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Notification of controlled transactions. A controlled transaction - what is it and who sells it? Who must submit a report on controlled transactions

In accordance with the requirements of Chapter 14.4 of the Tax Code, all taxpayers should notify tax inspectorates about the completion of so-called controlled transactions. Read about which transactions are considered controlled, how to fill out a notice of controlled transactions quickly and without errors, and when it needs to be submitted to the fiscal authorities.

Reasons for reporting

The need to report on controlled transactions has arisen relatively recently - since 2012. By this time, the Government of the Russian Federation decided to take control of transfer pricing processes in companies. Amendments to the legislation forced taxpayers to develop new business processes that allow them to correctly structure controlled transactions and determine the methodology for calculating prices for them.

As part of reporting on controlled transactions, companies are forced to collect a package of supporting documents confirming the transparency and validity of completed business transactions. Although the current instructions for filling out a notification of controlled transactions do not contain clearly defined standards regarding the format of supporting documents, their quantity and content, the notification itself is drawn up in the form regulated by law and is submitted on an annual basis.

Nuances of legislation

For tax purposes, as well as taking into account the provisions and norms of Art. 105.16 of the Tax Code of the Russian Federation, it is customary to include controlled transactions in which interdependent persons participate, as well as similar transactions that meet the criteria of clause 1 of Art. 105.14 of the Code.

The main criteria and signs of interdependence of persons, as well as the procedure for their determination, are set out in Chapter. 14.1 Tax Code of the Russian Federation. Here, for example, it is said that transactions in which:

• within one calendar year, income of more than 60 million rubles was received;
• one party was exempt from the obligation to pay income tax or had the right to calculate it at a rate of 0%, and the second party did not enjoy such benefits;
• both participants are registered/live/have resident status in the Russian Federation.

According to current tax legislation, Russian taxpayers (companies, merchants, notaries and lawyers) who made at least one controlled transaction in the last calendar year are required to notify their Federal Tax Service inspectorate about this.

In order to fulfill the requirement of legislators, it is necessary to draw up a notice of controlled transactions for 2017, the form of which is in the order of the Federal Tax Service of Russia No. ММВ-7-13/524@.

Currently, filling out this document implies the disclosure of a large amount of information on each controlled transaction, as well as the presence of certain knowledge necessary for the correct preparation of reports.

What data needs to be reflected

Based on the type and characteristics of a particular transaction, the document shows a variety of information. Considering an ordinary example of filling out a notice of controlled transactions for 2017, we can conclude that the report usually includes data on the following business transactions:

• rental of property, as well as its gratuitous receipt;
• transactions with own and purchased securities;
• construction transactions;
• various agency operations;
• transactions within the framework of credit agreements and obtaining loans;
• compensation for damage arising due to improper fulfillment of obligations.

It should be noted that some income is not related to controlled transactions. Accordingly, they are not subject to reflection in the notification. These include amounts received as a result of the revaluation of currency values ​​and liabilities, precious metals, securities, and other property. The above also applies to income from equity participation, dividends, as well as the amount of restored reserves.

Document form and filling rules

When drawing up this document, it is advisable to take into account all the requirements of Chapters 14.2 and 14.3 of the Tax Code of the Russian Federation. The current procedure for filling out a notification of controlled transactions requires compliance with the rules set out below:

• Based on the results of the past calendar year, only one notification is compiled and it reflects information about all transactions subject to control.
• You can fill out the form either on a computer or manually. In this case, you must use blue/violet/black ink.
• All notification fields must be filled out from left to right.
• Text fields are written in capital block letters.
• Phone numbers are indicated starting with the symbol “+” or the number 8 without spaces.
• Erasures, corrections, and the use of corrective agents are unacceptable.
• The form is printed on only one side of the sheet.
• If any indicator is missing, then dashes must be entered in this field.
• The notification uses only units of measurement directly named in the OKEI classifier.
• The taxpayer must express all cost indicators in full rubles. Numbers are rounded according to the rules of mathematics to the nearest whole number: amounts less than 50 kopecks are not taken into account, and more than 50 kopecks are rounded to the nearest whole ruble. This requirement becomes significant when there are a large number of controlled transactions.
• If in the primary documents the quantitative value is indicated as a fraction, when filling out the notification it is rounded according to the rules given above.
• If a controlled transaction was carried out in foreign currency, it must be reflected in the document in Russian rubles. Moreover, for recalculation they use the cross rate that was in effect on the date the transaction was reflected in accounting.

Read also Accounting for account 55

Many accountants are interested in how to number a notice of controlled transactions. A sample of filling out this document shows that its pages should be numbered, starting with the title page. In the cells specially designated for this purpose, enter the numbers “00001”, “00002” and then in order.

Please note: if the notification is filled out by an individual who is not registered as an individual entrepreneur, the TIN may not be entered. Then you need to fill in your personal information. On the title page you should indicate information about your identity document, date and place of birth, and citizenship.

Composition of the notification

• Title page: it contains general information about the taxpayer.
• Sections 1A and 1B - they reveal the essence of transactions and indicate information about their subject.
• Section 2 – to be completed in relation to transactions concluded with legal entities.
• Section 3 – drawn up for transactions with individuals, notaries, entrepreneurs, lawyers.

Not all company directors know whether they need to sign a notice of controlled transactions. An example of filling out this document indicates that it must be certified by the signature of the manager and sealed with the seal of the organization. If the company has decided to work without a seal and has secured this provision in its constituent documents, there is no need to put a stamp on the report.

Grouping rules

Legislators have given taxpayers the opportunity to group transactions based on similarity. When exercising this right, the provisions of Art. 38 of the Tax Code of the Russian Federation, which sets out the definitions of homogeneity and identity. Guided by paragraph 5 of Art. 105.7 of the Code, the company will be able to correctly divide transactions into groups. Do not forget to also study the provisions of Art. 105.5. They will help determine comparability criteria.

If any transactions cannot be considered homogeneous, the necessary information about them should be reflected in separate columns of the notification. This often happens when purchasing several batches of goods. Then the total number of sheets in Section B should coincide with the number of transactions for each product item.

Until May 20, all taxpayers must send notifications of controlled transactions for 2016 to their territorial Federal Tax Service bodies. If you do not do this, you will have to pay a large fine.

In accordance with standards Article 105.16 of the Tax Code of the Russian Federation all taxpayers, both legal entities and individuals, including individual entrepreneurs, who in 2016 carried out controlled transactions of any nature and type are required to inform the tax authorities about this. There is a reporting form specifically designed for this, called the notification of controlled transactions for 2016. It's approved by order of the Federal Tax Service of Russia dated July 27, 2012 No. ММВ-7-13/524@ and should be applied taking into account amendments that have not yet been approved by the Federal Tax Service, but are recommended for use, since they specifically indicate which OKVED code to put in the notification of controlled transactions.

Who submits a notification of controlled transactions for 2016

Controlled transactions are transactions between related parties, as well as those transactions that are equivalent to them and have certain characteristics. This definition is given in Article 105.14 of the Tax Code of the Russian Federation. The norms of the same article define exhaustive characteristics, in particular:

1. annual income exceeds 1 billion rubles (60 million rubles in specified cases);
2. the place of registration/residence/residence of all participants is the territory of Russia;
3. one of the parties to the transaction is a profit tax payer, and the other is not.

There are a few exceptions. In particular, even those transactions that meet the above conditions, but were carried out by participants in the same consolidated group of taxpayers, are not considered controlled. Business partners who are registered in the same subject of the Russian Federation, do not have separate divisions outside of it, do not pay income tax to the budgets of other regions and did not have losses in the reporting period may also not worry.

Thus, all persons who had transactions that meet these criteria in the reporting year must report them to the tax authorities.

OKVED in the notification of controlled transactions for 2016

The procedure for filling out the notification requires compliance with certain rules. In particular, on the cover page of the 2016 notification submitted in 2017, you must indicate your type of activity. The Federal Tax Service of Russia, in a letter dated November 9, 2016 No. SD-4-3/21206@, said that OKVED in the notification of controlled transactions for 2016 should be indicated according to the new classification, although the necessary amendments to the order have not yet been approved. Thus, when filling out the “OKATO Code” indicator, you must indicate the current OKTMO code. Besides:

• in the paragraph “Code of the subject of the transaction (OKP code)” there should be a code for the type of product in accordance with the All-Russian Classifier of Products by Type of Economic Activities (OKPD 2) OK 034-2014 (CPES 2008);
• in paragraph “Code of the type of economic activity according to the OKVED classifier” - code of the type of activity according to the All-Russian Classifier of Types of Economic Activities (OKVED 2) OK 029-2014 (NACE Rev. 2).

However, when submitting updated reports and corrective information for previous reporting (tax) periods, it is necessary to indicate the same OKVED code that was indicated in the primary documents.

The completed document sheet should look like this:

Deadline for submitting the notification of controlled transactions for 2016 and features of its completion

The taxpayer has the right to independently choose in what form: paper or electronic, it is more convenient for him to submit this report. The main thing is to follow the established rules for its design, in particular:

• When filling out the form by hand, it is allowed to use black, blue or purple ink;
• fields in the form must be filled in from left to right;
• all entries are made in capital block letters (both typewritten and handwritten);
• corrections, adjustments and double-sided printing are not allowed;
• Page numbering is continuous and even blank sheets are returned;
• if there are no indicators, dashes are added, cost values ​​are indicated in full rubles;
• the OKP code in the notification of controlled transactions for 2016 must comply with OK 034-2014 (CPES 2008).

You can submit this reporting form to the Federal Tax Service at the location of the organization or at the place of residence of the individual entrepreneur. Organizations with separate divisions report according to the location of the head office. The largest taxpayers submit a notification to the Federal Tax Service with which they are registered for tax purposes.

Example of filling out section 1B

Special attention should be paid to the features of the formation and submission of multi-volume Notifications of controlled transactions in electronic form. The Federal Tax Service notes that all files exceeding 1024 megabytes, or zip archives larger than 60 megabytes, should be divided into several smaller files. This can be done using special free software developed by the Federal State Unitary Enterprise GNIVTS Federal Tax Service of Russia. Such an application ensures that a file of an approved format is divided into several smaller volumes in the same format. If the taxpayer uses other software, he needs to take into account the basic file division principles implemented in the above free software. The tax authorities conveyed all these principles to organizations and individual entrepreneurs in their letter.

The report must be submitted no later than May 20 of the year following the year in which the controlled transactions were carried out. If this date falls on a weekend, the deadline is moved to the first working day as usual.

Liability for failure to provide

If the taxpayer does not submit a notification within the period established by law - before May 20, 2017, he will be liable for Article 129.4 of the Tax Code of the Russian Federation. Similar sanctions are provided for when filing a notification containing false information on transactions for 2016.

Controlled transactions 2017: criteria (table)

• a set of certain transactions for the sale of goods between related parties through intermediaries who are not interdependent with the seller or buyer;
• transactions in the field of foreign trade in goods of global exchange trade (for example, oil, non-ferrous metals or mineral fertilizers) in the amount of over 60 million rubles per calendar year with the same person;
• transactions, one of the parties to which is a person whose place of registration, residence or place of tax residence is an offshore zone, and the amount of income from such transactions made with one person for the corresponding calendar year exceeds 60 million rubles.

Controlled transactions: criteria

Let us present the criteria for the controllability of a transaction between interdependent persons, when the place of registration, place of residence or place of tax residence of all parties and beneficiaries in such a transaction is the Russian Federation (clauses 2, 3 of Article 105.14 of the Tax Code of the Russian Federation). It is important to take into account that in order to recognize such transactions as controlled, it is sufficient to comply with at least one circumstance:

Circumstances under which a transaction between Russian related parties is considered controlled	Additional condition for recognizing a transaction as controlled
The amount of income from transactions (the sum of transaction prices) for the corresponding calendar year exceeds 1 billion rubles	—
One of the parties to the transaction is a taxpayer of mineral extraction tax, calculated at a tax rate established in %, and the subject of the transaction is the extracted mineral taxable at the mineral extraction tax rate established in %.
At least one of the parties to the transaction is a taxpayer of the unified agricultural tax or UTII (if the transaction was concluded within the framework of such activities), while among the other parties to the transaction there is a person who does not apply these special regimes	The amount of income from transactions between these persons for the corresponding calendar year exceeds 100 million rubles
At least one of the parties to the transaction is exempt from the obligations of a corporate income tax taxpayer or applies a 0% income tax rate in accordance with clause 5.1 of Art. 284 of the Tax Code of the Russian Federation (“Skolkovo”), while the other party (or parties) do not have such benefits	The amount of income from transactions between these persons for the corresponding calendar year exceeds 60 million rubles
At least one of the parties to the transaction is a resident of a special economic zone or a participant in a free economic zone, the tax regime in which provides special benefits for income tax in the relevant constituent entity of the Russian Federation, while the other party (or parties) to the transaction is not a resident of such zones
The transaction simultaneously satisfies the following conditions: - one of the parties to the transaction is the taxpayer specified in clause 1 of Art. 275.2 of the Tax Code of the Russian Federation (for example, by the operator of a new offshore hydrocarbon deposit), and takes into account income (expenses) from such a transaction when calculating income tax in accordance with Art. 275.2 Tax Code of the Russian Federation; - any other party to the transaction is not a taxpayer specified in paragraph 1 of Art. 275.2 of the Tax Code of the Russian Federation, or is such, but does not take into account income (expenses) on such a transaction in accordance with Art. 275.2 Tax Code of the Russian Federation
At least one of the parties to the transaction is a participant in the regional investment project and applies in accordance with Art. 284.3, 284.3-1 of the Tax Code of the Russian Federation, any of the following tax rates for income tax: — credited to the federal budget — 0%; — credited to the budget of a constituent entity of the Russian Federation — any reduced rate
At least one of the parties to the transaction is a research corporate center, which is specified in the Federal Law of September 28, 2010 No. 244-FZ “On the Skolkovo Innovation Center” and which applies an exemption from the duties of a VAT taxpayer in accordance with Art. 145.1 Tax Code of the Russian Federation

It is important to keep in mind that the Federal Tax Service in court can recognize a transaction as controlled even if the transaction does not meet the above criteria. To do this, the tax department must have sufficient grounds to believe that the specified transaction is part of a group of similar transactions that are carried out in such a way as to deliberately hide signs of control (Clause 10 of Article 105.14 of the Tax Code of the Russian Federation).

It is also necessary to take into account that if a non-resident is involved in a transaction, then to recognize an interdependent transaction as controlled, compliance with other criteria is not required, i.e. all such transactions will be considered controlled (Letter of the Ministry of Finance dated May 10, 2016 No. 03-01-18/28673).

Controlled transactions: exceptions to the rules

Even if transactions meet the controllability criteria, in some cases they will not be recognized as such. This may include, in particular, the following cases (clause 4 of article 105.14 of the Tax Code of the Russian Federation):

• the parties to the transaction are participants in the same consolidated group of taxpayers, formed in accordance with the Tax Code of the Russian Federation (with the exception of transactions the subject of which is an extracted mineral, subject to mineral extraction tax at a tax rate established in %);
• The parties to the transaction simultaneously satisfy the following requirements:

a) registered in one subject of the Russian Federation;

b) do not have separate divisions in the territories of other constituent entities of the Russian Federation, as well as outside the Russian Federation;

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

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

e) there are no circumstances for recognizing transactions carried out by such persons as controlled in accordance with paragraphs. 2 - 7 p. 2 tbsp. 105.14 Tax Code of the Russian Federation;

• transactions for the provision of interest-free loans between related parties, the place of registration or place of residence of all parties and beneficiaries for which is the Russian Federation.

For the second year now, the provisions of tax legislation established by Federal Law No. 227-FZ of July 18, 2011 (hereinafter referred to as Law No. 227-FZ) have been in effect. In this article, we will talk about which transactions are recognized as controlled, as well as the obligation of taxpayers to notify the tax authorities about controlled transactions completed in a calendar year.

Note. The said Law put into effect Section. V.1 "Interdependent persons. General provisions on prices and taxation. Tax control in connection with transactions between interdependent persons. Pricing agreement" of the Tax Code.

According to Art. 105.16 of the Tax Code of the Russian Federation, taxpayers are required to notify the tax authorities about the controlled transactions they have completed in the calendar year, specified in Art. 105.14 Tax Code of the Russian Federation. This must be done no later than May 20 of the year following the calendar year in which they were made. Information about controlled transactions is indicated in the relevant notifications, which, at the choice of taxpayers, can be submitted to the tax authority on paper or in established formats in electronic form. Why should you submit information about controlled transactions to the tax authority?

Note. The form of notification of controlled transactions, the Procedure for filling it out, as well as the Format for submitting a notification of controlled transactions in electronic form and the Procedure for the taxpayer to submit a notification of controlled transactions in electronic form were approved by Order of the Federal Tax Service of Russia dated July 27, 2012 N ММВ-7-13/524@.

Section V.1 of the Tax Code of the Russian Federation, in fact, introduced a new type of tax audit: verification of the completeness of the calculation and payment of taxes in connection with transactions between related parties (clause 1 of Article 105.17 of the Tax Code of the Russian Federation). Such an audit is carried out on the basis of a notice submitted by the taxpayer himself, or a notice from the territorial tax authority conducting an on-site or desk audit of the taxpayer, if it identifies controlled transactions carried out by the taxpayer, as well as if a controlled transaction is identified as a result of a federal executive body authorized for control and supervision in the field of taxes and fees, repeated on-site tax audits in order to monitor the activities of the tax authority that conducted the audit.

Note. The form of notification of controlled transactions and the Procedure for sending by the tax authority conducting a tax audit, notification of controlled transactions to the federal executive body authorized for control and supervision in the field of taxes and fees, were approved by Order of the Federal Tax Service of Russia dated October 10, 2012 N ММВ-7-13 /704@.

So, verification of controlled transactions is a form of tax control over the compliance of prices used in transactions between related parties (as well as in transactions equivalent to them) with market prices. In case of price differences, transaction amounts may be recalculated and additional taxes may be charged.
According to paragraph 4 of Art. 105.3 of the Tax Code of the Russian Federation by the federal executive body authorized for control and supervision in the field of taxes and fees, when exercising tax control in the manner prescribed by Chapter. 14.5 of the Tax Code of the Russian Federation, the completeness of calculation and payment of the following taxes is checked:

1) corporate income tax;

2) personal income tax paid in accordance with Art. 227 Tax Code of the Russian Federation;

3) mineral extraction tax (if one of the parties to the transaction is the payer of the specified tax and the subject of the transaction is the extracted mineral, which is recognized as the subject of mineral extraction tax, the extraction of which is taxed at a tax rate established as a percentage);

4) VAT (if one of the parties to the transaction is an organization (individual entrepreneur) that is not (is not) a VAT payer or is exempt (exempt) from fulfilling such an obligation).

In accordance with paragraph 1 of Art. 105.14 Tax Code of the Russian Federation controlled transactions are recognized between related parties(taking into account the features provided for in Article 105.14 of the Tax Code of the Russian Federation). So, let's first determine which persons are recognized as interdependent, then consider some conditions upon the occurrence of which a transaction will be recognized as controlled. In the last part of the article we will introduce readers to the final provisions of Law No. 227-FZ.

Which persons are considered interdependent?

The Tax Code states: if the specifics of the relationship between persons may influence the conditions and (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, these persons are recognized as interdependent for tax purposes.

To recognize the mutual dependence of persons, the influence that may be exerted due to the participation of one person in the capital of other persons in accordance with an agreement concluded between them or in the presence of another ability of one person to determine the decisions made by other persons is taken into account. In this case, such influence is taken into account regardless of whether it can be exerted by one person directly and independently or jointly with his interdependent persons.

In accordance with paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation the following are recognized as interdependent persons:

• organizations if one of them directly and (or) indirectly participates in another and the share of such participation is more than 25%;
• an individual and an organization if such an individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25%;
• organizations 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%;
• an organization and a person who has the authority to appoint (elect) the sole executive body of this organization or to appoint (elect) at least 50% of the composition of the collegial executive body or board of directors (supervisory board) of this organization;
• organizations whose sole executive bodies or at least 50% of the composition of the collegial executive body or board of directors (supervisory board) of which are appointed or elected by decision of the same person;
• organizations in which more than 50% of the collegial executive body or board of directors (supervisory board) are the same individuals;
• organization and person exercising the powers of its sole executive body;
• organizations in which the powers of the sole executive body are exercised by the same person;
• organizations and (or) individuals if the share of direct participation of each previous person in each subsequent organization is more than 50%;
• individuals in the event that one individual is subordinate to another individual due to official position;
• an individual, his spouse, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (trustee) and ward.

Some clarifications need to be made here. So, in accordance with Art. 105.2 Tax Code of the Russian Federation shares direct participation the share of voting shares of another organization directly owned by one organization or the share directly owned by one organization in the authorized (share) capital (fund) of another organization is recognized, and if it is impossible to determine such shares, the share directly owned by one organization is proportional to the number of participants in the other organization.

Shares indirect participation of one organization in another is recognized as a share, which is established in the following order:

1) all sequences of participation of one organization in another are determined through the direct participation of each previous organization in each subsequent organization of the corresponding sequence;

2) the shares of direct participation of each previous organization in each subsequent organization of the corresponding sequence are determined;

3) the products of the shares of direct participation of one organization in another through the participation of each previous organization in each subsequent organization of all sequences are summed up.

Example. Foreign entity A owns 75% of the shares of Company B. The latter, in turn, owns 30% of the shares of Russian trading company C. Company A also owns 15% of the shares of Company D, which owns 40% of the shares of Russian trading company C.
In such a situation, the share of indirect participation of foreign organization A in the authorized capital of Russian trading company C will be 28.5% (75 x 30 + 15 x 40). Accordingly, foreign organization A and Russian trading company C can be recognized as interdependent entities.

The rules described above also apply when determining the share of participation of an individual in an organization. It should be noted that according to paragraph 4 of Art. 105.2 of the Tax Code of the Russian Federation during the trial, additional circumstances may be taken into account when determining the share of participation of one organization in another organization or an individual in an organization.

Please note the following:

1. If the conditions and (or) results of transactions carried out by persons and (or) the economic results of their activities are influenced by one or more other persons due to their predominant position in the market or due to other similar circumstances determined by the peculiarities of the transactions performed, such influence is not a basis for recognizing persons as interdependent for tax purposes (clause 4 of article 105.1 of the Tax Code of the Russian Federation).

2. Direct and (or) indirect participation of the Russian Federation, constituent entities of the Russian Federation, municipalities in Russian organizations in itself is not a basis for recognizing such organizations as interdependent. At the same time, these organizations may be recognized as interdependent on other grounds provided for in Art. 105.1 of the Tax Code of the Russian Federation (clause 5 of Article 105.1 of the Tax Code of the Russian Federation).

3. If, in the opinion of organizations and (or) individuals, the peculiarities of the relationship between them may influence the conditions and (or) results of transactions they make, these organizations and (or) individuals have the right to independently recognize themselves as interdependent persons for tax purposes ( clause 6 of article 105.1 of the Tax Code of the Russian Federation).

4. A court may recognize persons as interdependent on other grounds (Clause 7, Article 105.1 of the Tax Code of the Russian Federation).

What transactions are considered controlled?

So, as already noted, transactions made between related parties are considered controlled. It is important to note the following here. Firstly, not all transactions carried out between related parties should be reported to the tax authority. This should be done only if the amount of income from such transactions for a calendar year exceeds the established limit. Secondly, transactions can be recognized as controlled, even if they are not made between related parties (the so-called transactions equivalent to transactions between related parties). But first things first.

Participation of third parties (intermediaries)

Transactions between interdependent persons are considered to be a set of transactions for the sale (resale) of goods (performance of work, provision of services) made with the participation (through mediation) of persons who are not interdependent, if these persons (clause 1, clause 1, article 105.14 of the Tax Code of the Russian Federation ):

• do not perform any additional functions in these transactions, with the exception of organizations sale (resale) of goods (performance of work, provision of services) by one person to another person recognized as interdependent with this person;
• do not take on any risks and don't 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.

Let us be clear: a transaction made, in fact, with a person who is not an interdependent person (intermediary) can be recognized as a transaction made between interdependent persons. That is, if the seller and the final buyer are interdependent persons, while the agent who makes the transaction on his own behalf is not an interdependent person with either one or the other, and the intermediary does not perform any functions other than organizational ones, does not assume any risks and does not use its own assets, the transaction for the principal and the final buyer will be recognized as a transaction carried out between related parties.

Note. The provisions of this paragraph regarding the recognition as controlled transactions of transactions with payers of the unified agricultural tax or UTII are applied from January 1, 2014 (clause 2 of article 4 of Law No. 227-FZ).

And here’s what’s important: the Tax Code does not directly establish a limit on the amount of income from such transactions for the purpose of recognizing them as controlled. On this basis, the Ministry of Finance concludes in its explanatory Letters that all transactions transactions made with the participation of intermediaries (subject to the conditions listed above), in cases where the seller and the final buyer are interdependent persons, are considered controlled (Letters dated November 14, 2012 N 03-01-18/9-169, dated August 29, 2012 N 03 -01-18/6-115). Organizations must take this opinion of officials into account.
We would like to add that, in our opinion, this conclusion is at least controversial: in paragraphs. 1 clause 1 art. 105.14 of the Tax Code of the Russian Federation defines only the conditions upon the occurrence of which the transaction will be equated to transactions between related parties. For the rest (in terms of recognizing transactions as controlled), the general provisions established by this article should apply.

Foreign trade transactions

Transactions in the field of foreign trade in goods of world exchange trade are also considered transactions between interdependent persons (clause 2, clause 1, article 105.14 of the Tax Code of the Russian Federation). Moreover, such transactions are recognized as controlled, regardless of their size, if the subject of the transaction is goods included in one or more of the following product groups (clause 5 of Article 105.14 of the Tax Code of the Russian Federation):

• petroleum and products derived from petroleum;
• black metals;
• non-ferrous metals;
• mineral fertilizers;
• precious metals and precious stones.

If the subject of a foreign economic transaction is goods not listed above, to recognize the transaction as controlled, the amount of income from such transactions made with one person for the corresponding calendar year is important. If it exceeds 60 million rubles, the transaction will be recognized as controlled (Clause 7, Article 105.14 of the Tax Code of the Russian Federation).

Offshore zones

The third and final case of equating transactions with transactions with related parties are transactions in which one of the parties is a person whose place of registration, or place of residence, or place of tax residence is a state or territory included in the List of States and Territories approved by the Ministry of Finance in accordance with with pp. 1 clause 3 art. 284 Tax Code of the Russian Federation. Such transactions are considered controlled if the amount of income from transactions made with one person for the corresponding calendar year exceeds 60 million rubles. (clause 7 of article 105.14 of the Tax Code of the Russian Federation).

Note. List of states and territories that provide preferential tax treatment and (or) do not provide for the disclosure and provision of information when conducting financial transactions (offshore zones), approved. By Order of the Ministry of Finance of Russia dated November 13, 2007 N 108n.

Attention: "special regime"!

Next, we will talk about transactions made between related parties, the place of registration, or place of residence, or the place of tax residence of all parties and beneficiaries for which is the Russian Federation.

If one of the parties to the transaction applies the taxation system in the form of UTII or Unified Agricultural Tax, and among other persons who are parties to the transaction there is a person who does not apply these special regimes, and if the amount of income from transactions between these persons for the corresponding calendar year exceeds 100 million rub. (accordingly, this means transactions concluded within the framework of such activities), these transactions are recognized as controlled (clause 3, clause 2, paragraph 2, clause 3, article 105.14 of the Tax Code of the Russian Federation).

Note. Transactions between interdependent persons, one of which is an agricultural producer who has not switched to the taxation system for agricultural producers, cannot be recognized as controlled on the basis of paragraphs. 4 p. 2 art. 105.14 of the Tax Code of the Russian Federation, which does not exclude the recognition of such transactions as controlled if there are other grounds provided for in this article (Letter of the Ministry of Finance of Russia dated January 28, 2013 N 03-01-18/1-18).

It should be noted that the “simplified people” stand apart in this series. A different rule applies to them (clause 4, clause 2, article 105.14 of the Tax Code of the Russian Federation): if at least one of the parties to the transaction is exempt from the obligations of a corporate income tax payer (and these, as you know, include organizations that use the simplified tax system) or applies a 0% tax rate to the tax base for the specified tax in accordance with clause 5.1 of Art. 284 of the Tax Code of the Russian Federation (remember that these are organizations that have received the status of a participant in a project to carry out research, development and commercialization of their results in accordance with Federal Law of September 28, 2010 N 244-FZ “On the Skolkovo Innovation Center”), while the other party to the transaction is not exempt from these obligations and does not apply a 0% tax rate under the specified circumstances, such transactions are considered controlled if the amount of income on them for the corresponding calendar year exceeds 60 million rubles (paragraph 1, clause 3, article 105.14 of the Tax Code of the Russian Federation).

Transactions in which one of the parties applies a 0% rate to the tax base for corporate income tax on grounds not related to those specified in clause 5.1 of Art. 284 of the Tax Code of the Russian Federation, circumstances cannot be considered controllable solely on the basis of paragraphs. 4 p. 2 art. 105.14 of the Tax Code of the Russian Federation, which does not exclude the recognition of such transactions as controlled on the basis of other provisions of this article (Letter of the Ministry of Finance of Russia dated 02/06/2013 N 03-01-18/2730).

Please note that transactions made between two “special regimes”, even if they are interdependent persons, cannot be considered controlled, since the Tax Code does not indicate the possibility of verifying the completeness of calculation and payment of tax between such persons when exercising tax control in the manner provided for in Ch. 14.5 Tax Code of the Russian Federation.

MET payers

If one of the parties to the transaction is a payer of the mineral extraction tax, calculated at a tax rate established as a percentage, and the subject of the transaction is an extracted mineral resource, recognized for the specified party to the transaction as subject to taxation of the mineral extraction tax, the extraction of which is taxed at the tax rate established in percent, while the amount of income from transactions between these persons for the corresponding calendar year exceeds 60 million rubles, the transactions are also recognized as controlled.

Other cases

In other cases not listed above, transactions between interdependent persons, the place of registration, or place of residence, or the place of tax residence of all parties and beneficiaries in which the Russian Federation is located, are recognized as controlled if the amount of income from transactions (the sum of transaction prices) between these persons for the corresponding year exceeds:

• in 2012 - 3 billion rubles;
• in 2013 - 2 billion rubles;
• in 2014 - 1 billion rubles.

How is the amount of income from a transaction calculated?

According to paragraph 9 of Art. 105.14 of the Tax Code of the Russian Federation, the amount of income from transactions for a calendar year is determined 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 Ch. 25 Tax Code of the Russian Federation. Below we will talk about individual types of income.

Loan income

A loan agreement has been concluded between interdependent organizations. Is it necessary to take into account income from this transaction in order to recognize it as controlled? If so, what will be recognized as income: the accrued amount of interest or the amount of the loan received and the accrued amount of interest (This question, in particular, was asked in the Letter of the Ministry of Finance of Russia dated May 23, 2012 N 03-01-18/4-67)? To answer this question you need to refer to Chap. 25 Tax Code of the Russian Federation. In accordance with the rules established by this chapter, when determining the tax base for corporate income tax, income in the form of interest received, including under loan agreements, credit and other debt obligations, recognized as non-operating income (clause 6 of Article 250 of the Tax Code of the Russian Federation) is taken into account ), and income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the method of registration of borrowings, including securities under debt obligations), as well as funds or other property received to repay such borrowings (clause 10, clause 1, article 251 of the Tax Code of the Russian Federation). Thus, when determining for the purposes of Art. 105.14 of the Tax Code of the Russian Federation, the amount of income from transactions for a calendar year takes into account income in the form of interest received under a loan agreement. In this case, income in the form of funds or other property received under a loan agreement, as well as funds or other property received to repay such borrowings, are not taken into account when calculating the specified amount.

About intermediary transactions

Taxpayers have especially many questions regarding the procedure for recognizing transactions as controlled, as well as calculating the amounts of income from transactions, when carrying out intermediary operations. This is not surprising, since various situations may arise during the implementation of such transactions.

We have already mentioned one of them above. Let us recall this model once again: if the agent is not an interdependent person with the principal and enters into a transaction on his own behalf with a person who is not interdependent, but is interdependent with the principal, then this transaction will be considered controlled on the basis of paragraphs. 1 clause 1 art. 105.14 Tax Code of the Russian Federation. In relation to this transaction, notifications to the tax authority will have to be sent by the principal and the third party, indicating the entire amount of income from the transaction (Letter of the Federal Tax Service of Russia dated October 26, 2012 N OA-4-13/18182).

A completely different situation arises in cases where the agent is an interdependent person with the principal or with a third party. In the first case (the agent is interdependent with the principal and enters into a transaction with a person who is not interdependent both in relation to him and in relation to the principal), the notification to the agent and the principal reflects the transaction made between the agent and the principal. What will be the income in this case?

For the answer, let us turn again to Chap. 25 Tax Code of the Russian Federation. According to paragraphs. 9 clause 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property (including cash) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as for compensation expenses incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such expenses are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. The indicated income does not include commission, agency or other similar remuneration. Based on this rule, the agent’s income under the transaction will be the agency fee paid by the principal to the agent. A similar conclusion was made, by the way, in the above Letter (dated October 26, 2012 N OA-4-13/18182). In another Letter, the tax authorities expressed, however, a different opinion (Letter of the Federal Tax Service of Russia dated 02/06/2013 N OA-4-13/1706): for the purpose of recognizing a transaction between an agent and a principal as controlled, it is necessary to take into account both the agent’s income in the form of agency fees and income of the principal arising as a result of the execution of the agency agreement. At the same time, regulatory authorities propose to take into account the provisions of civil legislation regarding the regulation of relations between the principal and the agent (commission agent and principal). In particular, according to paragraph 1 of Art. 996, art. 1011 of the Civil Code of the Russian Federation, relations between the named persons in terms of transactions for remuneration do not lead to the transfer of ownership of goods, results of work performed, or provision of paid services. The transfer of ownership occurs only in relation to the services provided for which a commission, agency or other similar remuneration is paid. Thus, when determining the amount criterion in order to recognize transactions through an agent (commission agent) as controlled, one should take into account the moment of transfer of ownership of goods (work, services), guided by the provisions of Chapter. 25 of the Tax Code of the Russian Federation regarding the procedure for recognizing income (Letter of the Ministry of Finance of Russia dated January 25, 2013 N 03-01-18/1-15).

The Letter of the Federal Tax Service of Russia dated 02/06/2013 N OA-4-13/1706 also notes that for the purpose of recognizing a controlled transaction between a third party (for example, the final buyer of goods) and the agent company, it is necessary to take into account the income to be transferred by the agent to the principal on the basis of the agency agreement. As a result of these transactions, the third party incurs expenses, due to which such transactions are subject to Section. V.I of the Tax Code of the Russian Federation on the basis of clause 13 of Art. 105.3 Tax Code of the Russian Federation.

When is a transaction not considered controlled?

In paragraph 4 of Art. 105.14 of the Tax Code of the Russian Federation lists cases when transactions are not considered controlled, regardless of the fact that they satisfy the conditions listed above. So, the following transactions are not considered controlled:

1) the parties to which are participants of the same consolidated group of taxpayers (with the exception of transactions the subject of which is an extracted mineral recognized as subject to mineral extraction tax, the extraction of which is taxed at a tax rate established as a percentage);

2) the parties to which are persons satisfying simultaneously the following requirements:

• registered in one subject of the Russian Federation;
• do not have separate divisions in the territories of other constituent entities of the Russian Federation, as well as outside the Russian Federation;
• do not pay corporate income tax to the budgets of other constituent entities of the Russian Federation;
• do not have losses (including losses from previous periods carried forward to future tax periods) accepted when calculating corporate income tax;
• they do not have circumstances to recognize transactions carried out by such persons as controlled in accordance with paragraphs. 2 - 5 p. 2 tbsp. 105.14 Tax Code of the Russian Federation. Let us recall these circumstances once again.

Note. Certain issues of determining losses accepted when calculating income tax for the purposes of Art. 105.14 of the Tax Code of the Russian Federation, discussed in Letter of the Ministry of Finance of Russia dated February 27, 2013 N 03-01-18/5769.

Provisions clause 2 Art. 105.14 Tax Code of the Russian Federation	Conditions for recognizing a transaction as controlled	Amount of income on transactions for calendar year, at exceeding whose deal recognized controlled (million rubles)
	A transaction between related parties is recognized controlled if at least one of the parties transaction is:
Subclause 2	Payer of mineral extraction tax
Subclause 3	Payer of UTII or Unified Agricultural Tax
Subclause 4	Payer of the simplified tax system, participant of the project "Skolkovo"
Subclause 5	Resident of a special economic zone, tax regime which provides special income tax benefits organizations (compared to the general tax regime in the corresponding subject of the Russian Federation), with the other party is not a resident such a special economic zone<*>

Note. We did not talk about this provision above, since it will apply only from January 1, 2014.

When can a decision be made to conduct an audit?

The decision to conduct an audit of the completeness of calculation and payment of taxes in connection with transactions between related parties in the manner established by Chapter. 14.5 of the Tax Code of the Russian Federation, in relation to controlled transactions, income and (or) expenses for which are recognized in accordance with Chapter. 25 of the Tax Code of the Russian Federation, can be adopted (clause 8 of article 4 of Federal Law N 227-FZ):

• in 2012 - no later than December 31, 2013;
• in 2013 - no later than December 31, 2015

Transitional provisions

Article 4 of Law No. 227-FZ establishes transitional provisions. In particular, in accordance with paragraph 7 of the said article, the provisions of Art. Art. 105.15 “Preparation and submission of documentation for tax control purposes”, 105.16 “Notification of controlled transactions”, 105.17 “Check by the federal executive body authorized for control and supervision in the field of taxes and fees, the completeness of calculation and payment of taxes in connection with transactions between interdependent persons" of the Tax Code of the Russian Federation until January 1, 2014 are applied in cases where the amount of income for all controlled transactions committed by a taxpayer in a calendar year with one face(by several of the same persons who are parties to controlled transactions) exceeds, respectively:

• in 2012 - 100 million rubles;
• in 2013 - 80 million rubles.

So, even if transactions made between interdependent persons are recognized as controlled (for example, transactions in the field of foreign trade in goods of global exchange trade (oil, ferrous and non-ferrous metals, etc.); transactions in which one of the parties is an offshore company (if the amount of income for transactions with one person for the corresponding calendar year exceeds 60 million rubles); transactions, one of the parties to which are mineral extraction tax payers or organizations exempt from income tax payer obligations or applying a 0% rate in accordance with clause 5.1 of Article 284 of the Tax Code of the Russian Federation. (again, if the cost criterion is exceeded)), but the amount of income from all controlled transactions made by the taxpayer in 2012 with one person does not exceed 100 million rubles, report on these transactions to the tax authority in 2013 (for the 2012 calendar year) is not necessary. They will also be exempt from tax control in connection with transactions between related parties.

In this article we have touched upon only a small part of the issues relating to the application of the provisions of the Tax Code on transfer pricing.

So, starting this year, for the first time, taxpayers are required to submit information to the tax authority about controlled transactions they have completed. This must be done before May 20 following the calendar year in which such transactions were made. The final provisions of Law N 227-FZ provide for special provisions, according to which it is necessary to submit information in 2013 for the past year 2012 only if the amount of income from all controlled transactions for the reporting period exceeded 100 million rubles.

During the year, it is advisable for organizations to maintain a register that would take into account major transactions made between related parties in order to determine whether they will be controlled.