Posts tagged ‘Tax Law’

This situation is largely due to the fact that between tax optimization, which is a system of different methodologies for choose the best solution for the specific case of economic activity and tax evasion, there is a very strong face. Neglect of documenting business transactions in the commission perfectly lawful transactions, allows tax authorities to classify expenses as cost unjustified and undocumented confirmed in order to calculate the taxable base for profit tax. Costs taxpayer's control of the organization or its separate divisions, as well as the cost of purchasing services to manage the organization or its separate divisions, may reduce the organization received income, provided that these costs are economically justified and documented. The costs are reasonable and economically justifiable only if they relate to business activities of legal entities. According to Article 2 of the Civil Code of the Russian Federation is an independent business, carried out at your own risk activities aimed at systematically profit from the use of property, sale of goods, works or services.

That is, if costs are incurred by the organization in the business (economic, industrial) activities aimed at generating income, such expenses with proper documentary evidence deemed warranted. Thus, the economic justification incurred taxpayer costs and economic activity is determined by the organization aimed at generating income. It should be noted that this conclusion is contained in a large number of court decisions (eg, Resolution of the Thirteenth Arbitration Court of Appeal of 20.06.2007 on case number A56-49602/2006). The absence of legislative definition of the category of "economic justification of costs" allows the tax authorities and courts of arbitration arbitrarily refuse to recognize the costs in order to determine the object of taxation on corporate income tax is actually implemented taxpayer costs, considering that they are not economically justified, documented unsubstantiated and unrelated to the activities aimed at generating income.

FTS RF directed for use in the Ministry of Finance letter of August 30, 2010 N 03-03-05/193. In this letter, the Ministry of Finance informs that payments made under the temporary use of property in the form of objects of capital investments made state acceptance committee, the ownership of which has not yet been registered, recorded profits for tax purposes in the general procedure. This conclusion makes the Ministry on the basis of provisions of Art. 252 of the Tax Code, defining the concept of reasonable and documented expenses, as well as paragraph 3 of Article 131 of the Civil Code, which obliges the state registration of property rights and transactions it must at the request of copyright owner to certify the registration made by issuing a document of the registered right or the transaction or the commission of the inscription on the document submitted for registration. On According to the Ministry of Finance investor who has received the results of investments in the form of completed construction sites, to the state registration of rights to them is their owner with the possibility of possession, use and disposal of objects completed construction, including the offer such property for payment for temporary use to a third party. 31.08.2010. FTS RF directed for use in the Ministry of Finance letter of 30 August 2010 N 03-03-05/193.

In this letter, the Ministry of Finance informs that payments made under the temporary use of property in the form of objects of capital investments made by the state acceptance committee, the ownership of which have not yet registered, recorded profits for tax purposes in the general procedure. This conclusion makes the Ministry pursuant to the provisions of Art. 252 of the Tax Code, defining the concept of reasonable and documented confirmed expenses, as well as paragraph 3 of Article 131 of the Civil Code, which obliges the state registration of property rights and deals with it, must certify at the request of copyright owner produced registration by issuing a document of the registered right or the transaction or the commission of the inscription on the document submitted for registration. According to the Ministry of Finance investor who has received the results of investments in the form of completed construction of objects, to the state registration of rights to them is their owner with the ability to own, use and disposal of objects completed construction, including to provide such a property for payment for temporary use of a third party.

However, in our view, outsourcing is not a lease in a clean form, as proceeding from the norms of the Civil Code (Articles 607, 626, 666) we can conclude that the object of lease can only be the property rather than personnel. Lease or grant of use can be a thing, or property right another object of civil law, and workers for civil traffic are not. Employees may only be the subjects of civil rights and under no circumstances can not be recognized as objects of civil law transactions, so the relations arising in connection with the provision of staff, could not be referred to the lease agreement, respectively, using the term "hire staff" is incorrect. In our opinion, provision of personnel (outsourcing) is compensated for providing services and to some extent this is a modernized work contract (the main differences from the contract of compensated rendering of services is the absence of the regulated order of acceptance of work with demands for quality work and a short-term contract for services). With respect to the use of work contracts to organizations in a special mode UTII Ministry of Finance has a completely different position (letter dated 24/12/07, the 03-11-04/3/508): Considering that the relationship between the general contractor (providing household services to the public under a consumer contract) and the subcontractor based on the contract contract, the subcontractor can not be applied the norms of Art. 346.27 of the Code. Consequently, when calculating the amount of the unified tax on imputed income population is not considered subcontractors.

If the cost of permanent improvements compensated the tenant the landlord, they depreciated the landlord. If the cost of permanent improvements made with the consent of the lessor shall not be reimbursed the latter, they depreciated in the lessee during the term of the lease. The amount of depreciation calculated at the same time taking into account its useful life, determined to leased property, plant and equipment in accordance with the Classification plant and equipment, approved by RF Government Decree of 01.01.2002 1. After the end of the lease premises nedoamortizirovannuyu tenant of the capital investments, according to the Ministry of Finance (email from 05.02.08g 03-03-06/2/12), should be expensed, not taken into account for purposes of taxation of profits. Moreover, if the useful life of the leased object is greater period of the lease, and part of the cost of capital investments in the form of inseparable improvements will be depreciated (ie, the tenant will not be able to recognize some of the costs incurred in the inseparable improvements), then at the end of the lease the tenant must cease depreciation on produced by permanent improvements of the leased property. If the rental agreement will be prolonged, the tenant can continue to depreciation in the established order (letter from the Ministry of Finance 06.09.2007g 03-03-06/2/171). Since the tenant made inseparable improvements are an integral part of the leased property and do not remain on the balance of the tenant, and also taking into account that the leasehold Fixed assets established a special procedure for calculating depreciation under Art. .