Submitting a kick notification. Controlled foreign companies: what the owner must do in the Russian Federation. What transfer pricing rules apply to each taxpayer

Every year, legal entities and individuals must provide the tax authorities with information on controlled foreign organizations, if on the 31st day of the reporting year, the taxpayer was recognized as an equity participant in a foreign enterprise. Tax authorities are only interested in profitable companies, however, it is also necessary to submit a CFC notification for unprofitable organizations. What other details should be taken into account, we will tell below.

KIK - what is it?

V Russian legislation a controlled foreign company is understood as an organization in which the participation of citizens of the Russian Federation and legal entities - residents of the country is present. Equity presence for individuals- at least 10% of the capital (if the share of other participants - citizens of the Russian Federation is equal and more than 50%), for legal entities - at least 25%. It should be noted that the share of participation of citizens is considered both individually and together with a spouse or spouse, as well as minor children.

Based on the results of consideration of the CFC notification tax authority decides whether profits are subject to taxation in the RF.

What information needs to be reflected in the notification?

Preparing a CFC notice will take certain time therefore it is worth starting from the beginning of the year in which the tax return is submitted. The form contains the following data (you can download it at this link), which partly coincide with the notification of participation:

Sheet A - brief information about the foreign company (name, reporting period, date of registration of the enterprise).
Sheet A1 - grounds on which a person is recognized as controlling capital in a foreign organization.
Sheet B - brief information about the foreign structure, if the organization is not a legal entity.
Sheet B1 - the grounds on which a person is recognized as controlling capital in a foreign structure.
Sheet B - translated and notarized financial statements of the controlled company.
Sheet D - procedure for indirect participation of a tax resident Russian Federation... Specified as a percentage up to 15 decimal places.
Sheet G1 - information about the legal entity that controls the foreign company.
Sheet G2 - information about the foreign intermediary company through which the CFC is influenced (if any).

It should be noted that on each sheet of the CFC notification form, a unique serial number is reflected, which the taxpayer assigns to an independently defined CFC. He should not be involved in another company when the first one is liquidated. The code simply ceases to take part in the chain of numbers of controlled enterprises.

On January 1, 2015, the Law “On taxation of profits of controlled foreign companies"(). In accordance with this law, tax residents of the Russian Federation must notify about their participation in foreign companies if the share of such participation exceeds 10%, as well as notify about controlled foreign companies with a participation interest in such companies of more than 50% by January 1, 2016.

Initially, the deadline for notification of participation in a foreign company was set for April 1, 2015. At the end of March 2015, amendments were adopted to move the deadline for notification of participation to June 15, 2015.

Federal Tax Service of Russia Order No. ММВ-7-14 / dated 24.04.2015 [email protected] approved the form and format of submission in electronic form notifications of participation in foreign companies, which can be found on the official website of the Federal Tax Service at the link.

At the same time, the form of notification of controlled foreign companies is still under development. Information on the preparation of relevant projects was posted on the Single Portal by the link.

1. Filling out the notification form for participation in foreign companies. The Notification must contain information about a legal / natural person - a taxpayer, about a foreign organization in which he has direct, indirect or mixed participation, about a foreign structure without education legal entity and other information, including the procedure for participation in a foreign organization in the case of indirect participation. Legal entities send notifications to in electronic format(for this in software package Corresponding amendments were made to the "Taxpayer Legal Entity"). For taxpayers - individuals, it is possible to submit a notification on paper.

The cost of our services for filling out the form on the ownership of foreign companies is 7,000 rubles.

2. Consulting on drafting financial statements controlled foreign company. The law provides for certain features when calculating the profit of a foreign company, depending on its location. So, if the controlled foreign organization has a permanent location in a foreign state with which the Russian Federation has international treaty on taxation issues, and if its financial statements are subject to statutory audit, then its profit is determined based on the data of such financial statements. Otherwise, the relevant rules of the Russian Tax Code apply.

The cost of consultations on the preparation and submission of CFC financial statements - from 10,000 rubles.

3. Tax advice on the law on controlled foreign companies. The specialists of our company are also ready to provide advice on other issues arising in connection with the adoption of this law, in particular, an analysis of the risks of recognizing a foreign company as a tax resident of the Russian Federation, especially the application of agreements on the avoidance of double taxation and other issues of taxation of the activities of foreign companies.

The cost of individual tax advice on the CFC law is from 5,000 rubles.

We are also ready to hold a seminar for you and your employees on the operation of the new law ()

Additional information on these services can be obtained from the specialists of our company.

If an organization or individual recognized as tax residents of the Russian Federation controls a foreign organization that is not a tax resident of the Russian Federation, or a foreign structure without forming a legal entity, such a foreign organization (structure) is recognized as a controlled foreign company (CFC) (clauses 1.2 of Art. . 25.13 of the Tax Code of the Russian Federation).

What it means to control in order to recognize a CFC is specified in Art. 25.13 of the Tax Code of the Russian Federation. Control includes, for example, the ability to have a decisive influence on the decisions made by a foreign organization to distribute the profits earned.

For example, a controlling person of a foreign organization is an organization whose share of participation in a "foreigner" is more than 25%, while such a share does not provide for exclusively direct or indirect participation through public Russian organizations.

The presence of a CFC in an organization or an individual obliges them to notify the tax inspectorate about such "foreigners" (clause 3, clause 3.1, article 23 of the Tax Code of the Russian Federation).

CFC notification form 2018

The controlling organization submits a notification at the place of its location, and the individual controlling the foreign company - at the place of their residence (clause 3.1 of article 23 of the Tax Code of the Russian Federation).

The above notification form should not be confused with the Notification of participation in foreign organizations (on the establishment of foreign structures without the formation of a legal entity) (form for KND 1120411) (approved by Order of the Federal Tax Service dated 24.04.2015 No. ММВ-7-14 / [email protected]).

Organizations must submit a CFC Notice in electronic form, and individuals can choose to submit it by electronic means or on paper (clause 4 of article 25.14 of the Tax Code of the Russian Federation).

CFC Notice: Due Date

When to submit a CFC notice? Is it necessary to submit a CFC notice annually?

The CFC notification must be submitted no later than March 20 of the year following the year in which the controlling person recognized income in the form of the CFC's profit, which was subject to personal income tax or income tax (clause 2 of Article 25.14 of the Tax Code of the Russian Federation).

Accordingly, if such income was not recognized last year, you will not have to file a CFC notice this year.

Procedure for filling out a CFC notice

The procedure for filling out the CFC Notice is given in Appendix No. 2

TO general requirements on filling in the Notice, the following can be attributed:

completed in one copy by hand in black or blue ink or using a computer;
it is not allowed to correct errors using a correcting or other similar means, double-sided printing on paper, binding sheets, leading to damage to the paper;
filling in the fields with the values of text, numeric, code indicators is carried out from left to right, starting from the first (left) familiarity;
filling of text fields is done with capital print characters;
when printing a Notification on the printer, no framing for familiarity and dashes for unfilled familiarity is allowed. Signs should be printed in Courier New font, 16 - 18 points high.

The notification consists of title page, sheet "Information about an individual", as well as sheets A, A1, B, B1, C, D, G1, G2.

If the information in any sheets is not related to the reporting organization or individual, these sheets are handed over, but not filled out.

If you need to fill in information about several foreign organizations or structures, several sheets A - G2 are filled in, respectively.

A detailed procedure for filling out each sheet of the Notification is given in Appendix No. 2 to the Order of the Federal Tax Service dated 13.12.2016 No. ММВ-7-13 / [email protected]

2018 CFC Notice: Sample Completion

For the CFC Notice in relation to a controlled foreign company, in which the direct participation of a Russian organization is 75%.

> Preparation and submission of CFC notifications

Submission of Notice of Participation in Foreign Organizations and Notice of Controlled Foreign Companies (CFC)

In accordance with Article 25.14 of the Tax Code of the Russian Federation

1) about your participation in foreign organizations (on the establishment of foreign structures without forming a legal entity);
2) about

It's TWO different kinds Notifications that must be submitted (or may not be submitted subject to certain conditions, which will be discussed below) with the tax authority to the person who owns a foreign company.

Let's consider both options sequentially.

In accordance with clause 1, clause 3.1. Article 23 of the Tax Code of the Russian Federation, the taxpayer is obliged to notify the tax authority of both direct and indirect participation in foreign organizations if the share of such participation exceeds 10%... At the same time, the share of indirect participation in a foreign organization is determined in accordance with the procedure established by Art. 105.2 of the Tax Code of the Russian Federation.

It is also necessary to notify about participation in foreign organizations if participation in them is carried out through nominees.

Example.
You are the beneficiary of a Cyprus company - you are not a director or shareholder, you are the beneficiary whose rights to the company arise from a declaration of trust - the law nevertheless requires you to file a Notice as the person controlling the company. At the same time, “control” means the right to influence the decision on the distribution of the company's profits.

The obligation to notify also lies with taxpayers who have established the so-called ISBOYL - a foreign structure without a legal entity (these include, among other things, current British LLPs and Scottish LP partnerships). In accordance with Clause 2 of Article 11 of the Tax Code of the Russian Federation ISBOYL means an organizational form created in accordance with the legislation of a foreign state (territory) without forming a legal entity (in particular, fund, partnership, partnership, trust, another form of collective investment and (or) trust management), which, in accordance with its personal law, has the right to carry out activities, aimed at generating income(arrived) in the interest of its participants (shareholders, trustees or other persons) or other beneficiaries.

Deadline for filing a notification

In accordance with paragraph 3 of Art. 25.14 of the Tax Code of the Russian Federation:

Notification of participation in foreign organizations (on the establishment of foreign structures without forming a legal entity) is submitted no later than three months from the date of occurrence (change in the share) of participation in such a foreign organization (the date of establishment of a foreign structure without forming a legal entity), which is the basis for submitting such a notification.

Procedure and form of notification

Form and format of notification of participation in foreign organizations approved By order of the Federal Tax Service of the Russian Federation dated April 24, 2015 No. ММВ-7-14 / [email protected]... It should be noted that in accordance with the literal interpretation of the norms of this order:

legal entities must send notification exclusively
individuals have the right to submit a notification on paper

* See Resolution of the 9th AAC in case No. А40-24922 / 16 of August 18, 2016 on the imposition of a fine under Art. 129.6 of the Tax Code of the Russian Federation, to a legal entity due to violation of the deadline for submitting a notification of participation in foreign organizations in electronic form. Let's say on our own that the case is quite interesting, tk. The legal entity taxpayer submitted the relevant notifications, however, only on paper. In electronic form, similar notifications were submitted in violation of the term provided for by the current legislation. The court took the side of the tax authority, indicating that in relation to legal entities, the only PROPER form of filing a notification is the electronic form, and the only proper way is through the TCS.

Penalty for Failure to Submit or Late Submission of Notices

In accordance with clause 2 of article 129.6 of the Tax Code of the Russian Federation

Wrongful failure to submit set time by the taxpayer to the tax authority notifications of participation in foreign organizations or submission of a notification of participation in foreign organizations containing inaccurate information,

entails the recovery of a fine in the amount of 50,000 rubles in relation to each foreign organization, information about which is not provided or in relation to which false information is provided.

The specified penalty is one-off.

In case of incomplete information, inaccuracies or errors in filling out the submitted notification of participation in foreign organizations, the taxpayer is also entitled on the basis of Clause 7 of Article 25.14 of the Tax Code of the Russian Federation submit to the tax authority updated notice.
In the event that a revised notification is submitted prior to the moment when the taxpayer learned about the establishment by the tax authority of the fact that inaccurate information was reflected in the notification, the taxpayer is released from the liability provided for in Article 129.6 of this Code.

The cost of our services

Service	Price rub.
Oral consultations regarding the need to submit a notification of participation in a foreign organization. Analysis corporate structure Client	8,000 rubles / hour
Preparation of a Notice of Participation in Foreign Organizations	from 7,000 *
Preparation of a Notice of Termination of Participation in Foreign Organizations	7 000
Submission of a Notice to the tax authority by power of attorney (for individuals on paper, for legal entities - only electronically through the TCS with the use of a strengthened CEP)	2 500
Written advice in the form of a legal opinion	from 14 900

* Depending on the complexity of the corporate structure. The indicated cost includes an analysis of the ownership structure, as well as oral consultations related to the CFC.

What is a Controlled Foreign Company (CFC)?

After the issue has been analyzed for the need to notify the tax authority about participation in foreign organizations, it is necessary to analyze the issue of whether your foreign organization CFC is a “controlled foreign company”.
IMPORTANT! It is necessary to notify about participation in foreign organizations regardless of whether these organizations will fall under the criteria of a CFC or not. If foreign organizations also meet the CFC criterion, then TWO notifications must be submitted to the tax authority.

I. Let's consider which foreign organizations qualify for the CFC status - a controlled foreign company. In accordance with Clause 1 of Article 25.13. RF Tax Code Controlled foreign company (CFC) the company is recognized:

Not a tax resident of the Russian Federation;
Controlling person which is an organization and (or) an individual recognized as tax residents of the Russian Federation.

II. CFC in accordance with Clause 2 of Article 25.13. RF Tax Code also recognized foreign structure without forming a legal entity (ISBOYL), the controlling persons of which are organizations and (or) individuals recognized as tax residents of the Russian Federation.

"Controlling person"

For the purposes of the above paragraphs under " controlling person" in accordance with Clause 3 of Article 25.13. RF Tax Code is understood:

An individual or legal entity whose share of participation in this organization is more than 25%;
An individual or legal entity whose share of participation in this organization (for individuals - together with spouses and minor children) is more than 10%, if the share of participation of all persons recognized as tax residents of the Russian Federation in this organization (for individuals - together with spouses and minor children) is more than 50 percent.

Controlling person ISBOYL the founder (founder) of such a structure is recognized - Clause 9 of Article 25.13 of the Tax Code of the Russian Federation... Also controlling person ISBOYUL another person who is not its founder (founder) is recognized if such person monitors over ISBOYL and at the same time in relation to this person at least one of the following conditions is met - clause 12 of article 25.13 of the Tax Code of the Russian Federation:
1) such a person has an actual right to income (part of it) received by such a structure;
2) such a person has the right to dispose of the property of such a structure;
3) such a person has the right to receive the property of such a structure in the event of its termination (liquidation, termination of the contract).

* Face NOT recognized as a controlling person foreign organization, if his participation in this foreign organization is realized exclusively through direct and (or) indirect participation in one or more public companies being Russian organizations- Clause 4 of Article 25.13. Tax Code of the Russian Federation.

Which companies do not qualify for CFC status?

IMPORTANT! Founder (founder) of a foreign structure without forming a legal entity NOT recognized controlling person such a structure, if in relation to this founder (founder) simultaneously all of the following conditions are met:
1) such a person is not entitled to receive (claim to receive), directly or indirectly, the profit (income) of this structure in whole or in part;
2) such a person is not entitled to dispose of the profit (income) of this structure or part of it;
3) such a person did not retain the right to the property transferred to this structure (the property was transferred to this structure on terms of irrevocability). Given bythe word established in relation to the person - the founder (founder) of a foreign structure without the formation of a legal entity is recognized as fulfilled if this person does not have the right to receive the assets of such a structure in whole or in part in its ownership in accordance with personal law and (or) constituent documents this structure throughout the entire period of existence of this structure, as well as in the event of its termination (liquidation, termination of the contract);
4) such person does not exercise other control over this structure.

Trusts, foundations ("foundations") - a way out of the situation?

ISBOYL, in the first place, means those created to protect and manage the assets of the beneficiaries. With proper structuring of a trust or fund, as well as under certain conditions when developing corporate documents for ISBOYUL data, it is possible to create a corporate entity that does not formally fall under the status of a CFC.

IMPORTANT! A controlling person may be recognized as a person who does not formally fall under the above criteria, but who actually manages the organization, expressed, in particular, in the ability to make a decision on the distribution of profits received by the company in the course of its activities.

Thus, any foreign company in which a Russian tax resident is the sole shareholder (or a beneficiary with a nominee shareholder) will be subject to CFC status for tax purposes (except as described below). The most obvious situation in which a foreign company may not fall under the CFC status is control of shares in the amount of no more than 25% of the company together with foreign investor partners. Obviously, a similar situation may arise when establishing a “target” SPV company. At the same time, we remind you that control over shares of a foreign company in the amount of LESS than 10% is NOT subject to notification.

Submission of a CFC notification: term, procedure, form and format

As stated at the beginning of this section in accordance with Article 25.14 of the Tax Code of the Russian Federation tax residents of the Russian Federation - INDIVIDUALS AND LEGAL ENTITIES - are obliged to notify the tax authority at the place place of residence or place location of the organization, respectively:

1) about controlled foreign companies of which they are controlling.

In accordance with clause 2 of article 25.14 of the Tax Code of the Russian Federation

Controlled foreign company notification is submitted no later than March 20 the year following the tax period in which the controlling person recognizes income in the form of profits of the controlled foreign company.

By means of calculations, it can be concluded that the first deadline for filing CFC reports is March 20, 2017. Further, the controlling person is obliged ANNUALLY until March 20every yearsend the specified CFC notification to the tax authority at the place of registration (for individuals).

EXAMPLE:
You registered a foreign company on October 27, 2017. The first CFC Notice must be submitted by you by March 20, 2019 based on the results of the CFC's profit for 2017.
A comment:
If the company is registered in 2017, then its financial year ends on December 31, 2017. Based on the results of the profit received by the company in 2017, dividends can be paid to shareholders in 2018, therefore, dividends received by shareholders in 2018 must be declared by them. in 2019.

EXAMPLE:
You acquired shares in a foreign company that has existed since 2012 on October 27, 2017. The first CFC Notice must be submitted by you by March 20, 2018.
A comment:
Because You became the owner of a company that is already running its own commercial activities, in 2017, then you, as a new existing shareholder, in the same 2017 have the right to receive income in the form of dividends based on the results of the company's activities for 2016. Therefore, you must take this income into account when filing a declaration in 2018.

The form and format of CFC Notifications were approved by Order of the Federal Tax Service of Russia dated 13.12.2016 N ММВ-7-13 / [email protected]... Requirements for the procedure for filing notifications about CFCs are similar to the requirements for filing notifications on participation in foreign organizations:

legal entities must send a CFC notice exclusively in electronic form, only via telecommunication channels (TCS) and only in the presence of a strengthened qualified electronic signature(UKEP) *
individuals has the right to submit a CFC notice on paper

In case of incomplete information, inaccuracies or errors in filling out the submitted CFC notification, the taxpayer is also entitled on the basis ofClause 7 of Article 25.14 of the Tax Code of the Russian Federationsubmit to the tax authorityupdated notice.
In the event that a revised notification is submitted prior to the moment when the taxpayer learned about the establishment by the tax authority of the fact that inaccurate information was reflected in the notification, the taxpayer exempt from liability provided for in Article 129.6 of this Code.

What documents are required?

There are no legal requirements for the mandatory attachment of documents to the CFC Notice. However, in one of the sheets of the Notice, it is necessary to indicate information about the date of preparation of the financial statements and the date of the auditor's report.

From which we can conclude that it should be prepared in any case without fail, either in accordance with local law and the standard for the preparation of financial statements, or according to.

AUDIT must be carried out (even if it is NOT mandatory) in the event that the Notice is filed in relation to the fact of ownership of a foreign company with which Russia does not have an agreement on the exchange of tax information.At the same time, the auditor's report should not contain a negative opinion.

Example.
It is NOT required to audit financial statements for, European jurisdictions and others, since Russia has agreements on the avoidance of double taxation concluded with them.
It is REQUIRED to conduct a voluntary audit for all offshore companies:, etc.

After preparing the reports and conducting the audit and submitting the Notice, you must be prepared for the fact that the employees of the Federal Tax Service "within the framework of clarifying the information stated in the Notice" will request to provide documents confirming the declared information. After the receipt of these requirements, the FTS will need to provide translated copies of the financial statements and the auditor's report (there are no requirements for an apostille and notarization of the translation). As the pratika shows, after giving these documents questions from the Federal Tax Service are no longer received.

Responsibility for Late Submission of a CFC Notice

In accordance with Clause 1 of Article 129.6 of the Tax Code of the Russian Federation

Unlawful failure to submit to the established term the controlling person to the tax authority notifications of controlled foreign companies for calendar year or submission by the controlling person to the tax authority of a notification of controlled foreign companies containing false information,

entails a penalty a fine of 100,000 rubles for each controlled foreign company, information about which is not provided or in respect of which false information has been provided.

That is, if a taxpayer who has registered a foreign company with 100% participation does not send TWO notifications to the tax authority (as required by the new rules), then he will be liable in the form of a fine of 150,000 rubles. (50,000 rubles + 100,000 rubles).

The cost of our services

* Depending on the complexity of the corporate structure. The indicated cost includes an analysis of the ownership structure, as well as oral consultations related to the CFC.