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12.12.2016 - 23: 41

Without Russia, why the owners take out employees in Latvia, Luxembourg and Cyprus

decision-making center at the large owners transferred outside Russia. One of the reasons - a change in tax legislation.

Traditionally, entrepreneurs are widely used foreign jurisdictions for establishment of companies for the purpose of tax planning. Often, these companies were only "mailboxes": they had no office, no staff, and we were the only beneficiary of the founding documents and the service agreement with the administrator. Director of such companies can simultaneously serve in that capacity in hundreds of similar companies. Through these structures were significant financial flows, which, in turn, affect the effective tax rate of operating companies.

However, tax law and practice around the world evolved, and similar business models currently entail significant tax risks for both operating companies and for the beneficiaries. This is the actual place of management of the company, if the company is actually managed from one country, then it must pay taxes in the same country. This, in turn, causes the business to grant foreign companies the real function and move the control functions in the jurisdiction of incorporation of the company. There is such a thing as the actual content.

Previously existed essentially on paper only foreign companies are separate offices, and people who previously, employed in the Russian operating companies, are moving to foreign jurisdictions, where they become operational directors and employees of these companies. In fact transferred the center of activity and decision-making for the company. Countries such as Cyprus, Latvia, Luxembourg became the beneficiaries of the new Russian legislation. It is there mainly transfer their activities, as well as transport management team, large owners.

At the moment, there is a general understanding that the use of a company registered at the administrator and having a part of managers only nominees, is risky.

Налоговое законодательство устанавливает, что иностранной организацией, управление которой осуществляется за пределами Российской Федерации, признается иностранная организация, если ее коммерческая деятельность осуществляется с использованием ее собственного квалифицированного персонала и активов в государстве ее постоянного местонахождения, с которым имеется международный договор Российской Федерации по вопросам налогообложения, или в иностранном государстве нахождения ее обособленных подразделений, с которым имеется международный договор Российской Федерации по вопросам налогообложения (п. 4 ст. 246.2 НК РФ). 4 Art. 246.2 of the Tax Code).

Even before the entry into force of this provision of the Tax Code of the Federal Tax Service in the framework of inspections have already requested their foreign counterparts information about the presence of personnel in a foreign company, a summary of Directors information about the availability of a separate office, and the last shared the information.

However, there is no universal answer to the question: what should be the actual content of a foreign company. In this case, you must first of all be guided by the principle of "content takes precedence over form", as well as proceed from the real functions that performs this company. So, for example, direct investment and financial center of the filling will be different.

A popular question is under the theme: what content is necessary for the company, which on the balance of one investment or a loan. To find the answer to this question is interesting to refer to international practice, which has developed requirements for similar situations.

In particular, in the Netherlands there is a so-called substantial participation mode. This mode - a set of anti-uklonitelnyh rules that are used to understand, is it possible to apply the reduced tax rate to the dividend payable. Within the framework of these rules in detail studied business functions at the level of the indirect shareholder of the Dutch company in respect of investments: in particular, must have staff who are responsible for the operation or development of the investment business.

It is also interesting to turn to law enforcement in Austria: so for the purposes of the use of low tax rates at the source of payment of dividends is necessary to ensure that the owner of the Austrian investments perform any additional functions in relation to this investment, for example, provides advice on management issues. In the framework of control activities the Austrian fiscal authorities can also request information on the number of personnel and functional.

Very hard are the provisions of the German tax legislation. It is also necessary to prove that the German shareholder of the company, or the company, standing on the German shareholder of the asset has the required level of the actual content. In other words, a company is not only the directors but also the relevant personnel, skilled enough to carry this line of business.

The above examples are from countries with serious fiscal discipline and complex legal structures. But it was the use of similar mechanisms, in my view, to avoid disputes with the Russian inspectors. All this will lead to a significant appreciation of the foreign structure and here is it will be necessary to study the question of whether it is cheaper to contain a foreign structure or translate all the activities in Russia.

A source: Forbes

Author: Dmitry Maples

Tags: Cyprus, Latvia, Luxembourg, Economy, Russia, Tax, Business, Opinion