License Agreement Tax Clause

Thus, royalties paid under the price of imported goods are charged for the importation and sale of goods imported into Russia. Royalties for other types of brand use are paid under the licensing agreement. This solution allows the parties to exclude royalties from the licensing agreement for the customs value of imported goods. In the case of the importation into the EuEU of products marked by a licensee who has entered into a licensing agreement with the trademark holder, the price of the imported products should include royalties paid under the licensing agreement. Russian customs authorities receive information on licensing agreements from the Russian Patent Office; if they find that a licensing agreement provides for royalties that are not included in the customs value of imported goods, the authorities adjust the customs value of the shipment. Adjustment of royalties according to transfer pricing rules Parties to a licensing agreement may attempt to circumvent the risks of free use of the corresponding rights by the taker and determine the official price of those rights (for example. B 1 USD per year). If the activity of the taker is significant in the context of the exploitation of the rights conferred on him under a licensing agreement, the tax authorities may consider that official price to be an unrelated price. In some cases determined by Russian law, tax authorities can verify that the royalties set by the contracting parties are equivalent to the market price. If they differ from the market price level, contract prices can be recalculated with a corresponding increase in additional taxes.

The basic method used to determine the market price of goods, works or services is the comparable method of market price, where calculating a market price is based on transactions involving similar goods, works or services made at the time of the sale of the licensed products and under comparable conditions. According to existing judicial practice, tax authorities often ask experts to examine the market in order to determine market prices and, on the basis of relevant reports from independent experts, to adjust the royalties provided by the parties in the contract and to collect additional taxes, penalties and fines. If Russia`s payment to the holder of foreign rights is subject to withholding tax, the most appropriate method is to increase the amount of licence fees agreed in the contract on the amount of withholding tax. It should be kept in mind that under the double taxation agreements, the licensee would be able to compensate for the withholding tax paid by the taker in Russia against the payment of the corresponding income tax or income tax in the licensee`s state. Therefore, it is necessary to define in the contract the obligation of the licensee to obtain from the Russian tax authorities a corresponding certificate concerning the amount of tax withheld and to make it available to the licensee in the contract. Listing royalties in the customs value of imported goods The agreement reached on 25 January 2008 between the Russian, Belarusian and Kazakh governments on the customs value of imported goods must include the price actually paid or payable for goods and other similar payments for the use of intellectual property rights (including payments for patents). Trademarks, copyrights) in imported products that were directly or indirectly affected by the buyer as a condition for the sale of imported goods.