On behalf of the Russian Federation

DECISION OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of September 16, 2013 No. 10012/2013

The substantive provisions of the decision are announced on September 9, 2013

The decision is made in full on September 16, 2013

The Supreme Arbitration Court of the Russian Federation as a part of the chief judge V. M. Tumarkin, E. N. Zarubina's judges, S. M. Petrova considered in proceeding in open court applications of Avtoframos open joint stock company, Volvo East private company, Oriflame Cosmetics limited liability company for recognition partially invalid the order of the Federal Tax Service of 27.07.2012 No. MMB-7-13/524 @ "About approval of form of the notification on controlled transactions, procedure for its filling, and also format of submission of the notification on controlled transactions electronically and about submission by the taxpayer of the notification on controlled transactions electronically" as not corresponding to the Tax Code of the Russian Federation.

Representatives took part in judicial session:

from applicants - Avtoframos open joint stock company, Volvo East private company, Oriflame Cosmetics limited liability company - Timofeev E. V. (powers of attorney of 11:04. 2013, from 25.03.2013), Erasov A. S. (powers of attorney of 11:04. 2013, of 01:04. 2013, from 25.03.2013);

from the Federal Tax Service - D.V.'s Volvach (the power of attorney of 22:08. 2013), Yevtushenko V. F. (power of attorney of 22:08. 2013), Zvankov V. V. (power of attorney of 15:01. 2013), Kupriyanov P. V. (power of attorney of 22:08. 2013), the Sheepherd O.V. (the power of attorney from 28.05.2013).

The protocol of judicial session was taken by the assistant judge M. V. Mokhova.

The court established:

the Avtoframos open joint stock company, Volvo East private company, Oriflame Cosmetics limited liability company (further - societies, applicants) appealed to the Supreme Arbitration Court of the Russian Federation with statements for recognition not corresponding to the Tax Code of the Russian Federation (further - the Code) and invalid the order of the Federal Tax Service of 27.07.2012 No. MMB-7-13/524 @ "About approval of form of the notification on controlled transactions, procedure for its filling, and also format of submission of the notification on controlled transactions electronically and about submission by the taxpayer of the notification on controlled transactions electronically" (further - the order of FNS of Russia), the notification on controlled transactions which approved form (appendix No. 1), format of submission of the notification on controlled transactions electronically (appendix No. 2), procedure for filling of form of the notification on controlled transactions (appendix No. 3), in the parts establishing filling of the following items (fields): 121 - 124, 131 - 135 Sections 1A; 040, 043, 045, 070, 080, 090, 100, 110, 120, 130, 140, 150th Section 1B; 020, 030, 060, 070, 080, 090th Section 2; 020, the 030th subsection I of Section 3 (regarding specifying of identification number of the physical person who is not the individual entrepreneur); subsection II of Section 3 (except data on nationality of the physical person who is not the individual entrepreneur).

Applicants claim that the order of FNS of Russia in the disputed parts does not correspond to Item 1 Article 4, to Item 3 of article 105.16 of the Code, violates their rights in the course of implementation of business activity, assigning the subsidiary duties which are not provided by the Code.

According to societies, administration of pricing in controlled transactions includes the following stages: detection of controlled transactions, purpose of tax audit, conducting tax audit, registration and consideration of results of tax audit, decision making by results of this check. At stage of detection of controlled transactions taxpayers represent only the data reflected in notifications on controlled transactions (further - notifications), specified in Item 3 of article 105.16 of the Code: calendar year for which data on the controlled transactions made by them are represented; subjects of transactions; information about participants of transactions: full name of the organization, and also identification taxpayer number (if the organization stays on the registry in tax authorities in the Russian Federation); surname, name, middle name of the individual entrepreneur and his identification taxpayer number; surname, name, middle name and nationality of the physical person who is not the individual entrepreneur; the amount of the gained income and (or) the amount of the made expenses (the suffered losses) according to controlled transactions with allocation of the amounts of the income (expenses) on transactions which prices are subject to regulation.

The code does not provide disclosure by taxpayers in notifications of other data on controlled transactions. The notification cannot be used by tax authorities for any analysis of compliance of transactions of taxpayers to market conditions; its purpose is only the message on the facts of making of controlled transactions for further tax audit of pricing. Inclusion in the notification of information, additional in comparison with stipulated in Item 3 articles 105.16 of the Code, leads to violation of the procedure of its obtaining by tax authorities, thereby tax audit is substituted for premature collection of different data.

In response the Federal Tax Service specifies statements that form (formats) of the notification on controlled transactions, the procedure for filling of this form and procedure for submission of the notification on controlled transactions are electronically approved by the Federal Tax Service in coordination with the Ministry of Finance of the Russian Federation according to Item 2 of article 105.16 of the Code; the order of FNS of Russia is registered in the Ministry of Justice of the Russian Federation 30.08.2012 No. 25323, therefore, it passed the legal examination. Sections of the order of FNS of Russia (Data on the controlled transaction (group of homogeneous transactions), Data on subject of the transaction (group of homogeneous transactions), Data on the organization - the participant of the controlled transaction (group of homogeneous transactions), the Information about the physical person - the participant of the controlled transaction (group of homogeneous transactions) contains information, stipulated in Item 3 articles 105.16 of the Code.

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