New Transfer Pricing Rules: Coverage

On September 1, 2013 the Law of Ukraine No. 408 -VII «On Amendments to the Tax Code of Ukraine Concerning Transfer Pricing» (hereinafter – the «Law on TP») dated July 4, 2013 entered into force. The present article will review the application field of the new rules of transfer pricing (hereinafter – «TP») introduced by the aforementioned Law, including the types of taxes and controlled transactions (hereinafter – «CT») caught.

Taxes Covered by TP Rules

The TP rules to the full extent, including filing TP returns and TP documentation, apply only to VAT and corporate income tax. The so-called «abridged» application of the TP rules is possible for specific purposes related to the collection of personal income tax (hereinafter – «PIT»). For instance, para 164.5 of the Tax Code of Ukraine provides that if an individual draws income in a nonmonetary form, the value of such income calculated in accordance with the arm’s length prices is the basis of assessment. The computation of arm’s length prices is, in its turn, the realm of the TP rules. Nonetheless, it seems to be clearly understood that the maximum that can be done in this situation is the application of the TP methods for the computation of the arm’s length price (no obligations in respect of filing TP returns and TP documentation for PIT payers in any case).

On the other hand, the Ministry of Revenue and Duties of Ukraine (hereinafter – the «Ministry of Revenue») has recently prepared the draft law, according to which, in particular for the purposes of PIT determination, it is suggested to use the term «fair market price», which has nothing to do with the TP rules, instead of «arm’s length price». This is the Law of Ukraine “On Amendments to the Tax Code of Ukraine (regarding the Use of the Term “Arm’s Length Price”). If such amendments are made, the question of the possibility to apply the TP rules for the PIT purposes will be taken off the table automatically.

Controlled Transactions (CTs)

The following transactions are recognized as controlled in accordance with the Law on TP:

• All transactions with related parties-non-residents;
• Transactions with certain categories of related parties-residents (taxpayers operating at loss, unified tax payers, non-VAT taxable persons and/or non-payers of corporate income tax);
• Transactions with unrelated parties-non-residents subject to corporate income tax at the rate, which is 5 or more percent less than that in Ukraine (the list of relevant jurisdictions is yet to be approved by the Cabinet of Ministers of Ukraine).

The abovementioned transactions are treated as controlled not automatically, but only where the amount of taxpayer’s transactions with a specific counterparty (regardless of whether this is a single transaction or a set of transactions) reaches or exceeds the value limit of UAH 50 million, excluding VAT.

If one asks himself what has drastically changed when compared to the situation which existed prior to the entry into force of the Law on TP (before September 1, 2013), he can note the following:

• Barter transactions between unrelated parties have being excluded from the list of CTs*;
• The field of the TP application to the related parties-residents has been narrowed. Prior to September 1, 2013 all transactions with related parties had been defined as controlled ones, whereas since September 1, 2013 only transactions with certain categories of related parties residents have been defined as such;
• The value limit for classifying transactions as controlled has been introduced. The said limit had not existed prior to September 1, 2013, therefore all transactions regardless of their amount had been subject to control;
• One may also assert that control over transactions with unrelated parties-non-residents subject to corporate income tax at the rate of 5 or more percent less than that in Ukraine has been introduced, however such an assertion will be rather debatable. The question at issue is that prior to September 1, 2013 transactions with any entities (regardless of whether they are residents/non-residents or related/unrelated parties) that were not subject to corporate income tax or were subject to this tax at the rates, other than the standard rate, had been recognized as controlled ones. Transactions with any unrelated party-non-resident paying corporate income tax at the rate of 5 or more percent less than that in Ukraine fell under the aforesaid definition.

In terms of international practice for identifying the list of CTs, the first thing that everybody has to remember is the OECD’s «Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations». According to this document it is offered to view transactions as controlled only if they are made between related parties (residents and non-residents). As you can see, the Ukrainian approach is more «fundamental» and the control falls far beyond the scope of transactions with related parties.

However, it may be said that a wish to control certain transactions with unrelated parties is probably typical for the most CIS countries. Thus, for example, in Russia the transactions with unrelated parties-non-residents are treated as CTs if these transactions relate to goods of world exchange trade or are made with unrelated parties-non-residents registered in the jurisdictions included in the «black list» of the tax havens. In Kazakhstan and Belarus nearly all transactions in the area of international trade are recognized as CTs, regardless of whether the counterparty is a related or unrelated party.

The matter which seems to be drawing the most attention is the application of the TP rules to transactions with unrelated parties-non-residents subject corporate income tax at the rate of 5 or more percent less than that in Ukraine.

Firstly, the taxpayers would like to know which calculation formula must be used, specifically whether to deduct 5 percentage points (19% – 5% = 14%) or 5 % (19% – (5% from 19%) = 18,05%) from the corporate income tax rate applicable in Ukraine. Fortunately, on November 13, 2013 the amendments to the Tax Code of Ukraine (section 5 of the Law of Ukraine No. 657-VII «On Amendments to the Tax Code of Ukraine Concerning Inventory and Registration of the Taxpayers and the Improvements of Certain Provisions» dated October 24, 2013) entered into force and finally clarified this question. According to the amendments 5 percentage points, rather than 5%, must be deducted, i.e. a non-residents subject to corporate income tax at the rate of 14% and below instead of 18,05 % and below will be controlled.

Secondly, it is important to keep in mind that the control may affect not only those non-residents whose statutory corporate income tax rate is lower than in Ukraine, but also those of them whose effective rate is lower than in Ukraine. The premises of this approach can be found in the Law on TP itself which emphasizes two categories of non-residents falling under the control: (i) non-residents registered in a country (territory), where the corporate income tax rate is 5 or more percent less than in Ukraine and (ii) non-residents paying corporate income tax at the rate of 5 or more percent less than in Ukraine. 
 

It seems that the Ministry of Revenue does support this approach. For instance, Malta is included in the draft list of the jurisdictions the transactions with the registered residents of which are controlled, that has been developed by this ministry. This is against the background of the fact that the statutory rate of corporate income tax in Malta is much higher than in Ukraine and amounts to 35%. However, due to the dividend-related refund system existing in Malta, its effective rate of corporate tax is much lower than in Ukraine.

The So-Called «Safety Corridor»

Lastly, with the entry into force of the Law on TP the allowed 20% deviation of a transfer price from the arm’s length price stopped being applied. It should be recalled that the said deviation was in operation in respect of corporate income tax from April 1, 2011 to September 1, 2013 and in respect of VAT from December 16, 2006 to January 1, 2011. The existence of such 20% «safety corridor» allowed the taxpayers not to worry about the accordance of transfer prices with the arm’s length prices in most cases.

*- Prior to September 1, 2013 transactions covered by the legislation on arm’s length prices that was applicable at that time were not directly referred to as CTs. However, the fact that the control over prices in such transactions was in fact exercised allows to refer conditionally to these transactions as to CTs.

New Year Tax Gifts 2014

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http://hdwallpaperszon.com

Co-author Andriy Kuleba

(junior associate of Lavrynovych and Partners Law Firm)

Dear readers, take our warmest wishes for upcoming New Year and Christmas!

Below is a brief account of what will be expected since 1 January 2014 in the area of Ukrainian taxation (so-called New Year Tax Gifts 2014). 

 

Tax Novelties since 1 January 2014

No	After Novelties Take Effect	Before Novelties Take Effect	Possible Consequences
VAT
1	The rate of VAT lowers to 17%*. *- It is expected by some commentators that the Ukrainian Parliament will change the law so as to avoid the reduction of the current 20% VAT rate in 2014.	The rate of VAT constituted 20%.	Favorable implications. Theoretically, it can cause the prices for VAT taxable goods and services to fall down by 2.5% with the resulting increase of total demand.
2	No requirement on the indication of the details of a customs declaration in the VAT invoice issued with regard to imported goods.	A VAT invoice issued in respect of imported goods must include the details of the relevant customs declaration.	The simplification of the procedure.
3	The supplies of grain crops (wheat, rye, barley, oats, corn, rice, sorgo, buckwheat, panic grass) and industrial crops (seeds of rape and sunflower) become VAT taxable.	Temporary exemption from VAT.	The exporters of the grain will run into a “headache” called “VAT refund”.
4	The supplies and imports of waste and scrap of ferrous and non-ferrous metals and the wood (certain items) become VAT taxable.	Temporary exemption from VAT.	Slightly forgotten problems for the exporters of metallurgical products related to the refund of VAT paid to the suppliers of the scrap and waste metals. It is not a rare occasion that the latter resort to non-transparent chains of supply in which the tax authorities are keen to discover “fake nature” deals.
5	Possibility to file for VAT registration by means of electronic communication (provided that there is an agreement executed between the taxable person and the tax authority on the recognition of the electronic documents).	No such possibility.	The simplification of the VAT registration.
6	The introduction of 5 calendar days term for the carrying out of in-office (cameral) audits of tax returns of VAT taxable persons with positive tax history for the purposes of automatic VAT refund. To have the positive tax history means to meet a number of criteria over 36 successive months.	In-office (cameral) audits for the purposes of the automatic VAT refund were to be carried out within 20 calendar days.	The acceleration of the VAT refund procedure for the taxable persons having positive tax history.
7	The cessation of the possibility of receiving VAT refund through the issue of financial treasury bills.	VAT refund was possible through the issue of financial treasury bills.	The VAT taxable persons lose the alternative way of VAT refund.
Corporate Income Tax
8	The rate of corporate income tax lowers to 16%*. *- It is expected by some commentators that the Ukrainian Parliament will change the law so as to avoid the reduction of the current 19% corporate income tax rate in 2014.	The rate of corporate income tax constituted 19%.	Positive implications. Reduced tax burden for enterprises.
Excise Tax
9	The rate of excise tax increases to UAH 32 for 1 liter of 100% spirits.	The rate of excise tax constituted UAH 29 for 1 liter of 100% spirits.	The increase in prices of alcoholic drinks.
10	The specific rate of excise tax for non-filtered cigarettes rises to UAH 77.50 per 1 thousand pieces, and for filtered cigarettes – to UAH 173.20.	The specific rate of excise tax for non-filtered cigarettes constituted UAH 72.70 per 1 thousand pieces, and for filtered cigarettes – UAH 162.60.	The increase in prices of cigarettes.
Administration
11	The introduction of documental unscheduled electronic audits for taxpayers using simplified tax system. Such audits are carried out exclusively at the instance of the taxpayer with the minor level of tax risk. The audits are called “electronic” considering that the documents for the audits are provided in the electronic form.	No such possibility.	This brings the unique possibility of having your tax calculations audited on a free-of-charge basis. The taxpayer applies to the tax authority and provides it with all required documents for the purposes of such an audit. The tax authority carries out the audit. Should tax irregularities be detected, the notice of assessment is not immediately issued. The taxpayer is given a time during which he is able to made the required adjustments himself (self-correction) without the imposition of 25 (50)% fine. At the same time, this does not exempt him from paying a 3 (5)% fine (for the self-correction of tax mistakes) as well as daily default penalty. If the taxpayer fails to correct the mistakes, the separate tax audit can be carried out with the resulting notice of assessment.
12	The Methodology of the Accounting of Temporary and Permanent Tax Differences comes into force (Accounting Standard “Tax Differences” approved by the order of the Ministry of Finance of Ukraine No. 27 dated 25 January 2011).	No such Methodology.	Additional requirements to the financial statements. Financial statements for accounting periods of 2014 should be prepared with the consideration of tax differences.
13	The applications on the voluntary VAT registration and on the selection of the simplified tax system regime may be filed directly with the Registrar of Companies at the moment of the state registration of a legal entity or a sole proprietor.	No such possibility.	More facile procedure for VAT registration and accession to simplified tax system regime.
Other Issues
14	The actual rates of ecological tax equal to 100% of the rates stipulated by the Tax Code of Ukraine.	The actual rates of ecological tax constituted 75% of the rates stipulated by the Tax Code of Ukraine.	Additional tax burden for ecological tax payers.
15	Renewal of real estate tax for individuals.	The real estate tax has already come into effect for individuals and legal entities. Nevertheless, since August 2013 the application of the tax to individuals has been suspended.	Additional tax burden for individuals holding residential real estate.

APPEALS FROM TAX ASSESSMENTS: NEW RULES FOR COURT FEES

Once again the rules for payment of court fees in cases involving appeals from tax assessments have been altered. The respective law on amendments to the Law on Court Fees entered into force on 23 October 2013.

*- minimum statutory salary taken into account for the calculation of court fees in 2013 amounts to UAH 1,147.

As one can see, the amounts of court fees have increased approximately twofold, but in most cases the payment will be at least half less at the phase of the filing of the claim. 
 

It is noteworthy that the procedure for payments of court fees has been also recently modified. Pursuant to its letter of 16 August 2013 No 12-4618/13 the State Judicial Administration of Ukraine abolished the requirement of putting an inscription "UAH ____ Remitted to the State Revenues (date)” being signed by the first and second officers of the bank and made under the bank’s round seal to a court fees-related payment order. 
 

Consequently, to date such an inscription on the payment order is no more mandatory. 

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http://indiastamp.blogspot.com

 

Ukrainian Tax Litigation: Recent Trends

Co-author Andriy Kuleba

(junior associate of Lavrynovych and Partners Law Firm)

Photo from http://www.aratta-ukraine.com

One of the crucial problems faced by those bringing lawsuits against tax assessments is still the congestion of administrative courts in Ukraine. While at the level of the courts of first instance the mentioned problem is not heavily felt (in most cases tax disputes are resolved within one or two months), at the level of the courts of appeal and the Highest Administrative Court of Ukraine (hereinafter – the “HAC”) the situation is much more difficult. There are so many cases under the consideration of the senior courts that you will normally have to wait for the appointment of your court hearing for at least one year in the court of appeal and for at least two years in the HAC. It is obvious that bona-fide taxpayers are very unsatisfied with such state of affairs.

With respect to the categories of tax disputes, the situation is still practically without changes. The cases related to shams (“fake nature” deals) are leading in the number.

In this context it is worth mentioning new approaches of inspectors of taxes in their struggle against shams or perhaps it is more proper to say “pseudoshams”. At present, some “taxmen” not only “cancel” input VAT and deductible expenditure of a “guilty” taxpayer, but also compel such a taxpayer to enter into his accounts an additional income for the purposes of the calculation of taxes. They contend that since the taxpayer has actually received goods/services, but the underlying transaction was nothing, but a sham, such goods/services have been obtained by him free of charge and therefore should increase his base of assessment.

It also worth noting the landmark judgment of 14 November 2012 of the panel of justices of the HAC chaired by Justice Bukhtiiarova I. A. (“PVK “BUDIVELNYK”, LLC v State Tax Inspection in Obolon District of Kyiv, case No  2а-9864/11/2670). In this judgment the HAC came to the following revolutionary conclusions:

- the tax authorities do not have a right to qualify transactions as shams in their tax audit reports and 

 

- the presumption of the lawfulness of a transaction is applicable in the tax relations (a transaction based upon which the taxpayer obtains the tax benefit in the form of input VAT or deductible expenditure is not taken into account for the purposes of taxation if only there is a court judgment invalidating the transaction in question).

The aforesaid judgment with regard to the presumption of the lawfulness of a transaction directly contradicts the position of the HAC stated in its well-known letter dated 2 June 2011 No 742/11/13-11. In this letter HAC let us expressly know that the presumption at hand is not applicable in tax relations.

However, despite so different formal approaches even at the level of the HAC, the key role in deciding “sham cases” has been and is still attributed to the determination of the genuine (true) nature of underlying transactions based on primary accounting documents and other evidence submitted to the court. 

 

If the fake nature of a transaction has found its confirmation during the court hearings, it is very unlikely that such a “magic wand” as a reference to the absence of the judgment in respect of the invalidation of the transaction (the implementation of the presumption of the lawfulness of a transactions) can help you. 

 

The recently formed Ministry of Revenues and Levies of Ukraine also expressed its opinion on shams in tax relations (letter dated 27 May 2013 No. 3642/6/99-99-19-04-01-15). As usual, the “taxmen” were “unprecedentedly clear” in their statements, “The bodies of the State Tax Service in the discharge of their monitoring and controlling functions can reflect in tax audit reports the indicators of shams, but the additional tax assessment should be exclusively imposed for the breaches of tax rules”. What the Ministry was trying to say by these words remains the mystery. As one can see, we have not obtained a clear answer to the question whether the tax authorities are entitled to treat transactions between taxpayers as shams anymore.

Finally, we would like to mention an increase in the number of “transfer pricing” cases. Perhaps, not the least role here was played by the new transfer pricing rules (Article 39 of the Tax Code of Ukraine) which came into force on 1 January 2013.

Unified Tax in Table Format

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The simplified tax system which at its outset numbered the two groups of the unified tax payers only showed the considerable rise and currently numbers as many as six groups of the unified tax payers (Chapter 1 of Part XIV of the Tax Code of Ukraine). 

What follows is the brief characteristic of today’s six groups of unified tax payers.

Number of group	Requirements to taxpayers				Rate of tax
	Individual entrepreneur/ legal entity	Permitted number of employees	Yearly revenue (gross receipts)  up to, UAH	Allowed business activities
1	Individual entrepreneur	0	150,000	Personal services Selling goods at retail markets	Fixed monthly charge in the range from 1 to 10 per cent of the minimum statutory salary. The precise rate is to be determined by local authorities.
2	Individual entrepreneur	Up to 10	1,000,000	Provision of services, including personal services, either to (i) other payers of unified tax or to the general public (B2C rather than B2B) Manufacturing and/or selling goods Restaurant business	Fixed monthly charge in the range from 2 to 20 per cent of the minimum statutory salary. The precise rate is to be determined by local authorities.
3	Individual entrepreneur	Up to 20	3,000,000	No special limitation	3 % charge levied on gross receipts (if VAT is additionally payable) 5 % charge levied on gross receipts (if VAT is not additionally payable)
4	Legal entity	Up to 50	5,000,000	No special limitation
5	Individual entrepreneur	No limitation	20,000,000	No special limitation	5 % charge levied on gross receipts (if VAT is additionally payable) 7 % charge levied on gross receipts (if VAT is not additionally payable)