Экономико-аналитический подход к оценке налоговых рисков отсутствия фактического права на доход

Abstract

The subject of the study is the identification by the tax authorities of the dependence of the jurisdiction of the location of the parent companies of Russian organizations on the amount of additional charges for corporate income tax withheld at source in Russia, while controlling the actual right to income (FPA) of a foreign organization. The purpose of the work is to develop proposals for tax risk management in determining the FPA. The article, in conjunction with the analysis of the dynamics of foreign direct investment from Russia, analyzes information on changes in the amounts of corporate income tax paid when paying passive income to foreign recipients, as well as data on the amount of additional tax when monitoring the status of the FPA. As a result of the analysis of court decisions on the basis of the "geography" of the beneficial owners of income from the Russian source, the relationship between the jurisdiction of registration of parent companies of taxpayers and the average amount of additional corporate income tax due to non-compliance with the status of the FPA was established. It is concluded that in the overwhelming majority of tax disputes on the status of the FPA, foreign companies – recipients of income were recognized by the courts as conduit companies created to take advantage of registration in low-tax jurisdictions and abuse the provisions of international tax treaties. It was revealed that over the past seven years, the reason for the outflow of capital from the country was the desire of taxpayers to reduce the effective tax rate by withdrawing profits to low-tax jurisdictions, in which large firms prefer Singapore for structuring cash flows in most cases.