The National Securities and Stock Market Commission (hereinafter – the NSSMC) has approved changes regarding the features of holding electronic general meetings of shareholders during the martial law period in order to bring the regulatory acts of the NSSMC into compliance with the Law of Ukraine “On Joint Stock Companies”.
Thus, approved decision No. 1451 of December 22, 2023 “On Amendments to Decision of the National Securities and Stock Market Commission No. 154 of February 16, 2023”, which entered into force on December 27, 2023, was published on the official website of the National Securities and Stock Market Commission.
The holding of electronic general meetings is carried out in accordance with the Procedure for convening and holding electronic general meetings of shareholders, approved by decision of the NSSMC No. 595 of June 2, 2023.
It is important that the requirements related to electronic voting of shareholders (their representatives), the possibility of shareholder participation in the discussion of agenda items using the means of the authorized electronic system, and other regulations regarding the functioning of the authorized electronic system, came into effect on January 1, 2024.
Decision No. 1499 of the NSSMC of December 28, 2023 adopted a decision on the authorization of the software and technical complex of the Central Securities Depository, intended for holding shareholders' meetings by means of electronic voting.
Thus, from January 1, 2024, during the period of martial law, general meetings of JSC shareholders, regardless of the content of the articles of association and other internal documents of the company, which regulate the procedure for convening and holding general meetings, can be held only in one of the following ways:
1) remote meeting in accordance with the Procedure for convening and holding remote general meetings of shareholders, approved by decision of the NSSMC No. 236 of March 6, 2023;
2) general meeting of shareholders of a joint-stock company, in which shareholders who own 100% of the voting shares participate, in accordance with the requirements of Article 59 of the Law of Ukraine “On Joint Stock Companies” (with the exception of cases when the place of general meetings is the temporarily occupied territories of Ukraine or the territory of a state that is recognized as an aggressor state under the legislation of Ukraine). At the same time, the total number of shareholders of a joint-stock company, the general meeting of which is held in accordance with this subsection, cannot exceed five people;
3) electronic general meetings in accordance with the Procedure for convening and holding electronic general meetings of shareholders, approved by decision of the NSSMC No. 595 of June 2, 2023.
The Ministry of Finance of Ukraine, by Order No. 725 of December 27, 2023, made changes to Order No. 673 dated December 7, 2023, as a result of which the Report on Controlled Transactions and Transfer Pricing Annex to Income Declaration were changed. Thus, the new edition of the Report on Controlled Transactions and Transfer Pricing Annex to Income Declaration of enterprises defined new form and approved changes to the Procedure for drawing up the Report on Controlled Transactions.
In Transfer Pricing Annex, information on controlled transactions is provided, in particular: the contract (agreement) according to which the controlled transactions are carried out, the Incoterms for supply, the exchange rate on the date of displaying the controlled transaction in the accounting records and the number of items of the transaction, as well as the grounds for assigning the transaction to the controlled, including the related persons.
In addition, during the self-adjustment of the price of the controlled transaction and the amount of tax liabilities, the taxpayer is obliged to indicate the contract (agreement) and conditions of sale (purchase) of goods (works, services) in the appendix of the shopping mall, among other information, as well as the minimum ( maximum) value of the price range/profitability and the amount of the adjustment.
The current version of the forms of the Report on Controled Transactions and TP Annex do not fully disclose the information necessary for tax control in compliance with the conditions of controlled operations of the arm's length principle, which leads to an additional burden on taxpayers as a result of appeals to them by controlling authorities for the purpose of obtaining tax information, in particular on:
- related persons and the taxpayer's indication of all reasons for classifying transactions as controlled;
- additions (changes) to the contract (agreement) and its conditions;
- conditions of supply of goods in accordance with the rules of "Incoterms";
- adjusted indicator and units of measurement of the sale (purchase) of goods (works, services);
- amount of funds actually received in the currency of the contract or the amount of the loan according to the terms of the contract in the currency of the contract, if the subject of the controlled transaction is a financial transaction;
- exchange rate on the date of the controlled transaction's display in accounting.
Order No. 673 stipulates that in the case of a non-resident submitting the Report for a permanent representative office through which the non-resident carries out activities in Ukraine, on economic transactions (including intra-economic settlements), such a report is submitted at a non-main place of accounting, i.e. at the place of accounting of a permanent representative office.
In the event that the non-resident has several permanent offices in different regulatory bodies, such a non-resident prepares the Report for a non-main place of registration, for each permanent office separately and submits it according to the place of registration of such permanent offices.
We will also pay attention to other innovations.
In the main part, in column 2 of the Report on Controlled Transaction, the full name of the taxpayer according to the registration documents is indicated. In case of submission of the Report by the non-resident who carries out economic activity on the territory of Ukraine through the permanent representative office, the full name of such non-resident must be indicated.
In column 3 of the Report on Controlled Transaction, in case of submission of the Report by the non-resident who carries out economic activity on the territory of Ukraine through the permanent representative office, the tax number and main code of the economic activity of such a non-resident must be indicated.
Column 8 is filled out only in the case of the non-resident submitting the Report on business transactions (including intra-business settlements) with permanent representative office, through which the non-resident carries out activities in Ukraine, and the sign "X" is placed.
Columns 8.1 – 8.4 indicate the full name of the permanent representative office through which the non-resident carries out activities in Ukraine and for which the Report is submitted, the EDRPOU code of the permanent representative office of the non-resident, the location of the permanent representative office, the name of the supervisory authority at the place of registration of the permanent representative office.
Column 5 indicates the product code (in 10-digit numerical format) in accordance with the Ukrainian classification of goods of foreign economic activity (UKT FEA). If the type code of the transaction object specified in column 3 is equal to 201 or 209, column 5 must include the product code in accordance with UKT FEA.
If the type code of the transaction object specified in column 3 is equal to 201 or 209, column 5 must include the product code in accordance with UKT FEA.
Also, column 6 indicates the service code in accordance with the Classification of Foreign Economic Services (CFES). If the code of the type of operation object specified in column 3 is equal to 204, 205, 206 or 207, CFES must be indicated in column 7.
In column 11, the code of the condition of the delivery of the goods in foreign economic transactions according to the rules of "Incoterms" is indicated. If columns 7 and 8 are filled with information about additions (changes) to the contract (agreement), column 11 contains information on the terms of delivery of goods taking into account such additions (changes) to the contract (agreement).
In column 11.1, in accordance with the Incoterms rules, the name of the place of delivery of goods (destination) is indicated.
If columns 7 and 8 are filled with information about additions (changes) to the contract (agreement), column 11.1 contains information about the name of the place of delivery of goods (destination), taking into account such additions (changes) to the contract (agreement).
Orders No. 673 and No. 725 enter into force on the day of their official publication. On the day of preparation of the material, the documents were not officially published.
The Cabinet of Ministers of Ukraine is working on the implementation of eExcise.
eExcise will help businesses protect their goods from counterfeiting, significantly simplify the procedure for obtaining excise stamps without unnecessary visits to tax authorities and bureaucracy, which is why dialogue between business and the state is one of the priorities of the project.
The Ministry of Digital Transformation reminds that in June 2023 the Verkhovna Rada adopted Law No. 3173-IX on eExcise, which became the basis for the creation of the future system.
The eExcise project is implemented by the Ministry of Digital Transformation together with the Ministry of Finance and the State Tax Service with the support of USAID / UK aid project TAPAS Project/Transparency and Accountability in Public Administration and Services.
