- The need to include the managing company into the Customs Brokers Register. According to Article 18 of the RF Customs Code, the activity of any persons in the capacity of customs brokers (representatives) shall be allowed only subject to their inclusion into the Customs Brokers (Representatives) Register. Thus, the managing company may provide customs brokerage services only in case of complying with the requirements set by the Customs regulations. Should it turn out that the managing company does not satisfy the criteria of a customs broker, this will be another issue to deal with;
- The need to specify the conditions for receiving subsidies by the Project participants to compensate for customs duties payments in the RF Budget Code. According to the budget laws and regulations of the Russian Federation, customs duties paid by the Project participants in relation with their Project activities may be reimbursed to the in the form of subsidies. According to Article 78 of the RF Budget Code, costs are reimbursed to legal entities by way of gratuitous and non-reciprocal subsidies. Such subsidies are granted in relation with providing/selling goods/work/services. According to Article 5 of Federal Law No.5003-1 “On Customs Tariff” of May 21, 1993, customs duty is a mandatory payment to the federal budget collected when the goods cross the customs border of the Russian Federation (imported into or exported from the customs territory of the Russian Federation). Movement of goods across the customs border is not qualified as providing/selling goods/work/services. Thus, reimbursement of customs duties does not look shall be qualified as violation of the respective legislation of the RF and shall be subject to civil liability, administrative liability and criminal liability in accordance with the laws of the Russian Federation”.
See http://asozd.duma.gov.ru/mai №.№sf RUSSIAN ECONOMY IN trends and outlooks possible under the effective legislation, so it is recommended to stipulate respective amendments to the budget laws and regulations;
- According to p.6 of Article 15 of the Law on Skolkovo Innovation Center, “no public hearings shall take place on the draft Master Plan for Skolkovo Center”. This may be qualified as unlawful restriction of the citizens’ rights and may be disputable.
Tax Reliefs in the Territory of Skolkovo IC The Project participants shall be granted certain tax reliefs, including the following key ones:
1) Reimbursement of customs duties and VAT paid by the Project participants in relation to imported goods used by them in Skolkovo IC territory (Article 11 of Law No.244-FZ).
Reimbursement of customs duties seems to be a very serious relief; however, it constitutes certain risk for Russian state.
First of all, after setting up the Customs Union between Russia, Kazakhstan and Belarus granting such a relief may lead to additional budget expenditure, because the Agreement for the procedure of import customs duties (other duties, taxes and fees of equivalent effect)1 assessment and distribution applied within the Union stipulates for the need to distribute the customs duties between the three countries2. It means that 100% of the customs duties shall be remitted into the federal budget of the RF, and the Russian Party shall have to reimburse the total amount paid by Skolkovo Project participants. For example, the entity paid RUR when importing the equipment. It means that when reimbursing this amount Russian budget will lose RUR 112.3, because RUR 12.3 will go to the budgets of Belarus and Kazakhstan, but this amount will have to be reimbursed to Skolkovo Project participant from Russian federal budget at the expense of other revenues.
Secondly, tax duties reimbursement privilege does not stipulate any mechanisms against tax optimization leading to potential abuse of the new Law. In particular, Project participants may act as intermediaries for importing equipment which may be further sold to those not involved in Skolkovo Project at any price, because zero Profit Tax is stipulated for Project participants. Should the equipment be sold at the write-up value, the buyer may increase depreciation costs;
2) VAT and Corporate Profit Tax reliefs. In addition to reimbursement of customs duties and VAT paid by the Project participants in relation to importing goods required for certain activities, Law No.243-FZ “On Amending Certain Legal Acts of the Russian Federation due to Adopting the Federal Law on Skolkovo Innovation Center” of September 28, 2010, relieves the Project participants from:
- VAT payments (this right shall be granted to them for the term of 10 years from the moment they register as Project participants and until the time when total profit amount YTD for every participant exceeds RUR 300 mln in the year following the year when total revenues received by this participant exceeded RUR 1 bln – starting from the 1st day of the tax period in which the above indicated excess of total profit took place under condition that total amount of profit does not exceed RUR 1 bln 300 mln);
http://www.tsouz.ru/MGS/mgs21-05-10/Pages/Sogl_o_mexa№izme_zachisl_poshli№.aspx The following distribution (shares) of customs duties is stipulated within the Customs Union: Belarus 4.70%;
Kazakhstan 7.33%; Russia 87.97%.
Annexes - Corporate Profit Tax payments – until the moment of achieving a certain level of return on R&D investment (the conditions under which this relief is terminated are same as for VAT relief) or until losing the status allowing for using such tax reliefs. The relief is granted in the form of zero Profit Tax rate;
- Corporate Property Tax payments with regards to property and assets used for research.
Also Law No.243 FZ of September 28, 2010 stipulates the decrease of mandatory pension, health and social insurance contributions down to 14% for the Project participants. Besides, the Law provides for the managing company (owner of land plots constituting he territory of Skolkovo Innovation Center and of the assets located on these plots) to be relieved from Land Tax and Corporate Property Tax. Skolkovo residents shall also be relieved from Corporate Property Tax.
Granting the above described reliefs may create a series of problems in controlling tax compliance of the Project participants, in particular:
1) Tax reliefs with regard to certain types of taxes do not mean reliefs from desk and field tax audits of Skolkovo residents. According to the new version of p. 2 of Article 89 of the RF Tax Code, decision about conducting a field tax audit of an organization, having received the status of Skolkovo Project participant in accordance with the Federal Law on Skolkovo Innovation Center, shall be made by a tax inspectorate with which the tax registration of the respective entity was done.
With that, a field tax audit may be conducted based on decisions of other tax authorities within jurisdictions of detached subdivisions (branches) of Project participants. The law does not limit the participants in setting up their branches or subdivisions. The only requirement for their territorial location / jurisdiction is that the parent company must have the Project participant status and its governing bodies should be based in Skolkovo IC, as well as bodies authorized to exercise activities on behalf of Project participant without a need for special Power of Attorney (sub-paragraph 2 of p. 2 of Article 10 of Law No.244-FZ). The need to pay property tax may arise at the jurisdiction in which the subdivisions/branches are located, and it will be very difficult to control given the fact that the Project participants (parent companies for subdivisions) are relieved from accounting. It should be noted that currently taxpayers are not obliged to provide for accounting at their subdivisions/branches. According to subparagraph 5 of p. 1 of Article 23 of the RF Tax Code, organization for which accounting is mandatory shall submit the accounting records and tax returns only to the tax authority of its location/jurisdiction, which is understood (as the RF Ministry of Finance indicated in numerous letters and memorandums) as location of the organization headquarters. At the same time the RF Ministry of Finance directly determines that there is no obligation to submit accounting records at jurisdictions of organizations’ branches/subdivisions (see Letters of Minfin No.03-02-07/1 of July 7, 2009, and No.03-03-06/1/527 of August 18, 2009);
2) VAT relief and zero Corporate Profit Tax shall be granted to the Project participants until their profit and revenues exceed certain limits1. At the same time, it is not quite clear – how will the participants be audited to confirm they have reached the established “threshold” and what documents will be the basis for such audit given the fact that the project Relief will stay in effect until the time when total profit amount YTD for every participant exceeds RUR mln in the year following the year when total revenues received by this participant exceeded RUR 1 bln – starting from the 1st day of the tax period in which the above indicated excess of total profit took place under condition that total amount of profit does not exceed RUR 1 bln 300 mln.
RUSSIAN ECONOMY IN trends and outlooks participants shall be fully relieved from accounting. The point is that in p. 20 of Article 381 of the RF Tax Code there is no obligation for the Project participants to at least notify tax inspectorates about their profit amounts. They only shall submit revenues and expenditures data, which are not sufficient to check against the criteria set in Article 145.1 of the RF Tax Code;
3) In case Project participants do not do their accounting, certain difficulties may arise when requesting data about counterparties. Starting from 2006 the concept of counter tax audit was excluded from the Tax Code. However, it was practically replaced by the right granted to tax inspectorates for requesting data about the audited entity from its counterparties (which may be held liable for failure to provide such data). Thus, according to p. of Article 126 of the RF Tax Code, failure to provide taxpayer’s data at the request of a Tax Inspectorate in the form of documents stipulated by the Tax Code, and equally other forms of evasion from submitting such documents or submitting documents with consciously inaccurate data leads to a fine of RUR 10 thousand. That means, organization should be able to provide documents stipulated by the Tax Code and not by special laws and regulations. Failure to provide such documents may lead to tax liabilities arising;
4) Laws No.243-FZ and No.244-FZ have a serious logical contradiction. When using zero Profit Tax rate (p.5.1 of Article 284 of the RF Tax Code) Skolkovo Project participants should provide for tax accounting in the format stipulated for a different format of taxation – simplified tax system (Article 346.24 of the RF Tax Code). Thus, they need to use the tax rate from one type of tax, but the tax accounting procedure – from a different type of Tax. At the same time, the accounting methods for Profit Tax and for simplified tax system are different: accruals method is used for assessing the Profit Tax base, and cash-based method is used for assessing the simplified tax system tax base. This may lead to the following problems:
- It is not clear whether Project participants should be using accruals basis or cash basis in their tax accounting. As was mentioned before, simplified tax accounting requires using the cash basis, and at the same time Article 246.1 states that Project participants shall assess their sales revenues using the rules stipulated in Chapter 25 of the RF Tax Code, which means – using the accruals basis;
- Accounting of revenues and expenditures on a cash basis as per the procedure described in Article 346.24 of the RF Tax Code does not stipulate accrual of depreciation. And because Skolkovo Project participants are relieved from accounting, the tax authority shall be deprived of controlling capabilities with regards to correctness of accrual of depreciation of the fixed assets used by Project participants.
All the above leads to the following conclusion: the “friendly administration” option proposed for Skolkovo Innovation Center is one of the most radical. At the same time, it is difficult to say anything yet about its efficiency, because there has been no judicial practice in this field. However, the level of novelty in the proposed approach allows for assuming that in the process of implementing this model of administrative interaction between the government and the private sector the need for additional improvement and additional “fine-tuning” of the effective legislation will arise.
Annexes Annex International assistance in tax issues between the CIS countries, Common Economic Space and Framework Agreements: analysis of existing agreements International assistance, provided by the relevant authorities in different countries in terms of tax collection, is one of the main conditions for effective development of international economic relations. The standards of international agreements of various types are established, in varying degrees, to provide a procedure for such international assistance. Currently, many of the agreements provisions thereof do not meet the immediate objective: the effective mutual assistance of the tax authorities between different countries require amendments and supplements to optimize the provision of such an assistance.
What are the real possibilities of using international agreements, concluded between the country-members of economic integration with Russia in order to require / to render the international tax assistance by tax services to each other.
Specific methods of interaction between the tax authorities of various countries should be regarded as international tax assistance. These methods include:
- exchange of updated information on various tax issues (information on the taxpayer registration details, property, paid taxes and fees, about the violations of legislation on taxes and levies, etc);
- providing assistance to the tax authorities in the seizure of the documents;
- adoption of interim measures in regard to the property of tax debtor in a foreign country.
In the first turn, the question is about of such an interaction of tax services of the countries with the closest international relations in trade and economic cooperation with Russia.
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