Taxation Issues

Posted by Carlota on December 3, 2015
in News
as

Principles and conditions for investment activities are defined and regulated by the Law of the rsfsr "On investment activity in the ussr and the Federal Law" On investment activity in Russia, carried out in the form of capital investment " (Hereinafter – the investment laws). Definition of investment in these laws are similar – it's cash, other property, and property rights (rights that have monetary value) invested in facilities entrepreneurial and other activities. The purpose of an investment – a profit and (or) a positive effect. Article 39 of the Tax Code does not recognize as the sale of goods, works or services, transfer of property, if such transfer is an investment in nature: in particular, contributions to authorized (reserve) capital of business entities, contributions under a partnership agreement (joint venture), shares in Mutual Funds cooperatives. However, Art. 39 of the Tax Code in order to implement the Tax Code for property understands kinds of objects of civil rights relating to property in accordance with the Civil Code, except for property rights. At the same time, the provisions of investment laws include the assets of property rights.

Dilemma: if the purpose of the investment activities of its members are transferred property rights under the investment law, is it possible extension to the transfer of property rights provisions of Art. 1939 Tax Code, applicable to the property. In other words, to ascertain whether the transfer of property rights of a party investment activities to a third party under taxation. As in Art. 1939 Tax Code, we are talking about property, composed of Russian Tax Code does not include property rights, transfer of property rights party investment activities to third parties does not fall under the concept of transfer of property that bears an investment character and therefore subject to taxation. The difference in the understanding of civil and investment tax legislation can be traced as an example the transfer of assets as a contribution to the charter capital of business entities. According to the Federal Law "On Joint-stock payment may be money, securities, other property or property rights having monetary value (Article 34).

On tax legislation payment of purchased shares of the company, the transfer of property does not imply appearance of the object of taxation the value added tax. Payment also purchased shares of the company, implemented through the transfer of certain property rights, which formally falls under the definition subject of taxation in the form of transactions involving the transfer of property rights. In this case, from an economic point of view for a person who acquires shares aimed at this purpose funds are financial investments, regardless of the form assets which payment is made. Thus a person who is paid for them from a third party property rights in cash and transfers these rights as payment for the purchased shares shall bear the risk that such investments which are of investment nature, will not be exempt from value added tax. Keep in mind that the concept of investment for tax purposes has a significant specificity, it considerably narrower than the civil law.