What is the difference between related and interdependent persons. Related parties and related parties. Affiliates: Differences

1. If the peculiarities of relations between persons can influence the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent, the persons specified in this paragraph shall be recognized as interdependent for taxation purposes (hereinafter - interdependent persons).

To recognize the mutual dependence of persons, the influence that may be exerted due to the participation of one person in the capital of other persons, in accordance with an agreement concluded between them, or if there is another possibility for one person to determine decisions made by other persons, is taken into account. At the same time, such influence is taken into account regardless of whether it can be exerted by one person directly and independently or jointly with his interdependent persons recognized as such in accordance with this article.

2. Taking into account paragraph 1 of this article, for the purposes of this Code, the following are recognized as interdependent persons:

1) organizations in the event that one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25 percent;

2) an individual and an organization if such an individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25 percent;

3) organizations if the same person directly and (or) indirectly participates in these organizations and the share of such participation in each organization is more than 25 percent;

4) an organization and a person (including an individual together with his interdependent persons specified in subparagraph 11 of this paragraph) having the authority to appoint (elect) the sole executive body of this organization or to appoint (elect) at least 50 percent of the composition of the collegial executive body or board of directors (supervisory board) of this organization;

5) organizations whose sole executive bodies or at least 50 percent of the composition of the collegial executive body or the board of directors (supervisory board) of which are appointed or elected by decision of the same person (an individual together with his interdependent persons specified in subparagraph 11 of this paragraph );

6) organizations in which more than 50 percent of the composition of the collegial executive body or the board of directors (supervisory board) are the same individuals together with the related persons specified in subparagraph 11 of this paragraph;

7) an organization and a person exercising the powers of its sole executive body;

8) organizations in which the powers of the sole executive body are exercised by the same person;

9) organizations and (or) individuals if the share of direct participation of each previous person in each subsequent organization is more than 50 percent;

10) natural persons in the event that one natural person is subordinate to another to an individual by position;

11) an individual, his spouse (wife), parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (custodian) and ward.

3. For the purposes of this article, the participation interest of a natural person in an organization shall be recognized as the aggregate share of participation of this natural person and his interdependent persons specified in subparagraph 11 of paragraph 2 of this article in the said organization.

4. If the influence on the conditions and (or) results of transactions made by persons, and (or) the economic results of their activities is exerted by one or several other persons due to their predominant position in the market or due to other similar circumstances due to the peculiarities of the transactions being made, such influence is not a basis for recognizing persons as interdependent for tax purposes.

5. Direct and (or) indirect participation Russian Federation, subjects of the Russian Federation, municipalities in Russian organizations in itself is not a basis for recognizing such organizations as interdependent.

The organizations specified in this paragraph may be recognized as interdependent on other grounds provided for in this article.

6. In the presence of the circumstances specified in paragraph 1 of this article, organizations and (or) individuals that are parties to the transaction have the right to independently recognize themselves for taxation purposes as interdependent persons on the grounds not provided for in paragraph 2 of this article.

7. The court may recognize persons as interdependent on other grounds not provided for in paragraph 2 of this article, if the relationship between these persons has the characteristics indicated in paragraph 1 of this article.

RF Tax Code Article 105.1 Related parties

Interrelated transactions is a term that is quite important in the framework of civil law relations in our society. Legislative bodies often resort to it, despite the fact that a legal definition has not yet been developed definitively. In many respects, the concept of “interrelated transactions” has become widespread among law enforcement officers for the same reason - there is no single interpretation of the term, which allows attempts to “pull the blanket over to one’s side”.

Laws, rules, interpretations

The laws of our country do not currently provide a precise definition of the term "related transactions". Analysts expect the judiciary to resolve this issue, but there are no clarifications yet, which is especially difficult against the backdrop of a fairly diverse legal practice that significantly complicates the conduct of cases.

Civilians and specialists, forced to interpret the concept in one way or another, agree that it is necessary to supplement the ninth chapter of the Civil Code with an appropriate definition. This will allow once and for all to resolve disputes related to whether in a particular case it is possible to say that transactions are related or the concept is not applicable to the situation.

In addition to the laws considering the activities of legal entities, the concept of "interrelated transaction", its definition is also important for the 28th federal law dedicated to competition in the market and the protection of this phenomenon. Such transactions are considered in the Tax Code and some articles of laws on bankruptcy.

Concepts and laws

For antitrust law, interconnected transactions are a phenomenon that must be taken into account when controlling concentration in a country's economy. As for corporate laws, the phenomenon plays an important role for them in terms of the correctness of procedures related to transactions classified as large. In addition, when concluding various transactions for corporate law, the concept of interest comes to the fore. And it is largely based just on interconnected transactions.

Theory in practice

What is this about? For example, when a deal is large enough, the company's executives can get a good benefit if they break it up into several relatively small ones. Most often, this practice can be noticed in the work of joint-stock companies. This avoids asking for permission from the shareholders' meeting.

But if you study the 28th law on competition and protection of this phenomenon, you can learn from the seventh paragraph that related transactions are those that can be concluded only if they receive the approval of the antimonopoly authority. This applies to such transactions in which they operate with shares, rights to property or the property itself. FAS must agree on a planned event when the object will be intangible assets, the book value of which is 20% of the book value of fixed assets. Obviously, trying to circumvent the laws and splitting up a single deal into many small ones, managers thereby commit illegal acts.

Bankruptcy

The federal law on insolvency of legal entities proposes to use interconnected transactions for the purpose of determining restrictions on which transactions can be organized and which can no longer be arranged. If a bankruptcy case has already been opened, this imposes certain limits on the conclusion of agreements, therefore interconnected transactions, loans and pledges become key for the enterprise. It is also worth remembering that in 2009 a new chapter appeared, allowing the contestation of transactions concluded by an entrepreneur, in relation to which the issue of bankruptcy is being considered.

Related transactions - what are they?

To understand whether transactions fall into this category, the court analyzes various parameters, on the basis of which it makes a conclusion. There are a number of criteria, when satisfied, one can speak of a mutual connection. Some of them have already become traditional for the judiciary when conducting hearings in Russia, while others are still being studied. Analysts suggest that it will hardly be possible to systematize the criteria, as a definition will be derived on their basis, allowing us to speak about the belonging of transactions to interconnected ones.

Often the relationship is objectively explained if one transaction flows smoothly from another. Sometimes subjective reasons provoke the phenomenon of mutual connection, for example, a common goal pursued by a chain of interconnected transactions. Bankruptcy, the last buyer - these two aspects attract special attention of the court and serve as one of the indicators of the mutual connection associated with the desire of the entrepreneur to avoid liability.

JSC: related transactions

Speaking of joint-stock companies, one cannot fail to mention the federal law. In the 78th article, the concept of interconnected transactions is considered. It is assumed that these are concluded so that a legal entity alienates, acquires some property indirectly or directly. This article defines a major transaction as one whose value is a quarter of the book value of the assets. Evaluation is made at the moment when a decision is made in favor of the transaction. Exceptions are such arrangements that accompany economic activity in its normal course. Conducts detailed seminars examining related party transactions, Vegas Lex. The company is quite well-known in Russia and has been operating since 1995.

From big deals obviously follows the notion of interconnected. These can, if desired, include absolutely any concluded by some enterprise, and there is not even a time frame for establishing a mutual relationship between the two phenomena. This inaccuracy is a significant problem with current regulations. Jointly owning some business persons can today use such imperfection of the legislation, against the background of which they open litigations that take a protracted nature. As a rule, the goal pursued is pressure on other participants, shareholders.

What about in practice?

If you study court cases in which interconnected transactions under 223 FZ were considered, you can see that usually the court classifies events that quite obviously pursue the same goal as a phenomenon. It is against the background of conclusions about what the real goals were in each particular case that the judges reveal the mutual connection.

Related transactions, for the purposes of defining a major transaction, are those that could be combined into one, but in such an approach, it would be subject to approval. However, there are no strictly limited criteria, therefore, the judge chooses the circumstances that allow talking about a mutual connection based on a personal view of the case, from the specifics of the case. Transactions by their nature often turn out to be such that there have never been similar cases in judicial practice, which forces lawyers to literally “invent a position on the go”.

It can be seen that if there was already a precedent when the judge decided in favor of classifying transactions as related, then in future processes, with sufficient similarity of situations, lawyers try to maintain this approach.

Improvements and stability

In the past few years, corporate legislation in our country has become much more advanced in many aspects than it was before. Yet some issues remain contentious, and interconnected deals will be no exception. Judicial practice shows that Federal Laws No. 208 of 1995 and No. 14 of 1998 are not sufficient to bring clarity to the system. Moreover, the term "interrelated transactions" is often used for one's own benefit in order to confuse the court, to defend one's point of view - but without a real basis for using such a concept.

Clarity of terminology is important not only in the context of defining major transactions and stabilizing the situation with them, that is, eliminating circumvention of laws. If you pay attention to federal law number 208, and specifically to the first paragraph of Article 75, you will notice that here interconnected transactions are considered within the interests of shareholders of a certain company. We are talking about the redemption by the company of a certain amount of shares (up to 100%) in the case when a decision is made in favor of a major transaction. This must be approved at a shareholders' meeting, and if the results were not in favor of the transaction or the shareholders were not invited to such an event at all, then the question arises of buying back the shares.

Qualification in practice

Conclusions about whether the court qualifies transactions as interconnected or refrains from doing so can be preliminarily drawn by comparing a specific case with those already recorded in judicial practice earlier. It is worth remembering that usually the responsibility for related transactions lies with the head of the enterprise, which is being investigated and considered in court.

So, key criteria, which allow us to talk about the connection between transactions and the division of one large one into several small ones in order to bypass the laws:

• subjects match;
• transactions influence each other;
• activities are dependent;
• the economic purpose is the same for all transactions.

How to avert suspicion?

The most reliable method that allows you to remove suspicion from yourself is to prove that all of the listed criteria are not applicable to transactions considered by the court.

As for the composition of the subjects, it is assumed that the transactions are planned by the same persons and concluded by them. It can be legal entities or physical. The court may decide that as a result of the perfect chain, the property ended up in the possession of one legal entity, which is the criterion for mutual connection.

On the other hand, there is a precedent when agreements on obtaining loans secured by guarantee agreements were submitted to the case, while the borrowers were several persons, which did not allow the transactions to be classified as interconnected. The court ruled that each event was characterized by its own duties and rights.

Individuals and groups of individuals, as well as their goals

The court may recognize counterparties of one enterprise as an interconnected group of persons. This is based on the text of the federal law adopted in 2006 under number 135. It is also allowed to classify several affiliates as a group of persons. This is permissible, based on the text of the law adopted in 1991 under the number 948-1.

Such phenomena, which allow the grouping of persons, may cause the transactions concluded with them to be classified as interconnected. As part of the consideration of the case, the court identifies aspects of economic interaction. If such is found between the persons organizing the transaction, then we are talking about a mutual connection.

A single goal, in turn, is considered in the context of the results given by the chain of transactions. If they all lead to a single outcome, then the court can pass judgment by evaluating the event as interconnected. This works when it is possible to prove that a similar result could have been achieved with just one transaction, but it was deliberately avoided in order to bypass the need for a shareholders' meeting.

However, there may not be a common goal between transactions. In this case, there is a possibility that the court does not recognize them as interconnected, but it does not equal 100%, much depends on other criteria.

Guilty - not guilty

If the enterprise was able to prove in court that the chain of transactions suspected of being interconnected consists of activities that give rise to obligations, rights (this condition must be observed for everyone), then there is a chance to clear its reputation of any suspicions. But the conclusions about what connections the chain of transactions has, the court will make, analyzing the direction of each individual operation. This is done even if the objects are different.

What is this about? The object is usually some property, rights. If the court sees that the chain of transactions has a single purpose, this will be the criterion for recognizing the relationship. On the other hand, if this criterion turns out to be the only one for the court to recognize several events as interconnected, then the prosecution will have to abandon its position: in itself it is considered insufficiently weighty.

Example

There was a situation when a certain joint-stock company entered into a lease agreement. According to it, on the rights of temporary use, it transferred the hotel complex, or rather, several specialized premises in it. In addition to it, there were other lease agreements that extended to other parts of the complex. The court ruled that the treaties were unrelated because the subjects were different.

And what about time?

This criterion is one of the most important for the court considering the issue of recognizing transactions as related to each other. It is generally accepted that, from the point of view under consideration, dubious events include such events that took place either simultaneously or in a rather limited time period.

To this day, there is no concrete solution to the jurisprudence on this aspect. Many cases are known judicial practice, when final decision was taken in favor of recognizing the transactions as not interconnected, since there was a rather significant gap between them in time. But the conclusion of several agreements on the same day immediately undermines the company's reputation and gives rise to suspicions that it was done in this form, and not in the form of a single agreement, with one goal - to avoid bringing the issue up for discussion by shareholders.

What time period is still considered suspicious, and what is beyond doubt and allows us to talk about the absence of a mutual connection? In the absence of specific statutory indicators, much will depend on the specifics of a particular case, but in the general case, the financial year is considered. Since this time period is important for accounting and reporting, and often plays an important role in corporate events, it is considered appropriate to talk about a possible relationship only in relation to those transactions that took place within one such period.

Evidence and anti-evidence

The Arbitration Court of the Russian Federation ruled that the plaintiff, who believes that a certain enterprise “turned off” several interdependent transactions, must submit evidence of his position to the court. Based on the information provided, the judge may decide to assign this classification or refuse to recognize the events as such.

If the plaintiff provides information from which it follows that several of the criteria indicated above are met, but at the same time it also obviously follows that each of the contracts is associated with unique obligations, rights, the decision will be in favor of the head of the enterprise that concluded the transactions. Simply put, the court will conclude that there is no relationship.

To prevent discord within the company, you should take internal position, regulating the features of the conclusion of large transactions, where to prescribe, among other things, aspects of the interest of the parties. It must be remembered that the recognition by the court of a chain of transactions as interconnected does not lead to their annulment. The only thing that follows from this fact is the requirement to obtain approval from the board of shareholders, the meeting of directors.

By general rule in tax legal relations, interdependent persons in 2019 on a special account. Our review is dedicated to who can be recognized as such persons and what is the fate of transactions between them. Who are related parties in 2019?

concept

First of all, we note that in the tax legislation quite a lot of attention is paid to the signs of interdependent persons, the relationship between them, as well as the tax consequences of their transactions. The reason is that it is much easier for related companies, individual entrepreneurs and ordinary individuals to illegally reduce their tax burden or even evade taxes through various manipulations.

The legal concept of interdependent persons in the tax legislation is contained in paragraph 1 of Article 20 of the Tax Code of the Russian Federation. And so, interdependent persons for tax purposes are individuals and / or companies, the relationship between which may affect:

• conditions of their activity;
• economic results of their activities;
• economic results of the activities of the persons they represent.

More specifically, interdependent persons are recognized if one of the following conditions is present (clause 1, article 20 of the Tax Code of the Russian Federation):

1. The firm directly/or indirectly participates in another company, and the total share of such participation is from 20%. As for the share of indirect participation through a sequence of other organizations, it is calculated as the product of the shares of direct participation of some firms in others.
2. A person is subordinate to another person by virtue of the official hierarchy.
3. Marriage / family relations (by blood and by property), adoption, guardianship on the basis of the family law of the Russian Federation.

Note that the listed interdependent persons in tax legal relations have such a status a priori. That is, upon meeting one of these three criteria.

At the same time, on the basis of paragraph 2 of Art. 20 of the Tax Code of the Russian Federation, interdependent persons for tax purposes are also recognized by the court. Moreover, he is not limited by these three criteria, but can choose his own basis, not specified in the Tax Code. In practice, this occurs when relations between persons can affect the results of transactions for the sale of goods, works, services.

EXAMPLE

The IFTS considered, and the court supported the conclusion that the company and its counterparty are interdependent persons under the Tax Code of the Russian Federation, since their founders are the same people, in whose interests the interaction of both businesses and the establishment of favorable conditions for the sale (information letter of the Presidium of the Supreme Arbitration Court RF dated March 17, 2003 No. 71).

The Tax Code of the Russian Federation has another more detailed definition of who are interdependent persons in tax law. According to him, this is when the characteristics of the relationship between persons can affect:

• conditions and/or results of transactions between them;
• and/or the economic results of its activities or represented persons.

The interdependence factor is reflected in Section 1A of this form:

Notification of controlled transactions for the past period is submitted only once a year - no later than May 20 of the next year (clause 2 of article 105.16 of the Tax Code of the Russian Federation). If May 20 falls on a weekend and (or) non-working holiday, the period is extended until the next working day (clause 7, article 6.1 of the Tax Code of the Russian Federation). 2018 returns must be submitted no later than May 20, 2019.

Affiliates: Differences

It is important to understand that affiliated and interdependent persons have their own differences. So, not a word is said about the first in the Tax Code of the Russian Federation. In addition, kinship and family relationships do not affect affiliation in any way, unlike interdependence.

Affiliates is more of a corporate law term that only plays a big role in antitrust, accounting, and banking.

Whom and for what purposes can be recognized as affiliated persons, is stated in the Law of the RSFSR dated March 22, 1991 No. 948-1 “On competition and restriction of monopolistic activities on commodity markets».

Deals

As a general rule, the price in a transaction is considered to be in line with the market until the opposite is proven (clause 1, article 40 of the Tax Code of the Russian Federation). At the same time, transactions between related parties are always under the special eye of the tax authorities, since the law directly allows checking the adequacy of prices in transactions between such parties (clause 2, article 40 of the Tax Code of the Russian Federation).

Thus, the main tax risks of transactions between related parties in 2019 lie in the area of ​​their pricing policy. In the event of an inspection, inspectors will compare the established rates with transactions in which:

• the parties are independent of each other;
• ties do not affect the economic results of the transaction.

Tax debts from price manipulation in transactions between related parties of the Tax Code of the Russian Federation are allowed to be collected only in court following an audit by the Federal Tax Service (subclause 4, clause 2, article 45 of the Tax Code of the Russian Federation).

Keep in mind: almost all transactions between related parties are controlled transactions. Moreover, a number of other transactions are equated to them. This issue is regulated in detail by Art. 105.14 of the Tax Code of the Russian Federation.

Ultimately, the recognition of persons as interdependent entails that taxes will have to be paid not on actual income, but on that which could be received, but this was prevented by commercial or financial conditions an interdependent transaction (clause 1, article 105.3 of the Tax Code of the Russian Federation).

"EJ-Jurist", 2013, N 46

AT last years changes in legislation were aimed, among other things, at the convergence of accounting and tax accounting. However, tax accounting is fundamentally different from accounting. In order to exclude negative consequences the organization needs to know all the subtleties of the differences. Let us define the criteria for distinguishing between the concepts of "related parties" and "related parties".

Affiliate

The composition of the concept of "dependence (interdependence) of legal entities" is used in many branches of law. In particular, the Civil Code of the Russian Federation uses the concepts of "subsidiary" and "main company" (Article 105), "dependent" and "predominant (participating) company" (Article 106). In addition, the laws on certain types economic activity the concept of "affiliated person" is used.

The concept of "affiliated person" is defined in the Law of the RSFSR dated March 22, 1991 N 948-1 "On Competition and Restriction of Monopoly Activities in Commodity Markets". So, according to the provisions of art. 4 of the said Law, affiliated persons are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities.

According to Law N 948-1, affiliated persons of a legal entity are:

• a member of its board of directors (supervisory board) or other collegial management body, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body;
• persons belonging to the group of persons to which the given legal entity belongs;
• persons who have the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions constituting the authorized or share capital, shares of this legal entity;
• a legal entity in which this legal entity has the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions, shares of this legal entity constituting the authorized or share capital;
• if a legal entity is a member of a financial and industrial group, its affiliates also include members of the boards of directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group, as well as persons exercising the powers of the sole executive bodies of participants in the financial and industrial group. industrial group.

Related parties in accounting

Regulation on accounting"Information about related parties", approved. Order of the Ministry of Finance of Russia dated April 29, 2008 N 48n (hereinafter referred to as PBU 11/2008), obliges to disclose information about related parties in the financial statements of the organization. In addition, PBU 11/2008 requires that joint-stock companies included information about related parties in their financial statements. At the same time, the concept of "related party" in PBU 11/2008 is disclosed, in particular, through the concept of "affiliated person". Thus, RAS 11/2008 recognizes as related parties legal entities and (or) individuals capable of influencing the activities of the organization or whose activities the organization is able to influence. Such persons may be affiliated persons determined in accordance with the legislation of the Russian Federation; persons carrying out joint activities with the organization; non-state pension fund serving this organization or other related organization.

So, related parties are legal entities and (or) individuals that are able to influence the activities of the organization or whose activities the organization is able to influence. A closed list of persons who may be recognized as related parties is given in clause 4 of PBU 11/2008. These include:

• affiliated persons determined in accordance with the legislation of the Russian Federation;
• persons carrying out joint activities with the organization. The concept of joint activity is established, in particular, by IAS (IAS) 28 "Investments in associates and joint ventures", approved. By order of the Ministry of Finance of Russia dated June 18, 2012 N 106n. So, according to par. 5 paragraph 3 of the named IFRS Team work is an activity jointly controlled by two or more parties;
• a non-state pension fund serving this organization or another organization related to it.

It should be noted that, according to paragraph 6 of PBU 11/2008, the obligation to disclose information about related parties arises for an organization only in strictly defined cases, namely if:

• such an organization is controlled or significantly influenced by a legal entity and (or) an individual;
• that entity controls or exercises significant influence over the entity;
• such organization and legal entity are controlled or significantly influenced (directly or through third legal entities) by the same legal entity and (or) individual (the same group of entities).

Thus, it seems that even if the organization has related parties, information about them is not disclosed in every case, but only in those listed. In addition, each disclosure criterion is based on determining the degree of influence of the related party on the entity (the entity on the related party, third parties on the entity and the related party).

Clause 7 of PBU 11/2008 discloses the criteria under which a legal entity and (or) an individual controls another legal entity. So, on the basis of the specified paragraph, a legal entity and (or) an individual controls another legal entity (have the ability to determine decisions made by another legal entity in order to obtain economic benefits from the activities of the latter), when such a legal entity and (or) individual has:

• more than 50% of the total number of votes attributable to voting shares (stakes) in the authorized (share) capital economic society(partnership), by virtue of its participation in this economic company (partnership) or in accordance with the powers received from other persons;
• at the same time, the right to dispose (directly or through its subsidiaries) of more than 20% of the total number of votes attributable to voting shares (stakes) in the authorized (reserve) capital of this economic company (partnership) or constituting the authorized (reserve) capital of contributions, shares of this legal person, and the ability to determine the decisions taken by such a legal entity.

Clause 8 of PBU 11/2008 provides criteria under which a legal entity and (or) an individual has significant influence over another legal entity. According to the above paragraph, a legal entity and (or) an individual has a significant influence on another legal entity when they have the opportunity to participate in the decision-making of another legal entity, but do not control it (for example, by virtue of participation in the authorized (reserve) capital, the provisions of constituent documents, concluded agreement, participation in the supervisory board and other circumstances).

Based on the systematic interpretation of the provisions of PBU 11/2008, information on related parties listed in paragraph 4 of PBU 11/2008 should be disclosed in the cases listed in paragraph 6 of PBU 11/2008, provided that the related parties meet the criteria listed in paragraph clauses 7 and 8 of PBU 11/2008, and provided that in the reporting period the organization conducted transactions with related parties.

It should be noted that according to paragraph 13 of PBU 11/2008, if a legal entity and (or) an individual controls another legal entity or legal entities are controlled (directly or through third legal entities) by the same legal entity and (or) the same individual person (the same group of persons), then the nature of the relationship between them is subject to description in the financial statements, regardless of whether there were transactions between them in the reporting period.

Related parties in the Tax Code of the Russian Federation

In tax legislation, the concept of "related person" is used. It is revealed in Art. 105.1 of the Tax Code of the Russian Federation. So, on the basis of paragraph 1 of this article, if the peculiarities of relations between persons can affect the conditions and (or) results of transactions made by these persons, and (or) the economic results of the activities of these persons or the activities of the persons they represent, these persons are recognized as interdependent for tax purposes.

In paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation lists the grounds according to which taxpayers are recognized as interdependent. So, for tax purposes, related parties are:

• organizations, if one organization directly and (or) indirectly participates in another organization and the share of such participation is more than 25%;
• an individual and an organization if such an individual directly and (or) indirectly participates in such an organization and the share of such participation is more than 25%;
• organizations, if the same person directly and (or) indirectly participates in these organizations and the share of such participation in each organization is more than 25%;
• an organization and a person (including an individual together with his spouse, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardians (trustees) and wards), having the authority by appointment (election) of the sole executive body of this organization or by appointment (election) of at least 50% of the composition of the collegial executive body or the board of directors (supervisory board) of this organization;
• organizations whose sole executive bodies or at least 50% of the composition of the collegial executive body or the board of directors (supervisory board) of which are appointed or elected by decision of the same person (individual together with his spouse), parents (including adopters ), children (including adopted children), full and half brothers and sisters, guardians (custodians) and wards);
• organizations in which more than 50% of the composition of the collegial executive body or the board of directors (supervisory board) are the same individuals together with their spouse, parents (including adoptive parents), children (including adopted children), full-blooded and half brothers and sisters, guardians (custodians) and wards;
• an organization and a person exercising the powers of its sole executive body;
• organizations in which the powers of the sole executive body are exercised by the same person;
• organizations and (or) individuals in the event that the share of direct participation of each previous person in each subsequent organization is more than 50%;
• individuals in the event that one individual is subordinate to another individual by official position;
• an individual, his spouse (wife), parents (including adoptive parents), children (including adopted children), full and half brothers and sisters, guardian (custodian) and ward.

Based on paragraph 7 of Art. 105.1 of the Tax Code of the Russian Federation, the court may also recognize persons as interdependent on other grounds, if the relationship between these persons may affect the results of transactions for the sale of goods (works, services).

As can be seen, the main criterion for recognizing persons as interdependent is the share of direct or indirect participation of one organization in another. This criterion is also used in determining related parties and affiliates.

At the same time, a related party is included in the list of related parties indicated in the notification of controlled transactions submitted to the supervisory authority only if controlled transactions were concluded with such related party in the reporting period.

Note that the concept of "affiliated person" is not directly used in the Tax Code of the Russian Federation, however, some signs of interdependent persons specified in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, coincide with the signs of affiliated persons set forth in Art. 4 of Law N 948-1. Thus, in practice, a related person can often be an affiliate at the same time.

What is the result?

Based on the analysis of the concepts of "related parties" and "related parties", we come to the conclusion that these concepts are certainly related, but they are not identical.

At the same time, when using these categories, it should be taken into account that recognition of a person as a related party of the company does not in all cases mean recognition of the person as related to the company, just as recognition of a person as related to the company does not in all cases mean that this person is a related party of the company.

In each specific case, for each specific organization, the signs of interdependence and relatedness should be applied separately, taking into account that each interdependent person of the organization may be (but not necessarily) a related party of the organization, and each related party of the organization may be (but not necessarily) an interdependent person organizations.

And the list of related parties specified in the notification of controlled transactions may differ significantly from the list of related parties specified in the explanatory note drawn up when compiling the financial statements of the organization.

V. Grishaeva

tax lawyer