Relationships with vendors - how to? Part 1 Vendor - Reseller
Many Russian companies distribute software owned by vendors (including foreign ones). This inevitably raises the question of the correct contractual execution and, as a result, taxes. We intentionally divided this information into 2 parts to do without the immense “sheets” of the text.
Given the nature of the relationship, you can divide them into two blocks:
')
Each subsequent block depends on the previous one, so the wrong design of one entails new problems.
We will immediately determine that the vendor transfers to us the rights to sell its software products to third parties (end users). From the point of view of Russian legislation, we should talk about a license agreement, which provides for all possible ways to use the software reseller, as well as the right to conclude contracts with end users.
That court practice says this:
Or
In practice (especially when interacting with foreign vendors), the legal nature of contracts is almost impossible to determine.
First, vendors, as a rule, want to make agreements with end users themselves. Secondly, they give the right to sell software, but prohibit the conclusion of sub-license agreements.
It might look like this:
Distributor undertakes to advertise, promote and sell the Company's software and services directly or through its distribution network to end users.
And right there:
A distributor cannot act as a sublicenseer of the Company's software.
In this case, the contract can be interpreted as an agency or service contract (or a mixed contract) depending on the context.
But if you did not have the right to conclude such a contract, then you do not have the right to a VAT exemption. This must be taken into account.
According to paragraphs. 26 p. 2 Art. 149 of the Tax Code of the Russian Federation, operations on the transfer of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how), as well as transfer operations are exempt from value added tax. rights to use these results of intellectual activity on the basis of a license agreement. In this regard, the exemption from taxation by value added tax transfer of rights to use the software is applied only if there is a license agreement.
In the case when there is a mixed contract containing elements of the license, no VAT benefits are provided. This is indicated by the court and the Ministry of Finance (see, for example, the letter of the Ministry of Finance No. 03-07-07 / 66 dated 10/07/2010).
But what the court says in such cases:
It is clear that the reseller is constrained by the contractual conditions of the vendor, so any initiative in this matter is risky.
If the vendor prohibits the transfer of sub-license, then nothing remains but to conclude with the user:
In all these cases, the exemption for exemption from VAT can not be applied.
The conclusion of a sublicensing agreement despite the ban of the vendor is also dangerous for the end user. After all, it can also become the object of inspections by tax authorities or vendor claims (in fact, using the product can be considered illegal if the reseller does not have rights to transfer the license).
Therefore, the end user (mainly we are talking about organizations) should check the chain of product transfer and verify the legality of the contract.
For example, in one of the cases, the court drew attention to the following shortcomings in the documents (for more, see Decision on Case No. 74-3204 / 2009 dated September 22, 2009. AS of the Republic of Khakassia):
The absence of such information does not allow tracing the implementation of non-exclusive rights to specific types and amount of software under these contracts.
In this case, the court made another important conclusion.
Therefore, it is especially important to check not only your contract, but also its history.
The topic of vendors is quite extensive. In the next part, we will examine in more detail tax issues in transactions with vendors (including foreign ones).
Given the nature of the relationship, you can divide them into two blocks:
')
- Vendor - reseller.
- Reseller - user.
Each subsequent block depends on the previous one, so the wrong design of one entails new problems.
Vendor - reseller: what kind of relationship?
We will immediately determine that the vendor transfers to us the rights to sell its software products to third parties (end users). From the point of view of Russian legislation, we should talk about a license agreement, which provides for all possible ways to use the software reseller, as well as the right to conclude contracts with end users.
That court practice says this:
“... The conclusion of a license agreement is a prerequisite for all software users of any vendors, the legal and legal aspects of which are reflected in the legislation of the Russian Federation (Civil Code of the Russian Federation, part 4, ch. 69, art. 1235-1240)” (for more details see case number A65-3927/2015 dated 09.28.2015. 11th AAC).
Or
“... The essence of software licensing is not the purchase of computer programs in boxed or electronic form, but the purchase of a license is a special document giving its owner the right to use the results of intellectual activity under an agreement with the copyright holder (development company). A license (the same - a license agreement) is the basis of the relationship between the user and the copyright holder. The conclusion of a license agreement is a prerequisite for all software users of any vendors, the legal and legal aspects of which are reflected in the legislation of the Russian Federation (Civil Code of the Russian Federation, part 4, ch. 69, art. 1235-1240) (see details in Decision from 30.06. 2015 on the case number A65-3927 / 2015).
But it is in theory.
In practice (especially when interacting with foreign vendors), the legal nature of contracts is almost impossible to determine.
First, vendors, as a rule, want to make agreements with end users themselves. Secondly, they give the right to sell software, but prohibit the conclusion of sub-license agreements.
It might look like this:
Distributor undertakes to advertise, promote and sell the Company's software and services directly or through its distribution network to end users.
And right there:
A distributor cannot act as a sublicenseer of the Company's software.
In this case, the contract can be interpreted as an agency or service contract (or a mixed contract) depending on the context.
What does this mean for a reseller?
- It is not possible to enter into a sublicensing agreement with the end user. According to the norms of the Civil Code of the Russian Federation, it is impossible to transfer more intellectual property rights than you have. And in this design no rights at the reseller.
- VAT (or rather, its absence). The attractiveness of a license (sublicensed) contract is largely due to the absence of VAT.
But if you did not have the right to conclude such a contract, then you do not have the right to a VAT exemption. This must be taken into account.
According to paragraphs. 26 p. 2 Art. 149 of the Tax Code of the Russian Federation, operations on the transfer of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how), as well as transfer operations are exempt from value added tax. rights to use these results of intellectual activity on the basis of a license agreement. In this regard, the exemption from taxation by value added tax transfer of rights to use the software is applied only if there is a license agreement.
In the case when there is a mixed contract containing elements of the license, no VAT benefits are provided. This is indicated by the court and the Ministry of Finance (see, for example, the letter of the Ministry of Finance No. 03-07-07 / 66 dated 10/07/2010).
But what the court says in such cases:
“... only the rightholder can dispose of exclusive rights to the result of intellectual activity, in connection with which the intermediary organization has the right to distribute the software product, but does not have the right to use it in other ways, that is, it is not the owner of those rights that are transferred under the sublicensing agreement, consequently, intermediary organizations cannot conclude sub-licensing agreements with each other and with end users and exempt such operations from VAT ”(see details in Decision No. 74-3204 / 2009 dated 09.22.2009. AU of the Republic of Khakassia).
Reseller - the end user. What to do?
It is clear that the reseller is constrained by the contractual conditions of the vendor, so any initiative in this matter is risky.
If the vendor prohibits the transfer of sub-license, then nothing remains but to conclude with the user:
- supply contract (but applicable for boxed products);
- service agreement (technical support, support when connecting to software);
- agency agreement (interaction with the vendor).
In all these cases, the exemption for exemption from VAT can not be applied.
The conclusion of a sublicensing agreement despite the ban of the vendor is also dangerous for the end user. After all, it can also become the object of inspections by tax authorities or vendor claims (in fact, using the product can be considered illegal if the reseller does not have rights to transfer the license).
Therefore, the end user (mainly we are talking about organizations) should check the chain of product transfer and verify the legality of the contract.
For example, in one of the cases, the court drew attention to the following shortcomings in the documents (for more, see Decision on Case No. 74-3204 / 2009 dated September 22, 2009. AS of the Republic of Khakassia):
- The contracts do not contain details of documents certifying the exclusive rights of the licensor to the software.
- Contracts do not contain in the section “Subject of the contract” information on the name, type and number of non-exclusive rights to be transferred to the software. In this regard, the acts of transfer and acceptance of non-exclusive rights submitted by the applicant, the arbitral tribunal does not have the ability to correlate with licensing (sublicense) agreements, since the texts of the acts do not contain information that they are annexes to the named agreements.
The absence of such information does not allow tracing the implementation of non-exclusive rights to specific types and amount of software under these contracts.
In this case, the court made another important conclusion.
“... the applicant, being a sublicensee under the aforementioned contract, did not require sublicensors of documents confirming their written consent of the copyright holder to conclude a sublicense agreement with a third party by the licensee, thereby putting himself at risk and did not prove his right to use the software and conclude sublicensing agreements with third parties in the framework of the methods provided to the licensee by the right holder. ”
Therefore, it is especially important to check not only your contract, but also its history.
The topic of vendors is quite extensive. In the next part, we will examine in more detail tax issues in transactions with vendors (including foreign ones).
Source: https://habr.com/ru/post/296766/
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