Letter of the Federal Tax Service
Return overpaid state duty
Review of legal positions
November 30, 2017

Letter of the Federal Tax Service of Russia of 27.11.2017 N ED-4-13 / 23938 @
Repeated deviation of the transaction price from the market level can be taken into account as part of a field and office audit as one of the signs of obtaining unjustified tax benefit. It is reported, in particular, that, according to paragraph 1 of article 105.17 of the RF Tax Code, the compliance of prices applied in controlled transactions cannot be subject to on-site and cameral checks. In cases not provided for in Section V.1 of the Tax Code of the Russian Federation, tax authorities are not entitled to dispute the price of goods (work, services) specified by the parties to the transaction and taken into account during taxation as part of field and office audits. However, multiple deviation of the transaction price from the market level may be taken into account in the field and field audit as one of the signs of unjustified tax benefit in the aggregate and interrelationship with other circumstances indicating a discrepancy between the design of the transaction and the content of the financial and business transaction.

The Ministry of Finance recalled how to return the surplus of the state duty paid when applying to the court of arbitration. An application for the return of the state duty should be addressed to the FTS or its territorial body at the place of transfer of the fee. A similar explanation regarding fees related to applying to courts of general jurisdiction was given by the Ministry of Finance in January. Document: Letter of the Ministry of Finance of Russia of 02.11.2017 N 23-05-09 / 72172.

"Review of legal positions reflected in the judicial acts of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, adopted in the third quarter of 2017 on tax issues".

The Federal Tax Service of Russia presents an overview of court practice on taxation issues for the third quarter of 2017, which contains the legal positions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation. The review contains conclusions based on specific court decisions on tax disputes. In particular, the following is indicated: law enforcement practice is focused on the recognition of tax benefits unreasonable, in particular, in cases where for purposes of taxation transactions are not taken into account in accordance with their real economic meaning and that the contested legal provisions themselves do not allow additional tax assessment to the taxpayer in the amount of more than is prescribed by law;
used in paragraph 2 of article 45 of the Tax Code of the Russian Federation the concept of "other dependence" between the taxpayer and the person to whom the claim for tax debt is presented must be interpreted taking into account the purpose of this norm - countering tax avoidance in those exceptional cases when the actions of the taxpayer and other persons are coordinated nature and lead to the impossibility of the obligation to pay taxes by their payer, including in the absence of interdependence provided for in Article 105.1 of the Tax Code of the Russian Federation;
the basis for the additional accrual of VAT and personal income tax amounts was the fact that the entrepreneur did not take into account the realization of the right to lease the land for tax purposes. By transfer of property rights, the entrepreneur actually paid off his debts to individuals. The courts indicated that in this case the fact of the realization of the property right, which is subject to VAT taxation and obtaining economic benefits in the form of termination of the loan obligation, which, being an income, forms the personal income tax base, is paramount; the company transferred ownership of non-residential premises, as well as part of the ownership of common areas in a share corresponding to the size of the sold office space.
The courts considered that under such circumstances the company had no reason to apply the full cadastral value of the common areas for tax calculation, since it ceased to be the owner of part of these premises and, therefore, does not bear the burden of their maintenance, including tax; a real estate purchase and sale transaction between related parties (brother and sister), in accordance with the provisions of paragraph 5 of Article 220 of the RF Tax Code, excludes the possibility of providing a property tax deduction, regardless of whether the interdependence affected the conditions or the result of the transaction.

Bank of Russia Ordinance No. 4335-U, dated March 31, 2017, "On setting limit values for the size of transactions of joint-stock companies and limited liability companies, above which such transactions may be recognized as related-party transactions"
Registered in the Ministry of Justice of Russia 04.24.2017 N 46460.

Limit values are defined for transactions of JSC and LLC. If they are exceeded, they can be recognized as interested-party transactions. The limit values for the size of transactions are set depending on the book value of assets according to the accounting (financial) statements as of the last reporting date.
The limit values of the size of transactions are when the value of assets:
not more than 25 billion rubles - 20 million rubles;
from 25 billion to 100 billion rubles - 50 million rubles;
from 100 billion to 1 trillion rubles - 500 million rubles;
from 1 trillion to 2 trillion rubles - 1 billion rubles;
more than 2 trillion rubles - 2 billion rubles.
The instruction comes into force 10 days after the day of its official publication.

"Review of judicial practice in cases of establishing easement on a land plot"
(approved by the Presidium of the Supreme Court of the Russian Federation on April 26, 2017).
The Supreme Court of the Russian Federation has compiled judicial practice in cases involving the establishment of a servitude on a land plot.
In order to ensure a uniform approach to the resolution by courts of general jurisdiction and arbitration courts of cases related to the establishment of a servitude on a land plot, it is established, in particular, that: when deciding which court - general jurisdiction or arbitration - should be considered , termination of servitude, it is necessary to take into account in the aggregate the subjective composition of the parties to the dispute and the nature of legal relations;
with the requirement to establish a servitude, the owner of the land plot on which the linear object belonging to another person, erected after the emergence of private property on the specified land plot, has the right to apply;
servitude can be established only if the owner of the land plot (real estate object) does not have another opportunity to exercise his right to use the land plot (object) belonging to him;
a servitude is not subject to establishment if by its conditions the owner of the land plot is deprived of the opportunity to use his plot in accordance with the permitted use; if there are several options for passage (passage) to a land plot through a neighboring land plot, the court should proceed from the need to balance the interests of the parties and establish a servitude on conditions that are least burdensome for the owner of the land plot in relation to which the servitude is established; fee for servitude is determined by the court on the basis of the principles of reasonableness and proportionality, taking into account the nature of the parties, the area and term for establishing the servitude, and can be either in the form of a lump sum payment, or periodic payments.
The terms of the servitude may specify the procedure for changing the fee Each of the parties has the right to apply to the court with a request to change the size of the fee (increase or decrease) in the event of a change in the amount of restrictions on the rights of the owner of the land plot burdened with a servitude.

The cassation confirmed: it is possible to include a fee for unilateral refusal from it in the service contract.
Payment is not a sanction and does not limit the right of the customer to a unilateral refusal. In the opinion of the North-West District AU, the counterparties could have foreseen such a condition in case the customer canceled the contract ahead of schedule and without motivation.
The cassation referred to the position of the 2014 Plenum of the Supreme Arbitration Court of the Russian Federation.
District courts also believe that the condition for such a fee is legal. For example, the CA of the Moscow District in October 2016 made the agreement in the contract a penalty for unilateral refusal.
Document: Resolution of the CA of the North-West District of 05/05/2017 in case No. A56-5652 / 2016
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