6.3. Principles for determining the price of goods, works or services
The provisions of Art. 40 "Principles for determining the price of goods, works or services for tax purposes"; NC of the United States with 1 January 2012 (from the effective date of the Federal Law of July 18, 2011 № 227-FZ) are applied exclusively to transactions, incomes and (or) expenses on which are recognized in accordance with Ch. 25 of the US Tax Code up to the said lats.
The tax authorities, in exercising control over the completeness of the calculation of taxes, are entitled to add taxes and penalties when the prices of goods (works, services) applied by the parties to the transaction are diverted upwards or downwards by more than 20% from the market price of identical homogeneous) goods (works, services). Such additional assessment of the tax authorities may be made only in cases where they are granted the right to "check the correctness of the application of prices for transactions" 1. To check the correctness of the application of prices for transactions, the tax authorities can only in the following cases:
1) in transactions between related parties;
2) for barter transactions,
3) when making foreign trade transactions;4) in case of deviation by more than 20% upwards or downwards from the price level applied by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.
In cases when checking the correctness of the application of prices for transactions, the deviation of the chain of goods, works or services applied by the parties to the transaction has been set up or down by more than 20% from the market chain of identical (homogeneous) goods (works or services), the tax authority has the right to issue a reasoned decision on the additional charge of the tax and penalties calculated in such a way as if the results of this transaction were evaluated based on the application of market prices for the relevant goods, work or services.
The tax authority, in determining the appropriate deviation of the price of a transaction from the market price, should be guided by the following principles for determining the price of goods, works or services for tax purposes.
For the purposes of taxation, the price of goods, works or services specified by the parties to the transaction is accepted. Until proven otherwise, it is assumed that this price corresponds to the level of market prices.
When determining the market price and the size of the deviation of the transaction price from the market price, the usual additions to the price or discount should be taken into account when concluding transactions between non-mutually dependent persons. In particular, discounts are taken into account, caused by:
- seasonal and other fluctuations in consumer demand for goods (work, services)
- loss of quality goods or other consumer properties;
- the expiration (approaching the expiry date) of the expiration or sale of goods;
- marketing policy, including when marketing new products that have no analogues, as well as when promoting goods (works, services) to new markets;
- the implementation of experimental models and samples of goods in order to familiarize consumers with them.
The market price of the goods (work, services) is the price formed by the interaction of demand and supply in the market of identical (and in their absence - homogeneous) goods (works, services) in comparable economic (commercial) conditions.The market for goods ( works, services) recognizes the scope of circulation of these goods (works, services), determined on the basis of the possibility of the buyer (seller), realistically and without significant additional costs to purchase (sell) the goods (work, service) at the nearest to the buyer (seller) of the territory of the United States or outside the United States.
In determining the market prices of goods, works or services, transactions between persons who are not interdependent are taken into account. Transactions between interdependent persons can be taken into account only in cases when the interdependence of these persons has not affected the results of such transactions.
In determining the market prices of goods, work or services, information on the transactions with identical (homogeneous) goods, works or services concluded at the time of the sale of this good, work or service under comparable conditions are taken into account. In particular, such transaction conditions as the quantity (volume) of the goods delivered (for example, the volume of the goods lot), the terms of performance of obligations, payment conditions, usually applied in transactions of this type, as well as other reasonable conditions that may affect prices, are taken into account.
At the same time, terms of bargains in the market of identical (and in their absence - homogeneous) goods, works or services are recognized as comparable, if the difference between such terms or does not significantly affect the price of such goods, works or services, or can be accounted for by amendments.
In the absence of goods, work or services in the corresponding market for identical (homogeneous) goods, work or services, or because there is no supply in this market of such goods, works or services, and if it is impossible to determine the relevant prices due to the absence or unavailability of information sources for determining the market chain, the method of the subsequent sale price, is used where the market price of goods, work or services sold by the seller is determined as the price difference at which goods, works or services are sold by the buyer of these goods, works or services for their subsequent sale (resale), and the usual costs incurred by this buyer in resale (without taking into account the price at which the buyer, the seller purchased goods, works or services) and promotion of goods, works or services purchased by the buyer from the buyer, as well as the buyer's profit usual for this field of activity.
If the method can not be used, the subsequent sale prices (in particular, in the absence of information on the price of goods, works or services subsequently sold by the buyer), use the cost method, the market price of goods, works or services sold by the seller is determined as the sum of the costs incurred and the profit usual for this field of activity. At the same time, direct and indirect costs of production (purchase) and/or sale of goods, works or services, usual in such cases, costs of transportation, storage, insurance and other similar costs are taken into account in such cases.
By determining and recognizing the market price of a good, work or service, official sources of information about market prices for goods, work or services and stock quotes are used.
When considering a case, the court has the right to take into account any circumstances, having value for determining the results of the transaction, not limited to the above circumstances.
When selling goods (works, services) at government regulated prices (tariffs), established in accordance with US law, these prices (tariffs) are accepted for taxation purposes.
In determining the market prices of financial instruments of futures deals and market prices of securities, the features provided in Ch. 23 N To US "Personal Income Tax" and Ch. 2.5 11K US "Corporate Profits Tax".
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