FLEs managed from Russia can be recognised as Russian tax residents. Russian tax residency means that the worldwide income of such entities is taxable in Russia.
The tax residency rules set basic and additional criteria for determining the place of management.
Russia will be recognised as a place of effective management of a foreign company if at least one of the following main conditions is fulfilled:
- An executive body (executive bodies) of a foreign company regularly carries out management activities in relation to that company from Russia (activities shall not be considered as carried out 'regularly' if they are carried out in Russia to a substantially lesser extent than in another state/states).
- The chief (executive) officers (persons who are responsible for and are authorised to execute planning, management, and control functions with regard to business activity of the company) mainly carry out executive management of that company from Russia.
If one of the above-mentioned key-criteria is satisfied for both Russia and any other jurisdiction, then Russia is considered to be the place of effective management of such foreign entity if one of the following additional criteria is satisfied:
- Maintenance of accounting or management reporting of the entity is performed in Russia (except for the preparation of consolidated financial and management statements, as well as analysis of the business activity of the foreign entity).
- Record keeping of the foreign entity is executed in Russia.
- Human resource (HR) management is executed in Russia (this may be interpreted in two ways, either as taking decisions with respect to HR matters from Russia or giving instructions to employees of the company from Russia).
The following activities of a foreign entity performed in Russia shall not by itself lead to Russia being recognised as a place of effective management of the company:
- Preparation and/or making decisions on issues related to competence of the general meeting of shareholders (participants) of a foreign entity.
- Preparation to the meeting of the Board of Directors (BoD) of the foreign entity.
- Execution of certain functions in Russia related to the planning and control of the foreign entity’s business activities (in particular, such functions may include strategic planning, budgeting, preparation of consolidated financial and management statements, analysis of the business activity of the foreign entity, internal audit, and internal control, as well as adoption (approval) of standards, methodologies, and/or policies applicable to all or most of subsidiaries of the particular foreign entity).
According to p. 8 of article 246.2 of the Russian Tax Code (RTC), a foreign legal entity performing activity in Russia through a subdivision is eligible to voluntarily recognise itself as a Russian tax resident.
If a foreign legal entity is recognised as a Russian tax resident, it is liable to pay Russian profits tax on its worldwide income, as well as other applicable Russian taxes.
The rules also specify four situations when a company may be deemed a Russian tax resident only on a voluntary basis. These situations are when a company is:
- a party to a production sharing agreement (PSA)
- an 'active' foreign holding or sub-holding company (subject to compliance with certain conditions)
- an operator of a new subsea field (or a direct shareholder of such an operator), or
- engaged as its core activity in offering for lease or sublease marine or mixed river-ocean vessels and/or the international transportation of goods, passengers, and their baggage, and providing related services.
Permanent establishment (PE)
A 'permanent establishment' is broadly defined in the RTC as 'a branch, division, office, bureau, agency, or any other place through which a foreign legal entity regularly carries out its business activities in Russia'.