ARCHIVE FOR 2013 RUSSIAN
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Январь 2013
CONTENT
Chief editor’s column
Interview of the issue
The Event. Comments of the Experts
Future of Administrative Justice One of the topics discussed at the VIII All-Russian Congress of Judges in December 2012 was the future of administrative justice. We asked our experts to tell us how they see its future.
Topic of the issue
Vinnitsky D.V., Rakov I.A. Transfer pricing and bilateral tax treaties of the Russian Federation The article deals with the problems of transfer pricing regulation in cross-border relations. We consider a network of agreements on avoidance of double taxation concluded by the Russian Federation, and make their rather-legal analysis in terms of reflecting of the OECD approaches to the management of transfer pricing. The problem is analyzed taking into account the changes of domestic regulation of the corresponding relations in the Russian Federation from January 1, 2012, and the introduction of chapters 14.1-14.6 of the Tax Code.
Keywords:
transfer pricing, bilateral tax treaties of the Russian Federation, the agreement on the avoidance of double taxation, the OECD Model Convention, the UN Model Convention, international tax law
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Razgildeev A.V., Popov P.A. Insufficient capitalization as the basis of the marketability check of the loan conditions More than a year passed from the time when a case of JSC "UK "Severniy Kuzbass" on the application of the thin capitalization rules was considered by the Presidium of SAC of the Russian Federation, the outcome of the case was not in favor of the taxpayer. Does this mean that the interests paid to the associated foreign company at the excess of three-time limit of debt will always be redundant and should not be deductible in the income tax? The authors of this article will try to give the answer to this question.
Keywords:
transfer pricing, thin capitalization, thin capitalization rule, loan agreement, dividends, the principle of the "arm's length", market conditions of the transaction
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Litvinov K.Y., Shtukmaster I.B. Controlled transactions The article is devoted to the economic transactions that should be included in the list of controlled transactions of the taxpayer. The authors consider some of the problems arising from the application of the criteria of the designation of transactions to the controlled ones.
Keywords:
transfer pricing, controlled transactions, interdependent persons, tax control
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Kalinin S.I. Comparability of transaction terms and functional analysis in the Tax Code of the Russian Federation and Manual of the OECD on the Transfer Pricing One of the key issues that should be solved when choosing a method of income determining in transactions between interdependent parties, is a question of the conditions assessment of the corresponding transaction and the possibility of its comparing with the transactions between independent contractors. The author compares the conditions of the transactions comparability provided by the new Russian law, with the recommended OECD factors of transactions comparability and makes a conclusion on the positive effect of the European experience on the domestic legislation in this part.
Keywords:
transfer pricing, tax planning, transactions comparability, market price, OECD recommendations
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Theory and practice
Novikov A.A., Ivanov A.I. Legal succession mortis causa in the privatization of private premises in judicial practice The article focuses on the controversial issues of transfer to the privatization of private premises under the procedure of inheritance. Its first part is given to study the legal nature of law on privatization. The authors express their point of view on the possibility and desirability of the application of traditional domestic classification to this type of subjective rights.
Keywords:
inheritance, the right to the privatization, the privatization of housing, private premises, right to rights, succession mortis causa
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Farkhutdinov I.Z., Danelyan A.A., Magomedov M.Sh. National legal regulation of foreign investment in Russia To ensure the effective implementation of his activities in the host country, the foreign investor needs to know to what extent it can rely on its domestic law as a self-sufficient source of security for his investment. Federal Law of 09.07.1999 № 160-FZ "On Foreign Investments in the Russian Federation" is intended to regulate the investment relations with a foreign element. In this paper, this Law is studied in terms of its scope, provided guarantees, and possible changes in its provisions.
Keywords:
foreign investment, foreign investor, national regime, investment guarantees, international arbitration, stabilization clause, hidden nationalization, state immunity
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Kinev A.Y. Fighting against cartels: major events of 2012 The purpose of the article is the analysis of the major cases of the antimonopoly legislation violation, relating to the fighting against cartels and considered by FAS of Russia in 2011-2012. The ways of improvement of antimonopoly regulation in the Russian Federation with regard to the fighting against cartels and other anti-competitive agreements and concerted practices are being offered.
Keywords:
cartel, system of the fight against cartels, antimonopoly legislation, Competition Law, anti-competitive agreements, antitrust authorities, law enforcement agencies, the FAS of Russia
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Ilyin A.V. To the issue on the possibility of pre-trial expenses by the rules of Chapter 9 of the APC RF The article considers the possibility of compensation under the rules of pre-trial costs of APC of the Russian Federation. The author analyzes the practice of SAC of the Russian Federation on this issue and based on the study of the legal nature of the category of judicial expenses comes to the conclusion that pre-trial costs cannot be reimbursed by the rules of the APC of the Russian Federation.
Keywords:
judicial expenses, pre-trial costs, access to justice
Foreign experience
Pentzov D.A. Escrow agreement according to the Swiss law The paper argues for a selection of Swiss escrow agents in international transactions, involving an independent third party, and contains the overview of the main provisions of the escrow agreement under the Swiss law. The article also analyzes the most common issues that may arise during the performance of this contract, and offers recommendations to prevent or promote the early resolution of such agreement by well-written text.
Keywords:
escrow agreement, the Swiss law, the escrow agent, the certificate of security, security storage
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Nazykov A.L. On vindication of the property, alienated by the director of the company against his will, or in the cases when the director’s actions are not expression of the will of the company (British experience for the Russian practice) This article analyzes some precedents of the British judicial practice, which considers the directors as trustees of the company's property. The English courts have developed the principles governing the consequences of the violation of the fiduciary duties by the directors, based on the rule prohibiting the directors to extract personal gain from their position, which is incompatible with the interests of the company.
Keywords:
director, trustee, beneficiary, imputation rules, constructive trust, abuse of authority, defect of will, voidable transactions
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