The Supreme Court of the Russian Federation ruled to deem that dividends received from the sale of imported goods on the customs territory of the Eurasian Economic Union and paid to a person who simultaneously acts as a supplier of such goods and a founder of the buyer of goods in the Russian Federation are included in the customs value if they are related to the imported goods (Ruling No. 305-ES22-9875, clause 24 of the Review dated 26.04.2023, approved by the Presidium of the Supreme Court of the Russian Federation).

Thus, a practice has developed when arbitration courts apply a heightened standard of proof for counter-facts: (1) absence of a relation between supplies from a participant and profit from resale of goods; (2) absence of a relation between the net profit earned and dividend payments; (3) absence of undervaluation of supplies from a participant compared to the market value of similar goods. It is noteworthy that in this particular case, the entrepreneur is obliged to prove negative facts, rather than the state authority (customs) must prove the legality of its arguments and calculations.

It is extremely difficult to prove (3) the identity of the cost of goods if a foreign participant has already quitted the business entity and will not provide the respective documents regarding pricing or the price of its contracts with third parties. (1)

The relationship between the supply and payment of dividends can be traced from the literal content of the agreement, as well as vice versa, and in this case, the outcome of the dispute will be predetermined this or other way without considering other circumstances. Let's consider a possible mechanism for judicial proof (2) of absence of relationship between dividends and net profit, on the quality of which the outcome of the case may depend.

It should be noted that in clause 24 of the aforementioned Review of the Supreme Court of the Russian Federation, dividends are understood as strictly net profit, although there can be two sources of dividend payments. The net profit of a limited liability company is determined according to the accounting statements. In accordance with the Chart of Accounts for accounting of financial and economic activities of organizations and the Instructions for its application, the final financial result of the company's operations for the reporting year is formed and summarized in account 99 "Profits and Losses". At the end of the reporting year, when preparing annual financial statements, account 99 "Profits and Losses" is closed, and the amount of the net profit for the reporting year is debited from this account to the credit of account 84 "Retained Earnings". Thus, dividends can be paid to participants not only from the net profit earned by the company in the reporting period, but also from undistributed profits of previous years. Consequently, the provision of clause 24 applies to cases of dividend payments solely from net profit, but not from undistributed profits of previous years.

That is, in each case, it is important to arithmetically check whether the net profit received was sufficient to pay dividends specifically for the audited period. And here lies the subtlety – profit can be obtained only from sale of goods, or it can also be formed from non-operating income. The data from the Statement of Financial Results (form 0710002), which customs authorities typically examine during analytical activities and/or customs audits, show revenues and expenses for both components of net profit. The tax return reflects the paid profit tax in the amount of 20%. Thus, as a result of simple arithmetic operations, we obtain the net profit from sales, which should be compared with the accrued dividends. In addition, we will account 15% tax withheld by the Russian company when paying dividends to a foreign participant – and it is the obtained result that will accurately reflect whether the company paid dividends solely from net profit or also from undistributed profits of previous years.

After the source is established and if dividends are paid at least partially from net profit (for example, retained earnings – 3 million, net profit – 2 million, dividends – 4 million), we will proceed to verification of the customs' proportional calculation. Usually, customs calculates the revenue from the sale of goods supplied in the audited period, divides it by the dividends (without taking into account the source of payments), and obtains a certain coefficient – percentage. Then, the cost of each of the goods is multiplied by this percentage, and the increased customs value is obtained.

In other words, the dividends paid in this way are applied to imported goods, and the company that has already paid them to a participant must also pay a percentage of them to the customs in the form of an increase of the customs value. The higher this percentage is, the higher the additionally assessed customs value is. Next, it is required to analyze the possible sources of dividends in the audited period from net profit (in our example, 2 million), whereof 1.5 million are from sales, and 0.5 million are from other sources. It turns out that not all 4 million of dividends should be included in the calculation, but only those paid from the net profit of the audited period – 1.5 million. Such counter-calculation can reduce customs coefficient, and as a consequence, additional charges, which is essentially not a standard dispute based on law, but also on the amount, with the help of competent financial and legal analytics.