Why is this happening? First, there is a great desire for whatever cost, even bumping into competition with the tax office, to mobilize additional funds to the state budget. And secondly, the law is not discharged on the mechanism of inclusion amounts of royalties to the customs value. The most interesting is that the importing companies have repeatedly appealed to the State Customs Service of the explanations, but the positive response had been received. For a considerable period of time, state authorities did not react to the fact that in the absence of clear and transparent procedure for calculating the royalties are not included in the customs value.

Declaration and investments

trouble attracting investment in Ukraine there is a long time. Even in the best of times, the Ukrainian economy could not be sufficiently attractive to Western investors focused on long-term projects. Considered too dangerous to invest your money in a country where political risks are very high, and the level of corruption, fixed by the various studies, defined as the highest in Europe. Furthermore, everyone knows the imperfection of the Ukrainian legislation, as well as what is often more than talk about the need to bring it into line with European standards is not going. Recently, foreign direct investment (FDI) in Ukraine said, and the global financial crisis. Yes, and the total amount of FDI attracted to Ukraine on January 1, 2009 per person - U.S. $ 775.3 - to put it mildly, is not impressive.

It would seem that if the state lacks the resources to attract new investment, creating an attractive investment climate for those who are already present in Ukraine, domestic officials are obliged. Instead, we see constant attempts to make life difficult for quite a law-abiding companies.

latest example of such a complication has been a passionate desire of the State Customs Service of Ukraine to increase the customs value of imported goods due to the inclusion of the so-called royalties.

Royalties, music and business

In fact, the royalties is a rather exotic for Ukraine payment, which is mainly remembered in the context of protecting the rights of musicians and entertainers. Anyway, the problem of clear definition of the term, as the mechanism for payment of royalties, respect (in the context of tax) is much broader range of subjects.

According to Art. 1.30 Law of Ukraine On taxation of income of enterprises, the term royalties means payments of any kind received as compensation for the use or the right to use any copyrighted … for the acquisition of any patent, registered mark on goods and services or trade mark …

obvious that the royalties should be paid to the company using the trademark to the company, which the brand belongs. There is a pertinent question: what are Ukrainian customs? But the fact that, according to customs officials, in determining the customs value for the price, which was actually paid or payable for the goods being valued shall be added further costs if they were not included in the price, which was actually paid or payable in such as: royalties and license fees relating to the goods being valued and that the buyer must pay, directly or indirectly as a condition of sale of the goods being valued, if payments are not included in the price, which was actually paid or payable. At least, mentioned in the draft, all-embracing tax clarification on the application of Article. 267 of the Customs Code of Ukraine (TAS). Thus, customs officials require the inclusion of royalties in the customs value of goods and pay it directly during the customs clearance of goods.

At the moment international companies have been in a situation where the State Customs Service requires them to an independent recalculation of the customs value, taking into account the royalties and related surcharges of value added tax and import customs duties for previous periods, - notes the executive director of the European business Association Anna Derevianko.

Share legitimately

This raises another complication. The fact that the royalty is usually 5% of the cost of goods sold. But at the time of customs clearance is often unclear when and at what price the goods will be sold. For example, a unit of goods imported to Ukraine in January, and will be sold in July or December. Moreover, the importing company can sell it to distributors on an individual for each of them a price that depends on many factors. Consequently, it is impossible to calculate in advance 5% of any amount should be included in the customs value.

However, Art. TAS 267 provides: adding to the price, which was actually paid or payable, is carried out only on thebasis of objective data is well documented and calculable. Art. 260 of the Code notes that the customs valuation uses the information prepared in a manner consistent with the principles of accounting. If the royalty is calculated on the basis of invoice value of goods, the definition of customs value possible. But most of these data may appear only on the fact of sale of goods, and not earlier.

Nevertheless, the precedent has already recorded the imposition of penalties on companies that customs officers charged with violations relating to non-inclusion of royalties in customs fees. Continue the trial of the case, and yet difficult to say what decision will be taken. It is clear only that the issue here is not the reluctance of importers to share with the state and the legislative mechanism for ensuring the calculation of royalties to be paid in the customs value.

no secret also that the inclusion of royalties in the customs value reduces the taxable income of the company, and consequently, the final amount of the royalties to be included, is, according to importers, increased interest in tax administration. It is clear that the reference to customs officers are unlikely to be impressed on the tax specialists. In mobilizing funds to the State budget are competitors. And, as you know, the competition between agencies is a desperate shortage of character …

Methods of calculating

Unfortunately, the Declaration on Ukraine's European choice is often not supported by concrete steps towards the harmonization of Ukrainian legislation with the European. And Ukraine's WTO accession has not brought significant changes. And it would be nice if our officials, faced with gaps in domestic legislation, acted according to European regulations.

In particular, in the settlement of calculating royalties, which may be included in the customs value of goods, the American Chamber of Commerce, based on worldwide experience, identifies two ways. The first provides that the royalties or licensing fees declared separately: the royalties are not included in the customs value at the time of declaration of goods in the process of customs clearance. This amount is determined by the fact of charging or paying royalties under a licensing agreement, as notified customs authority. This is determined on what goods credited (paid) royalties. Based on this calculated amount of customs duties and VAT which is payable in the budget.

The second method is to determine the amount of royalties or licensing fees at the time of customs clearance for the calculation. That is, for a certain period can be recalculated the actual amount of the royalties. Accordingly, the importer or pays extra taxes, or has the right to refund the overpayment. Add that, given the permanent problem with the VAT refund in Ukraine, the first way seems more acceptable.

What is not prohibited, is allowed

In democratic societies, as we know, not accompanied by the appropriate procedure in the law (as in this case) can not be grounds for punishment. And the law is not retroactive. Therefore, instead look for violators, should give a clear definition of royalties and develop a mechanism for its calculation. It is difficult to disagree with the official views of the American Chamber of Commerce, which demands immediate implementation is the inclusion of royalties in the customs value will (and already generates) misunderstandings and disputes between customs and importers, litigation and delay clearance of goods. And consequently, and to punish importers for royalties no reason.

course, easier to blackmail the importer of the detention of the goods at the border, to impose penalties for alleged violations, report the plan for exceed revenue, etc. But such treatment of investors does not make Ukraine more attractive to partners and harm law-abiding companies who have come to Ukraine with serious intentions.

In this context, is not surprising that in the latest ranking of competitiveness, prepared and promulgated by the International Economic Forum, Ukraine won 74 seats out of 134, losing for the year another position. And it is the instability of the forum of public policy experts called a major problem in our country. In terms of property rights protection Ukraine has lost five positions (124 seats), the protection of intellectual property - six (114), the independence of the courts - eight (119) …

Andrei Kolomiets

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