Related parties and interdependent persons (Grishaeva V.). Related parties Summarization of contract prices

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

Laws, rules, interpretations

The laws of our country currently do not provide a precise definition of the term “interrelated transactions.” Analysts expect that this issue will be resolved by the judiciary, but there is no clarification yet, which is especially difficult against the backdrop of quite diverse legal practice, which significantly complicates the conduct of cases.

Civilians and specialists, who are forced to interpret the concept in one way or another in their work, agree that it is necessary to supplement the ninth chapter of the Civil Code with an appropriate definition. This will allow us to once and for all resolve disputes related to whether in a particular case it can be said that interrelated transactions take place or whether the concept is inapplicable to the situation.

In addition to the laws that consider the activities of legal entities, the concept of “interrelated transaction” and its definition are 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 devoted to bankruptcy.

Concepts and laws

For antitrust law, interrelated transactions are a phenomenon that must be taken into account when controlling concentration in a country's economy. As for corporate laws, for them the phenomenon plays an important role from the point of view of the correctness of procedures associated with 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 on interrelated transactions.

Theory in practice

What are we talking about? For example, when concluding a fairly large transaction, company managers can get good benefits if they split it into several relatively small ones. Most often, this practice can be noticed in the work of joint-stock companies. This avoids asking permission from the shareholders meeting.

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

Bankruptcy

The federal law on the insolvency of legal entities assumes the use of interrelated transactions for the purpose of determining restrictions: which transactions can be organized and which cannot be arranged. If a bankruptcy case has already been opened, this imposes a certain framework on the conclusion of agreements, so interconnected transactions, credit and collateral become key for the enterprise. It is also worth remembering that in 2009 a new chapter appeared, allowing for the challenge of transactions concluded by an entrepreneur in relation to which the issue of bankruptcy is being considered.

What are related transactions?

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, if satisfied, we can talk about mutual connection. Some of them have already become traditional for judicial authorities when conducting hearings in Russia, while others are still being studied. Analysts assume that as soon as it is possible to systematize the criteria, a definition will be derived from them that will allow us to talk about whether transactions are related.

Often the relationship is explained objectively 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 entrepreneur’s desire to evade responsibility.

JSC: related transactions

When talking about joint stock companies, one cannot fail to mention federal law. Article 78 discusses the concept of interrelated transactions. It is assumed that these are concluded so that a legal entity alienates or acquires some property indirectly or directly. This article defines a major transaction as one whose value is one quarter of the book value of the assets. The assessment is made at the moment when a decision is made in favor of the transaction. The exceptions are such agreements 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 large transactions, the concept of interrelated obviously follows. These can, if desired, include absolutely any agreements concluded by some enterprise, and there is not even a time frame for establishing a mutual connection between the two phenomena. This inaccuracy is a significant problem with current regulations. Persons who jointly own a certain business can nowadays take advantage of such imperfect legislation, against the background of which they open litigation that becomes protracted. As a rule, the pursued goal is to put pressure on other participants, shareholders.

What in practice?

If you study the court cases in which interrelated transactions were considered under 223 Federal Law, you will notice that the court usually classifies as a phenomenon events that quite obviously pursue the same goal. The judges reveal the mutual connection precisely against the background of conclusions about what the real goals were in each specific case.

Related transactions, for the purposes of defining a major transaction, are those that could be combined into one, but would otherwise be subject to approval. However, there are no strictly limited criteria, so the judge chooses the circumstances that allow us to talk about a mutual connection based on his personal view of the case, from the specifics of the case. Transactions by their type and 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 fly.”

It can be noted that if there was already a precedent when the judge decided in favor of classifying transactions as interrelated, then in future processes, if the situations are sufficiently similar, lawyers try to maintain this approach.

Improvements and stability

Over the past few years, corporate legislation in our country has become much more advanced in many aspects than it was before. Still, some issues remain controversial, and interconnected transactions will be no exception. Judicial practice shows that Federal Law No. 208 of 1995 and No. 14 of 1998 are insufficient to clarify the system. Moreover, the term “interrelated transactions” is often used for one’s own benefit in order to confuse the court and defend one’s point of view - but without a real basis for the use of such a concept.

Clarity of terminology is important not only in terms of defining large 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 interrelated transactions are considered within the framework of the interests of the shareholders of a certain company. We are talking about the company buying back 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 meeting of shareholders and, if the results were not in favor of the transaction or shareholders were not invited to such an event at all, then the question of buying back the shares arises.

Qualification in practice

Conclusions about whether the court qualifies transactions as interrelated or refrains from doing so can be tentatively drawn by comparing a particular case with those already recorded in judicial practice earlier. It is worth remembering that usually responsibility for interrelated transactions falls on the head of the enterprise that is being investigated and considered in court.

So, the key criteria that allow us to talk about the connection between transactions and breaking one large transaction into several small ones in order to circumvent the laws:

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

How to ward off suspicion?

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

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

On the other hand, there is a known precedent when agreements for obtaining loans were presented in the case, secured by surety agreements, while the borrowers were several persons, which did not allow the transactions to be classified as interrelated. The court ruled that each event had its own responsibilities and rights.

Individuals and groups of individuals and their purposes

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 possible to include several affiliates in a group of persons. This is permissible, based on the text of the law adopted in 1991 under number 948-1.

Such phenomena, which allow the grouping of persons, may lead to the classification of transactions concluded with them as interrelated. 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.

The single goal, in turn, is considered in the context of the results produced by the chain of transactions. If they all allow one to come to a certain single result, then the court can make a verdict, assessing the event as interrelated. This works when it can be proven that a similar result could have been achieved with just one transaction, but it was deliberately avoided in order to circumvent 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 will not recognize them as interrelated, but it is not 100%, much depends on other criteria.

Guilty - not guilty

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

What are we talking about? The object is usually some property or rights. If the court finds that the chain of transactions has a single purpose, this will be a criterion for recognizing the relationship. On the other hand, if this criterion turns out to be the only one that allows the court to recognize several events as interrelated, 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 temporary use rights, it transferred the hotel complex, or rather, several specialized premises in it. In addition to it, there were other lease agreements that applied to other parts of the complex. The court ruled that the agreements were not related because the items were different.

What about time?

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

To this day, judicial practice does not have any specific solution on this aspect. There are many cases of judicial practice when the final decision was made in favor of recognizing transactions as unrelated, since there was a fairly significant gap between them in time. But the conclusion of several contracts on one 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 contract, with one purpose - to avoid bringing the issue up for discussion by shareholders.

Which time period is still considered suspicious, and which does not raise doubts and allows us to talk about the absence of a mutual connection? In the absence of specific indicators standardized by law, much will depend on the specifics of a particular case, but in general, 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 a plaintiff who believes that a certain enterprise has “carried out” several interdependent transactions must provide evidence of his position to the authority. Based on the information provided, the judge can decide to assign this classification or refuse to recognize the activities as such.

If the plaintiff presents information from which it follows that several of the previously specified criteria are met, but at the same time it clearly follows that each of the contracts is associated with unique responsibilities and rights, the decision will be in favor of the head of the enterprise who entered into the transaction. Simply put, the court will conclude that there is no relationship.

To prevent discord within the company, internal regulations should be adopted regulating the specifics of concluding large transactions, including aspects of the parties' interests. It must be remembered that recognition by the court of a chain of transactions as interrelated 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 and the meeting of directors.

such an organization is controlled or has significant influence on it by a legal entity and (or) individual;

such an organization controls or has significant influence over the legal entity;

such an organization and legal entity are controlled or significantly influenced (directly or through third legal entities) by the same legal entity and (or) the same individual (the same group of individuals).

7. A legal and (or) individual, as a rule, has the opportunity to determine decisions made by another legal entity in order to obtain economic benefits from the activities of the latter (controls another legal entity), when such a legal and (or) individual has:

by virtue of its participation in a business company (partnership) or in accordance with the powers received from other persons, more than fifty percent of the total number of votes attributable to voting shares (shares) in the authorized (share) capital of this business company (partnership);

the right to dispose (directly or through its subsidiaries) of more than twenty percent of the total number of votes attributable to voting shares (shares) in the authorized (share) capital of this business company (partnership) or contributions constituting the authorized (share) capital of this legal entity and has the ability to determine decisions made by such legal entity.

8. A legal and (or) individual has significant influence on another legal entity when it has the opportunity to participate in decision-making of another legal entity, but does not control it. Significant influence may occur due to participation in the authorized (share) capital, provisions of the constituent documents, concluded agreement, participation in the supervisory board and other circumstances.

9. The list of related parties, information about which is disclosed in the financial statements of the organization preparing the financial statements, is established by such organization independently on the basis of these Regulations based on the content of the relationship between the organization preparing the financial statements and the related party, taking into account the requirement of priority of content over form.

10. If during the reporting period the organization preparing the financial statements carried out transactions with related parties, then at least the following information is disclosed in the financial statements for each related party:

types of operations;

volume of transactions of each type (in absolute or relative terms);

cost indicators for operations not completed at the end of the reporting period;

conditions and terms for carrying out (completion) of settlements for transactions, as well as the form of settlements;

the amount of reserves formed for doubtful debts at the end of the reporting period;

the amount of written off receivables for which the statute of limitations has expired, and other debts that are unrealistic for collection, including through the reserve for doubtful debts.

Indicators that reflect similar relationships and transactions with related parties may be grouped, except in cases where their separate disclosure is necessary to understand the impact of transactions with related parties on the financial statements of the entity preparing the financial statements.

11. Information subject to disclosure in accordance with paragraph 10 of these Regulations must be disclosed separately for each of the following groups of related parties:

main business company (partnership);

subsidiaries;

predominant (participating) business entities;

dependent business entities;

participants in joint activities;

The main management personnel of the organization preparing financial statements. For the purposes of these Regulations, the main management personnel of the organization are understood as managers (general director, other persons exercising the powers of the sole executive body of the organization), their deputies, members of the collegial executive body, members of the board of directors (supervisory board) or other collegial management body of the organization, as well as other officials vested with authority and responsibility in matters of planning, management and control over the activities of the organization;

other related parties.

12. As part of information about related parties, the organization preparing financial statements discloses information on the amount of remuneration paid by such organization to key management personnel in the aggregate and for each of the following types of payments:

short-term remuneration - amounts payable during the reporting period and 12 months after the reporting date (wages for the reporting period, taxes accrued on it and other obligatory payments to the relevant budgets and extra-budgetary funds, annual paid leave for work in the reporting period, payment by the organization treatment, medical care, utilities, etc. payments in favor of key management personnel);

The organization independently establishes the list of related parties about which it is necessary to disclose information on the basis of PBU 11/2008, taking into account the requirement of priority of content over form. According to clause 4 of PBU 11/2008, related parties can be affiliated persons in accordance with the legislation of the Russian Federation and persons participating in joint activities. The list of persons who are affiliated is specified in the law “On Competition and Restriction of Monopolistic Activities in Commodity Markets.” The tax legislation defines interdependent persons. According to the provisions of the Tax Code of the Russian Federation (Chapter 14.1), the list of interdependent parties is wider than affiliated ones. What criteria should be followed in order to reflect all related parties in the explanatory note to the annual reports?

we inform you the following: We must be guided only by the parties’ ability to influence the activities of any of them.

The rationale for this position is given below in the materials of the Glavbukh System

1. Help article:

Related parties in financial statements- these are organizations or entrepreneurs (citizens) who, due to their property (official) status, can influence the activities of the organization preparing financial statements, or those persons whose activities can be influenced by the organization itself preparing financial statements.

Related Party Information

The organization independently establishes the list of related parties about which it is necessary to disclose information, taking into account the requirement of priority of content over form (clause 9 of PBU 11/2008)*.

Information about related parties must be disclosed:*

• regardless of transactions, if the organization controls another organization or related organizations are controlled by the same organization (the same individual).

This order follows from the paragraphs and PBU 11/2008*.

In the first case, for each related party, disclose at least the following information:*

• the nature of the relationship (according to the criterion of controllability in accordance with clause 6 of PBU 11/2008);
• types of operations;
• volume of transactions of each type (in absolute or relative terms);
• cost indicators for operations not completed at the end of the reporting period;
• conditions and terms for carrying out (completion) of settlements for transactions, as well as the form of settlements;
• the amount of reserves formed for doubtful debts at the end of the reporting period;
• the amount of written off receivables for which the statute of limitations has expired, and other debts that are unrealistic for collection, including through the reserve for doubtful debts.

Disclose information separately for each of the following groups:*

• main business company (partnership);
• subsidiary business companies;
• predominant (participating) business entities;
• dependent business companies;
• participants in joint activities;
• key management personnel;
• other related parties.

For key management personnel, indicate the amount of remuneration paid to them, both in aggregate and by the following types of payments:

• short-term remuneration after the reporting date (payable during the reporting period and 12 months after the reporting date, salary and taxes and contributions accrued from it, vacation pay, payment for treatment, medical care, utilities, etc.);
• post-employment benefits and other payments that ensure the payment of pensions, as well as other social guarantees;
• remuneration in the form of options of the issuer, shares, shares, participation interests in the authorized (share) capital and payments based on them;
• other long-term rewards.

Elena Popova,

State Advisor to the Tax Service of the Russian Federation, 1st rank

3. Article:Application of PBU 11/2008 in construction

At the first stage, it is necessary to identify those organizations and individuals that are associated with the reporting construction company (are related parties)*.

The second stage is to prepare the necessary information on transactions with related parties*.

Let's look at each of these stages in more detail*.

Determining related parties

Related parties are legal entities and individuals who can influence the activities of the company. Or, on the contrary, these are those persons whose activities can be influenced by a construction company. The list of related parties is given in paragraph 4 of PBU 11/2008. First of all, these include organizations and individuals who are affiliates of the reporting company. These include, in particular:
– members of the board of directors or supervisory board, as well as managers of the construction company (for example, the general director);
– organizations belonging to the group of persons to which the construction company itself belongs (and if we are talking about a financial and industrial group, then members of the board of directors, as well as the heads of these organizations);
– organizations and individuals who have the right to dispose of more than 20 percent of the total number of votes attributable to the voting shares of a given construction company, or having a stake in its authorized capital exceeding 20 percent;
– organizations in which this construction company has the right to dispose of more than 20 percent of the total number of votes attributable to voting shares, or organizations in which this company owns more than 20 percent of the authorized capital.

Here are several situations where organizations and individuals are related parties to the Avangardstroy construction company.

1. The Avangardstroy company owns 30 percent of the ordinary shares of the Stroyproekt company.

3. Egorov V.S. is the General Director of the construction company Avangardstroy.

4. The Avangardstroy company owns 40 percent of the ordinary shares of Cement OJSC. The Cement Company owns 70 percent of the ordinary shares of Cement-1 CJSC and 30 percent of the ordinary shares of Cement-2 CJSC.

In this case, Avangardstroy and Cement are related parties.

But are the companies “Cement-1” and “Cement-2” related parties for Avangardstroy? To answer this question, let’s determine how many shares in the Cement-1 and Cement-2 companies the Avangardstroy company controls (indirectly through Cement OJSC).

The Avangardstroy company owns 28 percent (40% - 70%) of the authorized capital of the Cement-1 company. Therefore, these organizations are related parties.

But in the Cement-2 company, Avangardstroy owns only 12 percent (40% - 30%) of the authorized capital. This means they are not related parties.

5. The Avangardstroy company has a permanent partner (a brick factory), from whom it regularly purchases large quantities of bricks. Avangardstroy and its supplier are not otherwise connected in any way. In such a situation, the provisions of PBU 11/2008 do not allow the supplier and the Avangardstroy company to be classified as related parties.

In addition to affiliates, related parties for a construction company also include:
– organizations or individuals conducting joint activities with it;
– a non-state pension fund acting in the interests of employees of a construction company or other organization that is its related party.

As we can see from the last wording, the non-state pension fund that has entered into an agreement not with the construction company itself, but with an organization associated with it (for example, with a parent or subsidiary), is also considered a related party. Consequently, in order to ensure the reliability of reporting, the construction company will have to negotiate with all organizations associated with it so that they inform it about all the facts of concluding agreements with non-state pension funds.

Selecting the necessary information

If there are a large number of related parties, it is impossible to reflect all the information about them, therefore the Regulations require that only the most essential ones be indicated.

We identify the most influential parties. At this stage, related parties are selected, information about which must be included in the explanatory note to the annual financial statements. That is, from all organizations and individuals that are related parties for a construction company, you need to select those who meet at least one criterion given in paragraph 6 of PBU 11/2008. The criteria are as follows:
– the construction company is controlled or significantly influenced by an organization or individual that is a related party to the company;
– the construction company controls or has significant influence on an organization that is a related party for this company;
– the construction company and the related party organization are controlled or significantly influenced (directly or through third legal entities) by the same legal entity or individual (the same group of individuals).

Significant influence is the ability to participate in the decisions of another legal entity without controlling it. Significant influence may occur due to participation in the authorized (share) capital, provisions of the constituent documents, concluded agreement, participation in the supervisory board and other circumstances. This rule is contained in paragraph 8 of PBU 11/2008.

And in addition, now it is necessary to reflect:
– conditions and terms for carrying out (completion) of settlements for transactions, as well as the form of settlements;
– the amount of reserves formed for doubtful debts at the end of the reporting period;
– the amount of written off receivables for which the statute of limitations has expired, and other debts that are unrealistic for collection, including through the reserve for doubtful debts.

This is the established minimum information.

We will present a possible option for disclosing information in a separate section of the explanatory note for 2008 on relationships with those related parties with whom the Avangardstroy construction company carried out significant transactions or had a significant balance of payments as of December 31, 2008.

Thus, one of the related parties of Avangardstroy LLC is the open joint-stock company Cement Plant, about relations with which the Avangardstroy company wrote the following in an explanatory note:

Avangardstroy LLC owns 25 percent of the ordinary shares of Cement Plant OJSC. JSC "Cement Plant" is a regular supplier of the Avangardstroy company.

During 2008, Cement Plant OJSC shipped cement to Avangardstroy LLC in the amount of RUB 21,150,000. Settlements between companies were carried out in cash.

As of December 31, 2008, the accounts payable of Avangardstroy LLC to Cement Plant OJSC for the supplied cement amounted to RUB 543,000.”

We reflect payments to the management of a construction company. The explanatory note should also include details of the income received from the company by its key management personnel.

In particular, we are talking about payments to the director, members of the board of directors and the supervisory board of the construction company. Moreover, you need to indicate not only the salary, but also dividends, payment for treatment, services provided, etc.

All payments must be presented separately in the context of short-term and long-term remuneration. In this case, short-term remuneration is considered to be amounts payable during the reporting period and one year after the reporting date.

Long-term are amounts that are payable one year after the reporting date. This is stated in paragraph 12 of PBU 11/2008.

The obligation to indicate in the explanatory note the amounts of payments to key management personnel is new - it was not in the previous PBU 11/2000.

What requirements must be met?

When reflecting information about transactions in an explanatory note, the following must be taken into account.

Information must be disclosed separately for each of the groups of related parties:
– main business company (partnership);
– subsidiaries;
– predominant (participating) business entities;
– dependent business entities;
– participants in joint activities;
– key management personnel of the organization preparing financial statements;
– other related parties.

Please note the following. For related parties that control each other, an additional requirement is established: the nature of their relationship must be described in the explanatory note, regardless of whether transactions between them were carried out during the reporting period or not.

And one more mandatory requirement: the construction of analytical accounting must ensure the generation of information about related parties provided for by the Regulations (Article 15 of PBU 11/2008).

To fulfill this requirement, the company will have to make adjustments to the organization of its accounting (introduce additional analytics).

Who are the management personnel?

The main management personnel of the organization, according to the clarification introduced in Article 11 of PBU 11/2008, means:
– members of the board of directors (supervisory board) or other collegial management body of the organization;
– managers (general director, other persons exercising the powers of the sole executive body of the organization);
– their deputies;
– members of the collegial executive body of the organization;
– other officials who are vested with authority and responsibility in matters of planning, management and control over the activities of this organization.

September 9, 2008 O.Yu. Komarova,

Director of the Accounting Department

company "ACADEMY OF AUDIT"

Sincerely,

Gennady Vinnikov, expert of the Glavbukh System.

Answer approved by Alexander Rodionov,

Deputy Head of Expert Support.

A question about the interconnectedness of transactions raises the problem of their validity. And the recognition of transactions as invalid entails significant material problems. Any transactions are made with a specific economic goal that one or another entity seeks to achieve. However, sometimes it is impossible to achieve it with the help of a single agreement, and participants in the turnover are forced to make a whole range of transactions that are inherently interrelated. In practice, due to the lack of legislative recognition of the concept of interconnectedness and the composition of the features that determine the interconnection, many problems arise. Let's identify ways to solve them.

The Federal Antimonopoly Service of the Volga-Vyatka District in one of its resolutions outlined the following difficulty: “The law does not contain either a definition of interrelated transactions or indications of possible criteria for classifying two or more transactions into this category” (resolution dated August 27, 2008 in case No. A28-10722/ 2007-412/9).

At the same time, the concept of interrelated transactions is found in Federal Laws dated 02/08/1998 No. 14-FZ “On Limited Liability Companies” and dated 12/26/1995 No. 208-FZ “On Joint-Stock Companies”. It states that large transactions include, but are not limited to, one or more related transactions. That is, if two or more transactions are interrelated, they may be considered one major transaction and require an approval process. Here, the definition of interrelated transactions is necessary to summarize the prices of transactions and, as a result, to classify them as large. The same thing happens with transactions in which there is an interest; Several such transactions, related to each other by certain characteristics, can also be made. And they require approval by the general meeting of participants (shareholders) of the company or the board of directors.

The legal vacuum in determining the interconnectedness of transactions gives rise to many questions and contradictions when solving problems with large and security transactions (loan, guarantee or pledge), and interested party transactions. Security transactions, where there seems to be an obvious connection, on the contrary, may not be recognized by the court as interconnected. In certain circumstances, bill transactions may also be considered interrelated.

Criteria for related transactions

We can talk about interconnectedness, for example, in the following cases:

• upon sequential transfer of property to the authorized capital of the company being created;
• upon acquisition of more than 25% of the company’s securities and related transactions for the acquisition of securities from other shareholders;
• with a loan and collateral to ensure its repayment;
• when selling real estate in parts over a short period of time.

The main criteria for the interconnectedness of transactions, developed by judicial practice (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated February 27, 2007 No. KG-A40/13601-06), are as follows:

1. Unity of economic purpose of transactions.
2. Mutual influence and interdependence of one transaction on another. One transaction without the other does not give rise to independent rights and obligations of the parties.
3. Single entity or interconnectedness of the parties to the transaction: transactions were made with one person or with his affiliates.
4. Unified legal nature of transactions. Homogeneity of transactions - concluding transactions of the same type, type.
5. The occurrence of adverse consequences for society as a whole or its participants as a result of a transaction.
6. The subject of the agreement is homogeneous property of interrelated transactions or a single intended economic purpose and technological interconnection of the property.
7. A short period of time between the conclusion of transactions or the simultaneity of their completion.
8. An increase in the total price of a single transaction by each concluded agreement.

Let's consider the listed criteria.

Purpose of the transaction

As a result of a chain of transactions, society must come to one common economic goal for the sake of which they were concluded; achieve one legal result. For example, withdrawal of assets, transfer of property as a contribution to the authorized capital, loss of rights to any real estate or enterprise. Or the funds received from transactions are used to solve one specific problem. Then we can assume the existence of a mutual connection. Most often, this criterion is present when making a major transaction.

A single economic goal may be the consolidation of property in respect of which transactions are concluded in the ownership of one person (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 22, 2009 No. 6172/09, determination of the Supreme Arbitration Court of the Russian Federation dated March 27, 2012 No. VAS-17643/11, resolutions of the Federal Antimonopoly Service of the Volga Region dated 03/14/2012 in case No. A55-2767/2011, Ural District dated 02/24/2011 No. Ф09-6916/10-С4 in case No. A47-3024/2010).

Mutual influence and interdependence of transactions

This criterion is expressed in the fact that the contracts create dependent or subordinate rights and obligations of the parties (the obligations are the same or similar) or that interdependent persons took part in the conclusion of the contracts. Thus, the Supreme Arbitration Court of the Russian Federation, in its ruling dated December 17, 2008 No. VAS-15690/08 in case No. A40-53853/07-134-355, established that transactions were concluded between different persons not affiliated with each other, they are not aimed at ensuring the same obligations and give rise to independent rights and obligations. Therefore, they cannot be recognized as interconnected.

Please note that the purchase and sale agreement and the deed of offset between the same persons are not interrelated transactions.

Judicial practice

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The parties entered into a purchase and sale agreement for the property complex, and later signed an act of offset of mutual claims. The seller offset its debt to the buyer for previously supplied materials, and the buying company, in turn, offset its debt to the seller under the purchase and sale agreement. As the plaintiff mistakenly believed, the purchase and sale agreement and the deed of offset are interconnected major transactions.

The court indicated that the act of offset confirms the mutual fulfillment of obligations by the parties and is one of the forms of settlement. The transactions were not aimed at achieving a single economic goal, they are not of the same type, the property specified in them is not used for a general purpose (Resolution of the Federal Antimonopoly Service of the Ural District dated September 22, 2009 No. F09-3260/09-S6 in case No. A76-11596/ 2008-5-390/85).

Single subject composition

When analyzing judicial practice, it is striking that in cases of discrepancy in the subject composition of contracts, there is usually no mutual connection. On the contrary, if contracts are concluded with one person or with its affiliates, this speaks in favor of the interconnectedness of transactions.

The interconnection of transactions is also obvious when the party is several companies with an identical composition of founders or when there are family ties between them.

In practice, we can distinguish different types of participation of parties when making transactions:

• participants in transactions or participants (shareholders) of companies participating in transactions are in any relationship (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 22, 2009 No. 6172/09, dated December 9, 2010 No. 8455/10, FAS North Caucasus District dated April 26, 2010 to case No. A61-1477/2009);
• the entities that acquired the property carry out joint activities for its operation (Resolution of the Federal Antimonopoly Service of the East Siberian District dated July 24, 2003 No. A74-3987/02-K1-F02-2244/03-C2);
• transactions are simultaneously concluded with the same person (determination of the Supreme Arbitration Court of the Russian Federation dated May 10, 2012 No. VAS-2820/12).

Major deals

The criterion of subject composition is successfully revealed when analyzing large transactions.

Essentially, the question of interconnectedness in any transaction arises along with the question of recognizing it as major (hence, requiring or not requiring approval by the board of directors or general meeting). If a major transaction has not passed the approval procedure, then there is a high probability that it will be declared invalid in court. It happens that a transaction formally meets the criteria of being large, but is not risky. The transaction is considered to have been entered into in the ordinary course of business. But until the normality of the transaction is proven, it a priori requires approval.

Sometimes you can't expect approval. For example, when alienating an organization’s expensive property, most often real estate. Then a scheme of splitting transactions into several small ones is used. First, property or a share in ownership is determined at a value of no more than 25% of the book value of the assets. This property is then sold to intermediary buyers, who resell the acquired property to the real buyer. Intermediaries are introduced into the scheme with the goal of making the final buyer a bona fide purchaser who does not know and cannot know about the violations in which the property is alienated. However, it is often forgotten that the owner has the right to reclaim property received even by a bona fide purchaser.

Judicial practice

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A clear example was the decision of the Arbitration Court of the Ryazan Region dated 08/01/2008 in case No. A54-836/2008-C15, supported by the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09/22/2009 No. 6172/09. In this case there are almost all the characteristic signs of a subjective relationship. The court recognized contracts for the sale and purchase of real estate and shares in common property as interrelated transactions.

The scheme involved several intermediary links through which property was repeatedly resold. As a result, all the property ended up with one acquirer. And this indicates the existence of a single economic goal - the transfer of property into the ownership of one person. It is noteworthy that all transactions were completed within a short period of time - seven months, and resale transactions were carried out a month or a month and a half after the transfer of ownership rights was completed.

The arbitrators indicated that individual parts of the building could be used for different purposes and were not connected by a single technological cycle; they could act as an independent object of civil circulation. However, this fact did not prevent the court from recognizing the transactions as interrelated and noting the general purpose of the sold property - use for production purposes. The price of the sold property did not exceed its book value by much; during resale, the markup was insignificant, that is, there was no direct benefit.

All intermediary firms were registered several days before the transaction, and one of them was in the process of voluntary liquidation at the time of the trial. The companies participating in the scheme were interconnected either by the relationship of the founders or by joint participation in legal entities. The total cost of interrelated transactions exceeded half (!) of the book value of the assets of the original owner. As a result, the transactions were declared invalid, and the court applied the restitution procedure.

Examples of similar decisions are contained in decisions of the Federal Antimonopoly Service of the North-Western District dated 05.13.2009 in case No. A52-3080/2008, West Siberian District dated 03.31.2009 No. F04-1612/2009(3866-A70-13), Ural District dated 10.27. .2008 No. F09-5390/06-S4, Volga District dated May 17, 2007 in case No. A65-21164/06-SG1-10.

As you can see, such schemes are not the best way to avoid mandatory approval.

Interested Party Transactions

As for interested party transactions, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 15749/10 dated April 12, 2011 in case No. A73-225/2009, takes the following position: several interrelated transactions aimed at achieving a single result and completed by several persons, some of whom are interested in their execution are transactions with interested parties. A person interested in completing at least one of the related transactions is considered as interested in completing all transactions.

The most common way to avoid the approval procedure is to introduce another, uninterested person between the company and the interested party. Thus, instead of one interested party transaction, two are subsequently concluded, each of which individually is not an interested party transaction and, accordingly, does not require approval. The courts allow the existence of interests in such transactions. Thus, the Federal Antimonopoly Service of the Central District, in a resolution dated May 23, 2011 in case No. A09-8256/2010, recognized that there was an interest in the transaction, because the property subsequently passed from an uninterested buyer to the son of the company director.

At the same time, according to the Tenth Arbitration Court of Appeal, a significant period of time between the conclusion of transactions for the sale of the company’s property indicates a lack of interest and their validity, even if as a result of the last transaction the property passed to the head of the company (resolution dated August 25, 2011 in case No. A41-4009/11).

Thus, there can be only one recommendation here: if it is known in advance that a number of interrelated transactions or interested party transactions are to be concluded, it is better to approve them immediately. If the qualifications of transactions become clear later or open unexpectedly, you can receive approval for further transactions. In addition, it is possible to approve transactions after the fact, after they have been completed.

Unified legal nature of transactions

The law does not provide an interpretation of the term “nature of the transaction,” leaving room for judicial discretion. However, it can be determined through the position in the system of other transactions (homogeneity), by the coincidence of the text of contracts and their essential conditions. Transactions are homogeneous when they are made in similar commercial or financial conditions with identical objects (Clause 5 of Article 105.7 of the Tax Code of the Russian Federation). Commercial terms include characteristics of assets, timing of obligations, payment terms, etc.

In the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 2820/12 in case No. A12-24511/10, the court recognized the conclusion of four property lease agreements simultaneously for the same period (49 years) as interrelated transactions. The uniform legal nature lies in the coincidence of the deadlines for the fulfillment of obligations, obviously, the texts of contracts, their essential conditions, and the property.

Judicial practice

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The FAS Povolzhsky District, by a resolution dated May 29, 2006, in case No. A72-11475/04-22/59, refused to satisfy the shareholders’ claim against the CJSC to invalidate (void) a major transaction consisting of four interrelated transactions: the CJSC’s contribution of non-residential premises to the charter capital of three different organizations and the conclusion of a purchase and sale agreement for non-residential premises. The claim was argued that as a result of the conclusion of transactions, 100% of the real estate of the CJSC was alienated, the value of which is equal to 50% of the book value of the assets; The authorized capital of the company decreased. According to the plaintiffs, the transaction was a sham, because As a result, the assets of the CJSC were transferred to other organizations.

The court found that the transactions concluded by the CJSC are not interrelated due to the heterogeneity of their legal nature and different subject composition. In addition, alienated objects do not belong to an indivisible thing and are subject to free alienation. All transactions were approved by the board of directors.

Adverse consequences

To satisfy claims related to recognition of transactions as interrelated, courts may require evidence of adverse consequences for the plaintiff or transactions involving abuse of rights.

Below are examples of court decisions when the courts do not recognize the claims as legitimate due to the lack of proof of the occurrence of adverse consequences.

Judicial practice

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The Federal Antimonopoly Service of the North Caucasus District filed a demand to invalidate the purchase and sale agreement and apply the consequences of its invalidity. By the resolution of 02/27/2013 in case No. A63-9384/2011, the claim was refused, since the disputed transaction was not large (it is not the market value of the alienated property that is taken into account, but the value determined on the basis of financial statements). The plaintiff did not prove the occurrence of adverse consequences for him as a result of the transaction.

In another case, the plaintiff demanded that the supply agreement and additional agreements to leasing agreements be declared invalid and that the consequences of invalidity of the transactions be applied. The court did not satisfy these requirements, since the disputed transactions were made in the normal course of business of the company, the violation of the rights and legitimate interests of a company participant by the transactions was not proven, and the infliction of losses to the company was not established (resolution of the Federal Antimonopoly Service of the West Siberian District dated 01.03.2013 in case No. A45- 15968/2012).

Another example is the ruling of the Supreme Arbitration Court of the Russian Federation dated December 25, 2012 No. VAS-16083/12 in case No. A55-39226/2009. The plaintiff demanded a supervisory review of judicial acts declaring transactions invalid and applying restitution in an insolvency (bankruptcy) case. But the execution of the contracts did not cause losses to either the creditors or the debtor, and in addition, the transactions were not concluded with abuse of law. The arbitrators concluded that the disputed transactions did not show any signs of interconnection.

Now we will give examples of cases where the plaintiff was able to prove adverse consequences.

Judicial practice

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In the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 2820/12 in case No. A12-24511/10, the plaintiff filed a demand for a supervisory review of judicial acts in the case of challenging land lease agreements and the application of restitution. The Presidium of the Supreme Arbitration Court of the Russian Federation established that after the completion of the disputed transactions, the company’s activities became impossible and were actually terminated; the transactions were interrelated and should have been approved as a single transaction.

By the resolution of the Federal Antimonopoly Service of the Central District dated December 15, 2010 in case No. A09-1461/2010, the plaintiffs’ demands for recognition of the lease agreements as invalid were satisfied. The real estate transferred under these transactions is a property complex interconnected by a single technological cycle for the production of steam and hot water. The leasing of property under several agreements was recognized by the court as a major transaction, since it resulted in the impossibility of carrying out the economic activities of the lessor.

Technological connection of property

To qualify interrelated transactions, the definition of property that is the subject of transactions as a single technological complex is quite often distinguished by the courts.

Judicial practice

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The State Property Management Committee appealed to the court to OJSC and individual entrepreneurs to invalidate purchase and sale agreements for real estate (garages, workshop, unfinished construction of a confectionery shop building) and movable (baking and other equipment) property. The requirement is motivated by the fact that the interrelated agreements are a major transaction completed without the consent of the Committee and the convening of the general meeting of the JSC. The court satisfied the claim in full, because The alienated property is part of a property complex interconnected by a single technological process for the production of grain products (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 25, 2006 No. A17-67/1-2005).

Another example is the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 27, 2008 in case No. A28-10722/2007-412/9. The shareholder applied to the court to invalidate three collateral (mortgage) agreements concluded by the company with the bank. In his opinion, these agreements are major transactions for the company, so they must be approved by the general meeting of shareholders of the company.

The arbitrators pointed out that the legislation does not contain a definition of interrelated transactions and does not indicate criteria that would allow two or more transactions to be classified as them. At the same time, the court defined the disputed pledge agreements as interconnected transactions, since the real estate and equipment transferred under these agreements are parts of a property complex, interconnected by one technological cycle for the production of meat products. Since the total value of the property pledged amounted to 76.71% of the book value of the company’s assets, and the decision to approve these agreements by the general meeting of shareholders was not made, they are invalid.

The conclusion of contracts with different objects, but allowing their use during the same production cycle, can be illustrated with another example. A company can purchase a complex of property that is the basis for creating a production line. Although not a single transaction individually falls under the concept of a major transaction, the conclusion of each of them is determined by a common intention. That is, concluding one contract and not concluding another is meaningless, because the company needs the entire facility for production. A similar approach is reflected in the resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 25, 2006 No. A17-67/1-2005, and the Federal Antimonopoly Service of the Central District dated August 1, 2007 No. A09-1053/07-2.

However, when property that is the subject of several agreements can be used for different purposes and can act as an independent object of civil rights, the court may refuse to invalidate the transaction. Thus, the Federal Antimonopoly Service of the Volga District, in a resolution dated 02.02.2007 in case No. A65-13386/2006-SG1-17, established that the subject of each agreement was property, which could represent an independent object of civil rights and civil circulation. Each of the agreements, therefore, was an independent transaction, since it created independent rights and obligations of the parties. The court did not find evidence of the interconnectedness of the transactions.

Time criterion

When identifying this sign of interconnectedness of transactions, it is important to determine the acceptable gap in the time of conclusion of transactions so that they can be called interconnected and preserving the unity of purpose.

Transactions concluded by a company with different persons, but having a homogeneous subject and completed on the same day, will most likely be recognized by the court as interrelated (resolution of the Federal Antimonopoly Service of the Ural District dated April 17, 2006 No. F09-2718/06-S5 in case No. A60-23680/05 ).

It is more difficult when a certain time interval passes between transactions, as is the case in most cases. Judicial practice usually proceeds from the fact that the interval between interrelated transactions should be less than a year (in some cases less than 10 months) (see, for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated 08/22/2007, dated 08/29/2007 No. KG-A40/8670- 07 in case No. A40-61536/06-52-446).

However, other situations also occur. Suppose a company decides to introduce a production line. To do this, one contractor is ordered to carry out design work, a second is ordered to manufacture and supply equipment, and a third is entrusted with the installation and launch of the line. A separate agreement has been concluded with each supplier. The last transaction may be concluded shortly before the delivery of the equipment, and the period for its conclusion may be quite distant from the period for concluding the first transaction. Despite the significant gap in time, all agreements are interconnected, as they pursue a single goal.

Thus, the time criterion is of secondary importance and it is advisable to use it only in conjunction with the others. This is confirmed, in particular, by the resolution of the Federal Antimonopoly Service of the Moscow District dated April 30, 2008 in case No. KG-A40/2338-08-P, when three buildings were sold simultaneously and even to the same persons, but the court did not see the relationship between the purchase agreements sales due to the fact that all buildings had different purposes.

Summation of contract prices

It is clear that the completion of several interrelated transactions as one large one increases the value of the alienated property. Regarding security transactions (for example, securing a loan agreement or a purchase and sale agreement - with a pledge, a mortgage agreement - with a guarantee), signs of unity of economic purpose and coincidence of the subject composition do not determine the relationship of transactions. Previously, the courts believed that the provision of one contract by another clearly indicates their interconnection, because By interconnection, the courts understood dependence on the basis of the legal connection of transactions (resolution of the Federal Arbitration Court of the Moscow District dated February 27, 2007 No. KG-A40/13601-06). Later, the courts changed this formal position.

Nowadays, arbitrators tend to indicate that the subjects of security agreements are different. Each of them has the characteristic of an independent transaction: the different legal nature of transactions gives rise to independent rights and obligations of the parties. Therefore, obligations under a surety agreement cannot be combined with obligations under a pledge or mortgage agreement. In addition, the fulfillment of obligations under one of the security agreements reduces or completely terminates the obligations under another security agreement (decision of the Arbitration Court of the Nizhny Novgorod Region dated 03/12/2012 in case No. A43-9562/2011, the Arbitration Court of the Lipetsk Region dated 09/06/2010 in case No. A36 -752/2009).

Judicial practice

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The Federal Antimonopoly Service of the North Caucasus District, in a resolution dated May 26, 2011 in case No. A32-56183/2009, did not recognize the transaction as major and, accordingly, invalid. The court considered the plaintiff’s argument about the relationship between the loan agreements and the pledge that the company undertook to enter into in order to ensure the fulfillment of the obligation under the loan agreement to be untenable. The main reason was the difference in the subject matter of the loan and pledge agreements. Neither the unity of the economic purpose nor the single subject composition convinced the court of the existence of a mutual connection between the transactions.

In another case, the court did not recognize the mortgage agreement and the surety agreement as interrelated. According to the arbitrators, interrelated transactions are those that are connected by one purpose and are capable of increasing the value of the alienated property. The amounts of obligations under surety and pledge agreements cannot be added up. Each transaction is not related to the other, since together they are heterogeneous in legal nature and create independent rights and obligations of the parties. In addition, the fulfillment of obligations under one agreement does not entail an increase, but a decrease or complete termination of obligations under another (Resolution of the Federal Antimonopoly Service of the Central District dated December 17, 2010 No. A36-752/2009). This opinion was supported by the Supreme Arbitration Court of the Russian Federation (determination dated March 15, 2011 No. VAS-2324/11).

Exception: transactions with securities

An exception to the above regarding interrelated transactions was made by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 17643/11 dated June 5, 2012. A professional participant in the securities market, when concluding several transactions to purchase securities, has the right to ignore some signs of interrelated transactions.

In the case discussed, an investment company purchased shares of an investment fund. Believing that the share purchase and sale agreements were interrelated and constituted a major transaction completed without appropriate approval, the shareholders of the investment company filed a lawsuit demanding that these transactions be declared invalid. In theory, the desire for a single goal when concluding transactions, a homogeneous subject, a short period of time between the completion of several transactions indicate the presence of a relationship between transactions.

However, the court concluded that there was no connection. The Presidium of the Supreme Arbitration Court of the Russian Federation decided that when qualifying transactions for the acquisition of securities made by a professional participant in the securities market, all of the listed circumstances cannot be considered as absolute proof of the relationship of such transactions and the need for their approval.

FYI

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The criteria of a limited period of time between the conclusion of transactions, homogeneity of contracts and a single subject composition are not decisive in bill relations. To conclude that bill transactions are interconnected, strong and convincing evidence must be presented (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 15, 2012 No. F03-4472/2012 in case No. A59-5034/2011). Otherwise, if there is insufficient evidence, the court will refuse to invalidate it (see also Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 15, 2005 No. 12856/04).

Signs of a lack of relationship

Having considered the criteria for the interconnectedness of transactions, we can formulate signs in the presence of which transactions will not be considered interrelated:

• completing each transaction regardless of the others;
• the fact that the execution (non-execution) of any transaction is not conditional on the completion (non-execution) of other transactions;
• unrelatedness between the transfer of property for each individual transaction;
• difference in the grounds for the emergence of obligations;
• absence of new interrelated obligations as a result of concluded transactions;
• difference in the subject composition of the parties to the transaction;
• the presence of a time gap between transactions.

There is a widespread opinion in the literature that it is impossible to formulate general conditions for the mutual connection between transactions. Nevertheless, it is possible to develop certain guidelines in resolving this issue.

Expert linguists conducted an examination of the concept of “interrelated transactions”. There is obviously a connection between them in the most ordinary, non-specialized meaning of this word, taken from dictionaries: “A mutual relationship between someone or something; mutual dependence, conditionality.” This means that in the usual sense, transactions are related to each other in which at least one of the elements of the contract coincides: object, subject, purpose or rights and obligations of the parties.

Since there is no firm objective criterion of interconnectedness, this issue is decided at the discretion of the court. Nevertheless, an analysis of judicial practice allows us to identify some criteria for the interconnectedness of transactions. But none of them have absolute significance. Each sign of interconnectedness can indicate the actual relationship of transactions only if it is compared with other conditions of a particular case. The coincidence of several signs allows us to resolve the issue in favor of the presence of a relationship.

Let us note once again that, according to the judges, interrelated transactions are transactions that have homogeneous conditions, subject and subject, pursue the same goal, are completed within a short period, exhibit mutual influence, entail adverse consequences and increase the value of property.

According to current tax legislation, related parties are companies, individual entrepreneurs or individuals whose relationships may affect their performance and financial results. Using existing levers of influence on each other, such business entities can deliberately underestimate business profitability, which will lead to a reduction in the fiscal burden and a lack of budget revenue.

Which persons are considered related?

Tax legislation pays a lot of attention to monitoring the activities of interrelated structures. This is understandable: they have in their hands a greater number of manipulations and schemes than other market participants, thanks to which they can deliberately underestimate profitability indicators and reduce or reduce to zero the amount of taxes transferred to the treasury.

According to the text of Art. 20 of the Tax Code of the Russian Federation, a group of related persons is citizens and organizations, the existing relationships between which can influence:

• conditions for concluded transactions;
• economic results of their activities;
• financial results of the work of structures in which they are vested with the right to make management decisions.

Article 20 of the Tax Code of the Russian Federation specifies three grounds for classifying persons as interdependent:

• the presence of consanguineous ties (for example, between parents and children);
• the ability to influence decisions made by commercial structures (with a share of direct or indirect participation in them of at least 25%);
• subordination of one person to another due to the characteristics of the position held.

The listed criteria a priori classify a person as interdependent, i.e. if they exist, it is not possible to prove the opposite.

The court reserves the right for regulatory authorities to recognize persons as legally bound if there are compelling reasons for doing so. When making a decision, the judicial body can be guided not only by the three listed criteria, but also based on their factors that allow one structure to influence the actions of another.

Why are interdependent persons interested in the Federal Tax Service?

The legislation determines that mutual influence of related persons is carried out by:

• participation of one company or individual in the capital of others;
• on the basis of agreements concluded between business entities;
• in other ways (for example, through family, personal relationships).

A group of related individuals has the ability to coordinate transactions to reduce costs and increase income.

For example, company A produces products whose unit cost is 100 rubles. She sells it to company B, which is registered abroad, at a symbolic cost of 101 rubles. As a result, A has a minimal or negative financial result, which reduces her income tax deductions to almost 0. The funds go abroad, and then the Russian tax services cannot control their use.

A similar scheme can be carried out with a Russian company under a special tax regime or a resident company of a special economic zone, let’s call it B. A sells goods to it at a symbolic price of 101 rubles, reducing its fiscal burden to a minimum. B sells products at market value, but does not pay VAT on turnover, and transfers income tax at a reduced rate. Thus, the budget does not receive the required income.

To prevent the treasury from incurring losses due to the “resourcefulness” of related persons, the tax category “controlled transactions” is introduced. This includes transactions made with foreigners, companies under special regimes, residents of special economic zones, mineral miners, etc., if their amount exceeds the limit established by law (most often 60-100 million rubles). Entities that took part in such purchases and sales are required to report annually to the Federal Tax Service.

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