The Government of the Russian Federation has ratified the bill “On ratification of the agreement between the Government of the Russian Federation and the Government of the Republic of Cuba on avoiding of the double taxation and prevention of evasion form incomes and capital taxes” and decided to submit it to the State Duma for consideration according to the established procedure.
On April, 22 at the meeting of the RF Government the bill “On making changes to some legislative acts of the Russian Federation concerning the regulation of documents and information exchange between the bodies of currency control and currency control agents” was discussed. The bill was submitted by the Ministry of Finance of the Russian Federation.
The bill envisages making changes to Federal Laws “on banks and banking activity” and “On currency regulation and currency control”. The authors of the bill motivate the necessity of amendment adoption by the fact that in the majority cases credit organizations (authorized banks) refuse Rosfinnadzor (its regional bodies) with provision of necessary information connected with carrying out foreign currency operations, opening and managing accounts, referring to the fact that the requested information contains the data that comprise the bank secret in concordance with article 26of the federal Law “On banks and banking activity”. According to this article Rosfinnadzor and taxation bodies are not included in the list of federal executive bodies that have a right to receive such information.
According to the existing practice magistrates dismiss cases connected with non-execution of Rosfinnadzor and taxation bodies’ rulings concerning the requests for the information from crediting organizations (authorized banks).
It should be noted that according to article 86 of the Tax Code of the Russian Federation the taxation bodies have a right to get some kinds of documents (information on clients’ accounts and operation statements) at the moment. The authors of the bill insist that such authority is not sufficient for taxation bodies despite the fact that in reality the majority of banks are willing to assist taxation bodies and submit them with the requested documents comprising bank secret. The ruling of the Presidium of the Supreme Arbitrary Court of the Russian Federation from 31.03.2009 No 16896/08 on case No А33-17492/2007 confirms the right of taxation bodies to request the information comprising bank secret within the limits necessary to implement tax control.
Nevertheless, in order to avoid collisions with the existing legislation Rosfinnadzor (its regional bodies) as a body of currency control authorized by the Government as well as taxation and customs bodies of currency control receive a right to get documents and information containing the data of bank secret from crediting organizations. At the same time the submission of the documents and information connected with foreign currency operations, accounts opening and managing, by crediting organizations is to take place only in cases, according to procedures and to necessary volumes envisaged by the Federal Law “On currency regulation and currency control”.
RUSSIAN ECONOMY: TRENDS AND PERSPECTIVES The bill also envisages the possibility of granting the authorized banks and state corporation “Bank of development and foreign economic activity (Vnesheconombank)” with the functions of agents of currency control for the applications of the information from RF Federal Customs Service and RF Federal Tax Service, and sets the deadlines for execution of inquiries of authorized banks from the Federal Customs Service and Federal Tax Service and defines that the information exchange between them is carried out in electronic form according to the procedures, established by the Federal Customs Service and Federal Tax Service, correspondingly.
REVIEW OF LEGISLATIVE DOCUMENTS CONCERNING TAXATION...
REVIEW OF LEGISLATIVE DOCUMENTS CONCERNING TAXATION OVER MARCH–APRIL L.Anisimova 1. Letter from March 22, 2010 No 03-03-06/1/161 presents the position of the RF Ministry of Finance concerning the period of limitation of actions regarding unclaimed deposited wages for these sums to be written off to the organizations’ profits that are to be levied with profit taxes.
According to article 195 of the RF Civil Code the notion of the period of limitation of actions is defined, which is regarded as a period for protection of the right following the legal actions by the person whose rights have been infringed. Article 196 establishes the general period of 3 years.
Article 197 of the RF Civil Code states the possibility to apply special period of limitation of action, established by the Law, to some kinds of complaints. The RF Ministry of Finance regards the three-month period for an employee to appeal to the court with the demand for his wages to be paid, established by the RF Labor Code as such special period.
In the experts’ opinion, three-month period mentioned in article 392 of the RF Labor Code is established for an employee’s appeal to the court concerning individual employment dispute and does not belong to special periods of limitation of actions regulated by the RF Civil Code. In case the wages were deposited, there are no grounds for employment dispute, i.e. the wages accrued has already been recognized as a liability by the employer to the employee. The wages that were accrued but were not paid to the employee on time due to his (employee’s) absence or refusal to receive it are recognized as deposited. Thus, only the wages not received by the employee because of his fault is regarded as deposit.
As to the definition of the period of limitation of actions concerning unclaimed deposited wages, the opinions of the RF Ministry of Finance and experts coincide at the moment – in this case the general period of limitation of actions is in effect, which was established by the RF Civil Code. This period expires in exactly three years after the wages were accrued, and the sums of unclaimed deposits are written off to organizations’ profits on the last day of the accounting period in which the period of limitation of action expires.
Some ambiguity in the position of the RF Ministry of Finance remains in case the employer refuses to pay the wages deposited earlier. In the experts’ opinion in this case article 392 of the RF Labor Code is applied only to define the period of employee’s appeal to the court. The court can adopt the decision for the benefit of the employee in case the period of the limitation of actions established by the RF Civil Code – 3 years – had not expired before the appeal to the court (the legislation does not regulate the period in which the employee has to turn to the employer with the claim to pay the wages that is why the suit can evolve at any time within three years from the moment of wages accrual).
The position of the RF Ministry of Finance on this situation has not been commented on.
2. Letters of the RF Ministry of Finance from April 2, 2010 No 03-03-06/1/220, from April 8, No 03-03-06/1/244, from March 22, 2010 No 03-03-06/1/158, from April 02, 2010 No 03-03-06/1/distinctly reveal technical complications that the organizations face at the moment which are due to replacement of the single social tax with a number of insurance contributions.
One of the problems can be characterized as a discrepancy between the basses for calculation of insurance contributions to the state social funds and expenses for labor remuneration taken into account when defining profit tax base and payments for civil legal contracts with natural persons.
The emerging discrepancy results in problems with profit taxation because of accounting insurance contributions to the state social funds that were accrued and paid from the sums not recognized as expenses by the RF Tax Code.
RUSSIAN ECONOMY: TRENDS AND PERSPECTIVES Due to the changes in the RF Tax Code and invalidation of chapter 24 “Single Social Tax”, the basis for insurance contributions calculations to state off-budget funds now does not correspond to expenditures for labor remuneration taken into account when calculating profit tax base.
For instance, the RF Ministry of Finance draws attention to the fact that starting with the insurance contributions are paid from payments and other remunerations for the benefit of employees regardless whether such payments are accounted when decreasing the taxable profit.
Article 270 of the RF Tax Code does not contain statements which prohibit accounting insurance contributions not recognized as expenses in chapter 25 of the Tax Code, and so, in the opinion of the RF Ministry of Finance, starting with January 1, 2010 the expenses in the form of insurance contributions to the RF Pension Fund, RF Social Insurance Fund, RF Compulsory Health Care Fund can be accounted among other expenses on the basis of subparagraph 49 paragraph 1 article 264 of the RF Tax Code. However the legality of such position of the RF Ministry of Finance that recognized accruals for the expenses as decreasing taxation base, though these expenses themselves do not decrease it according to the Tax Code of the Russian Federation, requires further legal expertise from our point of view. The position of the RF Ministry of Finance is focused on the potential decrease of incomes, which can result in regional budgets requiring compensation for evolving losses at the expense of the federal budget.
3. According to the Letter of the RF Ministry of Finance from March 24, 2010 No 03-03-06/4/it is clarified that in concordance with the Basis of the Russian Federation Legislation on culture from 09.10.1992 No 3612-1 the right of the cultural organization to receive gratuitous donations (contributions, subsidies) from Russian and foreign legal entities and natural person is not restricted by some limitations.
Since the donations in concordance with the RF Tax Code are recognized as special-purpose receipts the contributions received by the Russian cultural organizations upon meeting of the conditions listed in paragraph 2 article 251 of the RF Tax Code are regarded as directed receipts and are not subject to taxation with profit tax.
4. According to the Letter of the RF Ministry of Finance from March 25, 2010 No 03-03-06/1/the issue on the procedure for tax accounting of expenses for modernization of fixed assets of less than RUR 20 thousand for the purposes of profit taxation is clarified, and a according to the Letter of the RF Ministry of Finance from March 29, 2010 No 03-03-06/1/202 the procedure for writeoff of expenses for modernization of fixed assets the initial cost of which was more than RUR thousand.
1) In concordance with subparagraph 3 paragraph article 254 of the RF Tax Code the expenses on the purchase of fixed assets of less than RUR 20 000 initial value are included in the list of material expenses to the full extent with the start of its exploitation.
The expenses for completion, provision with additional equipment, technical renovation should increase the cost of fixed assets. In this connection the expenses for modernization of fixed assets of initial value less than RUR 20 thousand, which cost was written off for the purposes of taxation at a time in the list of material expenses, are to be included in the current expenses of taxation (accounting) period in the list of other expenses connected with production and sale.
2) For the fixed assets of initial value of more than RUR 20 thousand, the taxpayer (according to paragraph 1 article 258 of the RF Tax Code), has a right to prolong the period of its useful exploitation after the date of exploitation start in case such an object was reconstructed, modernize or technically reequipped. If the period of exploitation of fixed assets was not prolonged, as the RF Ministry of Finance explained, the calculation of object’s amortization should be continued using the previous mechanism of amortization calculation up to the total repayment of the changed initial value.
5. According to the Letter of the RF Ministry of Finance from March 25, 2010 No 03-03-06/1/with the reference to paragraph 3 article 256 of the RF Tax Code the question on the exclusion of the property transferred (received) for gratuitous use. For instance, the property transferred for permanent use without counter obligations belong to such property.
REVIEW OF LEGISLATIVE DOCUMENTS CONCERNING TAXATION...
6. Letter of the RF Ministry of Finance from April 1, 2010 No 03-03-06/1/204 supports with the references to the RF Tax Code the conclusion on the fact that when forming the profit tax base using the method of accruals the interests for all kinds of loans are regarded as a part of outstanding expenses made evenly throughout the whole period of the loan (regardless the date of real payment of interests) by the end of each month of the use of borrowed monetary funds.
7. According to the Letter of the RF Ministry of Finance from April 1, 2010 No 03-03-06/1/205 the issue on the necessity for VAT recovery for the residue of the material valuables and for the residual value of the fixed assets when the organization transfers from the general regime of taxation to the simplified taxation system is clarified. In concordance with subparagraph 2 paragraph 3 article 170 of the RF Tax Code VAT sums that earlier (under general regime) were adopted for deduction for goods, including fixed assets, are to be recovered in case they are later used for operations not levied with VAT.
According to paragraph 2 article 346.11 chapter 26.2 “Simplified Taxation System” of the RF Tax Code organizations applying simplified taxation system do not pay VAT, and, consequently, the operations they carry out are not levied with VAT. That is why earlier (before the transfer to the simplified taxation system) the VAT sums adopted for deduction for material stocks not written off to production by the date of transfer are to be recovered when transferring o the simplified taxation system and paid to the budget. The calculation of VAT sum that is to be recovered for the amortized property is made taken into account the residual value of this property formed on the basis of accounting data. At the same time on the basis of the RF Tax Code the recovered VAT sum is to be taken into account in the organization’s other expenses connected with production and sale when defining profit tax base of the organization for the preceding taxation period.
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