Awara Russian Tax Guide: Transfer Pricing in Russia

Awara Russian Tax Guide: Transfer Pricing in Russia

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The following article is an excerpt from Awara Russian Tax Guide, the first comprehensive book offering a full overview of all Russian taxation laws and rules. Awara Russian Tax Guide provides insight into the general framework of the Russian tax laws, the Tax Code and its principles. It describes the general rules of the Tax Code Part I and each type of tax and tax regime of Tax Code Part II, among them: Profit Tax, VAT, Personal Income Tax, Property Tax, Employer’s Social Contributions. The book also covers the now so important case law and taxation principles set by court precedents.

 

TRANSFER PRICING IN RUSSIA

Russian rules on transfer pricing are set out in the Tax Code (arts. 20, 40, section V.1) as significantly amended in 2011. These amendments became effective on January 1, 2012 (some of the provisions were deferred to take effect in years 2013 and 2014). The previous rules on transfer pricing had been in force since 1999, but were rarely applied in practice. It is likely that these new transfer pricing rules will now become one of the priorities of the tax authorities. The issue requires a lot of attention as the new transfer pricing rules do not enable to claim that one single price could be objectively ruled as being the only possible price among other prices depending on the details of the transfer pricing method used. Therefore the tax authorities will have ample room for mounting a challenge to the prices applied by taxpayers. A taxpayer must therefore be prepared to justify the prices applied regardless of his chosen transfer pricing policy hence the need for diligent documentation of the applied transfer prices.

1. Applicability of transfer pricing rules

1.1. Controlled transactions

By and large, the amendments to the Tax Code significantly narrow the sphere of transactions to which transfer pricing rules apply. With these new rules the focus has shifted from third-party transactions to related-party transactions. In case of domestic transactions in Russia, transfer pricing rules apply to related-party transactions if the transactions meet certain volume criteria and in certain exceptional cases (see Table 1 for details). But cross-border transactions between related parties remain subject to transfer pricing rules notwithstanding the volumes of the transactions. Cross-border transactions between independent (non-related) parties will be subject to transfer pricing rules only if the transactions involve certain goods traded on a foreign commodities exchange and in case when the counterparty is located in a tax haven (see Table 1 for details).

A novelty of the new law is that the rules may apply to a chain of similar transactions, and not only a single transaction, as under the previous transfer pricing rules. A chain of transactions between related parties entered into with the participation of non-related parties (or by agency of such) is considered a transaction between related parties, provided that these non-related parties:

• do not perform any additional functions other than the organization of sales (resale) of goods;
• do not take on any risks and use any assets in the process of organizing sales of goods.

Example:

Table 1 – Criteria for applicability of transfer pricing rules
A. Cross-border transactions

Related-party transactions	No qualifying threshold for revenue is set for these types of transactions (but see 1.2. Transition Rules).
Third party transactions, involving certain goods traded on a foreign commodities exchange (oil and oil-product, ferrous and non-ferrous metals, mineral fertilizers, precious metals and stones)

3. Transactions between Russian tax residents and residents of jurisdictions deemed tax havens according to Russian law (blacklist ¹)If total annual revenue derived from these transactions exceeds RUR 60 million

¹ A list of countries, issued by the Ministry of Finance in accordance with Tax Code (article пп. 1 п. 3 ст. 284 НК), from which dividends received by Russian corporations do not qualify under the law of participation exemption. See Order of the Ministry of Finance N 108n of 13 November 2007.

B. Domestic transactions

One of the parties applies either the tax regime of Unified Tax on Imputed Income or Unified Agricultural Tax	If the total annual revenue derived from these transactions exceeds RUR 100 million
Transactions involving operations with mineral resources subject to Mineral Extraction Tax at ad valorem rate, and one of the parties is a payer of this tax

3. One of the parties is exempt from Corporate Profit Tax or applies a 0% Corporate Profit Tax Rate (e.g. as a participant in Skolkovo)

4. One of the parties is a resident of a Special Economic Zone (SEZ) (this provision will apply from January 1, 2014 onwards)If the total annual revenue derived from these transactions exceeds RUR 60 million5. Other related-party transactions (with certain exceptions)If the total annual revenue derived from these transactions exceeds RUR 1 billion. (See 1.2. Transition Rules).

The law does not expressly limit the application of the new transfer pricing rules to any specific types of goods or services. On the contrary, the law expressly states that the new transfer pricing rules apply to any transaction resulting in taxable income or deductible expenses for at least one of the parties to the transaction (Item 13 Article 105.3 of the Russian Tax Code).

Inter-company transactions may include, for example, a transfer of tangible or intangible assets, an inter-company service, cost allocation arrangements, and financing agreements. All of the above transactions may be subject to transfer pricing rules mandating the parties to apply fair prices and provide proper documentation for the prices that they apply.

The law establishes a number of exceptions to this rule when transactions are not deemed controlled transactions for the purpose of transfer pricing rules (see below for more details).

1.2. Transition rules

The new law contains transition rules according to which the applicability of the new rules will be imposed gradually until year 2014.Thus domestic related-party transactions will be deemed controllable if the total annual revenue derived from these transactions exceeds RUR 3 billion in 2012 and, RUR 2 billion in 2013. From 2014 the threshold will be RUR 1 billion.

According to other transition exemptions a taxpayer is not required to provide tax authorities with reports on controlled transactions or keep transfer pricing documentation, if their value in 2012 does not exceed RUR 100 million and RUR 80 million in 2013. From January 1, 2014 no exemption thresholds will apply.

1.3. Calculation of annual revenue

To determine whether a transaction is subject to transfer pricing rules, the total revenues derived from the transaction with one or several related parties in a calendar year must be compared to the above reported thresholds.

The law establishes that it is precisely the taxpayer’s revenues which are considered to determine whether the set thresholds are exceeded. In this case such transaction is deemed as controlled transaction. But it is unclear as to whether a transaction is considered a controlled transaction when taxpayers are buyers/customers, i.e. when they incur only expenses (as opposite to making revenues).

We believe that transactions in which taxpayers are buyers/customers should still be subject to transfer pricing rules, provided that the revenue of the other party to the transaction exceeds the established thresholds. Indeed, it is not quite clear from the law whether the revenue to be considered for calculating the threshold values is solely limited to the revenue earned by one of the parties (Item 7 Article 4 of Federal Law N 227-FZ dated 18.07.2011), rather it seems that to determine whether the thresholds have been exceeded, the revenues derived by the other party (parties) should also be taken into account. The latter interpretation is supported by also by the provision according to which the transfer pricing rules should apply to transactions resulting in taxable revenue or deductible expenses for at least one of the parties to the transaction (article 105.3 paragraph 13). Inversely, it may be argued that if the transfer pricing rules would not apply to transactions in which taxpayers are buyers/customers, then the resale price method would not be applicable at all although it is expressly provided for as one of the methods for the cases when Russian taxpayers resell products purchased from a related party.

Another important question relating to VAT arises when determining whether a transaction exceeds the established thresholds: Should the VAT amounts included in the price of goods (work, services) be taken into account? The law does not allow drawing a clear conclusion. In some cases, the law uses the term “transaction price”, which as a rule includes VAT. In other cases, the law refers to revenues of the party to the transaction to determine whether the thresholds are exceeded. But taking into consideration the general provision of the profit tax laws according to which revenue is to be calculated net of VAT (Article 248 of the Russian Tax Code) we may conclude that VAT should not be taken into account when determining threshold values.

1.4. Exceptions to transfer pricing rules

Some types of transactions are exempt from transfer pricing controls by virtue of law; these are:

a. Transactions between parties to a Consolidated Group of taxpayers (except for transactions with minerals);

b. Transactions in which the following criteria are met simultaneously:

• both parties are registered in the same region in Russia;

• neither party has subdivisions in any other region in Russia;

• neither party pays profit tax in other region in Russia;

• neither party has recorded any tax losses for profit tax purposes;

• neither party applies a special tax regime (Unified Tax on Imputed Income, Unified Agricultural Tax, Mineral Extraction Tax) or is exempt from corporate profit tax, applies a 0% corporate profit tax rate, or is a resident of a special economic zone.

1.5. Related parties

Compared to the previous rules, the new transfer pricing rules (effective as of January 1, 2012) expand the scope of related parties. According to the previous rules, related-party transactions arose in cases when one of the parties to a transaction owned at least 20% of the charter capital of the other party, or in relation to individuals, when one party was organizationally subordinated to the other, or when the parties were relatives (spouses, other relatives, trustees, and legal guardians.)

The new rules define Related Parties more broadly as “such parties whose specific relationship may influence the transaction terms or their financial results.” Such specific influence may be brought to bear by way of:

(а) shareholding (or other ownership);

(b) a contractual arrangement between the parties;

(c) professional or family relations;

(d) any other circumstance which allows one party to influence the other party’s decision-making.

The law provides a list of circumstances under which a transaction is deemed transaction between related parties. Thus according to article 105.1 of the Russian Tax Code, the following transactions are considered as related-party transactions:

1) Transactions involving parties one of which owns directly or indirectly more than 25% of the other;

2) Transactions between sister companies, if the mutual parent company owns directly or indirectly more than 25% in both sister companies;

3) Transactions between a company and a party authorized to appoint general director or at least 50% of the members of a supervisory or management board;

4) Transactions between companies of which the general director or at least 50% of their supervisory or management board have been appointed by the same party;

5) Transactions between companies of which more than 50% of the members of supervisory or management board consists of the same individuals or their close relatives;

6) Transactions between a company and its general director;

7) Transactions between companies that have the same general director;

8) Transactions within a chain of companies (or individuals) in which each company (individual) owns more than 50% of the charter capital in the following company;

9) Transactions between individuals, if one of them is organizationally subordinated to the other;

10) Transactions between individuals in close family relations.

Further courts may on other grounds deem parties to a transaction as related parties, if the relationship between them is such that one party can influence the other party’s decision-making.

The law grants to the parties to a transaction the right to be recognized themselves as related parties on grounds, which are not expressly specified in the law. A taxpayer may want to reach such recognition, for example, for the purpose of entering into an advanced pricing agreement (APA).

2. Arm’s length principle

The new rules require that the prices applied in controlled transactions should be in line with the prices applied by non-related parties on the market for comparable transactions under similar economic conditions (arm’s length principle). It is important to note that from the transfer pricing rules there does not follow any requirement to apply any determined price in a contract or a determined price for the settlement of transactions; transfer pricing rules only concern the taxation of the transaction requiring taxpayers to record the controlled transactions in the tax accounting records according to the rules (or in regards to the rules of transfer pricing at customs to declare the transactions accordingly). In other words, for the purpose of transfer pricing, taxpayers may set any prices for their transactions, provided that they pay taxes as if they had applied market (fair) prices.

Although the wording of the arm’s length principle is quite simple, its application is complicated by the fact that taxpayers are required in order to comply with the rules to collect a considerable amount of information on comparable transactions. Such information is often hard to come by, for example, in regards to transactions involving non-related parties. Moreover, the information available may be incomplete or insufficient for the purpose of setting the fair price. We should also consider that there may be transactions that by their nature are such that only related parties would conclude such in the first place.

The application of the arm’s length principle can be illustrated with the following steps:

Step 1 Analyzing controlled transactions

This analysis aims to determine the key conditions of controlled transactions, which affect or may affect the transaction price (compared conditions). These conditions of controlled transactions are compared to the conditions under which transactions between non-related parties are entered into in order to determine which transactions may be considered as comparable among the multitude of transactions on the market. Among comparable conditions are: comparable characteristics of goods and services, functions performed, risks assumed by each party (functional analysis), the terms of payment, etc.

Step 2 Identifying transactions which can be deemed comparable transactions, and their comparison to controlled transactions (comparability analysis). For more information about comparability analysis, please see section 3 below.)

Step 3 Establishing the price range in line with the arm’s length principle and adjusting the prices of the controlled transactions according to the arm’s length range (where necessary).

The results obtained by taxpayers at the end of each stage must be thoroughly documented.

3. Arm’s length range

The new transfer pricing rules introduced procedures for calculating the price range within which the price of goods and services should fall for tax purposes (arm’s length range). As a rule, one cannot establish the existence of a single market price for a particular commodity and all market participants. Transactions between non-related companies may be entered into at different prices, each of which will comply with the arm’s length principle. Therefore, according to the general rule all transactions should be taken into account to determine the market price range. And as long as a controlled transaction price is within the market price range, it is considered to be at arm’s length.

Prior to January 1, 2012 the law recognized as acceptable market prices such prices that did not deviate by more than 20% from the prices applied by independent parties on the market. The new rules abolished this range and require that prices applied in controlled transactions correspond to prices applied by independent parties on the market for comparable transactions. This means that even a slight deviation from the market price range may be viewed as a violation of the arm’s length principle.

The law establishes certain cases of exceptions to the rule of arm’s length range, which are:

• Transactions with prices prescribed by antimonopoly authorities;

• Transactions with prices in line with a price regulated by Russian authorities (the law also provides additional requirements for these transactions);

• Price of transactions concluded on a recognized commodity exchange

• Prices determined in accordance with an advanced pricing agreement (APA see section 8 below);

• Other exceptions

The law prescribes certain methods that can be applied to determine the arm’s length price range (transfer pricing methods.) You will find a more detailed description of these transfer pricing methods in section 5 below. It should be noted that regardless of which transfer pricing method is used, it must be used to determine the conditions and prices applied by third parties at arm’s length, i.e. in comparable transactions. So, before considering transfer pricing methods, it is necessary to describe how comparable transactions are identified.

4. Comparability analysis

The arm’s length principle is generally applied by comparing the conditions in a controlled transaction to the conditions in transactions between non-related parties under similar economic circumstances. In other words, taxpayers should support the prices they apply in transactions with related companies by providing evidence that third parties would have applied the same prices under similar circumstances. To this end a comparability analysis represents a key aspect of applying the arms’ length principle and, thus, compliance with the transfer pricing rules.

Comparability analyses are conducted with the aim to justify applied prices. In the course of such analyses, taxpayers collect and select information on comparable transactions (comparables), but this is only the first step of a comparability analysis, which also requires comparing particular transactions to comparable transactions. The second step of comparability analysis consists in interpreting and using the collected information on comparable transactions, including performing comparability adjustments. The information on comparables is further used to calculate the arm’s length range to justify the prices applied by taxpayers. You will find below a more detailed description of comparability analysis.

‘Comparables’ mean transactions between non-related parties, which are executed under the same commercial and financial circumstances as the analyzed transaction (article 105.5 of the Russian Tax Code). There are two types of comparable transactions:

(а) Transactions between taxpayers and third parties (internal comparables);

(b) Transactions between third parties at arm’s length (external comparables).

As a rule, it is recommended to thoroughly search for internal comparables since such transactions by definition comply with the particular taxpayer’s business model and will therefore more likely be considered as comparables. Moreover, information on internal comparables is more readily available than information on external comparables.

Controlled and uncontrolled transactions are comparable if none of the differences between the transactions can materially affect the price or margin, or if reasonably accurate adjustments can be made to eliminate the material effects of any such differences. The following factors should be revealed so as to determine the comparability of transactions (comparability parameters):

a. Characteristics of the goods (services) objects of transaction;

b. The functions performed by the parties and allocation of responsibilities between them, the resources used by the parties, and the risks assumed (functional analysis);

c. Terms and conditions of agreements (contracts) affecting the prices;

d. Characteristics of the parties’ economic conditions, including characteristics of the relevant markets to the degree they affect the prices;

e. Business strategies applied by the parties in relation to the transactions.

Depending on the circumstances of a particular transaction, each of the above factors may have a greater or lesser weight. If the comparability parameters turn out to be different, the transaction can still be deemed “comparable”, if these differences do not materially affect the results of such transactions. It is usually required to find at least 4 comparables for application of the Resale Minus, Cost Plus or the Comparable Profitability methods, while for the purposes of Comparable Uncontrolled Price Method, one comparable transaction is sufficient. If fewer than four comparables can be identified on the market, the law permits to broaden the criteria of comparables by, for instance, using data on transactions from other industries, provided that they do not differ functionally from the analyzed transactions.

Main Steps

Conducting a comparability analysis is a rather time-consuming and complicated process, which can be broken down into the following main steps:

1. Collecting and systemizing the necessary information about taxpayers and their controlled transactions;

2. Analyzing the collected information for the purposes of comparability analysis, conducting a functional analysis;

3. Determining the required comparability parameters;

4. Identifying sources of information on comparables that meet the established comparability parameters;

5. Searching for and identifying comparables required for the analysis;

6. Collecting information on and selecting the comparables;

7. Analyzing the collected information on the selected comparables;

8. Conducting a comparability analysis;

9. Making comparability adjustments, if necessary;

10. Establishing the arm’s length range;

11. Preparing a report on comparability analysis.

5. Functional analysis

To identify comparable transactions, a so-called functional analysis should be conducted and one of the legally defined transfer pricing methods applied. The functional analysis is part of the comparability analysis and allows determining which parameters should be met by a transaction to be considered as a comparable.

The functional analysis consists in identifying and reviewing the functions performed by the parties to a transaction, the resources used by these parties, the risks taken by the parties, and the allocation of responsibilities between the parties, as well as other similar conditions of controlled and comparable transactions.

The following functions of the parties to a transaction may be taken into account when conducting an analysis of comparability:

• Product design and technological development;

• Production of goods;

• Assembly of products or their components;

• Wholesale or retail sale of goods or organization of sale of products;

• Provision of repair, warranty services;

• Promoting goods (work, service) on new markets, marketing, advertising;

• Storage of goods;

• Transportation of goods;

• Insurance;

• Provision of advice, information services;

• Staff training and education;

• Others.

The functional analysis also takes into account the risks assumed by each party. The following risks are considered:

1) Operational risks, including risk of under-use of production capacities;

2) Risk of change in market prices for purchased materials and manufactured products due to changes in economic conditions, risk of change in other market conditions;

3) Inventory risks;

4) Risks associated with the loss of property, property rights;

5) Foreign currency risks, credit risks;

6) Risks associated with research and development expenses;

7) Investment risks;

8) Environmental risk;

9) Business (commercial risks) associated with the strategic marketing, including pricing policy and strategy of sales of goods (work, services);

10) Risk associated with the market demand for goods (stock risk, warehouse risk).

6. Official sources of information on market prices

A comparability analysis requires collecting and comparing information relating to third parties’ activities. In practice, such information (price, activity volume, transaction terms and conditions, discounts, etc.) may not be available to taxpayers although the law requires considering a great number of factors affecting the prices applied. The question of possible sources of information is therefore of particular importance to taxpayers.

A comparability analysis should be based on publicly available information sources (article 105.6. paragraph 4 Tax Code). This also means that tax authorities may not use information, which is not available to taxpayers. Tax authorities may use the following sources of information for comparability analysis purposes:

1) Prices and quotations on Russian and foreign trade exchanges;

2) Customs statistics;

3) Official information on prices published by government bodies or foreign governments or international organizations as well as information on prices available in other similar public databases.

4) Information from agencies publishing information on prices;

5) Companies’ internal information on comparable transactions;

6) Companies’ financial and statistical reports;

7) Information from independent appraisals.

In addition to the above, companies are allowed to use any other information necessary for determining the market price as required by the applied transfer pricing method. Such information may be found in various professional databases.

There are not many databases of that kind in Russia. SPARK database (www.spark.interfax.ru) is the most developed professional database available in Russia. However, there are a number of foreign databases such as, for instance, Standard & Poor’s database Compustat (www.compustat.com), Amadeus (www.bvdinfo.com/Products/Company-Information/International/Amadeus) and Osiris (www.bvdinfo.com/Products/Company-Information/International/Osiris) databases, which contain among others financial and other type of information on Russian companies. Particular attention should be paid to the fact that there are very few databases available, and those available offer a quite limited scope of relevant data on the conditions of actual transactions in a particular industry. This sparse information makes it difficult to search for reliable data comparables.

7. Transfer pricing methods

The new rules have increased the number of methods that can be applied to determine the arm’s length range for prices. The earlier hierarchy of methods has been replaced with the “best method principle”, which means that the most appropriate method must be applied to a specific situation, while the Comparable Uncontrolled Price Method generally remains the primary method.

Traditional Methods:

1. Comparable Uncontrolled Price;

2. Resale Minus;

3. Cost Plus.

New Methods:

4. Comparable Profitability;

5. Profit Split.

Using a combination of several methods is also permitted. But it should be noted that according to the Tax Code the taxpayer is allowed to use other possible methods, the tax authorities are limited to applying one of the 5 methods referred to above (Article 105.7.12 of the Tax Code).

7.1. Comparable Uncontrolled Price Method

The new rules provide that the Comparable Uncontrolled Price method is the primary method for evaluating whether the applied prices are appropriate (except for in regards to trading companies which must apply the Resale Minus method on a priority basis). The Comparable Uncontrolled Price method consists in comparing the prices of controlled transactions to market prices. Applying the Comparable Uncontrolled Price method requires that comparable transactions between non-related parties can be identified on the market to which the transaction under review can be compared, as well as that sufficient information available on those transactions. If only one comparable transaction is found, this method may be applied provided the commercial and financial terms and conditions of the transactions are fully comparable and the seller is not a dominant company on the market.

Transactions between taxpayers and other non-related parties are also qualified as comparable transactions. So, transactions under which taxpayers buy goods from and sell goods to non-related parties, as well as transactions under which goods are bought and sold to affiliated companies may qualify as a comparable transactions and be used to establish market price.

Calculation of arm’s length range

The range of market prices is calculated as follows:

Step 1 Sorting comparable transactions by ascending price. Each price value starting from the smallest is assigned a number (price No. 1, price No. 2, etc.)

Step 2 Determining the minimal range value. To do so, compared prices are divided by 4.

(а) If we obtain an integer, then the minimal range value for market prices is the average of the price with a sequence number equal to this integral number and the price with the following ascending number.

(b) If we obtain a non-integral number, then the minimal range value for market prices is the price with a sequence number equal to the integral value of this non-integral number + 1;

Step 3 Determining the maximal range value. To do so, compared prices are multiplied by 0.75.

(а) If we obtain an integral number, then the maximal range value is the average of the price with a sequence number equal to this integral number and the price of the following ascending sequence number.

(b) If we obtain a non-integral number, then the maximal range value for market prices is the price with sequence number equal to the integral value of this non-integral number +1.

Step 4 Comparing a controlled transaction prices to a range of market prices for comparable transactions. If only one comparable transaction is available for comparison, then the price for this transaction can be regarded both as upper and lower limits of the range of market prices.

When the proposed method is applied to calculate market price ranges, marginal market prices are in actual fact excluded from the range of market prices. This is done to exclude from the calculation extremely low or extremely high prices, which are unusual on the market. We however believe this exclusion is disputable since these prices have been established between non-related companies under objective factors and should therefore be considered as meeting arm’s length principle. If applying extremely high or low prices was dictated by taxpayers’ particular economic situations or other factors, then such transactions should not be considered as comparable transactions and therefore should not be used for comparison.

Example of calculation: The price of our transaction = 20 and we have information on 5 comparable transactions with the following prices:

Range of market prices

Step 2 Determining the minimal value for market prices.Step 1 Determining market price range. To do so, compared prices are sorted in ascending order and each price is assigned a number.

To do so, the number of prices (5) is divided by 4. 5: 4 = 1.25.

1.25 is not an integral number. In this case, the minimal price will be the price with a sequence number equal to the integral number (1) + 1.

So, the minimal range value = Price No. 2 = 18

Step 3 Determining the maximal range value. To do so, the number of prices (5) is multiplied by 0.75. 5 * 0.75 = 3.75

3.75 is not an integral number. In this case, the range value is the price with the sequence number equal to the integral number of this non-integral number (3) + 1. 3 + 1 = 4

So, the maximal range value = Price No. 4 = 28

Step 4 Comparing our transaction price (20) with the range of market prices (from 18 to 28). In this case, our price is within the market price range and it is therefore deemed to be an appropriate price.

7.2. Resale Minus Method

The Resale Minus Method may be used when goods acquired from a related-party are resold by the purchaser to a third party. When this method is applied, it is assumed that the goods are re-sold to third parties at market prices. And it is precisely for this reason that the resale price is used as a base to calculate the market price for the initial sale of goods from the related company to the taxpayer. This method allows determining whether the purchase price of the acquired goods conforms to market prices by comparing the purchaser’s gross margin (upon resale) to gross margins in comparable transactions under which resold goods have been acquired from a non-related party. The gross margin is calculated as a ratio of gross profit to sales proceeds.

This method is the primary method for trading companies. This method may not be used as primary method when:

(а) The buyer has substantially processed the good before selling them to a non-related party;

(b) The purchaser does not own any intangible assets which might materially affect the gross margin.

Calculation of arm’s length range

Gross margin is calculated as follows:

Step 1 Determining gross margin for a controlled transaction: sales profit is divided by sales proceeds. If the buyer subsequently sells the goods to non-related parties at different prices, when determining the gross margin, the price of the subsequent sale is used as the weighted average price of this commodity for all such transactions.

Step 2 Sorting gross margin for comparable transactions in ascending order. Each margin value is assigned a sequence number (price No.1, price No. 2, etc.) Please note that margin values for comparable transactions must be calculated on the basis of the accounting records of the parties to comparable transactions, which makes applying this method quite difficult. At the same time, the law also permits using the data from information and pricing agencies to apply the Resale Minus Method.

Step 3 Determining the minimal gross margin value: the number of margin compared values is divided by 4.

(а) If we obtain an integral number, the minimal gross margin value is the average of the margin with a sequence number equal to the integral and the gross margin value with the following ascending number.

(b) If we obtain a non-integral number, the minimal gross margin value is the gross margin value with a sequence number equal to the integral + 1;

Step 4 Determining the maximal gross margin value: the number of compared gross margin values is multiplied by 0.75

(а) If we obtain an integral number, the maximal gross margin value is the average of the gross margin value with a sequence number equal to this integral and the gross margin value with the following ascending sequence number.

(b) If we obtain a non-integral number, the maximal gross margin value is the gross margin value with a sequence number equal to this integral number + 1.

Step 5 Comparing margin for a controlled transaction to gross margin for comparable transactions

Example of calculation:

Step 1 Determining the transaction gross margin.

Gross margin = gross profit / sales proceeds

Gross margin = (200 – 150) / 200 = 25%

Step 2 Determining margin range: sorting compared gross margin values in ascending order and assigning a number to each value. In our case, the following 5: 15%, 19%, 27%, 33%, 36%.

Step 3 Determining the minimal gross margin value by dividing the number of gross margin value (5) by 4.

5: 4 = 1.25

1.25 is not an integral number so the minimal gross margin value is the gross margin value with a sequence number equal to this integral number (1) +1.

The minimal gross margin value is gross margin No. 2 = 19%

Step 4 Determining the maximal gross margin value: the number of the compared gross margin values (5) is multiplied by 0.75.

5 * 0.75 = 3.75

3.75 is not an integral number so the maximal gross margin value is the gross margin value with a sequence number equal to the integral number (3) +1= 4.

The maximal gross margin value is gross margin No. 4 = 33%

Market Gross Margin

A GROSS MARGIN OF 25% IS WITHIN THE MARKET RANGE [19%- 33%].STEP 5 COMPARING THE GROSS MARGIN VALUE OF OUR TRANSACTION TO THE GROSS MARGIN MARKET RANGE:

7.3. Cost Plus Method

As a rule, the prices of goods or services of non-related companies are formed on the basis of the goods and services’ cost and a fair margin. This means that adding a fair margin to costs should result in the formation of arm’s length prices.

The Cost Plus Method offers to determine a fair price by comparing the profitability of costs incurred by taxpayers to the profitability of costs on the market. The profitability of costs is defined as the ratio of gross profit to cost of goods sold. In other words, when applying this method, taxpayers compare how the return on their investments to the fair amount of such return on the market.

The Cost Plus Method mainly applies to the following cases specified by law:

– Works or services rendered by related parties;

– Provision of services for cash and financial management (treasure, securities market, foreign exchange);

– Management services;

– sale of raw materials or semi-finished products to related parties; or

– Long-term contracts for selling goods or providing services to related parties.

Calculation of arm’s length range

The procedure for calculating cost profitability range is the same as the procedure for calculating gross margin range (Please see Section 5.2 above).

Example of calculation:

Step 1 Determining gross cost profitability

Gross cost profitability = gross profit / cost of services

Gross cost profitability = (190 – 150) / 150 = 26%

Step 2 Determining the market cost profitability range for comparable transactions. To do so, we sort the compared profitability values in ascending order and assign a number to each value. In our case, we have 4 values: 14%, 17%, 29%, 34%,

Step 3 Determining the minimal value of the cost profitability range by dividing the number of profitability values (4) by 4.

4: 4 = 1

1 is an integral number. In this case, the minimal value of the cost profitability range is the average of the profitability value with a sequence number equal to this integral number (1) and the profitability value with the following ascending sequence number (2).

Minimal value of the cost profitability range = (14%+17%) / 2 = 15.5%

Step 4 Determining the maximal value of the cost profitability range by multiplying the number of compared profitability values (4) by 0.75.

4 * 0.75 = 3

3 is an integral number. In this case, the maximal value of the range is the average of the profitability value with a sequence number equal to this integral number (3) and the profitability value with the following ascending sequence number (4)

Maximal value of the cost profitability range = (29% + 34%) / 2 = 31.5%

Step 5 Comparing the gross cost profitability in our transaction to the market gross cost profitability range.

The gross cost profitability in our transaction amounts to 26% and is within the market gross cost profitability range [15.5% – 31.5%].

7.4. Comparable Profit Method

The Comparable Profit Method weighs profit against particular bases (e.g. costs, sales, assets) derived by taxpayers from a controlled transaction. The ratio profit to a particular base is known as taxpayers’ operational margin, which is further compared to third parties’ operational margin at arm’s length taking into account the company’s functions, risks, and resources. This method should be used when there is not enough information available on comparable transactions to apply the Resale Minus or Cost Plus Methods. The Comparable Profit Method is similar to the Cost Plus and Resale Minus Methods.

Under this method, a company’s operational margin is compared to the margin of companies in the same industry taking into consideration the company’s functions, risks, and assets.

This method examines the financial indicators only of the party to a transaction, which meets the following criteria:

• The party performs functions the contribution of which to the profit derived from transactions is smaller than the other party’s contribution;

• The party takes fewer economic (commercial) risks than the other party;

• The party does not own any intangible assets substantially affecting profitability.

The law provides for the following operational margin parameters:

a. Profitability of sales (sales profit to sales revenue ratio): this parameter is used to determine the market price for transactions related to the resale of goods.

b. Profitability of costs (ratio of sales profit to costs of sold goods, commercial and management costs related to sale): this parameter is used when services are provided or goods are manufactured.

c. Profitability of commercial and management costs (gross profit to commercial and management costs ratio): this parameter is used when the reselling party incurs negligible economic (commercial) risks when purchasing and subsequently reselling goods in a short period.

d. Return on assets (ratio of sales profit to asset market value): this parameter is generally used when goods are manufactured.

Calculation of arm’s length range

The procedure for calculating operational margin range is the same as the procedure for calculating gross margin (Please see Sections 5.2 and 5.3 above).

7.5. Profit Split Method

The Profit Split Method is applied to eliminate the effect that the interdependence of parties may have on the applied prices. This method should therefore be used when parties’ interdependence makes it difficult to find comparable transactions. This method is also applicable in particular to transactions involving intellectual property rights.

This method is based on the distribution of profits among parties to a transaction in the same manner as it would be expected from non-related parties. In this case, any reference to profit may be substituted to a reference to losses depending on the actual circumstances.

To apply this method, it is first necessary to determine the profit which is to be distributed among the parties. This may be done as follows:

(а) Consolidated profit is the sum of the operating profit of all parties to the reviewed transaction for the reviewed period. It is obtained by calculating and subsequently adding up the operating profit actually received by each of the parties; OR

(b) Residual profit is the difference between [1] consolidated profit and [2] estimated profit, i.e. the profit which the parties should have derived according to the pricing methods above described (CUP, Cost Plus, Resale Minus, and Comparable Profit Method). To calculate the profit due to a party, the estimated profit is added to the residual profit.

Using residual profit allows dividing profit in 2 parts: (а) arm’s length of a party’s remuneration determined by one of the above mentioned transfer pricing methods and (b) the remaining part that should be divided among the parties in accordance with their contribution to the transaction

The law provides several options for determining proportions according to which profit is distributed (both consolidated and residual):

1) Function based allocation: distribution in proportion to the contribution to consolidated profit (а) functions performed by the parties, (b) assets used by the parties and (c) economic (commercial) risks incurred;

2) Asset-based allocation: distribution in proportion to the return on invested capital;

3) Profit distribution in proportion to profit distribution among parties to comparable transactions (when information about sales profit distribution is available for similar transactions concluded between parties, which are not related.)

Although selecting the principles for profit distribution depends upon the actual circumstances at hand, they should ultimately result in the same profit distribution as the profit distribution among third parties at arm’s length in the similar circumstances. To distribute profits fairly among parties and determine the parties’ contribution to consolidated profit, the following factors may be taken into account:

1) The parties’ expenditure in intangible assets the use of which affects the amount of profit;

2) The characteristics of the personnel employed by the parties (including their number, qualifications, hours worked, labor costs) affecting the amount of profit;

3) The market value of the respective party’s assets the use of which affects the amount of profit; 4) Other factors reflecting the relationship between the functions performed, the assets used and the economic (commercial) risks incurred and the sales profit actually derived from the transaction.

If the profit actually derived is less than the profit calculated according to the method for profit distribution, the profit calculated according to the method for profit distribution is taken into account for tax purposes. If the profit actually derived equals to or is greater than the profit calculated using this method, the profit actually derived is taken into account for tax purposes.

Example of calculation

Total consolidated profit derived from the transaction = 1400

Step 1 Determining and distributing profit in proportion to the contributions

Total consolidated profit derived from the transaction = 1400.

Company A: 1400 * 10% = 140

Company B: 1400 * 20% = 280

Company C: 1400 * 30% = 420

Company D: 1400 * 40% = 560

Step 2 If the profit derived from the transaction is less than the profit calculated according to the method for profit distribution, the profit calculated according to the method for profit distribution is taken into account for tax purposes.

In our example, the profit actually derived by Companies C and D is smaller than the profit calculated according to the method for profit distribution. So, the profit calculated according to the method for profit distribution is taken into account for tax purposes.

If the profit actually derived equals to or is greater than the profit calculated according to the method for profit distribution, the profit actually derived is taken into account for tax purposes.

In our case, the profit actually derived by Companies А and В is greater than the profit calculated according to the method for profit distribution. So, the profit actually derived is taken into account for tax purposes.

8. Requirements for documentation and reporting

The new transfer pricing rules require taxpayers to provide documentation justifying the prices applied in all controlled transactions. The law does not set out a specific form for the documentation, but regulates its content. Transfer pricing documentation should include, among other relevant information:

1) The activities of the parties to such transactions;

2) A list of the parties with which such transactions are entered into;

3) A description of the transaction, including the terms of the transaction, the method applied for determining the price, terms of payment, and other relevant information;

4) A functional analysis clarifying the functions performed and risks assumed by the parties;

5) The reason why a certain transfer pricing method is used;

6) Sources of information;

7) Information about received income and expenses incurred in a controlled transaction;

8) Calculation of the arm’s length range (comparability analysis); and

9) Information on any relevant tax adjustments made by the taxpayer, if any. Transfer pricing documentation should also provide other information that affected the pricing of transactions. As a rule, taxpayers collect this information in the course of the comparability analysis.

Reporting

Taxpayers are required to provide tax authorities with reports on controlled transactions, if their value exceeds RUR 100 million (RUR 80 million in 2013; from January 1, 2014 onwards no threshold will apply) by May 20 of the following year. To determine whether taxpayers should file a report on controlled transactions, it is necessary to establish whether:

(а) Taxpayers have entered into controlled transactions;

(b) The revenue derived from controlled transactions exceeds the abovementioned thresholds. Example: A Russian company entered into a cross-border related-party transaction in 2012. The annual revenue derived from this transaction amounts to RUR 50 million. This operation is a controlled transaction, but its revenue amounts to fewer than RUR 100 million. The taxpayer is therefore not required to provide tax authorities with a report on controlled transactions.

These reports should indicate the calendar year, to which they refer, the subject of transaction, information on the parties to the transactions, and revenues derived or losses incurred from such transactions.

Tax authorities may request taxpayers to present the relevant transfer pricing documentation. Taxpayers are required to provide documentation within 30 days from the date of such request, but tax authorities may not request this documentation before June 1 of the following year.

9. Transfer pricing audits

Transfer pricing audits are conducted separately by a special department of the Federal Tax Service. Such audits may review up to 3 calendar years, but the law provides exceptions for 2012 and 2013:

– Tax audits for 2012 may be initiated no later than December 31, 2013;

– Tax audits for 2013 may be initiated no later than December 31, 2015. T

hese audits do not generally take more than six months, but in some cases, tax authorities may extend them up to 12 months. Tax authorities may further extend tax audit periods up to 21 months, for example, in case of long-winded exchange of information with foreign authorities or additional time required for translation of documents.

10. Cost contribution arrangements

Cost contribution (or cost sharing) arrangements (CCA) are widely applied in international application of transfer pricing. For example, an entire chapter of Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations approved by the OECD describes this concept (Chapter VIII). CCA apply to companies belonging to one group to distribute costs and risks associated with developing, producing or obtaining assets, services, as well as to determine the nature and extent of the participants’ interests in those assets, services, or rights. In practice, very often when one company of a group produces assets or provides services, while the other companies of the group use them and compensate for the expenses incurred in proportion to their share.

The concept of CCA has not yet been introduced in Russian law and Russian tax authorities thereby encounter serious practical difficulties when CCA are applied. In particular, Russian tax authorities may challenge the validity of application of chosen allocation keys based on, inter alia, sales, units used, produced, or sold, gross or operating profits, the number of employees, capital invested. Representatives of the Ministry of Finance of Russia have promised to propose amendments to the Russian Tax Code to simplify the application of cost contribution arrangements in Russia.

11. Advance pricing agreements

The new transfer pricing rules also introduce the mechanism of Advance Pricing Agreements (APA) between taxpayers and tax authorities. The subject-matter of an Advance Pricing Agreement is the particular method used to determine the prices of controlled transactions. Only major taxpayers may enter into such agreements.

An APA is entered into upon taxpayers’ application. These applications to enter into an APA are considered, provided taxpayers pay a state duty of RUR 1.5 million. An APA may be entered into for a period not exceeding 3 years, after which it may be extended by agreement of the parties for a maximum of 2 years.

12. Adjustments and penalties

If the prices applied in controlled transactions do not conform to market prices, then tax authorities may adjust these prices by adding to the tax base the revenue that taxpayers would have earned, if correct pricing would have been applied.

At the same time, taxpayers can voluntarily adjust their tax base in accordance with the applied transfer pricing methods, provided such adjustment does not reduce their tax liability. If additional taxes are imposed on a party to a transaction because the party had not applied market prices, the other party to the transaction may adjust its taxes accordingly, i.e. in practice decrease its taxes. Such symmetrical adjustments may be made by Russian taxpayers and for domestic transactions only. But it is important to note that such symmetrical adjustments are available only in case when the tax authority has through its decisions imposed additional taxes to one of the parties to a transaction. In other words, taxpayers may not make symmetrical adjustments if a party voluntarily increases its tax base by applying the principle of arm’s length.

It should also be noted that Permanent Establishments of foreign companies may not apply symmetrical adjustments despite the fact that they pay taxes in Russia. This provision thus results in discrimination of permanent establishments compared to Russian companies.

From 2014 onwards, in addition to tax adjustments a special penalty of 20% will be imposed on taxpayers, who do not apply market prices. From 2017 onwards, this penalty will be increased to 40%, unless the considered breach relates to 2014-2016, in which case the 20% penalty will apply. Taxpayers are thus potentially liable for the following sanctions:

– Pay taxes as recalculated by tax authorities;

– Pay a penalty for late payment of tax;

– From 2014 onwards, pay an additional penalty for not applying prices within market range.

13. Transfer pricing at customs

Transfer pricing for customs purposes is entirely different from the above transfer pricing rules, which are set out for tax purposes. The issue of transfer pricing upon determination of customs value is regulated by the Customs Union of Russia, Belarus and Kazakhstan in an Agreement for Determination of Customs Value for Goods Crossing the Customs Border of the Customs Union dated 25.01.2008. The Federal Law “On customs regulations” and Government Decree “On approval of the rules for determining the customs value of goods exported from Russia” regulate this issue in more detail at national level.

As a general rule, customs payments are levied as a percentage of the value of imported goods. So, when taxpayers import into Russia goods purchased from related parties, they are required to confirm that the value of the goods is not understated. Taxpayers are also entitled to deduct the price of purchased goods for profit tax purposes. For that purpose, they are therefore required to confirm that the price of goods and consequently the amount of tax deductions are not overstated. In other words, high prices at customs result in greater customs duties thus simultaneously decreasing the importer’s taxable profit as they increase costs. Taxpayers are therefore required to carefully plan pricing upon importation of goods purchased from related parties so that prices are not overstated for tax purposes and understated for customs purposes. At the same time, if the prices applied by a company in intra-group transactions are in line with market prices, it is possible to state with certainty that such prices should meet the requirements set out by tax and customs authorities.

Customs duties and taxes are calculated on the basis of the so-called customs value of goods. Customs value is a nominal value and may be different from the prices of goods set in contracts. The customs value of goods consists of the purchase price and additional costs (e.g., cost of transportation, cost of packaging, etc.). The customs value of goods may be determined using the following 6 methods:

Method 1 — Transaction value

Method 2 — Transaction value of identical goods

Method 3 — Transaction value of similar goods

Method 4 — Deductive method

Method 5 — Computed method

Method 6 — Fall-back method

You will find below a more detailed description of each method. These methods are applied in successive order, so when one method applies, this excludes the application of subsequent methods. Method 6, the Fall-Back Method, is a backup method in the sense that its application is limited to cases when it is not possible to apply the other 5 methods.

Although the above methods differ from the methods of transfer pricing, their main purpose is the same, i.e. confirm that the prices applied by related parties are in line with market prices.

Method 1 Transaction value

The customs value of goods is defined as the value of transaction with imported goods (i.e. the price actually paid or payable for goods when they are sold to be exported to Russia) plus additional costs, in particular, costs of packaging, transportation, loading-unloading, insurance associated with transportation, and other expenses. Method 1 applies when the following conditions are met simultaneously:

(i) The buyer’s rights to use and dispose of the goods are not restricted, except for restrictions, which limit the geographical area in which the goods may be re-sold, or do not significantly affect the value of goods.

(ii) The price must not be subject to conditions or considerations for which a value cannot be determined with respect to the goods being valued.

(iii) No part of the proceeds from any subsequent resale, disposal or use of the goods by the buyer will be attributable directly or indirectly to the seller, unless adjustment can be made in accordance with the law.

(iv) The buyer and seller are not considered related parties or if they are:

– their relationship did not affect the price;

– the transaction price is close to the value of transaction upon sale of identical or similar goods to unrelated buyers and this price may be verified using other methods of control over pricing upon border crossing.

Method 2 Transaction value of identical goods

The value of transaction with identical goods sold for export or import into Russia is used to calculate customs value.

Method 3 Transaction value of similar goods

Method 3 is similar to Method 2, but here the value of transaction with similar (but not identical) goods is used. This method applies when data on transactions with identical goods are not available.

Method 4 Deduction method

Under this method, customs value is determined on the basis of the unit price at which imported goods or identical / similar goods are sold in the greatest aggregate quantity to an unrelated buyer in the country of importation at about the same time. Customs payments and taxes paid on the goods to be sold, cost of transportation within Russia, fees for brokers in Russia, and other similar costs payable before the sale of the goods are deducted from this value.

Method 5 Computed value method

Computed value method determines customs value on the basis of the cost of production of the goods being valued, plus an amount for profit and general expenses.

Method 6 Fall-back method

Method 6, the Fall-Back Method is a backup method in the sense that its application is limited to cases when it is not possible to apply the other 5 methods. Under this method, customs authorities may use any of the first 5 methods described above but with broad discretion.