Learn the general rules of withholding tax in Russia
Under the general provisions of the RTC, income earned by an FLE and not attributed to a PE in Russia is subject to WHT in Russia (to be withheld at source). WHT rates are as follows:
Taxation of margins (rather than gross income received from the types of sales listed above) may be applied only if expenses are properly documented.
Income of foreign organisations (not performing activities in Russia through a PE) from the sale of certain listed securities of Russian entities (and their derivatives) is not regarded as income derived from sources in Russia subject to WHT.
The list of exempt income (not subject to WHT) also includes: (i) interest payments on Russian government securities; (ii) interest payments on tradable bonds, issued in accordance with the laws of foreign countries; and (iii) payments made by Russian companies to finance coupons on Eurobonds issued by special purpose vehicles (SPVs) incorporated outside of Russia.
Tax should be withheld by the tax agent and paid to the Russian budget. WHT rates may be reduced under a relevant DTT, provisions of which may be applied based on confirmation of tax residency, which is to be provided by a foreign company to the Russian tax agent prior to the payment date (no advance permission from the Russian tax authorities is required) and also as long as general conditions are fulfilled (proof of beneficial ownership, etc.).
The Russian tax authorities recognise the terms of treaties concluded by the Union of Soviet Socialist Republics (USSR) until they are renegotiated by the Russian government. Furthermore, the list of effective tax treaties is continuously updated.
Russia has ratified the MLI. It is expected that from 1 January 2021 the new rules will apply to Russia’s DTTs with those partners that have already ratified the MLI. Russia has chosen 71 DTTs, including DTTs with Austria, China, Cyprus, France, Hong Kong, Ireland, Latvia, Luxembourg, the Netherlands, Singapore, and the United Kingdom. When assessing the MLI’s applicability, it is necessary to consider whether the other party to the DTT has signed the Convention.
Russia expressed the intention to adhere to the strictest possible approach and impose the maximum limitations on providing tax benefits. However, the final approach depends on what choice the other party to a particular DTT makes.
Simplified Limitation of Benefits was the option selected by Russia, but most other countries selected Principle Purpose Test (PPT), thus, in most cases, Simplified Limitations of Benefits will not apply. Instead PPT will be applied in most cases; a treaty's benefits shall not be granted if obtaining that benefit was one of the principal purposes of any arrangement or transaction that resulted directly or indirectly in that benefit.
Dividends: WHT reduced tax rate is applicable only if the period of holding the shares or interests of the company paying the dividends is equal to or exceeds 365 days (the existing participation criteria will remain in place).
Capital gains from transfer of shares or interests of entities deriving their value principally from real estate: These gains may be taxed at the jurisdiction of the real estate location if at any time during the 365 days preceding the transfer these shares or comparable interests derived more than 50% of their value from such real estate.
Eliminating double taxation: Russia selected tax deduction method, as it is now (the same as set out in most of the DTTs with Russia).
The concept of the actual owner of income (i.e. the 'beneficial owner') was introduced into Russian tax legislation by the so-called 'Deoffshorisation' Law. It determines the ability to apply lower tax rates under a DTT.
There is not any test on beneficial ownership in the Russian tax legislation, which means that Russian tax agents cannot be entirely comfortable applying reduced tax rates on income paid abroad. In making any payments, they need to consider the risk of additional tax and penalties to be paid at their own expense.
According to the law, a tax agent has to request confirmation that a foreign entity is a beneficial owner of income. If the actual beneficial owner is known, the tax agent may apply the 'look through' approach (to use a treaty with the country where this beneficial owner resides). If the beneficial owner is located in Russia or a non-treaty country, the income paid is taxed under the RTC rules (note that a zero tax rate on dividends applies under special criteria).
The list below indicates the effective tax treaties (in alphabetical order):