Consolidated group of taxpayers as a first legal form of holdings in Russia
М.А. Evnevich,
канд. экон. наук, доцент, доцент кафедры экономики предприятия и предпринимательства, Санкт-Петербургский государственный университет (191123, Россия, г. Санкт-Петербург, ул. Чайковского, 62; email: mariaeha@gmail.com)
D.V. Yaburova,
вспирант кафедры экономики предприятия и предпринимательства, Санкт-Петербургский государственный университет (191123, Россия, г. Санкт-Петербург, ул. Чайковского, д. 62; e-mail: d.yaburova@gmail.com)
Аннотация. Статья посвящена недавним изменениям в налоговом законодательстве России в области контроля деятельности взаимозависимых лиц, в том числе, холдингоподобных объединений. Эти изменения стимулируют к созданию формальных, официально зарегистрированных холдингов, предлагая систему налоговых льгот для так называемых «консолидированных групп налогоплательщиков». Кроме того, новации в Налоговом кодексе имеют ярко выраженный антиофшорных характер и, в частности, направлены на деофшоризацию крупнейших холдингоподобных объединений, в том числе, государственных корпораций и иных групп компаний с государственным участием.
Abstract. The article is devoted to recent changes in the tax regulation in Russia, concerning control of interdependent parties, including holding-like groups of companies. These innovations stimulate legal registration of holdings by introducing tax exemptions for consolidated groups of taxpayers. Also, the innovations in the Russian Tax Code are aimed at curbing offshore operations, especially as concerns the biggest groups of companies, including state corporations and corporations partly owned by the state.
Ключевые слова: консолидированная группа налогоплательщиков, взаимозависимые лица, трансфертное ценообразование, налог на прибыль, налоговая оптимизация.
Keywords: consolidated group of taxpayers, interdepended parties, transfer pricing, profit tax, tax optimization.
There are many integrations of companies in Russia that in fact exist, but are not registered as such. They can present themselves as holding-like or agreement-based structures. Nevertheless, more often the state regulators view them as single firms. This allows to lower the tax burden for the whole integrated business group due to tax optimization.
The objective of this work is to examine changes in the Tax Code, identify opportunities to make the tax reporting easier and legally lower the tax burden of groups of companies, and also identify new tax hazards and risks for non-registered holding-like integrations, especially those which use offshore schemes, special tax regimes and other ways of optimizing taxes.
The main source of information is the Tax Code of the Russian Federation.
1. Historical development of integrated companies
1.1. Origin of holdings in Russia
Economic and legal concepts of holdings in Russia are evolving in parallel at different rates, but have never been united as a general concept. There are significant differences between the economic and legal concepts of holdings.
One of these differences concerns the regulation of activities of company integrations, particularly of the second stage (as classified by Boyko I.P. [1] (i.e. integrations of holding and/or concern types. Despite their long history, these integrations officially have not been duly regulated yet.
References to the concepts of holding in Russian law appeared in the 1880s. These was cartels, syndicates, trusts and corporations in the field of transport engineering, metallurgy, and in the 1890s - in the textile, sugar beet, oil and oil refining industries. After the revolution of 1917, private holdings ceased to exist due to nationalization of enterprises.
Later in the economy of the Soviet Union, the average control level was restored, and hence certain features of holdings can be traced in Soviet state enterprises [2]. During the planned economy in the Soviet Union there existed trade-industrial complexes and other associations in particular industry branches, representing the meso-level of regulation in the economy. The structure of participants in such an association was clearly established, lines of authority were secured, and the organizational structure was transparent both for the state and for the heads of companies participating in such association. For ordinary workers and the public, there were no mysteries either.
1.2. Development of holdings in contemporary Russia
In today's Russia, there are a many associations of enterprises, and their number has only increased. They cannot even be properly counted, due to the fact that associations are mostly not registered from a legal point of view. Hundreds of thousands of large, small and medium associations existing in Russia today and representing a holding (second stage) and contract-based (first stage)
structures, decide for themselves if they are holdings or not. The presence or absence of unified economic management is determined by the policy of the stakeholders of these associations and at their sole discretion. For the general public and employees, the modern-day holdings can present themselves as single firms or as unrelated companies. The state sees most of these associations as separate legal entities; and this usually makes it
Economic and legal evolution of
possible to reduce the total tax burden on the group through tax optimization, but for managers and owners the fact of consolidated management is no secret.
Several attempts to establish Russian legal regulation of enterprise associations have been made. Stages of contemporary post-Soviet legal regulation of holdings can be viewed in Table 1.
Table 1
ngs in the post-Soviet period
Stages of evolution of enterprise associations Legal act Period
1. Creation of concerns and conglomerates during privatization and subsequent redistribution of property The law on privatization. Mention of a "holding company." Provisional Regulation on holding companies, approved by Presidential Decree No.1392 of November 16, 1992 1991-1992
2. Emergence and popularization of financial and industrial groups Presidential Decree No.2096 "On financial and industrial groups" and Law No.190-FZ "On financial and industrial groups" dated November 30, 1995 1993-1995
3. Increase in number of holdings and reduction in their size. Emergence of holdings consisting of small enterprises to optimize tax and financial flows Two attempts to enact a law on holding companies. After corrections it has not been enacted. 1999-2002
4. Specialization and enlargement of holdings, transformation of concerns into conglomerates, growth of state corporations Price regulation by Articles 20 and 40 of the Tax Code 1999-2011
5. Emergence of the form of holding - the concept of consolidated taxpayer Interdependent parties and consolidated group (Section V.1 of the Tax Code) 2012-h/b present
Creation of concerns and conglomerates during privatization and subsequent redistribution of property. In the classic sense of the term, private holding companies were developed in Russia only in the 1980s and 90s [3] when there was large-scale privatization of state enterprises.
The motives for unification of enterprises into larger structures were also such factors as the need for restructuring production and the increasing transaction costs as a result of changes in the nature of interaction between enterprises in a new economic reality.
Legally, holdings have not been clearly defined, but were mentioned in legal acts, in particular, the concept of a holding company was used in the Law of the Russian Soviet Republic (the 'RSFSR') of July 3, 1991 "On privatization of state and municipal enterprises in the Russian Federation": "On the basis of enterprises included in an association (concern) ... to promote the cooperation of allied enterprises, holding companies can be established" (Paragraph 4 Article 8).
Definition of a holding company was given only in the "Provisional regulations on holding companies created by transformation of state enterprises into joint stock companies," approved by Presidential Decree No.1392 of November 16, 1992. According to the Provisional Regulations, "A holding company is an enterprise, regardless of its legal form, whose assets include controlling stakes in other companies" (Paragraph 1.1). Moreover, the concept "controlling stake" meant "any form of participation in the capital of a company that provides an unconditional right to accept or reject certain decisions at a general meeting of its members (shareholders, stakeholders) and its management bodies." In other words, the interpretation of a holding in this Decree was not completely identical with the economic concept of holdings. The holding described in the Decree could be based on both strong and weak asset connections that do not give full control and provide only a right of veto. The uncon-
ditional right to adopt certain decisions is provided with a share over 50%, and the right to reject - with a blocking share over 25%.
Emergence and popularization of financial and industrial groups (FIGs). In 1993 in Russia, the disintegration of large industrial complexes gave rise to certain problems such as low investment activity, insolvency and lack of working capital. And there was a need for interbranch organizational and economic structures that would be capable of servicing their own financial needs. The concept of financial and industrial groups (FIGs) that would include a bank was created for such structures. On December 5, 1993 the Presidential Decree No.2096 "On financial and industrial groups and the procedure for their creation," was issued, and two years later - the relevant Federal law No.190-FZ "On financial and industrial groups" dated 30.11.1995.
The law gave the following definition: "A financial and industrial groups (FIG) is a group of legal entities acting as one main and several subsidiary companies, or those that completely or pa
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