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ARCHIVE FOR 2015    RUSSIAN

Февраль 2015

CONTENT

 

 

Interview of the issue

D.B. Babiner. IN THE PERIOD OF THE ECONOMICAL CRISIS CERTAINITY AND CLARITY OF THE LAW ARE NEEDED MORE THAN EVER
Partner of the leading consulting company EY Dmitri Borisovich Babiner replies to questions of Chief Editor of “ZAKON” journal Yan Piskunov
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The Event. Comments of the Experts

HORISONTAL MONITORING
An essentially new instrument which has been previously used in pilot mode in Russia and widely popular abroad is introduced to tax legislation at the 1st January 2015. Horisontal monitoring is designated for achievement of the new transparency and cooperative efficiency level by tax organs and taxpayers. Will it meet the expectations? What are the prospects of its use in Russia and abroad? We’ve addressed the questions to our experts.
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Topic of the issue

A.I. Savitsky. CONTROLLED FOREIGN COMPANIES IN RUSSIA CONSIDERING THE BEST FOREIGN PRACTICES
Author analyses main provisions of the new tax regime for controlled foreign companies (CFC) in Russia considering the best foreign practices. The article seeks to evaluate the focus group of CFC rules, study compliance requirements for Russian controlling persons and liabilities, and, finally, to determine basic problems and conflicts triggered by the new Law on CFC.
Keywords: controlled foreign corporation, CFC, offshore ,low-tax jurisdiction, taxation of profits, profit shifting, deoffshorisation
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S.L. Budylin. LIFE WILL NEVER BE THE SAME AGAIN: CFC LEGISLATION, INTERNATIONAL INFORMATION EXCHANGE AND INTERNATIONAL TAX PLANNING
Starting from 2015, legislation on controlled foreign companies (CFC), which taxes the income of offshore companies controlled by Russian residents, is in effect in Russia. The new legislation essentially discards all traditional Russian methods and customs of conducting international business. Supplemented by international tax information exchange, with its drastic increase in intensity in the last years, the CFC legislation establishes a new international business framework for Russian entrepreneurs. The framework and some options of restructuring one’s business to make it fit for the new environment are discussed.
Keywords: controlled foreign company, tax information exchange, tax residency, international tax planning
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D.M. Schekin, V.V. Barsukova. COMPANY’S REDOMICILIATION AS POSSIBLE MECHANISM OF DEOFFSHORISATION
The article provides analysis of the procedure for changing residence of legal entities as a mechanism of deoffshorisation and describes the concept of defining company’s residence currently existing in the Russian Federation. Authors study experience of the EU countries in terms of legal regulation of change of jurisdiction by companies as well as prove benefits of adopting redomiciliation procedure into the Russian legal system.
Keywords: residence, deoffshorisation, change of jurisdiction, controlled foreign company, CFC, offshore, corporate law, the European Union
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B.Ya. Bruk. CRITICAL ANALYSIS OF THE NEW PROVISIONS OF RUSSIAN TAX LAW CONCERNING RUSSIAN TAX RESIDENCE OF FOREIGN ORGANISATIONS
The article deals with the most recent piece of Russian tax law often referred to as “deoffshorisation law”. The author ponders why tax residence is one of the most important concepts in domestic and international tax law, compares different types of tax jurisdictions and outlines the criteria used to determine tax residence of companies in different countries and in OECD practices. Finally, the author analyses whether the new Russian tax residence rules follow the generally accepted principles of corporate tax residence and touches upon some potential practical problems Russia may face when enforcing the new law.
Keywords: double (multiple) taxation; deoffshorisation, incorporation, source of income, source of payment of income, place of management, tax residence, tax jurisdiction, permanent establishment
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R.S. Fatkhutdinov. BASE COMPANIES IN THE INTERNATIONAL INCOME TAXATION
The article touches upon base companies in the international income taxation, particularly the concept of base companies, aspects and criteria for distinguishing legitimate and illegitimate using of them, international and Russian experience in their countering. Special attention is paid to the OECD recommendations given in OECD reports on the problems of base erosion and profit shifting, base companies, tax avoidance.
Keywords: base company, profit shifting, tax benefit, tax planning, tax avoidance, tax abuse, general anti-avoidance rule, controlled foreign company, substance over form principle, business purpose test
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A.A. Chumakov, C. Prevaes. NEW OPPORTUNITIES OF THE DUTCH FISCAL UNITY REGIME
The article describes specifics of Dutch analogue of Russian regime for consolidated taxpayer (fiscal unity regime) in light of the recent decision of the European Court of Justice that significantly extended the scope of this regime application by Dutch companies.
Keywords: consolidated taxpayer, fiscal unity regime, Netherlands, international tax planning
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GARANT

 

Press Release

 

Discussion Board

I.R. Medvedev. FROM PRIVATE TO PUBLIC: COURTS’ PRACTICE INFLUENCED BY CLAIMANTS’ ACTIVITY
The article explores how the concept of “subjective-public right”, reformulated by G. Ellinek and other distinguished scholars at the end of the 19th century, is reflected in the latest Moscow district courts’ practice, especially in the cases based on the chapter 25 “Proceedings in cases on challenging of decisions made, actions (inaction) fulfilled by state authorities” of the Civil Procedural Code of the Russian Federation. The courts are now changing under the influence of citizens being aware of their subjective-public rights and insisting the court to protect them. Author critically assesses the popular principle of the uniformity of judicial practice and alternatively proposes the doctrine of territoriality as well as “vernacular” analysis of judicial acts.
Keywords: subjective-public rights, judicial practice, uniformity, vernacular analysis
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Theory and practice

M.L. Gal’perin. ON THE LEGALITY OF REVOCATION OF DEBTOR’S DRIVING LICENCE, OR WHO SHOULD DRAFT LAWS?
Author presents analysis of proposed amendments to the Federal Law “On Enforcement Proceeding”, introducing new restrictions of debtor’s driving license. These initiatives are used as an example of common problems of lawmaking process as well as of general trends in the Russian regulation of enforcement proceeding.
Keywords: protection of rights, enforcement proceeding, legislative process

 

E.B. Dyachenko. EVOLUTION OF THE EURASIAN INTEGRATION
Dissolution of the Soviet Union not only initiated shaping of sovereign states but also marked the beginning of integration processes. With its steps, beginning from the CIS through the Eurasian Economic Union, Customs Union and Common Economic Space, the Eurasian integration has passed several stages on its way to the polity which is the Eurasian Economic Community. Evolution either of the community or the union of states could be possible due to the consistent development and activity of organs of agglomerative entities. The court played significant role in the process.
Keywords: integration, CIS, Eurasian Economic Community, Customs Union, Common Economic Space, Eurasian Economic Union, free trade area, free movement of goods, Court of the Eurasian Economic Community
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A.N. Varlamova. NONPROFIT PARTNERSHIP “MARKET COUNCIL” AS PUBLIC SELF-REGULATORY ORGANISATION IN ELECTRIC POWER INDUSTRY
NP “Market Council” is a self-regulatory organisation, yet its aims, membership basis as well as procedures of both forming executive bodies responsible for developing rules for the wholesale market and performing control over participants of the market and forms of disciplinary proceedings significantly differ from those of other SROs. Analysis of distinctive features of NP “Market Council” including public elements in its activity leads author to a conclusion that it might be considered as a public entity.
Keywords: self-regulatory organisation, electricity, wholesale electricity market, “Market Council”, measures of disciplinary responsibility, antimonopoly law
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V.V. Kilinkarov. ACTUAL MATTERS OF DISPUTE RESOLUTION IN THE SPHERE OF PUBLIC-PRIVATE PARTNERSHIPS
The article represents results of analysis of court practice relating to the disputes concerned with the projects of public-private partnership structured both on the basis of regional laws on PPP and of the RF Federal law “On concession agreements”. Author considers and analyses the most important conclusions of the courts on the matters of competitive tendering for entering into PPP agreements, parties to concession agreements, termination of concession agreement and deeming them invalid, claiming of different damages, penalties and concession payments from the concessioner, encumbrance of the object of concession, using of concession models not provided by the federal legislation.
Keywords: public-private partnership, state-private partnership, municipal-private partnership, SPP, PPP, concession, public-private partnership agreement, concession agreement, infrastructure project, tender, termination of a contract
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