (termination) of foreign organization (structures without legal entity) completed before 1 January 2017 the Law № 150-FZ provides the base extension of the deadline.

3. Taxpayers - individuals who are tax residents of the Russian Federation, may reduce the income from the sale of property (property rights), resulting in the liquidation of a foreign entity (structures without legal personality), an amount equal to the value of the property according to the account of the liquidated at the date of its liquidation, but not higher than the market value of the property (property rights) (Signature. 2.1 para. 2 of Art. 220 of the Tax Code).

4. The special declaration contained in it information and annexed documents can not be the basis for any desk (Sec. 1, Art. 88 of the Tax Code), no field tax audit (Sec. 2, Art. 89 of the Tax Code). When considering the tax audit materials such information can not be used as evidence (para. 2 para. 4 of Art. 101 of the Tax Code), as well as recognized tax secret (p. 8, Art. 102 of the Tax Code).

5. Eliminates the possibility of collecting the tax, if the declarant was allowed non-payment (partial payment) of taxes on the acquisition, use or disposition of the declared assets and accounts in respect of possible violations that occurred prior to 1 January 2015 (para. 2.1 Art. 45 of the Tax Code) .

Tax residency organizations

Law № 150-FZ adjusted the provisions of Art. 246.2 of the Tax Code regulating the grounds and procedures for the recognition of foreign companies tax residents of the Russian Federation. So, is excluded recognition criterion of residence of the foreign organization on the basis of the majority of meetings of the Board of Directors previously provided signature. 1 pt. 2 of Art. 246.2 of the Tax Code. While maintaining attributes determine the place of management, directly related to the work of the executive bodies.

Confirmed the conditions that, in particular, must comply with a foreign company for the recognition of the control from the territory of another state. Commercial activities such foreign organization is carried out using its own qualified personnel and assets in a state (territory) its permanent location. At the same time the foreign organization is documented performance of these conditions (p. 4 of Art. 246.2 of the Tax Code).

Additional criteria for the recognition of a foreign organization tax resident of Russia (maintenance of accounting or management accounting organization, record keeping organization, operational management personnel) should be used if the main features of the residence is carried out for two or more states (p. 5, Art. 246.2 of the Tax Code).

Law № 150-FZ provided an opportunity to plead the Russian tax resident foreign organizations having permanent residence in a foreign country and operating in Russia through a separate division (p. 8 Art. 246.2 of the Tax Code). The amendment foreign organization must ensure that the separate subdivision of documents which are the basis for the calculation and payment of the relevant taxes (para. 2 p. 8 Art. 246.2 of the Tax Code).

The new version of n. 8 Art. 246.2 of the Tax Code specifies that a foreign entity has a right to plead a tax resident of the Russian Federation of their choice or from 1 January of the calendar year in which the statement is presented for recognition tax resident or after the submission of the tax authority at the place of registration of an application.

This innovation is retroactive and applies to legal relations arising from January 1, 2015 Changes in the bases of the symmetric adjustment. If the tax authorities on the results of a tax audit controlled transaction to make additional tax of one side on the basis of market prices, the other party has the right to apply the same market prices when determining their tax liabilities. This example describes the mechanism of symmetrical adjustment of the tax base and the amount of tax payable to the budget. Prior to the amendment the right to conduct a symmetrical adjustment party controlled transaction arises only if the counterparty in relation to the tax authority had made a decision on additional tax arrears of the (former Editorial para. 2, Art. 105.18 of the Tax Code).

The amendment taxpayers - Russian organizations which are parties to the controlled transactions in which the counterparty is made independent adjustment of the tax, also had the opportunity to conduct a symmetrical adjustment of the tax base without any additional permits and approvals from the Federal Tax Service of Russia (signature. 2 para. 2, Art. 105.18 Tax Code).

The grounds for self-correction are symmetric (p. 10 Art. 105.18 of the Tax Code):

obtain from the contractor in charge of the adjustments and is filed amended tax returns, copies of tax returns;

obtain from the contractor documents confirming the fulfillment of the obligation to pay tax

If the counterparty to the transaction is not controlled documents required for symmetrical adjustment, the adjusted tax be restored. At the same time a counterparty to a transaction controlled by the tax authority can be collected tax sanctions and penalties (para. 2 p. 11 Art. 105.18 of the Tax Code).

Law № 150-FZ makes changes to the existing rules of the symmetrical adjustments. So, symmetrical adjustment can be carried out by the taxpayer, not only in the case of the Russian tax authorities to charge additional tax solutions, but also decreases the amount of loss.

The right to exercise the symmetric adjustment occurs on the basis of the relevant notification of the tax authority. This law number 150-FZ gave taxpayers the right to recover from the tax authority percent (in the corresponding period of the current refinancing rate of the Central Bank of Russia) in violation of terms of the other party controlled transaction notified of the possibility of the symmetric adjustment (p. 5, Art. 105.18 of the Tax Code). Such interest will be charged for the full amount possible symmetrical adjustments and for the entire period from the date of expiry of the direction notification prior to the date of execution of this obligation. Amendment symmetric adjustments are retroactive and apply to relations arising from 1 January 2015 The new features of payment of excise duty on export Law № 150-FZ introduces an exemption from payment of excise duty, without a bank guarantee in the transactions of sale of excisable goods placed under the customs procedure for export, as well as the transfer of excisable goods produced from raw materials, the owner or on the instructions of another party in the event of realization of goods outside the territory of the Russian Federation in accordance with the customs procedure of export (Sec. 2.1 Art. 184 of the Tax Code):

for organizations whose total amount of VAT, excise tax, corporate income tax and severance tax paid for the three calendar years preceding the tax period, which accounts for the date of the excise-exempt operations, excluding the amounts of taxes paid in connection with the movement of goods across the border of the Russian Federation and as a tax agent, it is at least 10 billion rubles., if the date of the creation of the organization until the day of filing the tax return for the excise passed at least three years;

for organizations engaged in the production of excisable goods under the contract processing of raw materials (materials) with the organizations meet the above requirements, subject to the submission to the tax authority document issued by the owner of the raw materials (materials) of tax authorities and confirming the payment of taxes in the amount of not less than 10 billion rub. for a specified period.

Law № 150-FZ specifies the deadline for submission of documents confirming the validity of the exemption from excise duty on exports and refund the amounts of excise duty paid by the taxpayer and the tax deductions to be six months, calculated from the 25th day of the month in which the taxpayer has a duty representation tax return (p. 7, Art. 198 of the Tax Code).