Losses of goods related to natural loss and technological losses related to leakage during draining, filling, transportation, as well as theft
When goods (oil) are delivered to the relevant market, the buyer (participant in the transaction) usually experiences losses of goods associated with natural loss and technological losses associated with leakage during draining, filling, transportation, as well as theft. According to paragraph 1 of Article 18 of the Law on Transfer Pricing, information sources are used in order to determine the market price of goods (work, services) and other data necessary for the application of market price determination methods. At the same time, subparagraph 3) of paragraph 1 of the said article states that data from government agencies, authorized bodies of other states and organizations on prices, differentials, costs and conditions affecting the deviation of the transaction price from the market price are used. The tax authorities take into account the amount of losses during transportation in the differential according to the norms of natural loss in force at the time of sale of the goods in the country in which the goods were sold (transfer of ownership of the goods).
The norms of natural loss of goods are accepted only in the amount of losses within the limits of the norms specified in the relevant regulatory legal acts. Such losses, in the opinion of the tax authority, are objective and justified, related to the physico-chemical properties of the goods. All other losses that occur for other reasons: the condition of the vehicle, losses during transportation, loading and unloading - usually occur for subjective reasons, and, accordingly, should not be shifted to the buyer or seller (participant in the transaction). A study of cases and judicial acts has established that in most cases the courts have recognized the correct position of the tax authorities. At the same time, by the decision of the Astana City Court dated October 5, 2017, the application of K LLP regarding the reduction of oil loss costs was satisfied. Pointing to the applicant's submission of an agreement with the inspection company "I", reports containing loss indicators for each delivery, objectively reflecting the amount of losses during transportation, the court concluded that the tax authority had improperly applied information from the information source. By a resolution of the specialized judicial board of the Supreme Court dated January 12, 2018, the conclusions of the court of first instance were legitimately recognized as unfounded, the court's decision in this part was overturned with a new decision rejecting the applicant's claim.
The Court of Appeal agreed with the arguments of the tax authority that the amount of losses during cargo transportation should be taken into account in the differential according to the norms of the Order of the Ministry of Energy and the Ministry of Transport of the Russian Federation dated November 1, 2010 No. 527/236 "On Approval of the Norms of natural loss of oil and petroleum products during transportation by rail, road, water and mixed railway-water transport", which takes into account the type of transportation, climatic groups and features of transportation, taking into account the autumn-winter and spring-summer periods. In the case of the M Company's application, the courts of first and appellate instances, generally agreeing with the application of the said Order, correctly recognized the illegal actions of the tax authority regarding its application for the period from January 1 to November 1, 2010, since this regulatory legal act does not apply to relations that arose before its enactment. At the same time, the arguments of the appeal of the tax authority on the need to apply the norms of natural loss of oil and petroleum products during transportation and transportation in the territory of the Republic of Kazakhstan to the specified period were found to be untenable (NTD 153-39-208-2007, date of introduction December 4, 2007), since according to the inspection report and the decision of the higher authority on the complaint against the notification, the specified regulatory legal act was not applied.
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