In the opinion of the home experts, though the software piracy is quite spread in Russia, its level is not as big as it is stated in some foreign studies. For instance, at the market of the integrated systems of the enterprise management, which is growing at more rapid rates as compared with the IT market on the whole, the level of piracy is estimated to be at 20-25%, which corresponds to the level of the developed countries.
It is high rates of work force becoming more expensive, shortage of qualified staff, increase in costs for office premises that have much bigger importance for national software producers than the piracy. Mediumsized companies also suffer from the lack of resources for their goods promotion at foreign markets. In the environment of violent competition with the foreign producers these factors complicate the work of the domestic companies.
Branch indices of software piracy are given by BSA when preparing the petitions, including those against Russia, which are submitted to the Apparatus of the trading representative (ATR) of the USA by the International intellectual property alliance (IIPA) according to “301 special article” of the USA Law on Trade. For instance, in the petition submitted by the IIPA to the ATR in February 2008, it is noted that according to the Alliance’s estimations, total losses of piracy in Russia (included the losses from the professional and gaming software, music and books publishing) reduced by nearly 30% in 2007 as compared with 200639. However, despite the decrease in losses, it is again recommended to reconsider Russia’s privileges in the General Preferences System, envisaging duty-free import of a number of the Russian goods into the USA..
It is these recommendations by which the USA Administrations and departments are directed when making decisions in the field of the intellectual properties and high estimations of piracy levels and counterfeit are used as one of the tools for trading and political pressure on Russia by the USA. In 2008 in the ATR report on the situation with the intellectual property rights protection of the American rightholders abroad, that are annually presented in the Congress, Russia has been left in the category of the countries calling for the priority attention for the tenth time in the row40. Eight more countries comprise the list, in which inadequate or ineffective protection of intellectual property rights persists and the possibility to apply sanctions to the infringing countries is envisaged.
In this connection it seems necessary for the Russian experts to take part in the international projects on the piracy and counterfeit studies, including those within OECD and other international organizations frameworks, where the studies are being carried out on the examination f the economic consequences of the counterfeit and the piracy. The support for the continuation of this research was declared at the G8 summit in Japan in summer 2008. Participation in these and other studies, including those conducted in Russia by the Guild on audio-visual materials trade development and the Union of the trade marks producers will allow Russia to counteract more actively the attempts of the pressure by the foreign rightholders, connected with the violation of their rights for the intellectual property.
Alternative estimations of piracy lacking, the results of the BSA and IDC study may be regarded as not sufficiently grounded because of the reasons mentioned above, for instance to develop enforcement measures on the fight with the piracy and counterfeit in Russia. The level of piracy and the use of the licensed software must be regarded in the context of the economic situation as a whole, of the change in the investment climate, situational and structural changes at the markets and against this background - the situation with the population’s solvent demand. The price policy of the of software corporations, activity of their lobbying efforts to protect the software from non-licensed use, the level of the development in the branch infrastructure as well as the policy of retail chains and Internet providers also affect the increase in the licensed sales of the company.
On the whole the solution of the piracy problem in Russia requires a complex approach and concerns many spheres of the government regulation, starting with the preservation and development of the country’s intellectual potential and to the issues of the improvement of the Russia’s trading policy. At present the improvement of the intellectual property rights protection in Russia and strengthening of Russian rightholders’ It should be noted that the data submitted by the IIPA are incomplete and do not include the losses caused by the pirates to the American cinema companies and developers of the gaming software in 2007.
Office of United States Trade Representative Special 301 Report, Washington, D.C., April 25, 2008, p. 2.
protection abroad must be among the priority directions of the government policy. It should be noted that only the system approach to this problem solution, including with the use of the economic measures, will contribute into achievement of the visible results.
Legal Basis for Exchange of Information on Taxes N. Kornienko At present in the Russian Federation information on taxes exchange is limited with the exchange of information on inquiries being made, whereas in other countries there is also automatic and spontaneous exchange in practice – it comprises a serious support for tax officers when conducting tax inspections. Information exchange often helps to reveal bogus companies and especially offshore bogus companies. It is the countries that are European Union members that apply this technique most successfully. Basing on their example positive and negative features of organized exchange of information on taxes are considered below.
A lot of foreign states are constantly searching for better methods of tax control, in particular, they are gradually transferring or have already transferred to the capital and goods flow control and revelation of bogus or front companies. The methods mentioned are tightly connected with the information exchange.
As a matter of fact, the classic forms of documental support for trading operations, such as payment documents, invoices and others are not enough to eliminate all forms of taxes evasion, including legal ones.
At present in the Russian Federation information on taxes exchange is limited with the exchange of information on inquiries being made, whereas in other countries there is also automatic and spontaneous exchange in practice – it comprises a serious support for tax officers when conducting tax inspections.
It is information exchange that often helps to reveal bogus companies in various forms and especially offshore bogus companies. It is the countries that are European Union members that apply this technique most successfully. Basing on their example positive and negative features of organized exchange of information on taxes are considered below.
There are four main documents comprising the legal basis for information exchange between taxation bodies of different countries in the territory of the EU. Depending on the content of legislative statements in constitutions of different countries, which regulate how international agreements concluded between these states, these documents can be reflected in national legislation of the states mentioned to some extent.
1. Articles of bilateral agreements on avoiding double taxation on the basis of article 26 OECD Model Convention on incomes and assets taxes or article 26 UN Model Convention on avoiding double taxation. As it follows from its name, these articles are in force only for two states that signed the Agreement.
2. European Union Council’s Directive 77/799/EEC on 19 December 1977 - this EU Council’s Directive is compulsory for execution by all countries that are EU members.
3. OECD/Europe Council Convention on rendering reciprocal administrative assistance on the issues of taxation on 25 January 1988. The Convention was open to be signed by all countries that are OECD members or Europe Council members. It came into effect in 1995 and was ratified by 5 countries at the same time. Its statements are compulsory only for the countries that signed and ratified it.
4. Special agreements on information exchange. It is not sensible to sign agreements on avoiding of double taxation to full extent with some countries. This is connected with their tax policy, which characterizes them as “tax paradise”. It is nevertheless very important for these countries to recognize their liabilities on information exchange in case of tax delinquencies, fraud or money laundering. This is why the OECD recommends to sign with these countries agreements limited to information exchange issues.
There are several such agreements at present – nearly all of them are signed between the USA and the countries of the Caribbean.
It is article 26 of the OECD Convention Model on incomes and assets taxes that is the legal basis for information exchange between tax bodies of the Russian Federation and foreign states. It should be noticed that this article does not apply to indirect taxes. In order to extend the statements of the Convention mentioned to the indirect taxes the application of this article to indirect taxes such as VAT and excises should be stated legislatively. As to the agreements on avoiding double taxation currently in effect that were initially aimed at the direct taxes the extension of legislative acts to indirect taxes is achieved through countries signing additional protocols to the agreements mentioned. Let us consider the characteristic features of article of OECD model Convention.
Article 26 on Incomes and Assets Taxes of OECD Model Convention It should be understood that OECD Model Convention on assets and incomes taxes is, according to the name, model or typical agreement that can be used by countries as the basis for the development of their own bilateral agreements. OECD council recommends the countries that are OECD members to stick to Model Convention, which is not, however, compulsory. In fact, there is a trend to accept article 26 without any special changes. Minimum changes either are connected with the date of the particular bilateral agreement conclusion (since amendment were made to the article a few times in the past) or depend on the attitude of one or another of the Negotiating states to the issue of taxes evasion at international level.
There are two paragraphs in article 2641. The statements of the first one are of the following meaning:
Paragraph (а) Information exchange duty The first rule consists in competent bodies of the Negotiating states being obliged to exchange the information necessary to fulfill the statements of:
- the Convention;
- national legislations on taxes of the states, for which the Convention applies, on condition that these legislations do not contradict the convention.
Other statements of the Convention give the definition for such a “competent body” (normally they are the Ministry of Finance of Ministry for Taxes and Duties or their authorized representative), they also define the taxed subject to regulation by the Convention – they are normally all the taxes on incomes and assets levied on natural persons and economic entities.
It is obvious that these states are not obliged to exchange the information on the taxes not mentioned in the Convention. For instance, the states do not have to exchange information on VAT or gift tax. Information exchange on the taxes for which the Convention does not apply is to be made in accordance with the separate agreement or protocol. The Convention also states the rule on national legislations not contradicting Convention’s statements, since a Negotiating state does not have to present information used for tax enforcement, whose levy does not correspond to the conditions of the Convention.
According to the second rule of the Convention, information exchange is not limited by article 1 of the Convention, which states that on information exchange the states may not be restricted by the information on the residents of one or both the Negotiating states and can also include information on non-residents, which may be necessary for residents taxation.
According to comments42 to article 26 of the OECD Model Convention, published by the OECD, it is stated that the paragraph allows information exchange in three different ways:
- on the basis of inquiry in each particular case;
- automatically, when information, obtained by one of the Negotiating states, on one or several categories of income, whose source is in the other Negotiating state, is regularly given to the other state (for instance, information on interests, paid on banks deposits);
- spontaneously, when, for example, any state as a result of some inspections or investigations received information that can be interesting for the other state.
(b) Confidentiality The third rule of paragraph 1 article 26 states that the information received by any of the Negotiating states must be kept in secret as well as information received in concordance with the statements of the national legislation of the states. The information is disclosed only to the bodies or persons (including courts and administrative bodies) that deal with determination or taxation or forced levy or prosecution in court or consideration of appeals dealing with the taxes, to which the Convention applies. The bodies and persons mentioned should use such information only for the corresponding purposes.
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