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.
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