The decisions should be delivered to the banks (branches of banks) in electronic form through the Interregional Inspection of the Federal Tax Service for the central data processing unit, authorized by the Bank of Russia and and local Central Bank branches.
Electronic message should include: the decision of the Tax Authority in electronic form, encrypted package, confirmation, notice, receipt notification, which constitute the complete package of information, compiled under stadard format, suitable for clear perception, supplied with authentication ID (hereinafter ID) for control the integrity and authenticity of information.
The procedure of the encrypted electronic messages delivery from FTS through the internal banking system enables prompt counteraction between tax authority, RF Federal Tax Service and the bank (bank branch) directly, without involvement of the Bank of Russia.
3. The RF Ministry of Finance letter N 03-05-04-01/32, dated 13.10.2008 and RF MF and FNS letter N SHS-6-3/787 @, dated Oct. 31, 2008 clarified the tax rates, applicable to the property of individuals, applying special tax regimes.
In particular, it is noted, that with regard to Art. 18 of the Tax Code, special tax regimes, stipulated therein, provide for exemption from certain taxes and levies. But the benefits, provided to a taxpayer in regard to property tax on individuals due to special tax regimes, do not result in exclusion those assets from the relevant tax base. That is, the property tax on business, operating under special tax regime, is subject for assessment, rather than payment in this case.
4. The RF FNS letter N SHS-6-3/765 @, dated October 24, 2008, has clarified the issue of corporate income tax assessment. A taxpayer has the right to transfer to tax assessment on the basis of monthly advance payments, rather than actually amounts received, by notifying the tax authority no later than December 31 of the year, preceding to the tax reporting period, when the transfer under advance payment regime is made. Herewith, regime of advanced payments should not be changed by the taxpayer within the complete tax reporting period.
5. The RF Ministry of Finance letter N 03-02-07/2-192, dated of October 29, 2008 has clarified the issue of penalties, accrued by tax authorities after the term of arrears recovery has expired.
In accordance with Article 46 of the Tax Code, the term (the so-called «preclusive time frames») is set up, within which the tax authority should make the decision on tax arrears recovery instructions to the bank to transfer the tax due to the RF budget. Enforcement of penalties payment should not be considered in isolation from the duty to pay taxes, according to the RF Ministry of Finance. In the event the tax authorities miss the deadline for sending the recovery demand to the bank, all arrears and penalties should be claimed through the court. Herewith, if the preclusive term for the tax recovery is overdue, penalties can not serve as the means to ensure tax payment, and from that point, there are no grounds for charging thereof. The same approach is expressed in the Resolution of the Supreme Arbitration Court Board of the Russian Federation N 8241/07, dated of 06.11.2007.
6. In view of the adoption of the Federal Law N 175-FZ, dated of October 27, 2008 «On additional measures to strengthen the stability of the banking system up to 31.12.2011», one can expect a large number of disputes and lawsuits.
Thus, it is foreseen, that the Deposit Insurance Agency should provide assistance to the investors and banks. The presence of an intermediary service in the person of the Agency in the transfer of funds from the federal budget to the banks and investors in the form of «assistance» will entail excessive tax losses and result in reduction of the investors' interest in the acquisition of insolvent banks.
From the standpoint of the Tax Code, assistance in the form of monetary transfers is a free-of-charge income of investors, i.e., it is subject to profit tax in the total amount. However, the Agency has no right to transfer funds for the investor’s tax, i.e., the investor would have to spend all assets, received from the Agency for the purpose of preventing bankruptcy of insolvent bank, and moreover, to pay income tax at the expense of its own funds.
There is also a difficulty in the fact, that the Agency has granted the right to invest the assets of physical entities in deposit insurance fund to finance activities on prevention the banks’ bankruptcy (Clause 3, Art.10). As far as the Fund is supposed to perform targeted activities, payments, addressed to other purposes than deposit insurance, can be recognized as the misuse of assets (though legitimate in terms of the federal law).
Such payments of the Agency can be subject to profit tax, as in accordance with the Tax Code (Article 321, Para.3), only obligatory and non-refundable expenditures are relevant to reduce the tax base of the organization only by binding costs. Since the action plan on bankruptcy prevention should be developed individually for each bank and approved by the Board of Directors of the Agency, those expenses cannot be considered as binding ones (that is, Para.3, Art.321 is not applicable), and. as they are not related to payments for the goods (works, services), they can not be applied to the Agency tax base reduction as other ordinary business expenses.
Apparently, problems will arise in regard to compulsory reduction of the authorized capital of problematic bank. In the framework of the federal law N 175-FZ, the RF CB has already adopted Regulation N 2108-U of 29 October, 2008 «On the Order of adoption the RF CB resolution to reduce the bank's authorised capital, equal to the value of its own funds (capital)». In fact, in the balance of the bank founders contributtions to the authorized capital of the bank are reflected in the amount of the original actual cost. However, the banks’ founders are not necessarily credit organizations or legal entities. I think that compulsory reassessment on the grounds of the RF CB resolution the balance sheet assets of on-banking organizations and contributions of legal and physical entities to the authorized capital of commercial banks, reflected in the Articles of Incorporation, may also provoke legal disputes.
The above analysis of the tentative disputable issues is preliminary and perhaps other types of lawsuits and disputes can arise in future.
7. The RF Federal Tax Service Letter N SHS-6-3/782 @, dated October 29, 2008, provides detailed comments on payment procedure for the VAT tax agents, transferring the funds for the works (services), supplied in the territory of the Russian Federation, purchased from the taxpayers - foreign entities, who are not registered with the tax authorities as taxpayers (Par.4 of Article 174 of the Tax Code).
8. The RF FTS Letter 2008 N SHS-15-7/1275 as of November 1, has clarified the FTS approach to social deductions, agreed with the Authorized Representative of the Russian Government to the Constitutional Court of Russia, the Supreme Court and the Supreme Arbitration Court. It is clarified, that Art.219 and 210 of the Tax Code provide the right to taxpayers to receive social tax deduction in the amount paid by the taxpayer in the tax period for his/her study courses in any in educational institutions, regardless of the type of training of the taxpayers, as well as the right to taxpayers-parents to receive social tax deduction in the amount paid by them for the education of their children in the form of full-time attendance.
The RF FTS Russia does not consider the limitation in regard to the form of the children full-time attendance as contradictory to the Russian Constitution and commented, that the author of federal legislation has the right, based on the principle of fairness and taking into account the economic, social and other conditions, set different tax requirements to various categories of taxpayers (RF Constitutional Court Resolution N 14-P, dated 16.07.2004). In fact, tax exemption is a benefit in nature, which is an exception from the Russian Constitution principles of universality and equality of taxation (Arti cles 19 and 57). Therefore, benefits should always be targeted, and establishment thereof is an exclusive prerogative of the legislature.
Social tax deduction in the amount paid by the taxpayer-parent for the education of their children is provided for the amounts, paid by the taxpayer to the third parties (not to themselves) without restrictions in the children age (up to 24 years). Those who are studying in the full-time form, have no opportunity to work and, respectively, to pay for their education (which implies the need for the parents’ assistance). Therefore, imposing the limiting requirement in the full-time form of education for social tax deduction does not violate the principle of universality and equality of taxation, because it takes into account a legally relevant and objective distinction between individual categories of taxpayers.
9. The Letter of the RF Ministry if Finance and Federal tax Service N SHS-6-3/793 @ of 1 Nov., 2008 provides clarifications on the specifics in treatment for the tax purposes the banks’ profit, derived from interest on debt liabilities in cases, where the contract provides for the possibility of change (replenishment or withdrawal) of the bank deposit within the contract term.
In accordance with Article 269 of the Tax Code, in regard to such the debt liabilities, (in case there are no provisions for the interest rates amendments throughout their validity term), the RF CB refinancing rate, effective on the date of monetary assets involvement is established. Therefore, if the agreement provides only for the changes in the amount of the deposit, rather than in interest rates, in order to assess expenses for taxation purposes, the refinancing rate, set up by the RF CB on the date of the contract conclusion should be applied.
10. The RF Government Resolution N 833, dated of November 7, 2008 introduced amendments to the Regulations for approval the scope of minerals losses in the mining industry, based on the procedure and technology of the deposit development, approved by the RF Government Resolution N 921, dated of December 29, 2001. Standard losses rates for solid minerals are assessed individually in view of their location, technology of mining operations and should be included in the project documentation (technical design, feasibility study, deposit development project and other documentation).
Loss standards of solid minerals (rare ones) are approved by the Federal Agency for Subsoil Use.
The loss standards for common minerals are approved by public authorities of the subjects of the Russian Federation. Standards in losses of hydrocarbons are approved by the RF Ministry of Energy (annually).
Upon the approval, the responsible authorities provide the details on the upgraded standards to the RF RTS within 10 days.
11. By the Order of the Ministry of Economic Development N 392 of Nov. 12, 2008, the deflator K1 at the rate of 1.148 is established for 2009, which is applied to assess the tax base for the unified tax on imputed income in accordance with Chapter 26.3 of the Tax Code "Taxation system in the form of a unified tax on the imputed income for certain types of activities".
12. By the Order of the Ministry of Economic Development N 395 of Nov. 12, 2008 the deflator index at the rate of 1.538 is established for 2009 in order for application Article 26.2 of the Tax Code "A simplified taxation system”.
13. Federal Law № 205-FZ of 24.11.2008 has made amendments to the RF Budget Code and the RF Tax Code. In particular, the structure of income taxes to the budgets of different levels is amended in regard to production sharing agreements: 60 per cent of proceeds will be transferred to the federal budget instead of 60 %, and relatively 40 per cent to the regional budgets, instead of 20 % from income tax.
The regulation, defining the tax rate, established by RF CB for taxes, paid in foreign currency, as of the date of tax payment is transferred to the basic part of the Tax Code (Article 45) from Part 2.
Benefits on VAT and excise taxes on goods imported to the territory of Magadan special economic zone are suspended.
The rules governing the procedure of debt restructuring in the arrears for the insurance contributions of public institutions to the budgets of public extra-budgetary funds, as well as the schedule thereof (the insurance contributions should be settled before 1.01.2010, penalties from 1.01.2010 to 1.01.2020, etc.) are stipulated in the Tax Code.
14. Federal Law N 208-FZ of 24 Nov., 2008 has amended Art. 346.14 of the Tax Code. In a simplified tax system the taxpayers are allowed to change the subject of taxation annually, rather than once in 3 years. To do so, they should notify the tax authority before December 20 of the year preceding the year, in which the taxpayer is going to change the subject of taxation. This provision is in the effect since 1.01.2008.
15. Federal Law № 209-FZ of 24.11.2008 has revised the list of organizations, whose sales of products are not subject to VAT taxation. In addition to Public Unitary Enterprises in the antiphthisic, psychoneurological, psychiatrical and other institutions of social security and rehabilitation, the workshops in criminal-executive system are enclosed.
16. Federal Law № 224-FZ of 26.11.2008 has introduced amendments to the basic and special parts of the Tax Code. In particular, the procedure is provided for postponement and tax payment by installments within five years, granted directly by the Minister of Finance (when the debt exceeds RUR 10 billion and a compulsory debt redemption would lead to the bankruptcy of organization).
Amendments are made to the procedure of suspending bank operations with the accounts of the taxpayers, desk audit procedure; the amount of penalties is increased for late submission of information by banks or failure to provide information on opening and services for the accounts of notaries, individual entrepreneurs, lawyers, etc. (from RUR 10 to 20 thousand and from RUR 20 to 40 thousand, respectively), etc.
Buyers, purchasing discarded property of public institutions are regarded as tax agents.
The Tax Code provisions on the procedure of VAT payment and refund is revised.
Income tax deduction amount for the purchase of housing is increased from 1 to 2 million rubles.
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