Controlled transactions 2021: new rules and tools GAAP.RU

What are the main criteria for controlled transactions in 2020?

Controlled transactions are subject to verification by the Federal Tax Service to determine the presence or absence of intentions of the participants in the relevant transactions to evade taxes (reduce them) through unjustified manipulations with prices for goods and services that are the subject of agreements.
Thus, by reducing the price in the contract, the payer can reduce the tax base, and by increasing it, it can increase the base for calculating VAT deductions and inflating expenses. These actions are illegal. In the general case, transactions between related parties and transactions equivalent to such are considered controlled (clause 1 of Article 105.14 of the Tax Code of the Russian Federation). At the same time, dependent companies for the purpose of determining the controllability of transactions include companies that meet the criteria specified in Art. 105.1 of the Tax Code of the Russian Federation, and for the purposes of recognizing transactions between them as controlled by Art. 105.14 of the Tax Code of the Russian Federation establishes certain criteria. The range of these criteria is very wide. Further in special sections of the article we will consider their essence in more detail.

Transactions in which “unnecessary” intermediaries are involved, transactions in the field of foreign trade in goods of global exchange trade, and some others can be considered controlled. In addition, the court may recognize the transaction as controlled at the request of the Federal Tax Service (clause 10 of Article 105.14 of the Tax Code of the Russian Federation).

Subjects of controlled transactions in various combinations may be interdependent or equivalent to such:

tax residents and non-residents of the Russian Federation;
Russian companies;
foreign companies.

It is worth noting that the subjects of control by the Federal Tax Service (for the same violations that we mentioned at the beginning of the article) can, theoretically, be not only interdependent persons, but also any other persons who have given reason to the tax authorities to draw attention to themselves - for example, having carried out an unreasonable underestimation or overestimation of prices in contracts (letter of the Federal Tax Service dated November 2, 2012 No. ED-4-3/18615). However, the courts are not very friendly towards inspections by the Federal Tax Service of persons who are not dependents (decision of the Supreme Court of the Russian Federation dated 01.02.2016 No. AKPI15-1383).

Check whether you have correctly defined the criteria for controlled transactions using the Ready-made solution from ConsultantPlus. If you don't have access to the system, get a free trial online.

Who are interdependent persons?

Interdependent persons (Article 20 of the Tax Code of the Russian Federation) are individuals and organizations:

whose share of participation in another organization is more than 20%;
one individual is subordinate to another by official position;
individuals are related.

Relationships between interdependent persons may affect the results of transactions for the sale of goods, works or services. Transactions between such persons are controlled, that is, they are under special attention of the tax authorities.

Controlled transactions - 2021: criteria in tabular form

Our specialists have developed a special table for you, which details the grounds for classifying certain categories of participants in legal relations in business (tax residents of the Russian Federation, non-residents of the Russian Federation, interdependent persons, equivalent to dependent persons) as subjects of controlled transactions. This table, adapted for controlled transactions, contains 2021 criteria that a business owner can use to evaluate his contracts for additional interest from the Federal Tax Service.

Subjects of transactions	What kind of transaction can be considered for controllability?	Criteria for classifying a transaction as controlled	Sources of law that collectively establish the procedure for classifying transactions as controlled
Interdependent persons who are residents of the Russian Federation	Any transactions between such persons, if the amount of income on them for the year exceeds 1 billion rubles. and one of the conditions specified in the following column is met	the parties to the transaction apply different corporate income tax rates (except for the rates provided for in paragraphs 2-4 of Article 284 of the Tax Code of the Russian Federation) to profit from the activities within which the relevant transaction was concluded	Art. 105.1 Tax Code of the Russian Federation; subp. 1 item 2 art. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation
		at least one of its participants pays mineral extraction tax on interest rates and the object of the transaction is the extracted mineral resource	Art. 105.1 Tax Code of the Russian Federation; subp. 2 p. 2 art. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation
		at least one of its parties is a payer of the unified agricultural tax or UTII, and among other persons who are parties to the transaction, there is one business entity that is not a payer of the unified agricultural tax or UTII	Art. 105.1 Tax Code of the Russian Federation; subp. 3 p. 2 art. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation
		one of the parties is released from the obligations of the income tax payer	Art. 105.1 Tax Code of the Russian Federation; subp. 4 p. 2 tbsp. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation
		one of its parties is a company that produces hydrocarbons in new fields on the high seas and calculates taxes in accordance with Art. 275.2 Tax Code of the Russian Federation	Art. 105.1 Tax Code of the Russian Federation; subp. 6 paragraph 2 art. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation; Art. 275.2 Tax Code of the Russian Federation
		at least one party to the transaction is a corporate research company or a project participant according to the Law “On Innovative Scientific and Technological Centers” dated July 29, 2017 No. 216-FZ, applying VAT exemption	Art. 105.1 Tax Code of the Russian Federation; subp. 8 paragraph 2 art. 105.14 Tax Code of the Russian Federation; Read also: How can you cancel electronic sick leave if it is not yet closed? clause 3 art. 105.14 Tax Code of the Russian Federation
		at least one of the parties applies an investment tax deduction for income tax	Art. 105.1 Tax Code of the Russian Federation; subp. 9 paragraph 2 art. 105.14 Tax Code of the Russian Federation clause 3 art. 105.14 Tax Code of the Russian Federation
		at least one of the parties to the transaction is a payer of the tax on additional income from the production of hydrocarbons, which takes into account the income (expenses) from such a transaction when calculating the tax base for it	Art. 105.1 Tax Code of the Russian Federation; subp. 10 paragraph 2 art. 105.14 Tax Code of the Russian Federation clause 3 art. 105.14 Tax Code of the Russian Federation
Any persons in transactions equivalent to transactions between related parties	Transactions involving intermediaries	Transactions are considered controlled if: intermediaries connecting its participants do not engage in any activity other than establishing communication between the parties to the transaction, and also do not bear the risks associated with the fulfillment of obligations under the contract; The annual turnover from such transactions exceeds 60 million rubles.	Clause 1 Art. 105.14 Tax Code of the Russian Federation; subp. 1 clause 1 art. 105.14 Tax Code of the Russian Federation
	Transactions with global exchange trade goods	Transactions are considered controlled if: its participants carry out the purchase and sale of such goods as: oil and petroleum products; steel and other ferrous metals; aluminum and other non-ferrous metals; mineral fertilizers; gold and other precious metals; diamonds and other precious stones; their turnover exceeds 60 million rubles. in year	Clause 3 Art. 105.14 Tax Code of the Russian Federation; sub. 2 p. 1 art. 105.14 Tax Code of the Russian Federation; clause 5 art. 105.14 Tax Code of the Russian Federation; clause 7 art. 105.14 Tax Code of the Russian Federation; letters of the Ministry of Finance of the Russian Federation dated 02.19.2019 No. 03-12-11/1/10545, dated 03.19.2018 No. 03-12-11/1/16985, dated 10.03.2012 No. 03-01-18/7-135, dated 04.09 .2015 No. 03-01-11/51070
	Transactions between persons, one of whom is registered or operates in a country from the list approved by Order of the Ministry of Finance of the Russian Federation dated November 13, 2007 No. 108n	Transactions are considered controlled if their turnover exceeds 60 million rubles. in year	Art. 105.1 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation; subp. 3 p. 1 art. 105.14 Tax Code of the Russian Federation; clause 7 art. 105.14 Tax Code of the Russian Federation
Any persons who are interdependent (equated to interdependent) with a person who is not a tax resident of the Russian Federation	Any transactions between persons who are recognized as interdependent in accordance with Art. 105.1 of the Tax Code of the Russian Federation or equated to interdependent ones in accordance with paragraph 1 of Art. 105.14 Tax Code of the Russian Federation	Transactions are considered controlled if their turnover exceeds 60 million rubles. in year	Clause 1 Art. 105.14 Tax Code of the Russian Federation; clause 3 art. 105.14 Tax Code of the Russian Federation; letters of the Ministry of Finance of the Russian Federation dated October 3, 2012 No. 03-01-18/7-135, dated September 4, 2015 No. 03-01-11/51070 Letter of the Federal Tax Service dated August 17, 2017 No. ZN-4-17/ [email protected] Read also: How to receive notification of the amount of insurance premiums

ATTENTION! Starting from 2021, UTII will cease to be valid throughout Russia. Some entities abandoned the special regime as early as 2021. Read more about the cancellation of UTII here.

The transactions specified in clause 4 of Art. 105.14 of the Tax Code of the Russian Federation, in particular:

between participants of one consolidated group of taxpayers;

An exception is transactions with extracted mineral resources, taxed at a percentage rate, as well as transactions for which income (expenses) are taken into account when calculating the tax base for the tax on additional income from hydrocarbon production.

between persons who simultaneously:

registered in one subject of the Russian Federation;
do not have OP in other constituent entities of the Russian Federation, outside the Russian Federation;
do not pay income tax to the budgets of other constituent entities of the Russian Federation;
there are no conditions for recognizing transactions as controlled according to the criteria established by sub. 2-6 p. 2 tbsp. 105.14 Tax Code of the Russian Federation;
have no losses (including losses from previous periods carried forward to future periods);

for the provision of sureties (guarantees), if all parties are non-banking Russian organizations;
for the provision of interest-free loans between interdependent persons - residents of the Russian Federation, etc.

Having considered what criteria have been established for controlled transactions in 2021, we will study such an aspect of the relationship between taxpayers and the Federal Tax Service as reporting under relevant contracts.

Interest loan

Transactions are partially regulated by letter of the Ministry of Finance No. 03-01-18/40737 dated July 15, 2015. It states that when forming interest on a loan between interdependent persons, it is not necessary to apply to the Tax Code of the Russian Federation. The percentage can be any amount.

When determining the tax base, the creditor's income from interest is taken into account as part of non-operating income on the basis of paragraph 6 of Article 250 of the Tax Code of the Russian Federation. The debtor includes paid interest in non-operating expenses on the basis of paragraph 1 of Article 265 of the Tax Code of the Russian Federation. Article 269 of the Tax Code of the Russian Federation states that the procedure for recognizing interest is determined by whether the transaction is recognized as controlled:

The transaction is not recognized as controlled. Interest is taken into account in the amount calculated from the interest rate. The latter is taken from the contract.
The transaction was recognized as controlled. Interest is taken into account based on the contractual rate within the limits prescribed in paragraph 1.2 of Article 269 of the Tax Code of the Russian Federation.

Let's consider the limits established by Article 269 of the Tax Code of the Russian Federation:

Debt in rubles incurred from January 1, 2015 to December 31, 2015 – 0-180% of the Central Bank rate.
Debt in rubles arising from January 1, 2021 – 75%-125% of the Central Bank rate.
Debt in foreign currency - the rate is set on the basis of subparagraphs 2-6 of paragraph 1.2 of Article 269 of the Tax Code of the Russian Federation.

The key rate of the Central Bank from May 2, 2021 is 9.25% per annum.

What kind of reporting is established for controlled transactions (“1C” and unified forms)

In accordance with clause 2. Art. 105.16 of the Tax Code of the Russian Federation, participants in controlled contracts must send a reporting document - a notification - to the tax service. The deadline for sending it at the end of the year is May 20 of the year following the reporting year. In 2021, this document is drawn up according to the form that was approved by Order of the Federal Tax Service dated July 26, 2019 No. ММВ-7-13/ [email protected] You can download it on our website in the material Notification of controlled transactions: new form .

This form includes:

a title page that reflects information about the taxpayer - individual entrepreneur or legal entity;
sections 1A and 1B, which record information about each of the controlled transactions (groups of transactions);
sections 2 and 3, which record data on the taxpayer’s counterparties under controlled contracts (groups of contracts).

You can fill out the notification either manually or using popular accounting programs such as 1C. You can send it to the Federal Tax Service on paper or electronically via TKS.

Results

The legislation of the Russian Federation defines a wide range of potential subjects of controlled transactions. They can be both Russian and foreign companies operating in the Russian Federation. In most cases, they will be interdependent with or equivalent to interdependent with their transaction partners. Until May 20 of the year following the reporting year, taxpayers must report to the Federal Tax Service on controlled transactions.

Sources:

Tax Code of the Russian Federation
Order of the Federal Tax Service dated July 26, 2019 No. ММВ-7-13/ [email protected]

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