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Territories are developing
The Federal Tax Service presented TOR residents an invoice for the benefits received
Lyudmila Kuznetsova General Director of LLC Agrohab
The development of the Far East is one of the priority areas of state policy in Russia. And the creation of territories of priority social and economic development, and the free port of Vladivostok with state infrastructure and tax preferences are an important step in this direction.
Federal law of 29.12.2014 of the year No.473-ФЗ “On Territories of Advancement of Socio-Economic Development in the Russian Federation” defines the rights and obligations of residents, both operating enterprises and newly created ones, which received state support for investment activity and are obliged to develop the economy of the region.
The existing enterprises of the Far East, which received the status of TOSED resident until June 26 2018 of the year, got a real incentive to continue investment development on more favorable terms. First of all, due to the application of benefits in terms of reduced insurance premiums in respect of payments to all individuals employed at the enterprise. The enterprises received legal savings, which they were able to put into development. The state, for its part, received the effect of the fact that new investment projects were initiated on the existing base of enterprises - accordingly, they did not have to spend money on creating new infrastructure.
However, with the position of the federal tax service on the interpretation of the federal law of 03.08.2018 No.300-ФЗ adopted by the State Duma of the Russian Federation, approved by the Federation Council of the Russian Federation, signed by Russian President Vladimir Putin, the activities of residents of TOSER and SPV for operating enterprises that received status before 26.06.2018 were divided into "before and after".
Paragraph 4 of Article 3 of the above federal law clearly states that the effect of paragraph 10.1. Articles 427 of the Tax Code of the Russian Federation regarding the application of reduced rates of insurance premiums for payments to individuals employed in new jobs are applied to residents of territories of advanced social and economic development located in the Far Eastern Federal District and residents of the free port of Vladivostok and apply to legal relations arising from 26.06.2018.
The Far East Development Corporation JSC, which is the authorized person to conclude agreements on the activities of residents in a letter No.001-6726 of 23.07.2019 of the year, clarifies that legal relations arising from 26.06.2018 of the year mean signing an agreement on carrying out activities of a resident and obtaining resident status .
However, the Federal Tax Service, in a letter of No. XB-28-2019 / 4 dated May 11 of May 10247, clarifies, as part of the implementation of this law, that with 03.08.2018 insurance payers who have received the status of a TOSED resident in the Far Eastern Federal District or an SPV resident both before and after 26.06.2018 , apply reduced premium rates solely on the basis for calculating premiums defined for individuals employed in new jobs.
The tax services at the location of the resident taxpayers of TOSED and SPV in the Far Eastern Federal District, who received the status of residents until 26.06.2018 of the year, made demands in June 2019 of the year to amend the calculation of insurance premiums from August 2018 of the year, canceling the preferences of the TOSED resident, referring not to legislation, and the position of the federal tax service.
But the legal force of a normative legal act - federal law of 03.08.2018 No.300-FZ, which established that the provisions of paragraph 10.1. Articles 427 of the Tax Code of the Russian Federation are applied with 26.06.2018 - it has greater legal force compared to the position of the federal tax service set forth in the letter No. BS-28-2019 / 4 dated May 11 of the year, both before and after.
In the event of a compulsory recovery by decision of desk tax audits by the tax service of insurance premiums not legally paid by decision, the residents of TOSED and SPV will be forced to cease their investment activity in the best case, and in the worst, declare bankruptcy. We are not talking about isolated cases, but about a systemic step: additional charges have been made to dozens of enterprises in different regions.
The position of the federal tax service is contrary to paragraph 2 Art. 5 of the Tax Code of the Russian Federation, which states that acts of legislation on taxes and fees that increase tax rates or worsen the situation of taxpayers do not have retroactive effect. Obviously, having received bills for previously received benefits, residents of TOSED and the free port of Vladivostok turned out to be extreme in this situation.
From our point of view, now many investors in the Far East will have to prove their case in court. Because otherwise, the preferential “trap” threatens to raise the question of the very existence of dozens of businesses that at one time literally took advantage of the preferences that federal law gave them.