Recently enacted Russian transfer pricing rules now require companies operating in Russia to file annual documentation in compliance with new regulatory guidance regarding related foreign party and certain domestic party transactions for tax year 2012 and thereafter.  The new guidance largely follows the Organisation for Economic Co-operation and Development transfer pricing principles, with exceptions for certain global commodity transactions.  The new rules also provide for advance pricing agreements with up to a five-year exemption from documentation requirements.

The Russian Duma approved new transfer pricing (TP) legislation, with new rules, definitions and consequences, that entered into force January 1, 2012.  The law more closely aligns Russia with the international transfer pricing community, which should provide more comfort and familiarity for foreign companies doing business in Russia and, at the same time, put Russian companies on a similar “tax field” with their counterparts in other parts of the world.  While there will still be tax differences between jurisdictions, the tax rules should be more similar and the tax effect more certain.  This may be one of the few times when a new tax law helps spur international commerce.

Implications Rules of the Game

The new law gives definition and structure to the Russian government’s transfer pricing philosophy and, thus, provides clearer, more objective principles and practices regarding the issues, parties and measurement of transfer pricing.  It also provides definitions and approaches that are more closely aligned with international norms, specifically the Organisation for Economic Co-operation and Development (OECD) Guidelines, and thereby provides both Russian companies operating abroad and foreign companies operating in Russia a more consistent and familiar set of rules by which to set and evaluate their transfer prices.

The new rules will give Russian taxpayers more certainty in setting their transfer prices, and thereby greater ability to plan and manage their business operations and tax position.  Given that taxes are one of the biggest corporate expense items, tax uncertainty (and thereby earnings uncertainty) is one of the biggest banes for publicly traded companies.  Greater tax certainty will not only facilitate setting related-party pricing, but also, where tax optimal, expanding and more fully integrating Russian operations within the larger international marketplace and not treating Russia as a stand-alone case.

Overview of the New Rules

Taxpayer Beware

While these rules provide companies the means to set their prices, they also provide the government with the means and incentive to audit those prices.  Taxpayers should be under no delusion of tranquility under the new rules.  They have been put in place for one reason only: to defend the Russian tax base and collect more tax revenue.  If the experience of other countries is any guide, large, medium and small companies alike will be subject to more and more aggressive scrutiny of their related-party transactions, and tax assessments will be large and frequent.

Anticipation of Tax Authority Response

While the rules appear to focus specific attention on transactions involving extractive resources/raw materials, all companies, in all industries having both controlled and third-party transactions, should take note of the rules and prepare appropriate transfer pricing documentation.  For tax year 2012 (and certainly for 2014 and thereafter), companies should undertake to assemble high-quality documentation.  The tax authorities will be seeking to make examples of companies not in compliance with the new rules, or more particularly, not complying completely.  Accordingly, those companies that have quality documentation, especially if they are selected for audit, will earn good favor and perhaps even a lighter pass in 2014 when higher penalties are imposed.

Advance Pricing Agreement Process

For large companies, especially those with targeted extractive industry transactions or with high name recognition, it may be strategically and politically advantageous to be one of the first to apply for an advance pricing agreement (APA).  While the process is likely to take longer than the government’s proposed nine-month timeline and will entail close scrutiny—although in a less hostile environment than if selected for audit—such companies may find the government more cooperative, and possibly even eager, to conclude agreements.  Moreover, there is likely to be positive promotional and political value in being one of the first to conclude an APA, not to mention no audit exposure for three or more years going forward.

The new law is ambiguous as to whether the APA process could be commenced on an anonymous basis, so that a taxpayer could discuss its situation with the pertinent officials without being officially in the process.  Such anonymous pre-filing conferences are instructive for taxpayers, whether or not experienced in transfer pricing matters.

What Taxpayers Should Do

For multinationals commencing a documentation process under the new Russian rules, an appropriate course of action would be along the following lines:

1. Begin with the format of existing documentation for affiliates in other countries, including function/risk charting methodology.
2. Adapt for Russian transactions.
3. Utilize combined income information to evaluate the margins on Russian transactions.  This data would be used only for internal evaluation purposes and to compare the overall results of the Russian transactions with experience in other countries—an internal sanity check.  Russian tax authorities may request such information in future examinations, as other tax authorities do.  The purpose of this step is to undertake the analyses that may ultimately be required, even though it will not be included in the actual Russian documentation.
4. Select a methodology (presumably a one-sided test).
5. Undertake an appropriate technical analysis based on the method selected.
6. Compare to the results of examinations or controversies of affiliates in other countries having similar functions/risks to the Russian entity.  While this is also an internal sanity check, it may also be information that will be requested by the Russian tax authority on examination.
7. Complete a documentation study.
8. Evaluate cost/benefit of APA.

Specific Rules

Documentation Requirements

Like companies in some 65 other jurisdictions, Russian taxpayers with controlled transactions (as defined with certain limitations and expansions fitting the Russian economy) greater than about RUB 100 million (about US$4 million) will now be required to prepare and have available necessary documents to justify their transfer pricing methods and substantiate the pricing (and/or profits) of their related-party transactions.  Similar to other country requirements, Russian taxpayers should address the following in their transfer pricing documentation:

• Functional analysis
• Terms and conditions (factors) of controlled transaction
• List of related parties involved
• Transfer pricing method and reasons for selection
• Market price (arm’s length) range
• Adjustments
• Data sources

Documentation is due within 30 days of request, but not earlier than June 1 of the year following the controlled transaction.

Separate transactional information is also required after May 20 of the year following the controlled transaction.  Such information should include:

• Counterparty
• Object of transaction
• Amount paid or received

The following transactions are exempt from documentation:

• Controlled transactions less than RUB 100 million
• Controlled transactions involving securities and/or derivatives traded on an equity exchange
• Controlled transactions whose price is prescribed by anti-monopoly authorities

Penalties

Starting in 2014, Russian taxpayers may be subject to transfer pricing penalties of an additional 20 percent of tax on adjusted income if the taxpayer lacks the required documentation.  The penalty will increase to 40 percent starting in 2017.

Penalty provisions are a necessary inducement for governments seeking to impose a mandatory documentation regime.  Experience has shown that most governments are interested more in extracting compliance than they are in assessing penalties.  How aggressive the Russian tax authority will be in enforcing the penalty will remain to be seen; however, the increased penalty, starting in 2017, suggests that late adopters of appropriate documentation will suffer the most.

Audit

The new Russian law sets an aggressive audit schedule, as follows:

In such examinations, the examiners will have the authority to request foreign counterparty information, both from the taxpayer and the counterparty country tax authorities if Russia has an exchange of information arrangement with the country.  Russia has an extensive tax treaty network.

Advance Pricing Agreements

Starting January 1, 2012, large Russian taxpayers, but not foreign legal entities, will be eligible to apply for an APA with the Russian tax authorities.  The government has proposed that APA determinations should be concluded within nine months of application and enter into force from January 1 of the year following a signed agreement.

An entity may be allowed to apply the APA retroactively (“rolled back”) to the application date.  The agreement will remain in force for up to three years, with the possibility of a two-year extension.

The APA may be applied/concluded on a bilateral (or multilateral) basis where the counterparty (parties) is resident in a Russian treaty party country.

Definitions

Market price (profitability) range: Russian transfer pricing adopts the inter-quartile range as the market price (arm’s length) range, computed in the same manner as among OECD countries, as the “safe harbor” for setting controlled transactions prices/profit.  The law does not allow taxpayers to make adjustments to their prices (or profits) if their results are otherwise outside the market price range.

Related party: The definition of related parties will be broadened, with the transfer pricing law to subsequently include a list of criteria defining how companies and individuals might be classified as related parties.  In general, there is no material change in the level of control, ownership or threshold defining a related party, although the courts do hold ultimate power to deem companies or individuals as related on any reasonable basis.  The law makes clear, however, that Russian state-owned companies are excluded from the definition of control, and their transactions outside the purview of transfer pricing.  The real change is in the type of transactions subject to transfer pricing law.

Controlled transactions: All cross-border related-party transactions will be considered “controlled” transactions and subject to transfer pricing law.  In addition, certain third-party global commodities transactions (applies to related-party transactions with aggregate sales greater than RUB 60 million) will fall under the definition of controlled transactions, as will certain third-party transactions from blacklisted countries (as determined by Min. of Finance, art. 284, clause 3(1)).  The new definition will apply to certain domestic related-party transactions with revenues above RUB 60 million (controlled transactions with aggregate sales greater than RUB 60 million in which transaction or party is subject to certain exempt or lower tax or special tax regime, other exemptions or thresholds may also apply), and all other domestic related-party transactions with revenues above RUB 3 billion, unless otherwise exempted (exempt entities include members of a domestic consolidated group, parties registered in same Russian region, etc.).

The new law takes a more expansive view of controlled entities and controlled transactions, and thereby casts a wider net for companies (and transactions) that will come under the transfer pricing net.  As Russia is a natural-resource-rich country, the new Russian law seeks to apply closer scrutiny of global commodity transactions by bringing certain material third-party transactions within the definition of controlled transactions.  The law appears to be targeted to resident Russian companies in the minerals, metals and oil/gas industries, but may also have unintended consequences for non-commodity companies with raw material needs, such as automotive, semiconductor, chemicals and other basic manufacturing industries.

TP Methods: The new law adopts the five generally accepted international pricing methods (CUP, resale minus, cost plus, CPM and profit split), with a preference, but not strict hierarchy, for CUP or transactional methods.  Moreover, the Russian law actually appears to add a little more flexibility for unspecified methods, even permitting straight valuation appraisals in the case of one-time transactions where no other method is applicable.

Given the large, diverse and volatile nature of the Russian economy, it is entirely appropriate, and makes good practical sense both from the standpoint of Russian tax authorities and taxpayers, that the transfer pricing law give wide latitude to the types of methods available to analyze subject transactions.  In addition, given the dynamic nature of Russian business, it is also appropriate to allow independent appraisals to be provided as evidence of arm’s length market pricing.  In such cases, however, the appraisal should be developed using standard valuation methods or techniques and based on publicly available, or at least objectively verifiable, data.