Double check of large business
the Ministry of Finance has decided strengthen control over intraholding loans
Holdings cannot to save on the profit tax at crediting of the “ sisters “ “ daughters “ and “ grand daughters “ under not market rates. The Ministry of Finance has decided to double control over intraholding loans, having applied to them besides article about thin capitalisation of a rule of transfer pricing. Now the companies should spend the second complex of self-checking to exclude tax risks.
In Anton Siluanova`s department have decided that norm NK about thin capitalisation (article 269) is insufficient for control of the tax bearer which gives out intraholding credits to the interdependent companies under the rate above the market. In the letter from July, 5th, 2012 ¹03 - 01 - 18/ 5 - 92 officials have considered that to such companies it is necessary to apply and rules of transfer pricing. Now the companies should prepare and give also the documentation about not market transactions, and also notify tax specialists on controllable transactions. To receive additional explanations in the Ministry of Finance and FNS in the evening of Friday it was not possible.
Practice when the related companies finance each other under rates above market, is frequent. “ it Becomes including for aggressive tax planning for the purpose of base decrease under the profit tax “ - adviser Salans Boris Brook explains. Now the companies will pass double check: they will be estimated not only on conformity of internal credits “ convenient “ for business to article 269 specification but also to be checked by more confused rules of transfer pricing, the partner " adds; nektorov, Savelyev and partners “ Egor Batanov.
In opinion g - on Brook, use by the tax bearer of positions about transfer pricing can become good help for acknowledgement rynochnosti intraholding loans. “ it will allow the tax bearer with bolshej validity to challenge applicability to it of rules of insufficient capitalisation. According to position OESR the parity of extra and own capitals of the borrower cannot be considered as the exclusive indicator nerynochnosti conditions of its crediting without conditions of the concrete transaction “ - he reflects.
Till now the question of principle about distribution of rules of transfer pricing for percent, a royalty, securities and derivativy definitively is not resolved, the senior lawyer Goltsblat BLP Sergey Kalinin pays attention. “ the law directly specifies only in the right of tax specialists to supervise the transaction with the goods, works and services. At the same time the Ministry of Finance without direct instructions of the law insists that inspectors have a right to supervise and payments under extra and licence obligations, and also transactions with securities and derivativami. The point in this question should be put judiciary practice or by entering of corresponding corrective amendments into the law “ - he explains.
the Position of financial department can lead to that the sum of expenses corresponding to rules of article 269, will be once again “ it is cut down “ by rules of transfer pricing, is afraid g - n Batanov. The lawyer predicts that the letter of the Ministry of Finance will lead to deterioration of the general economic situation as in corresponding cases tax bearers appear in an uncertain situation concerning the obligations.
According to Dmitry Korneva heading tax function by one of the large companies, corporate lawyers entering into Association (OKJUR), the state should not suppose cases of unreasonable duplication of rules of law when for the decision of the same question two various mechanisms of regulation are used. “ a characteristic example of such approach is introduction of rules of transfer pricing for percent on loans at simultaneous preservation in existing edition of article 269. The state position in this situation will be indicative: or the clear and uniform approach will be generated, or the uncertainty caused by mechanical change of the law without system change of interconnected positions " will be kept; - the expert marks.
the Ministry of Finance of the rights if to start with literal perusal of positions of article 269 NK, the senior lawyer Sameta Nikolay Pjatnitsky considers: “ This article defines not the size of the market rate under credits and loans, but only the limiting size of the percent which are subject to inclusion by the tax bearer in structure of expenses “. However the lawyer names the approach of the Ministry of Finance “ formal “ as he creates excessive administrative barriers.