Review of arbitration practice of dispute resolution in cases involving foreign persons. Judicial practice in disputes with arbitration managers

The Arbitration Court applies the rules of the Warsaw Convention to unify some rules relating to international air transport (1929), taking into account the changes made to this Convention by subsequent international treaties with the participation of the Russian Federation.

The Russian joint stock company appealed to the arbitration court with a claim against the Finnish airline, which has a representative office in the Russian Federation, to recover 1289.9 USD. US, amounting to 6.6 kilograms of missing goods, on the basis of paragraph 2 of Art. 22 of the Warsaw Convention for the unification of some rules relating to international air transport (1929), as amended by the Hague Protocol (1955).

By the decision of the arbitration court the claim was satisfied in the amount of the stated requirements on the basis of subsection. 2 and 4 tbsp. 22 of the Convention.

By the rulings of the appeal and cassation instances, the decision was upheld.

The Presidium of the Supreme Arbitration Court of the Russian Federation changed the judicial acts, satisfying the claims in the amount of 157,08 US dollars.

From the documents submitted in the case, it follows that when the cargo was received from the Finnish airline by the international air waybill at the airport, there was a shortage of 6.6 kilograms, which was a commercial act.

Questions of liability in international transport are regulated by the Warsaw Convention for the unification of some rules relating to international air transport, dated October 12, 1929, ratified by the USSR (assignee - the Russian Federation) 7

july 1934 and the Republic of Finland on September 3! 937. In addition, the Russian Federation participates in the Protocol on Amendments to the Warsaw Convention (The Hague Protocol, 19551.

According to Art. 28 of the Convention, a liability claim must be filed at the choice of the claimant within the territory of one of the High Contracting Parties either in court at the place of residence of the carrier, at the location of the head office of his enterprise or at the place where he has an office, or in court of destination.

Part 2 of Art. 212 of the Arbitration Procedure Code of the Russian Federation stipulates that arbitration courts in Russia are entitled to consider economic disputes with the participation of foreign persons if the branch or representative office of a foreign person is located in the territory of the Russian Federation.

Consequently, the claim was subject to review by the arbitration court of the Russian Federation.

As can be seen from the commercial act, the loss of part of the cargo occurred during air transportation.

According to paragraphs. 1 and 2 tbsp. 18 of the Convention, the carrier is responsible for damage occurring in the event of destruction, loss, damage to checked baggage or goods, if the incident that caused the damage occurred during the carriage by air.

Air carriage covers the period of time during which baggage or goods are protected by the carrier.

In the international air waybill indicated the mass received for transportation of cargo, amounting to 186.6 kilograms. When issuing cargo at the airport, it was 180 kilograms, as evidenced by the commercial act.

Consequently, the loss of cargo occurred during the air carriage, which was carried out by the Finnish airline, which acknowledged its guilt in its loss.

In accordance with paragraphs. 2 and 4 tbsp. 22 of the Convention, in the carriage of checked baggage the carrier’s liability is limited to 250 gold francs per kilogram of cargo. “The transfer of amounts into a national currency that does not have gold content in the case of legal proceedings will be made in accordance with the gold value of such currencies at the date of the court decision” (Section 5, Art. XI of the Hague Protocol, 1955).

By filing a lawsuit, the plaintiff calculated the value of the missing mass of cargo in US dollars using the gold price for 1 troy ounce set on the London Precious Metals Exchange, which, in turn, determines the market value of the gold itself, rather than its content in national currencies. With this calculation, the amount of the claim repeatedly exceeded the amount of the actual damage to the claimant.

This calculation contradicts the established international practice of transferring 250 gold francs to national currencies not through the determination of the gold value of these currencies, but through the recalculation into electronic money — special drawing rights (SDRs).

Translation of special drawing rights into national monetary units is carried out taking into account the rules contained in the conflict rules of the Convention and the law of the state where the court adjudicates the dispute.

According to paragraph 7 of Part 1 of Art. 166 of the Fundamentals of Civil Law (1991), the rights and obligations of the parties under an international carriage contract are determined by the law of the carrier country, that is, in this case by the law of Finland.

The arbitration court established the content of the norms of the Finnish legislation on this issue.

Paragraph 23 of the Finnish Air Carriage Contract Act defines the carrier’s liability in 17 SDRs, and 24 of this Act establishes that in case of legal proceedings, the recalculation of the amounts specified in the SDR is converted to Finnish marks according to the official exchange rate of the SDR and Finnish mark quoted by the International Monetary Fund. It is allowed to recalculate the exchange rate in US dollars.

In this situation, the claimant should have limited the amount of the claim to 17 SDR or US $ 23.8 per 1 kg of the mass of the lost cargo. The total amount of liability of the carrier in such a calculation amounted to 157,08doll. USA.

Thus, the arbitral tribunal applies the rules of the international treaty of the Russian Federation in the sense and order established by the international treaties of the Russian Federation, including the Warsaw Convention, in order to unify certain rules relating to international air transportation (1929) and protocols on amendments to this Convention, adopted by the Russian Federation. 2

When resolving a dispute arising from a foreign trade transaction, the arbitral tribunal applies business practices in the field of international trade in INCOTERMS when the parties to the transaction agree to apply them or change the basic conditions provided for in the contract in writing.

A firm registered in a foreign country appealed to a court of arbitration with a claim against a Russian joint stock company.

In July 1996, a Russian trade enterprise (buyer) entered into a foreign trade contract with this firm (seller) for the supply of goods.

The parties at the conclusion of the transaction agreed in writing that the delivery of goods will be made on the terms of CIF (sea carriage) in the edition of INCOTERMS-90. At the same time, the obligation to pay the freight to the destination and, however, to insure the transaction was assigned to the seller, a foreign firm.

In fact, the carriage was carried out on FOB terms - the seller did not insure the delivery.

On the way, the goods were spoiled by the seawater during a storm. The buyer, having received the goods in an unsuitable condition, considered this to be the fault of the seller, who unilaterally changed the basic terms of delivery from CIF to FOB, which, in turn, led to inadequate performance of obligations under the transaction.

A foreign firm insisted that a bilateral treaty change took place. The following circumstances were cited as evidence: the seller faxed an offer with a proposal to reduce the contract price; the buyer in the telephone negotiations agreed with this proposal. As a result of telephone conversations, the seller found it possible to charter the vessel on FOB terms and not insure the transaction.

The Russian company denied the fact of oral agreement to change the terms of the contract.

The arbitral tribunal resolving the dispute was not presented evidence of the written will of the parties to change the terms of the contract.

In resolving this dispute, it should be borne in mind that the transaction was classified as foreign trade. In accordance with paragraph 3 of Art. 162 of the Civil Code of the Russian Federation, foreign economic transactions are concluded in simple written form. In addition, the enterprises involved in the transaction were in different states.

Therefore, the United Nations Convention on Contracts for the International Sale of Goods of 1980106, which entered into force for Russia on September 1, 1991, is applicable to the relations of the parties.

The Convention contains an imperative provision on the form of the transaction - art. 12.

In this case, this article specifies the mandatory written form of the transaction. This rule applies to both the international sale contract and its amendment (Article 29 of the Convention).

Article 12 of the Convention applies when at least one of the parties to a contract has a commercial enterprise in a state party to the Convention whose legislation requires that sales contracts be concluded in writing, which state made a declaration on the basis of art. 96 of the Convention.

The USSR, when joining the Convention, declared compliance with the requirements of Art. 12. This declaration applies to the Russian Federation, to which the USSR’s obligations under the Convention have passed.

Article 13 of the Convention refers to writing (from electronic types of communication) only messages "by telegraph and teletype".

Thus, the contract of sale and its change in the case of participation in it of a company from the Russian Federation must be concluded in writing, which telephone communication is not.

The contract between the disputing parties was concluded in writing on the CIF (INCOTERMS-90), that is, the seller had to send the goods on the CIF.

The seller by fax offered the buyer to deliver the goods on FOB terms.

The buyer did not confirm in any written document that he agreed to amend the contract in terms of waiving the CIF conditions and switching to FOB terms.

Thus, the seller offered to change the contract, and the buyer did not respond to the offer. Consequently, there has been no change in the contract regarding the delivery basis (CIF on FOB) in writing.

The arbitral tribunal has the right to decide on the basis of business practices regarding the basis of delivery in international trade (as INCOTERMS) in the case when the parties have agreed to apply them or have changed the agreement on the basic conditions of foreign trade delivery in writing. 3

The court of arbitration, in the presence of evidence of the fulfillment in a foreign country of the principal obligation of a foreign economic transaction, satisfactorily for the beneficiary refuses to satisfy claims for payment of the guarantee amount of a foreign beneficiary company in Russia.

A foreign trading company filed a claim with the arbitration court against a Russian commercial bank for the recovery of a large amount of a bank guarantee issued to secure a foreign trade contract in 1995.

The defendant, a Russian bank, filed a counter-claim for invalidating the bank guarantee, citing the fact that the claimant had abused the trust of the bank.

During the period specified in the guarantee, the beneficiary filed a claim for payment to the guarantor, referring to the fact that the principal did not deliver the goods under a foreign trade contract. The guarantor refused to pay the amount of the guarantee, stating that according to his information, the main obligation was fulfilled in a satisfactory manner for the beneficiary.

The repeated demand of the beneficiary to pay the amounts was also not satisfied by the guarantor.

At the court hearing it became clear that the contract for the international sale of goods provided for the security of the transaction as a security for the transaction.

From the documents submitted to the court, it followed that the Russian firm-seller transferred to the buyer as collateral the property in the form of two sea vessels. According to the terms of the foreign trade contract, in the event of the seller’s failure to deliver the goods, the buyer received the right to satisfy his claims at the expense of the pledged property, which becomes his property in the manner prescribed by the legislation of a foreign state.

After the property is pledged, the buyer has paid for the goods in advance at the price stipulated in the foreign trade contract.

At the same time, the parties to the foreign trade deal appealed to the Russian bank with a request to issue a guarantee as a guarantee of the proper fulfillment by the Russian firm of the main obligation related to the delivery of goods abroad. At the same time, neither the beneficiary nor the principal informed the bank that the foreign trade contract contained detailed conditions on the pledge of the seller’s property and that the transfer of the property as a pledge to the territory of a foreign state took place.

The bank issued a guarantee.

The supply of goods provided for by the foreign trade contract did not take place.

The foreign company applied for payment to the guarantor.

The beneficiary, justifying their claims to the bank, referred to the provisions of paragraph 2 of Art. 376 of the Civil Code of the Russian Federation, emphasizing that under the guarantee contract, the applicable law is Russian law, which provided that if the guarantor, before the beneficiary’s claims were satisfied, it became clear that the principal obligation secured by the bank guarantee was fully or in part complied with. inform the beneficiary. The recurring claim of the beneficiary received by the guarantor after such notification shall be satisfied by the guarantor.

The guarantor bank claimed that the beneficiary misled him without informing him that the obligations of the Russian side under the foreign trade contract had already been fulfilled by levying property on the pledged property.

The latter circumstance was regarded by the guarantor as an abuse of the right to receive a guarantee under Russian law, referring to Art. 10 of the Civil Code of the Russian Federation.

In resolving the dispute, the arbitral tribunal found that the applicable law under the guarantee agreement is the legislation of the Russian Federation.

In fact, the beneficiary, being a creditor in the main obligation, has already received reimbursement for non-compliance with the terms of the foreign trade contract from the pledged property in the territory of a foreign state.

In view of this, there were no sufficient grounds for the guarantee requirements in the Russian Federation.

Thus, the arbitral tribunal considered the requirements of the beneficiary to pay the guarantee in the conditions when the main obligation was fulfilled on the territory of a foreign state in a satisfactory way for the beneficiary, as an abuse of right in the sense of art. 10 of the Civil Code of the Russian Federation and refused to satisfy the claims *.

For example, such a provision is contained in the UN Convention on Independent Guarantees and Stand-by Letters of Credit (Art. 19, 20), recommended by the UN General Assembly for adoption by the Member States on January 26, 1996). four.

The party of a foreign trade transaction for the sale of goods shall not be liable for failure to perform any of its obligations only if it proves in the course of the court proceedings that the failure to perform was caused by an obstacle beyond its control.

A trading house registered abroad, but having a representative office in Russia, appealed to an arbitration court with a claim to the Russian foreign trade association for the recovery of damages caused by the failure of the association to fulfill its obligations to pay for the sugar supplied to Russia.

The Russian Foreign Trade Association raised objections to the lawsuit, citing the fact that the money intended for payment of the sugar to be delivered was transferred to a foreign bank in accordance with the terms of the contract, but subsequently stolen by third parties from the bank’s accounts and therefore not credited to the account of the trading house in a foreign bank. By the time of the claim on the fact of embezzlement, a criminal case was initiated in a foreign country. The foreign trade association, objecting to the claims, referred to the fact that the party to the foreign economic contract is not responsible for non-fulfillment of obligations, if the latter was caused by third parties.

The court dismissed the objection.

It was also taken into account that the parties to a foreign economic transaction were in the States parties to the UN Convention on Contracts for the International Sale of Goods (1980).

Responsibility of the parties in transactions for the sale of goods is governed by art. 79 of the Convention, which provides for the following:

“A party is not liable for failure to fulfill any of its obligations if it proves that it was caused by an obstacle beyond its control” (paragraph 1).

“International regulatory and judicial practice also indicates that the unfair requirement of a beneficiary to pay under an international guarantee obligation in the case when“ the main obligation was undoubtedly fulfilled in a satisfactory way for the beneficiary ”can be a form of abuse of the right and serve for bona fide guarantor grounds for suspension of payment pending judicial action.

“In case of non-fulfillment of obligations by a third party involved in the execution of a part of the contract, such non-fulfillment can serve as a basis for exemption from liability also only in the event of an“ obstacle out of control ”(Section 2).

An obstacle out of control is characterized by the Convention as an unforeseen, unavoidable and insurmountable circumstance.

It follows from the subsequent provisions of the Convention that the party - violator of obligations under a foreign economic transaction should prove the following: an event impeding execution occurred, despite the fact that all necessary and reasonable measures were taken either to prevent such an obstacle or its consequences. For example, natural disasters, blockades, wars and so on can be such an obstacle. d.

At the same time, the fact of the impossibility of fulfillment of obligations by the debtor is not taken into account, if the execution was objectively possible. In the case when certain events create only a difficulty for the debtor to execute, such events cannot be considered as an “obstacle out of control” of the debtor.

The Russian Foreign Trade Association did not provide evidence that the actions of third parties were “an obstacle out of control” in the sense of the aforementioned Convention, and therefore could not be exempt from liability on the basis of one fact of non-fulfillment of obligations due to actions of third parties.

Thus, the arbitral tribunal took into account that exemption from liability for international sale of goods transactions is possible only in the event of an “obstacle out of control” that does not allow the debtor to fulfill its obligations. By virtue of the fact that the Russian debtor objectively could and should have fulfilled his obligations to a foreign creditor, the courts made the claims of the plaintiff.

Section II. QUESTIONS OF THE APPLICATION OF CONFLICT NORMS 5.

When resolving a dispute arising from a foreign trade transaction in which the parties determined the place of the dispute, but did not determine the applicable law, the arbitral tribunal chooses the applicable law independently on the basis of the conflict of laws rules contained in an international agreement and national law.

In January 1996, a contract was concluded between a Russian joint-stock company and a Belgian company, under the terms of which the Belgian company undertook to supply equipment for two fishing trawlers owned by the customer. Payment of the goods was to be made upon receipt. The parties have stipulated in the contract that all disputes, if they cannot be settled by negotiation, are to be considered in the arbitration court of the Russian Federation. Applicable law was not selected by the parties.

The equipment was supplied by the Belgian side within the terms specified in the contract. The Russian joint-stock company, having received the goods, did not transfer money to the account of the supplier company and did not react to repeated reminders about the payment of the debt.

The Belgian side, in accordance with the arbitration clause, appealed to the arbitration court with a claim to recover the value of the goods supplied from the Russian joint-stock company. The claimant carried out the calculation of losses, based on the rules of law of Belgium.

When resolving the dispute in court, the defendant acknowledged his debt under the contract, but considered that the calculation of the amounts payable should be made in accordance with the substantive norms of Russian law, since the parties determined the Russian arbitration court to be the place of dispute resolution.

In resolving this dispute, the arbitral tribunal considered the following circumstances:

the contract was concluded between parties whose enterprises are located in different states. This allows us to characterize this transaction as a foreign trade;

the choice of the parties as the place of consideration of disputes of the arbitration court of the Russian Federation does not mean automatic submission of the relations of the parties to Russian law.

The absence of the will of the parties with respect to the applicable law means that the choice of law is made by the court competent to consider the dispute.

When resolving a dispute arising from a foreign trade transaction, in the absence of the parties' will in relation to the applicable law, the court shall be governed by the conflict of laws of your legislation. It uses the conflict rate of the Russian (Soviet) legislation in force at the time of the conclusion of the contract from which the dispute arose.

For transactions concluded before August 3, 1992, Art. 566 of the Civil Code of the RSFSR (1964); for transactions concluded from August 3, 1992, Art. 160 Principles of Civil Legislation of the USSR and Union Republics (1991S. In addition, in accordance with the decision of the Supreme Soviet of the Russian Federation of March 3, 1993

d. “On some questions of application: the hell is the jurisdiction of the USSR on the territory of the Russian Federation to civil law relations that arose before August 3, 1992”, the Fundamentals of civil law apply to civil rights and obligations that arose after March 3, 1992. This means that the arbitration court, analyzing each particular case of the position of the time of occurrence of the rights and obligations of the parties, can recognize the conflict rule of the Fundamental Principles of Civil Law applicable (19911 and regarding Czech contracts that were admitted before August 3, 1992. After the Civil Code of the Russian Federation came into force (1994! The fundamentals of civil legislation continue to operate on the basis of article 4 of the Federal Law of the Russian Federation of November 30, 1994

d. "On the introduction of the first part of the Civil Code of the Russian Federation."

In this case, the arbitral tribunal was guided by the definition of the applicable law. 1 p. 1 Art. 166 of the Fundamentals of Civil Law, which provide that in the absence of the parties' agreement on the law to be applied, the law of the seller’s country shall apply to sales contracts. 6

When resolving a dispute arising from a foreign trade transaction in respect of which the parties have determined the applicable law, the arbitral tribunal assumes that the parties are free to choose the law applicable to the substance of the dispute (principle of autonomy of the parties).

A lease was signed between the Georgian and Russian airlines. In accordance with the terms of the agreement, the Russian side has pledged to lend helicopters to the Georgian side. The rent had to be paid quarterly. The parties also included in the contract a clause stating that issues not regulated by this contract are governed by the civil law of the Russian Federation.

The Russian airline appealed to the arbitration court with a claim to the Georgian airline to recover the debt under the lease agreement. The claimant justified his claims by reference to the substantive law of the Russian Federation. The defendant insisted that the applicable law should be the legislation of Georgia, since the execution of the agreement took place on the territory of Georgia.

this dispute is a dispute arising from a foreign trade transaction, since its participants are legal entities located in different states;

the parties are free to choose the law applicable to the obligations of the parties to the transaction, which is enshrined in Part 1 of Art. 166 Principles of Civil Legislation of the USSR and Union Republics (1991) and Art. 566 of the Civil Code of the RSFSR (1964);

the inclusion in the contract of a clause on applicable law means that the parties undertake to be guided in their relations by the rules of this law.

Considering the above, the arbitral tribunal applied the civil legislation of the Russian Federation as a law chosen by the parties when concluding the contract. 7

The arbitral tribunal in resolving a dispute arising from a foreign economic transaction, regulated by agreement of the parties, Russian law, but the relations under which are subject to an international agreement to which the Russian Federation is a party, is governed by virtue of paragraph 4 of Art. 15 of the Constitution of the Russian Federation (Art. 7 of the Civil Code of the Russian Federation), the norms of an international treaty. Issues unresolved by an international treaty are governed by Russian law.

The Russian joint stock company appealed to the arbitration court of the Russian Federation with a claim to the Bulgarian company.

A supply contract has been concluded between a Russian joint stock company and a Bulgarian company. In accordance with the terms of the contract, the Bulgarian side undertook to deliver a consignment of perfumery and cosmetic products. The range of goods was determined by a special protocol, which was an integral part of the contract, and were not allowed to derogate from the agreed list unilaterally. Payment for the goods was to be made after acceptance by quantity and quality by the buyer.

The act of acceptance of the goods, it was found that the Bulgarian side violated the terms of the protocol, unilaterally changing the range of perfume products. At the buyer's request to replace the goods with the goods agreed in the protocol, the seller refused.

The plaintiff, stating the circumstances of the case, referred to the norms of the Civil Code of the Russian Federation.

The defendant justified his objections on the basis of the provisions of the UN Convention on Contracts for the International Sale of Goods (1980).

In resolving this dispute on the merits, the arbitral tribunal considered the following circumstances:

the transaction was concluded between the parties whose enterprises are located in different states, i.e., it can be characterized as foreign economic;

the parties chose Russian law as the applicable law;

4 art. 15 of the Constitution of the Russian Federation provides that international treaties of the Russian Federation are an integral part of its legal system, the same provision is enshrined in paragraph 1 of Art. 7 of the Civil Code of the Russian Federation. This means that international treaties are included in the system of current Russian legislation;

Russia and Bulgaria are parties to the said Convention;

the choice by the parties of the Russian law as the law governing their relations in a transaction means the choice of the Russian legal system, rather than individual laws governing the relevant relations of the parties.

Based on the foregoing, the arbitral tribunal applied the norms of an international treaty.

In the case when the disputed issues are not settled by an international treaty, the court applies the norms of Russian domestic civil law, including the norms of the Civil Code of the Russian Federation. 8. The Arbitration Court, in resolving a dispute between the parties - participants in foreign economic relations about reparation for harm, in determining the applicable law applies the rules of an international agreement, and in the case of its absence - the conflict of laws rules of the Russian (Soviet) legislation.

The arbitration court of the Russian Federation received a claim from the Belarusian joint-stock company for compensation for damage caused to a passenger car. The damage was caused by a trailer truck owned by a Russian limited liability company. The cause of a traffic accident, as established by the traffic police of the traffic police, was the fault of the steering of the truck. Traffic accident occurred in the territory of the Republic of Belarus. The culprit of the accident, according to the DPS traffic police, was the driver of a vehicle belonging to Russian society.

The plaintiff claimed compensation for the damage caused by the accident in the amount of the cost of repairing the vehicle. The cost estimate for the implementation of repair work was attached to the statement of claim. Claims claimant based on the norms contained in the Civil Code of the Russian Federation.

When considering the dispute on damages, the arbitral tribunal considered the following circumstances:

obligations on compensation for harm arose from non-contractual relations between participants whose enterprises are located in different states, that is, such relations that can be characterized as foreign economic in the sphere of economic activity;

The Russian Federation and the Republic of Belarus are parties to the Agreement on the procedure for resolving disputes relating to the conduct of economic activities (1992), which contains conflict of laws rules on the procedure for determining the rights and obligations of parties to obligations arising from injury;

according to paragraph “g” Art. 11 of the Agreement, “the rights and obligations of the parties to obligations arising from the infliction of harm, are determined by the laws of the state where the action or other circumstance took place that served as the basis for the claim for compensation of harm”.

A traffic accident occurred in the Republic of Belarus, which determined the choice of Belarusian law as applicable by the court.

In resolving this dispute, the Arbitration Court chose the applicable law on the basis of the conflict of laws rule contained in the international agreement - the 1992 Agreement.

In the absence of an international treaty between the parties to the disputing parties, the arbitral tribunal refers to the conflict of laws of the Russian legislation to determine the law applicable to the relations of the parties. 9.

When resolving a dispute between the parties - participants in foreign economic relations, arising as a result of unjustified enrichment of one of the parties, the arbitral tribunal, in determining the applicable law, is guided by the conflict of laws rules of the Russian legislation a.

The Russian joint stock company appealed to the arbitration court of the Russian Federation with a claim to a Riga company for recovering illegally obtained funds from it.

The reason for the plaintiff's appeal to the court was the following circumstances. The Russian joint-stock company for a long time cooperated with one of the Latvian farms, receiving large quantities of meat from it for processing. A supply contract was concluded between the parties, in accordance with the terms of which the Russian side transferred to the account of the Latvian farm the value of the supply specified in the contract. At the beginning of 1995, the details of the Latvian farm account changed, and the Russian joint stock company was notified of this. However, by this time the payment of the next batch of meat had already been made, and the money was credited to the previous account. The Russian joint-stock company found out that this account belongs to a Riga company with a branch in Russia, and requested it to return the illegally obtained funds. The Riga company did not respond to the requests and did not return the money.

The statement of claim detailed the circumstances of the case, attached documents confirming the transfer of money to the account of a Riga company in a Latvian bank. The plaintiff referred to the norms of Russian substantive law in support of the legality of its actions.

In resolving this dispute, the court took into account the following circumstances:

the dispute arose from non-contractual relations between the parties, whose enterprises are located in different states, i.e., these relations can be characterized as foreign economic. The result of these relations was the unjust enrichment of one of the parties that took place in Latvia.

The procedure for determining the applicable law in case of unjust enrichment is stipulated by the conflict of laws norms of the Russian legislation. Article 168 of the Fundamentals of Civil Law (1991) provides that with unjust enrichment the law of the country where the enrichment took place applies.

In this case, when resolving a dispute on the merits in a Russian court, in accordance with the Russian conflict of laws rule, the norms of Latvian civil law were to be applied. ten.

In the event that the parties in a foreign economic contract, as an applicable law, generally indicated the legislation of several states, the court has the right to determine the applicable law on the basis of conflict of laws rules.

The Belarusian joint stock company appealed to the arbitration court of the Russian Federation with a claim to recover from the Russian limited liability company the debt and penalties under the supply agreement. At the same time the claims were based on the norms of the Russian legislation.

A supply contract has been concluded between Russian and Belarusian enterprises in Moscow. In the supplementary agreement to the contract, the parties established that disputes under this contract are resolved in the manner prescribed by the current legislation of the Republic of Belarus and the legislation of the defendant. The Russian Arbitration Court has been elected as the dispute resolution body.

Byelorussian enterprise the conditions of foreign economic agreement are fully met. The fact of receipt of the goods by the Russian side is confirmed by three irokus-invoices and payment requirements. However, the Russian company did not transfer money to the Belarusian partner within the period established by the contract.

At the court hearing, the defendant insisted that in this case the legislation of the Russian Federation should be applied to the relations of the parties.

When resolving this dispute on the merits, the court took into account the following:

this supply contract relates to foreign trade transactions, since it is concluded between the parties, whose enterprises are located in different states. The law applicable to the relations of the parties is agreed in the contract (principle of the autonomy of the will of the parties);

the parties had the right to agree on the legislation applicable to the transaction on the basis of the principle of autonomy of will, since the latter is enshrined in paragraph (e) of Article 11 of the Agreement on the procedure for resolving disputes related to the conduct of economic activities (Kiev, 1992).

At the same time, since the participants in the transaction did not specify the legal relations governed by the law of Belarus and the legal relations governed by the law of Russia, the court could not specifically determine the legislation of which country the parties chose.

In this situation, the arbitral tribunal decided the question of the applicable law independently on the basis of clause “e” of Article 11 of the Agreement, which stipulates that “the rights and obligations of the parties to the transaction are determined by the law of the place of its execution”.

Due to the fact that the transaction was made in Moscow, the court resolved the dispute on the basis of Russian legislation. eleven.

The arbitral tribunal, in resolving a dispute between the parties to a foreign economic transaction that indicated the internal regulatory act of a particular state as an element of contractual regulation, decides on the choice of law applicable in addition to this act based on the conflict of laws rules of an international treaty or Russian law.

A contract for the supply of metallurgical products was concluded between the Kazakh manufacturing United and the Russian joint-stock company. According to the conditions stipulated in the contract, the Regulations on the supply of products for industrial and technical purposes, approved by Resolution of the Council of Ministers of the USSR of July 25, 1988 No. 888, were applied to the relations of the parties for the supply of products.

The steel was delivered by the Kazakh side within the terms specified in the contract, however, when checking the quality of the products received, the Russian side had serious complaints to the partner. The quality of steel did not meet the requirements set by the standards.

In the statement of claim with which the Russian joint stock company appealed to the arbitration court, the Kazakh production association violated the terms of the contract and demanded that the party be replaced, which became of inadequate quality. The claimant justified his claims by reference to the norms of civil legislation of the Russian Federation, indicating that the parties chose the legislation of the Russian Federation as an applicable law, referring to Resolution of the Council of Ministers of the USSR of July 25, 1988 No. 888.

The defendant denied the possibility of applying the legislation of the Russian Federation, since the applicable law is not defined in the foreign economic contract.

In resolving this dispute, the arbitral tribunal took into account the following:

at the conclusion of a foreign economic transaction, the parties are entitled to independently determine the law applicable to their obligations;

the parties to a foreign economic transaction referred to the provisions of a civil law contract on the supply of products for industrial and technical purposes. In the future, the provisions of this Regulation were applied as elements of contractual regulation provided for by the parties;

the question of the nature applicable to a foreign trade transaction was not generally resolved by the parties, the applicable legislation was not determined.

Russia and Kazakhstan are parties to the Agreement on the procedure for resolving disputes related to the conduct of business activities (Kiev, 1992).

In this situation, the arbitral tribunal, if necessary, has the right to choose the law applicable to the relations of the parties on the basis of paragraph “e” of Art. 11 of the Agreement - at the place of the foreign trade transaction. 12.

The Arbitration Court, when considering the case on recognizing a foreign economic contract for the lease of a motor ship, invalid, referred to the legal norms applicable to the obligations of the parties to this transaction.

The Russian joint stock company appealed to the arbitration court with a claim to the German company to invalidate the lease agreement of the ship. An agreement was signed between the Russian joint-stock company and the German company on the sale of the ship for the intended use by the German side within the framework of the Russian-German joint venture being created. Under the terms of the contract, the payment of the ship was to be made by the Russian side from that part of the profit of the joint venture, which would fall to the share of the Russian joint-stock company.

The Russian-German joint venture did not start its activities and was declared invalid. The management of the Russian joint-stock company, which was counting on paying the ship with income from its operation within the framework of a joint venture, could not fulfill its obligations under the contract of sale.

As a resolution of the non-payment problem, the German side proposed to conclude a lease agreement for the motor ship, in which the German company will act as the lessor, and the Russian joint-stock company will act as the lessor. The terms of the contract were formulated by the German side. Seeing no other way out of the current situation, the Russian side agreed with the terms of the agreement. However, later it turned out that the settlement scheme stipulated by the contract actually puts the tenant on the verge of bankruptcy.

In the statement of claim, the plaintiff pointed out that the terms of the lease agreement regarding the obligations of the Russian joint stock company are extremely disadvantageous, which allows us to speak of the enslaving nature of this transaction and raise the question of its invalidity.

The plaintiff asked to recognize the lease agreement as invalid, referring to the legislation of the Russian Federation.

At the conclusion of the contract, the parties chose the arbitration court of the Russian Federation as the place for the consideration of disputes, the applicable law was not defined.

When considering the merits of the case, the court took into account the following circumstances:

the lease agreement is concluded between the parties whose enterprises are located in different states. Thus, this transaction can be described as a foreign trade;

the conclusion of the contract implies the establishment of certain rights and obligations between the parties; however, the exercise of these rights and obligations must be carried out within the framework established by law. If the exercise of the rights and obligations of one of the parties infringes upon the rights and obligations of the other party, then such a transaction may be declared invalid by the court at the suit of the injured party. At the same time, in order to recognize the transaction as invalid, the court must be guided by the grounds provided for in the law, under which the parties act;

since the parties did not determine the applicable law by their agreement, the court first chooses the law governing the exercise and termination of the rights and obligations of the parties;

in determining the applicable law to the lease (property rental) contract, the court should be guided by. 2 n, 1 tbsp. 166 of the Principles of Civil Legislation of the USSR and Union Republics (1991), which established that in the absence of an agreement of the parties on the law to be applied, the law of the country of the landlord applies.

The landlord (landlord) was a German company.

The latter means that the law applicable to the relations of the parties in this transaction is the legal system of Germany, and the procedure for the compulsory termination of the rights and obligations of the parties should also be determined by the court on the basis of the established German law.

Thus, the court, when considering the issue of declaring a transaction null and void, applies the law to which the relations of the parties to the transaction are subordinate.

Bankruptcy proceedings and bankruptcy proceedings are a last resort for debt relief. The bankruptcy trustee plays an important role in it, who is obliged to evaluate all the transactions of the debtor and has the right to cancel transactions on the account if they were not profitable. On this, as well as on why the work of the arbitration manager should be paid - in the review of judicial practice.

1. The bankruptcy commissioner is obliged to evaluate the debtor’s transactions based on the actual circumstances.

During the bankruptcy procedure, the bankruptcy trustee has the right to challenge the debtor’s transactions if they were deliberately unprofitable or caused losses to the debtor organization. At the same time, the bankruptcy trustee must objectively evaluate all the conditions of the transaction and proceed from its result, and not from the participation of third parties in it as an intermediary. This was reminded by the Arbitration Court of the North-West District.

The essence of the dispute

The organization has entered into a supply agreement with the company, under which the supplier is obliged to deliver the goods specified in the specification to the purchasing organization and manufactured according to its order at the plant. This product was received by the purchasing organization in full, which is confirmed by invoices. However, the consignor in the invoice specified third-party company.

In respect of the organization, a bankruptcy procedure was initiated and bankruptcy proceedings were opened. The bankruptcy trustee decided that entering into a supply contract caused losses to the debtor, appealed to the arbitration court with a claim to invalidate the transaction.

The court's decision

By decision of the arbitration courts of two instances, the requirements of the bankruptcy trustee were denied. The Arbitration Court of the Northwest District upheld the decisions of the lower courts in force.

The arbitrators indicated that the mere fact that the company has contractual relations with the intermediary company does not indicate that the transaction was unprofitable in the form of delivery through the intermediary of goods of other names. In addition, the fact of causing damages and their size is not proven by the bankruptcy trustee. The arguments of the bankruptcy trustee that the defendant’s bad faith did not allow the debtor to receive a larger profit are based on assumptions that cannot be used as the basis for a judicial act on bringing a person to civil liability.

2. The lender may recover damages from the bankruptcy trustee

In the course of the bankruptcy procedure, all decisions on the property of the debtor are made by the arbitration manager. Therefore, it is he who should bear the responsibility for possible damages to creditors. This decision came the Supreme Court of the Russian Federation.

The essence of the dispute

The definition of the Arbitration Court of the Perm Territory in relation to a commercial organization introduced a monitoring procedure and appointed a temporary administrator. After that, the bankruptcy proceedings were opened against the debtor and the same person was appointed to the bankruptcy commissioner. Within the time limits established by law, bankruptcy proceedings in respect of the organization were completed. At the same time, the amount of debt on mandatory payments and monetary obligations to the Russian Federation in the amount of 1.3 million rubles was included in the register of creditors' claims. However, the requirements of the authorized body were not met due to the insufficiency of the property of the debtor.

The Federal Tax Service, believing that it was the actions of the bankruptcy trustee that caused the losses of the Russian Federation as a creditor in a bankruptcy case, filed a claim with the arbitration court for recovery of damages.

The court's decision

By the decision of the arbitration court of first instance, which was left unchanged by a decision of the arbitration court of appeal, the claims of the FTS were partially satisfied. From the arbitration manager in favor of the Russian Federation, represented by the Federal Tax Service, losses in the amount of 1.3 million rubles were recovered. In terms of collecting the remaining amount of the claim was denied.

The Constitutional Court of the Russian Federation, the abolished Supreme Arbitration Court, the Supreme Court of the Russian Federation, Consultant Plus publishes completely in a convenient format with hyperlinks to regulatory documents.

The practice of the courts of the arbitration system (all three instances) is also included in the program in full. These materials are also processed from a legal point of view - they contain links and references to the mentioned legal acts (it is convenient and quick to switch to them in this way).

The decisions of courts of general jurisdiction are represented in the program as widely as possible, but not completely. It is about non-inclusion in open sources (which Consultant Plus is also) a number of topics - for example, these are cases involving minors, some criminal and others.

2016 was marked by rather large additional taxes and “loud” tax disputes. Additional taxation can be observed in many companies, but tax claims are often “typical”, so it is important to study them, understand what specific mistakes companies make in their work and how to avoid them.

Lowering the sale price of real estate

LLC Business Center Minaevsky (Moscow) was charged additional tax on corporate profits and VAT in the total amount of 284,471,456 rubles, as well as interest in the amount of 65,489,533 rubles. and provided for by art. 122 of the Tax Code of the Russian Federation fine in the amount of 104,467,512 rubles.

By the decision of the Arbitration Court of the city of Moscow dated 09/21/15, which was left unchanged by a decision of the Ninth Arbitration Court of Appeal dated December 10, 2015, the society was denied satisfaction of the stated requirements. Later these decisions were canceled. The point in the dispute put the Supreme Court of the Russian Federation. In the definition of the Armed Forces of the Russian Federation of 22.07.16, No. 305-КГ16-4920 in case No. A40-63374 / 2015, the claim was refused. Thus, the court agreed with the position of the IFTS.

Position IFSN.   The tax inspectorate conducted an examination and found out that at the date of the transaction the value of the property was 273,656,000 rubles. instead of 9,440,000 rubles applied by the parties to the transaction. The market value established by the appraiser was accepted by the inspectorate in order to determine the size of the arrears. This led to the accrual of arrears based on income corresponding to the market level of the value of these real estate objects. The courts agreed with this position.

Due to the fact that the tax authority may additionally charge tax by calculation and also attract experts to evaluate the transaction, it is advisable to examine market prices for similar property before making a real estate purchase transaction. In addition, it is also possible to involve an expert appraiser to determine the value, such an expert assessment can serve as a basis for confirming that it is correct. In a legal dispute when appealing an expert assessment conducted by an independent appraiser, it is possible to file a petition for an independent expert examination, which will help reduce the amount of additional taxation.

Non-reflection of revenue at the box office

For violation of the cash discipline, the Inspection of the Federal Tax Service can simultaneously fine (part 1 of article 15.1 of the Administrative Code of the Russian Federation):

• organization - in the amount of 40,000 to 50,000 rubles; official of the organization - in the amount of 4,000 to 5,000 rubles.

The essence of the dispute.In a decision of the Arbitration Court of the city of Moscow dated 05.24.16 in the case of A40-249895 / 2015, the court recognized the additional tax accrual of the Taras Bulba restaurant chain. Additional tax, penalties and fines, totaling 1 billion rubles. According to the above checks, the facts of concealment of Korchma Taras Bulba chain established during the tax control measures taken during the tax control measures were established.

Position IFSN.The tax authority accrued taxes, having information in the form of testimony about the facts of the "twisting of the cashier", an incomplete reflection of revenue.

In the course of the investigation of the case, the employee, in her testimony, reported that every evening in the Korchma Taras Bulba chain restaurants were twisted at the cashier’s desk “night cashiers”.

Also in her testimony it was stated that after checks made by the restaurant’s cash register and most of the cash received from the sale of services (meals, drinks) of the Korchma Taras Bulba restaurant chain, daily cashiers and chief accountants are deposited in safes located in the office of each of the organizations of the Korchma Taras Bulba network; later, unaccounted incomes are taken by accountants to bank cells.

Thus, the staff of the Inspection of the Federal Tax Service of Ukraine managed to charge taxes due to the testimony, which formed the basis of this case.

Recommendations to taxpayers.   Reduce the risks will allow a full reflection of revenue during cash transactions. In addition, risks can be reduced by switching to new cash desks with online data transfer to the tax authority. In 2016, the transition to a new type of cash registers is voluntary, and from 2017, all companies and entrepreneurs will have to switch to a new CCP. When making settlements, organizations and individual entrepreneurs are required to form a cash receipt (strict reporting form) in electronic form at the time of settlement and send the fiscal data contained in the cash receipt (strict reporting form) to the tax authorities through the fiscal data operator, transfer the cash receipt to the buyer (client) check (strict reporting form) in electronic form.

The absence of the taxpayer documents

The essence of the dispute.   In the definition of the Armed Forces of the Russian Federation of 25.01.16, No. 302-KG15-17939 in case No. A78-14492 / 2014, the court refused to challenge the decision of the Federal Tax Service.

VostSibNeft LLC appealed to the court to challenge the inspection decision with regard to the additional assessment of corporate income tax in the amount of 1,438,350 rubles, VAT - 50,551,506 rubles, interest on these taxes in the total amount of 16,787,759 rubles. 28 cop., Prosecution in accordance with paragraph. 1 Article. 122 of the Tax Code of the Russian Federation in the form of a fine in the total amount of 4,288,131 rubles. 93 cop

But the courts were not unequivocal in resolving this dispute.

By the decision of the court of first instance dated March 3, 2015, the stated requirement of the company was partially satisfied.

By the decision of the Fourth Arbitration Court of Appeal dated June 8, 2015, the decision of the court of first instance was annulled.

The Arbitration Court of the East-Siberian District by its decision of September 23, 2015 canceled the decision of the court of appeal, leaving in force the decision of the court of first instance.

The point was put by the Supreme Court of the Russian Federation, pointing to the guilt of the applicant himself, who did not submit primary and other documents to verify the correctness of the calculation and the timeliness of payment of taxes. Consequently, according to the court, the additional tax assessment is legitimate.

Position IFS. The taxpayer did not submit primary accounting, accounting and other documents that allow the inspectorate to take appropriate actions to implement tax control measures and determine the real tax liabilities of the company.

In connection with the non-submission of documents, the inspection in accordance with the provisions of p. 7 p. 1 Art. 31 of the Tax Code of the Russian Federation determined the amount of taxes payable to the budget by calculation based on the available information about similar taxpayers, as a result of which the company charged additional income tax and VAT.

Oil-Market LLC and Veda-West LLC were selected as similar taxpayers by criteria: the main type of economic activity; average number of employees; general tax regime; lack of vehicles.

The determination of the taxpayer's financial indicators by calculation on the basis of information about him available to the tax authorities, as well as data on other similar taxpayers, is based on the hypothesis that another taxpayer who faithfully deals with the same type of activity in similar economic conditions has a large tax base It is supposed to be the same.

On the basis of non-submission of documents, VAT was charged in the amount of 50,551,506 rubles, interest in the total amount of 16,787,759 rubles. 28 kopecks

. The main recommendation is respect for the documents and submission of documents upon request of the auditors. Requirements for the availability and preservation of documents are expressly provided for by law, both for accounting purposes and for tax purposes. And for accounting, the shelf life is 5 years, for tax accounting - 4 years. In some cases, you need to store documents even longer, for example, when it comes to losses. By paragraph 4 of Art. 283 of the Tax Code of the Russian Federation, a corporate income tax payer is obliged to keep documents confirming the amount of incurred loss for the entire period when it reduces the tax base of the current tax period by the amount of previously received losses. In order to avoid the risk of disputes with inspectors, it is advisable to establish a longer period of storage of documents. In case of loss of documents, it is important to take all measures to restore them.

Recognition of interest on the loan as dividends

The essence of the dispute.In the definition of the Armed Forces of the Russian Federation dated March 18, 166, case No. 305-КГ15-14263, А40-87775 / 14, the court agreed with the position of the taxpayer. The circumstances that would indicate a hidden payment of dividends by the company in favor of a foreign company have not been established by the courts.

LLC "New Tobacco Company" was assessed additional income tax for 2011 in the amount of 160,562,712 rubles. 88 cop., Fines for late payment (failure to pay) tax in the amount of 34,316,694 rubles. and fines in the total amount of 31 983 424 rubles. 43 kopecks

The tax authority established and confirmed during the consideration of the case by the courts that a loan agreement was signed between the company (the borrower) and the Trading Company Megapolis JSC (the lender): No. 3-320 dated September 26, 2007 to the amount of 3,890,000,000 rubles. and from 12/24/07, No. 3-367 in the amount of 3,913.7 million rubles. with interest at the rate of 10% per annum during the actual use of borrowed funds.

In the future, the term of the loan agreement was extended. At the same time, the tax authority also established that in 2011 TC Megapolis was a member of the New Tobacco Company, owning 90% of its authorized capital, the share of the indirect participation of the foreign company Megapolis Holdings (Overseas) Limited in the capital of the company "New Tobacco Company", therefore, was at least 89%. Considering that under the borrowing payment of dividends is hidden, the tax inspectorate has accrued taxes.

Position IFSN.The findings of the tax inspectorate were based on an analysis of the fact of controlled transactions. The basis for the inspectorate’s decision was the conclusion that the company did not fully charge non-operating expenses when calculating the income tax on the interest accrued on these loan agreements, since the person representing them was TC Megapolis affiliated to the foreign company Megapolis Holdings ( Overseas) Limited, indirectly owning more than 20% of the company's capital.

In this regard, in the opinion of the inspection, on the basis of paragraph 2 of Art. 269 ​​of the Tax Code of the Russian Federation, this debt is recognized as controlled, and interest accrued on it may be included in expenses not exceeding the maximum amount calculated in accordance with this standard, which in this case due to the negative value of the company's own capital (net assets) amounted to zero .

The inspection concluded that, contrary to Section 4, Art. 269 ​​of the Tax Code of the Russian Federation, the company has not fulfilled the duties of a tax agent for calculating, withholding and transferring to the budget tax on the income of a foreign company Megapolis Holdings (Oversis) Limited, received in the form of dividends, considering as such the interest on the controlled debt paid to the company TC Megapolis.

Recommendations to taxpayers. Transactions between related parties actually fall under three types of control: control in the form of on-site tax audits; control over pricing, as well as overseas controlled companies. In this regard, the best strategy for the company will be to minimize dependence on foreign persons. However, in this situation, when the taxpayer is granted an interest-rate loan, it remains only to defend the interests in court and conduct litigation. So how to reclassify a loan into dividends is quite difficult.

Tax on income of foreign organizations from sources in the Russian Federation on income received in the form of securities

An exception is the payment of income that, in accordance with international treaties (agreements), is not taxed in the Russian Federation, provided that the foreign organization presents the confirmation to the tax agent, established by clause 1, Article. 312 Tax Code. Accordingly, risks arise when making payments in offshore jurisdictions with which Russia does not have a corresponding agreement.

The essence of the dispute.   Capital LLC (Cherepovets, Vologda region) was assessed in the amount of 214,068,945 rubles. tax on income of foreign organizations and the corresponding amount of penalties.

The company did not agree with the decision of the tax inspection and appealed to the court. As a result, followed by a series of trials.

By the decision of the Arbitration Court of the Vologda Oblast of April 29, 2015, the stated requirements were met, the inspection decision was declared invalid. By the decision of the Fourteenth Arbitration Court of Appeal dated November 3, 15, the decision of the court of first instance was canceled, and the part stated was denied. The Arbitration Court of the North-West District, by a decision of March 15, 166, upheld the given decision of the court of appeal.

The point in this case put the Supreme Court of the Russian Federation. In the definition of the Armed Forces of the Russian Federation of 05.08.16, No. 307-KG16-7111, in case number A13-5850 / 2014, the judges sided with the IFTS. According to the judges, the transfer by the company through a chain of transactions with interdependent persons of shares to foreign companies resulted in the applicant's unjustified tax benefit in the form of non-fulfillment of the tax obligation to calculate and pay tax to the budget on income received by foreign legal entities from sources in the Russian Federation.

Position IFSN.   The basis for the additional charge of the indicated tax and penalty amounts was the inspectorate’s conclusion that the applicant did not fulfill the obligation of the tax agent to calculate, withhold and transfer to the budget a tax on income of foreign organizations from sources in the Russian Federation from income received in the form of securities (shares of organizations) by foreign companies Anters Associates Limited and Lanton Enterprises Limited (British Virgin Islands) through the applicant-controlled foreign companies Astroshine Limited and Loranel Limited (Cyprus).

Due to the absence of the said international agreement with the British Virgin Islands with the Russian Federation, the resident organization of the British Virgin Islands is taxed in accordance with the provisions of the RF Tax Code.

The tax authority concluded that the company set up a scheme for transferring its shares in OAO Severstal to offshore affiliated companies that are residents of the British Virgin Islands in order to obtain tax benefits in the form of gratuitous transfer of shares and non-payment of tax in accordance with Russian law.

Recommendations to taxpayers.The transfer of assets to offshore affiliates can have quite negative consequences for the taxpayer, therefore, all transactions with offshore jurisdictions with which there is no agreement on avoidance of double taxation, it is advisable to exclude. Risks arise in the case of interaction through companies located in offshore jurisdictions or European countries, with offshore residents. Such transactions are at risk both in terms of currency regulation and tax legislation.

Using agency schemes without economic benefits

The essence of the dispute.Iskra-Avigaz, LLC charged additional income tax in the amount of 273,778,581 rubles, the corresponding amounts of penalties and fines in accordance with Clause 1, Article. 122 of the Tax Code of the Russian Federation.

The company did not agree with the additional tax charge and went to court.

By the decision of the Arbitration Court of the Perm Territory of October 5, 2015, the claims submitted by Iskra-Avigaz were partially satisfied. By a decision of the Seventeenth Arbitration Court of Appeal of December 21, 2015, the decision of the court of first instance was left unchanged. The dispute also reached the Supreme Court of the Russian Federation. In Definition of the Armed Forces of the Russian Federation dated 2.08.16, No. 309-КГ16-8920 in case No. A50-15782 / 2015, the judges concluded that the evidence presented by the tax inspectorate confirms the absence of real economic relations with the company that was the agent. Also indicated is the inaccuracy of the documents submitted in support of the expenses incurred and the resulting unjustified tax benefit.

According to the court, an improvement in the disputed period of the financial and economic indicators of the Iskra-Avigaz company and an increase in the tax burden does not in itself indicate that the costs of the agency agreement are justified.

Position IFSN.   Clause 1, Art. 1005 of the Civil Code of the Russian Federation stipulates that under an agency agreement one party (agent) undertakes to pay for remuneration on behalf of the other party (principal) legal and other actions on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. In a transaction made by a third party agent in his own name and at the expense of the principal, the agent acquires the rights and becomes obliged, even if the principal is named in the transaction or entered into a direct relationship with the third party to execute the transaction.

The Iskra-Avigaz company (principal) and Eurotransgaz Corporation Kft, registered and operating in accordance with the laws of Hungary (agent), signed an agent agreement dated 12.11.09, under the terms of which the agent undertook to pay for a fee , on behalf and at the expense of the principal, legal and other actions aimed at selling services, works and equipment owned by the principal on the right of ownership, to buyers / customers in the Russian Federation, CIS countries, and other countries countries.

However, the tax authority determined that prior to the conclusion of this agreement, the company made direct deliveries without using an agency scheme. The conclusion between the Iskra-Avigaz company and Eurotransgaz Corporation Kft Company of an agreement on del credera of 05/11/10 did not have economic significance.

In addition, the tax authority determined that the agent (foreign organization) does not have real estate, represents “zero” tax returns, employees who receive income from the agent are mostly members of the elected bodies of the taxpayer society.

The facts were also established that during the period of conclusion of the agency agreement with the company Eurotransgaz Corporation Kft, as well as in previous and subsequent periods in the elected bodies (board of directors, audit committee) of Iskra-Avigaz company, the representatives of the offices of the company Eurotransgas Corporation Kft Russia and Ukraine, which indicates the presence of signs of affiliation of Iskra-Avigaz and this foreign company.

On this basis, the tax authority eliminated expenses in the form of agency fees.

Recommendations to taxpayers. When using agency schemes, interaction with intermediaries should be justified economically, business documents, projects, investment contracts, etc. can serve as a documentary justification. Moreover, if the taxpayer gets more profit working with intermediaries, this fact will also serve as a justification for concluding an agreement with an agent. Since the improvement of financial and economic indicators in itself does not indicate the economic effect associated with the conclusion of the agency agreement, it is possible to confirm the economic effect through agent reports provided for by the Civil Code of the Russian Federation.

Refusal to refund VAT

The essence of the dispute.OJSC Norilsk Nickel Mining and Metallurgical Company appealed to the Moscow Arbitration Court to invalidate the decisions of the Interregional Inspectorate of the Federal Tax Service of Russia for Major Taxpayers No. 5 regarding refusal to apply 554,443.09 rubles. VAT deduction and in the part of refusal to refund VAT in the amount of 554,443.09 rubles.

The courts had an ambiguous position in this dispute.

By the decision of the Arbitration Court of the city of Moscow of June 4, 2015, left unchanged by a decision of the Ninth Arbitration Court of Appeal of December 21, 2015, the stated requirement was satisfied.

By a decision of the Arbitration Court of the Moscow District of 04/04/16, the said judicial acts were canceled, a new judicial act was adopted to refuse to satisfy the stated requirement.

However, in the definition of the Armed Forces of the Russian Federation No. 305-КГ16-8855 dated 2.08.16 in case No. A40-43152 / 2015, the judges declared the refusal to refund lawful, since the taxpayer did not observe the three-year period for applying the disputed VAT tax deductions.

Position IFSN.Civil and erection works on capital construction objects were carried out by the company from January 2004 to March 2012 and from August 2010 to November 2012.

The results of work acquired by the company under contracts with design organizations for the development of project documentation cannot be attributed to operations involving the direct capital construction of fixed assets, performed in accordance with an independent construction contract concluded with another contractor. Taking into account the fact that project documentation is the subject of independent transactions made with design organizations that are not executors of construction work in respect of construction objects, documentation is not an equipment for installation or an intangible asset, although it is associated with subsequent operations on the implementation of a complex of construction and installation works on capital construction of objects.

The initial documentation on transactions related to the acquisition by the taxpayer of the results of design and survey work was executed in 2003 and 2004. All the conditions for the application of tax deductions on invoices by the company arose during the specified period. At the time of the application for the application of tax deductions in the submitted VAT tax returns for the IV quarter of 2013 and the first quarter of 2014, the period stipulated in paragraph 2 of Art. 173 of the Tax Code, expired.

The buyer is entitled to deduct the amount of VAT charged by the seller in respect of the advance payment to him on account of the upcoming deliveries of goods (performance of works, provision of services, transfer of property rights) (clause 12 of article 171 of the Tax Code of the Russian Federation). Moreover, this can be done even if the buyer has a debt to this supplier under another contract (letter of the Ministry of Finance of Russia of 05.03.11, No. 03-07-11 / 45).

The buyer can apply the deduction both in full amount and partially, since this is the taxpayer's right and not the obligation (letter of the Ministry of Finance of Russia dated November 22, 2011 No. 03-07-11 / 321).

The grounds for acceptance of the deduction will be (clause 9 of Art. 172 of the Tax Code):

invoice, which the seller is obliged to issue no later than five calendar days from the date of receipt of the advance (paragraph 2, paragraph 1, paragraph 1, paragraph 3 of article 168 of the Tax Code of the Russian Federation); payment documents confirming that the money was transferred to the account of the upcoming deliveries of goods (performance of works, indication of services), transfer of property rights; contract, which must contain the condition of prepayment.

Therefore, it is advisable to declare deductions in a timely manner, without waiting for the execution of the whole complex of works or the expiration of a three-year period.

Determining proportions for the distribution of the input VAT amounts

The essence of the dispute.Public joint-stock company Aeroflot - Russian Airlines was prosecuted for committing a tax offense in terms of additional profit tax in the amount of 102,084,472 rubles. and the corresponding amounts of penalties and fines, additional charges of VAT in the amount of 985 026 471 rubles. and the corresponding amounts of penalties and fines, determined taking into account the excessive payment of VAT, in the amount of 22 006 887 rubles. 24 cop., Additional accrual of interest on income tax of foreign organizations in the amount of 212,627 rubles, a fine due to the late transfer to the personal income tax budget in the amount of 1,895,421 rubles.

This was the basis for going to court.

By the decision of the court of first instance of October 2, 2015, left unchanged by the decision of the Ninth Arbitration Court of Appeal of December 24, 2015, the stated request of the company was partially satisfied.

By a decision of the Arbitration Court of the Moscow District of March 28, 16, these judicial acts were canceled.

In the definition of the Armed Forces of the Russian Federation of 29.07.16, No. 305-КГ16-8171 in case No. A40-94972 / 15, the judges concluded that there are grounds for presenting the disputed VAT amount to the deduction.

The courts proceeded from the fact established by the tax authority that in the third quarter of 2010 and the first quarter of 2011 the share of total expenses of the company for the purchase, production and (or) sale of goods (works, services), property rights, the sale of which is not subject to taxation, does not exceed 5% of the total amount of total expenses for the acquisition, production and (or) sale of goods (works, services), property rights of the company, and, guided by the provisions of paragraph 9, paragraph 4, Art. 170 of the Tax Code of the Russian Federation, came to the conclusion that the taxpayer had, during the period under review, legal grounds for presenting to the deduction of the disputed tax amount. According to the calculation, the coefficient for non-taxable activity is 3.268510%. Revenues from the sale of shares are not taken into account when calculating the proportion.

However, in respect of the remaining episodes, in the RF Armed Forces Definition No. 305-KG16-8171 of July 29, 2016 in case No. A40-94972 / 15, the courts indicated that the tax legislation was complied with when the disputed decision was made and there were no legal grounds for declaring it illegal.

Position IFSN.The tax authority established that in the audited period the taxpayer purchased goods (works, services) for the purposes of performing both taxable and non-taxable transactions. According to the tax authority, the taxpayer incorrectly calculated the proportion of taxable and non-taxable transactions and did not take into account the sale of shares. The tax authority included in the calculation of the proportion the proceeds from the sale of securities and applied the resulting coefficient to the amount of “input” VAT related to general business expenses.

However, the courts did not agree with this approach.

Receiving tax benefits when interacting with related parties

The essence of the dispute.   OAO Dagenergoset was assessed the following taxes: VAT - 397,792,398 rubles; corporate profit tax - 127,207,185 rubles; relevant amounts of penalties and fines; reduction of losses on income tax for 2010 by 435,269,687 rubles; 2011 - 1,005,698,806 rubles; 2012 - 973,492,532 rubles.

By the decision of the Arbitration Court of the Republic of Dagestan of October 5, 2015, the application was partially approved.

By the decision of the Sixteenth Arbitration Court of Appeal of 12/24/15, the decision of the court of first instance was partially annulled, and by the decision of the Arbitration Court of the North Caucasus District of April 6, 16, the decision of the court of appeal remained unchanged.

In the definition of the Armed Forces of the Russian Federation of 28.07.16, No. 308-КГ16-8588 in case No. A15-234 / 2015, the judges agreed with the position of the Inspection of the Federal Tax Service. The taxpayer did not provide a reliable calculation of the amounts of losses in the networks arising during the transportation of electricity and the amounts of compensation. The court of appeal established that the company’s activities as a network organization for the provision of electricity transmission services were carried out through relationships with interdependent and affiliated persons, including in the framework of leasing network equipment and the provision of electricity transmission services; It was also established that the said activity is not connected with the intention of the company to obtain an economic effect as a result of actual entrepreneurial or other economic activity, but is aimed solely at obtaining tax benefits in the form of VAT refunds.

Position IFSN. The tax authority concluded that the company had unreasonable reduction in income for tax purposes on corporate profits in the amount of documented unconfirmed expenses recorded in the counterparty of Dagestan Energy Retail Company and the improper use of tax deductions based on invoices issued by the organization. In addition, the tax authority concluded that the tax base for VAT was lowered by the cost of compensation for load losses in the networks of the federal and regional grid companies, and was refused to accept the amount of lease payments paid by the taxpayer to IDGC of Northern Caucasus as income tax expenses. and also refused to apply VAT deductions.

The tax authority also identified transactions with related parties. The tax benefit cannot be recognized as justified if it is received by the taxpayer outside the context of a real business or other economic activity. The tax benefit may also be recognized as unjustified if the tax authority proves that the taxpayer’s activities, its interdependent or affiliated persons are aimed at performing transactions related to the tax benefit, mainly with counterparties that do not fulfill their tax obligations. According to the tax inspectorate, the taxpayer received an unreasonable tax benefit.

Recommendations to taxpayers. By themselves, relationships with interdependent parties do not speak of unjustified tax benefits. However, in some cases it is necessary to pay attention to the issue of pricing. Article 105.3 of the Tax Code of the Russian Federation provides for control over pricing when it is transactions between related parties when a certain sum threshold is reached (1 billion rubles), similar provisions apply to offshore transactions.

Conclusion of formal contracts

The essence of the dispute.Ulyanovsk Mechanical Plant No. 2, OJSC appealed to the court to declare invalid the decision of the Inspectorate of Tax Inspection regarding the additional charge of VAT and loss reduction.

By the decision of the Arbitration Court of the Ulyanovsk Region of September 18, 2014, the stated requirements were partially satisfied, the inspection decision was declared invalid in terms of the fine under Art. 126 of the Tax Code, the amount of the fine reduced to the amount of 109,360 rubles.

By the decision of the Eleventh Arbitration Court of Appeal of February 20, 2015, the decision of the Arbitration Court of the Ulyanovsk Region of September 18, 2014 was left unchanged.

By a decision of the Arbitration Court of the Volga District dated 27.05.15 the court decision dated September 18, 2014 and the ruling of the court of appeal dated February 20, 2015 in the contested part were canceled.

However, in the definition of the Armed Forces of the Russian Federation of July 21, 166 No. 306-КГ16-8417 in case No. A72-7480 / 2014, the court sided with the tax authorities. The court recognized the contractual relationship as “formal”, since it was established that there was inaccurate information contained in the primary documents submitted by the company on relations with counterparties.

Position IFSN.   The basis for additional accrual of disputed amounts of tax, accrual of fines, collection of penalties, reduction of losses were the findings of the inspectorate about improper understating - revenues from sales of own production, VAT by formally concluding an agreement with LLC Techsnabtorg, as well as unjustified reflection in expenses, taken into account for tax purposes, the cost of goods purchased under the supply contract with Promotek LLC, the unlawful presentation of VAT amounts for deduction in order to obtain unjustified Ogove benefits.

The tax authority established the formality of the contract on the following grounds:

the head of Techsnabtorg LLC is a mass founder in 17 organizations and a mass leader in 19 organizations; when interviewing during the audit, the General Director of OJSC UMZ No. 2 indicated that he had not personally met with the head of Tekhsnabtorg LLC during the conclusion of the contract; signatures in the primary documents on the declared operations and signatures in the documents drawn up by the head of Tekhsnabtorg LLC at the conclusion and termination of the employment contract, as well as when registering with the FMS bodies of Russia are visually different; according to the analysis of the tax reporting of Tekhsnabtorg LLC, the actual amount of taxes payable to the budget is stated in the minimum amount; expenses for renting premises and utilities were not written off from the settlement accounts of Tehsnabtorg LLC, which indicates the absence of office, warehouse, garage premises, that is, the absence of administrative and business expenses that are common in conducting financial and economic activities; the organization is not located at the legal address, information on the organization has been put on the wanted list at ATC.

On the basis of these characteristics, the tax authority concluded that the relationship was formal.

Recommendations to taxpayers. Based on Art. 252 of the Tax Code, the costs must be economically justified and documented. These two points must be paid attention to when concluding transactions. It is also necessary to conduct an inspection of counterparties. The guidelines for such verification of counterparties can be the risk assessment criteria formulated in the order of the Federal Tax Service of Russia of 30.05.07 No. MM-3-06 / [email protected]   (as amended on 05.10.12) “On approval of the Concept of the system of planning of field tax audits”.

In conclusion, it should be noted that all of these situations speak of strengthening tax control, as well as the fact that it is becoming more and more difficult for a taxpayer to prove his case in court.