Friday, June 13, 2014

Amendments to Transfer Pricing Rules

On 30 May 2014 the Act of UkraineOn Amendments to Tax Code of Ukraine Aimed at Improving Transfer Pricing Rules (Homytynnik's Act) came into force.

Please see below a brief account of the main changes introduced by this Act:

- Deadline for the 2013 transfer pricing return has been shifted from 1 May 2014 to 1 October 2014. The taxpayers who had not filed the return by 1 May, will be able to do so by 1 October 2014. In addition, the taxpayers who had filed the return by 1 May with some mistakes will have an additional time for the correction of such mistakes without the imposition of any penalties;

- Fine for the failure to submit a transfer pricing return has been equaled to 100 minimum salaries, not 5% of the total amount of the undisclosed controlled transactions as it was before;

- Fine for the failure to submit transfer pricing documentation has been decreased from 100 to 10 minimum salaries;

- Period of the application of a nominal fine of UAH 1.00 in case of the determination of additional transfer pricing-related tax liabilities by the tax authority has been prolonged till 31 December 2014;

- Exemption from penalties in case of the determination of additional transfer pricing-related tax liabilities by means of a self-correction made by a taxpayer up to 31 December 2014 has been introduced.

VAT-Bonds to be Issued

On 27 May 2014 the Resolution of the Cabinet of Ministers of Ukraine of 21 May 2014 No. 139 (the “Resolution”) came into force. The Resolution provides for the issue of government bonds (so-called VAT-bonds) for the purposes of VAT refunding.

The terms of the issue of the VAT-bonds are the following:

- Refunding through the VAT-bonds is voluntary. А taxable person willing to obtain VAT-bonds should submit a respective application to his local tax authority;

- Amount of the VAT to be refunded through the VAT-bonds is currently unknown. In the nearest future the Ministry of Revenue and Duties of Ukraine is supposed to carry out the inventory of the VAT indebtedness. Based on the results of such an inventory the Cabinet of Ministers of Ukraine will approve the threshold limit of the issue;

- Refunding through the VAT-bonds will cover only those amounts of VAT which had been declared for refunding by 1 January 2014;

- Premised on the plain reading of the Resolution, the only amounts of the VAT confirmed by tax audits can be refunded through the VAT-bonds. It is unclear whether it will be possible to refund in such a way the VAT amounts confirmed by the court judgments awarded in the cases concerned with challenging the results of the tax audits;

- Taking into account the time set forth by the Resolution for drafting the inventory registers of the VAT indebtedness as well as the conduct of other formalities required for the issue of the VAT-bonds, the issue may be expected not earlier than in the middle of August 2014;

- VAT-bonds are going to be issued in non-documentary form (uncertified securities). The par value of the VAT-bonds is going to be UAH 1,000. The interest rate equals to that of the National Bank of Ukraine at the time of the the Resolution’s entry into force (9,5% per annum). The interest repayments are going to take place every six months;

- Circulation term of the VAT-bonds is 5 years. The Resolution stipulates the gradual repayment of the bonds. The state is going to repay 10% of the par value every six months. Thus, in 5 years 100% of the par value is going to be repaid.

Wednesday, June 4, 2014

Preferential Tax Regimes for Agricultural Enterprises

Below you can find a brief description of three major preferential tax regimes established with a view of promoting the development of agriculture in Ukraine.

І. Fixed agricultural tax (FAT). The switch to this tax, as a rule, entails a tax saving due to the exemptions from: (і) corporate income tax; (іі) land tax, (ііі) duty for special use of water and (iv) duty for conducting certain types of entrepreneurial activity (in terms of trade activities).

FAT is levied on agricultural manufacturers, namely on enterprises engaged in:

Manufacture of agricultural products (crop production and animal husbandry);

Fish farming and catch of fish in inland waters;

Processing of agricultural products.

It is important to note that only legal entities can qualify for FAT. The door to this tax is closed for sole proprietors.

In order to qualify for FAT, an enterprise must have at least 75% share of agricultural production in its total operations in the preceding tax year. The enterprise should undergo a special registration with the tax authorities resulting in the issuance of an FAT certificate. Moreover, the enterprise should confirm its FAT status annually by submitting certain documents to the tax authorities. 
The taxable item is the area of agricultural land owned or used by the taxpayer, including leased land plots. The normative monetary value of one hectare of agricultural land makes up the base of assessment.

The tax rates are differentiated and depend on the category of a land plot constituting a taxable item. For example, the tax rate for tillage is 0.15% of the normative monetary value, while for land plots of water register it is 0.45%.

The tax period is a calendar year. The tax return is to be filed by February, 20 of the current year. The tax is paid by instalments on a quarterly basis (in the first and second quarters 10% of the tax is remitted, in the third quarter – 50% and finally in the fourth quarter – 30%).

ІІ. Special regime of VAT taxation for manufacturers. This regime provides for an exemption of agricultural manufacturers from remitting due VAT (surplus of output VAT over input VAT) to the tax authorities. The said VAT is accumulated in special accounts of manufacturers and can be used for the payment of VAT charged on the purchased goods/services and for other production-related purposes.

The regime covers agriculture, forestry and fishing. The Tax Code of Ukraine sets forth a detailed list of activities within each of the three abovementioned groups falling under the scope of this regime.

The two important preconditions for the application of the regime are as follows:

- Production of agricultural goods/provision of agricultural services directly by a taxable person (the regime does not extend to processing enterprises and intermediaries);

- Specific share of agricultural products/services in the total operations of a taxable person (this must be at least 75 % of all the goods/services supplied by him over the preceding year).

For the application of this regime, just as for FAT, a special registration with the tax authorities is required. The taxable person is ought to receive a certificate attesting this specific registration. 
VAT returns are submitted under general rules. The only peculiarity here is that the taxable person needs to present additionally to the tax authorities the copies of payment orders certifying the deposition of VAT amounts to the special account.

Taxable persons purchasing goods or services from those enjoying the special regime at hand, are entitled to the input VAT on general grounds.

The users of the special regime preserve the right to a VAT refund, but only to the extent of export transactions. The surplus of input VAT over output VAT caused by the performance of non-export transactions is not subject to a cash refund. However, the taxable person is eligible to carry forward such a surplus in his tax calculations. 
III. Special regime of VAT taxation for processing enterprises. Unlike the regime available to manufacturers, this regime is of a temporary nature (to be applied by January 1, 2015). The regime covers milk and meat processing businesses.

This regime is practically tantamount to that for manufacturers, except for the following:

- VAT due to the remittance to the tax authorities is not fully transferred to the special account of a taxable person. The one part of this amount is credited to the said account, while the other goes to the state as an earmarked tax revenues to be spent for backing animal husbandry projects (the ratio for 2014 is 50% to 50%);

- The sphere of the utilization of the VAT amounts retained in special accounts is much narrower. Whereas the regime accorded to manufacturers allows using such funds practically for all production-related purposes, the processing enterprises can utilize these funds as payments for milk and meat purchased from the manufacturers only.

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