Controlled transactions - what is it? Controlled transactions between related parties

On January 1, 2012, Federal Law No. 277 entered into force. With this regulatory act, certain laws were amended to improve pricing principles for tax purposes. Certain provisions of the aforementioned Federal Law entered into force from the beginning of 2014. Law No. 277 came into force in Sec. V.1 h. 1 of the Tax Code.

Controlled transactions

An explanation of the concept is contained in Art. 105.14 (p. 1). The norm also establishes circumstances in the presence of which contracts are considered as controlled transactions. What it is? In accordance with this article, contracts relate to the indicated group upon conclusion by a certain category of entities. They must be interdependent.

Subjects

There are various types of transactions in civil law. Each group has its own requirements. When considering controlled transactions (what it is, what rules apply to them), it is necessary to establish first of all their participants. They can be organizations if:

1. The same subject indirectly or directly participates in them with a share of more than 25%. This provision is established by Art. 105.1, paragraph 2 of sub. 3.

2. By the decision of the same citizen, the following were appointed / elected:

• Head of the organization;
• at least half the composition of the collegial management apparatus / board of directors.

3. The authority of the head in several organizations is exercised by the same subject.

4. The same individuals form more than half of the composition of the board of directors or collegial management body.

Here it is necessary to mention the sub. 11 of the specified article. In accordance with it, the above citizens can participate in the organization together with:

1. Spouse / Spouse.
2. Parents / adoptive parents.
3. Trustees / Guardians.
4. Children (including adopted).
5. Wards.
6. Half / full sisters / brothers.

These entities are interdependent entities. Signs are also established in Art. 105.1 (subparagraph four of paragraph 2). The organization and the person act as interdependent, if the latter is vested with the powers to elect / appoint:

1. Executive sole structure.
2. At least half the composition of the collegial administrative apparatus / board of directors.

This subject is also subject to the provisions of sub. 11 of the specified article. The following are also considered interdependent:

1. Organizations / citizens, if for each previous entity the share of participation (direct) in the subsequent company is more than 50%.
2. A natural person, if one of them, by official position, is subordinate to the other.

Controlled Transaction Criteria

They are established by the norm 105.14. The definition of a controlled transaction does not include an indication of the place of residence, registration, tax residence of participants and beneficiaries. However, this feature is explained in article 105.14. When analyzing the norms, it is possible to derive a set of features that controlled transactions possess. What it is? First of all, the place of registration, residence, tax residency of participants and beneficiaries should be the territory of the Russian Federation. In addition, one of the following circumstances must be present:

1. The aggregate income (amount of prices) under the contracts for the year (calendar) is more than 1 billion rubles. According to Art. 4 Federal Law No. 277 (Clause 3) for 2012, it should exceed three, and for 2013 - 2 billion rubles.
2. One of the participants acts as a payer of mineral extraction tax. Payment must be calculated at a rate determined in percentage. At the same time, controlled transactions between interdependent parties should be concluded in relation to the extracted mineral resources falling under this tax, and the amount of income from them for the year (calendar) is more than 60 million rubles.
3. At least one party to the agreement acts as a payer applying the unified social tax, UTII, and among the other parties there is an entity that does not work with special taxation regimes. The criteria for controlled transactions of this type include an indication of the amount of income derived from their conclusion. The parties need to reach an amount of 100 million rubles. for the corresponding year (calendar).
4. At least one participant is exempted from the obligation to pay income tax or applies a zero tariff when calculating the base for this payment. The circumstances under which the application of this privilege is allowed are established in Art. 284, paragraph 5.1 of the Code. In this case, the second participant must not be exempted from this obligation and not apply a zero rate on this tax. In order for contracts to be recognized as controlled transactions between related parties, the total profit for them for the year (calendar) should be more than 60 million rubles.
5. At least one of the participants in the legal relationship is a resident of the SEZ, within which there is a tax regime that provides for special benefits for deduction of profit (in comparison with the general procedure established in the region).

Other types of contracts

Certain types of transactions in civil law can be equated with those considered. Among them are a set of contracts for the sale of products, production of works, and the provision of services. They should be concluded through the mediation or participation of persons not acting as interdependent. In the analysis, the presence of third parties is not taken into account when a number of conditions are met. In particular, third parties that are not recognized as interdependent and take part in transactions:

1. They do not perform any additional operations, except for the organization of direct sale of products, provision of services, production of works. Their main activity, therefore, is mediation / indirect participation in the contract.
2. They do not take any risks on themselves and do not use assets to organize operations stipulated by agreement of the parties.

In the field of foreign trade, controlled transactions may also be concluded. What it is? The contracts will be classified as being considered if:

1. The amount of income upon conclusion with one entity per year (calendar) will exceed 60 million rubles.
2. The subject of the agreement is products related to one or more groups:

• precious stones and precious metals;
• oil and oil products;
• black metal;
• mineral fertilizers;
• non-ferrous metal.

Controlled transactions (including loans) are recognized as such if the place of registration, residence, tax residence of one of the parties is the territory / state included in the list approved by Order of the Ministry of Finance No. 108. Moreover, the income on them should exceed 60 million rubles for the calendar year.

IFTS Notice

According to the provisions of Article 105.5, entities are required to send notice of controlled transactions. Information is addressed to the inspection at the location, residence or registration as the largest payers. A notice of controlled transactions is sent no later than May 20 of the year that follows the calendar period in which the relevant agreements were concluded.

Features of the compilation

Upon detection of inaccuracies, incompleteness of information, errors, the subject may issue an updated notice. The legislation provides for a number of requirements to which its form must comply. Notification of controlled transactions includes basic information about:

1. The calendar period for which the payer provides information.
2. Subjects of contracts.
3. Participants in the relationship. In particular, the full name of the organization, TIN (if any), name of citizen, individual entrepreneur including. An individual entrepreneur also provides data on the payer identification number.
4. The amount of income and expenses incurred with the allocation of profit / loss for contracts with regulated prices.

Filling out a notice of controlled transactions may be in relation to a group of contracts. This provision is provided for in paragraph 4 of Art. 105.15.

Work in the program

Consider how to prepare a notice in 1C. Controlled transactions in the program are highlighted on the basis of data entered in specialized registers and directories. These data are entered into the program either during the year, or immediately before the notification. The section containing the necessary tools can be opened through paragraph ch. Reports menu. Additional information can be managed from the special form “Assistant for the preparation of notifications on controlled transactions”. It provides visualization of all stages of work with information to form a final report. The notification is prepared in three stages:

1. The formation of the list.
2. Verification and adjustment of information.
3. Drawing up a notice.

In the "Helper" management components are grouped according to the steps given. The notification is compiled on behalf of each organization separately. In this regard, first of all, in the "Assistant" should indicate the appropriate legal entity.

List preparation

In order to single out controlled transactions from the entire mass of business operations, it is necessary to include in the program information about which of the company’s counterparties acts as an interdependent person who has registration abroad. In addition, the products of international exchange trading should be listed. The list of interdependent entities is stored in a special register. It can be opened from the submenu item or from the "Helper". To classify the type of controlled transaction, it should be clarified whether an interdependent person acts as a payer of one of the cited in Art. 105.14 taxes and whether it is registered in the SEZ. For each entity, the country of registration is indicated (if it is foreign), reg. number, tax code. For domestic enterprises, the name of the state is selected from the "Classifier" directory. Due to the fact that not only transactions of interdependent persons, but also entities, one of which is registered in offshore, are recognized as controlled, this information is also reflected in the program. Information on foreign counterparties, the subject of contracts with which the goods referred to in Art. 105.14 (p. 5).

Accounting Features

According to Art. 105.3 (paragraph 1), if financial and commercial conditions are established in transactions of interdependent entities that differ from those defined in comparable contracts between non-interdependent entities, any profit that could be received by one of such participants, but due to the indicated difference arrived at him, is taken into account with him for tax purposes. In this case, a special rule applies. In accordance with it, income accounting at the above rate is carried out in the event that this does not lead to a decrease in the amount of tax deduction. An exception is the situation when the payer uses a symmetric adjustment according to Art. 105.18. If the Federal Tax Service Inspectorate, according to the results of verification of transactions, accrues taxes at market prices, then domestic enterprises acting as the second party to the contracts can use these prices when calculating:

1. Mandatory payment of profits.
2. Personal income tax paid under Art. 227.
3. Mining tax. In this case, one of the parties to the transaction should be its payer, and the subject of the contract should be raw materials, which are the object of taxation, carried out using the rate in%.
4. VAT. In this case, one of the participants must be an organization / individual entrepreneur who does not pay this tax or is exempt from it.

Methods for determining profit

According to Art. 105.7, when performing tax control, supervisory authorities apply the following methods:

1. Comparable market value.
2. Prices for upcoming sales.
3. Comparable profitability.
4. Income distribution.
5. Costly method.

It is allowed to use a complex of two or more methods (Art. 105.7, paragraph 2). When determining the correspondence of the value applied in transactions to the market one, the most popular method is comparable prices. However, there is one exception. When purchasing goods under a controlled transaction and their subsequent resale under an agreement between non-dependent parties, the determination of compliance is carried out using the upcoming sale price method. This method is used when the entity reselling the product does not own intangible assets that have a significant impact on the level of gross margin. It can also be used in the preparation of goods for subsequent sale. In particular, if the division of products, repackaging, sorting, formation of shipments is carried out. Also, this method is suitable for cases of mixing goods, if the properties of the final products do not differ significantly from the original objects. The use of the remaining three methods is allowed if price comparison is impossible or does not allow a reasonable conclusion to be drawn on the compliance / non-compliance of transaction amounts and market value for tax purposes.