The Ukrainian group Rivneazot imports natural gas from – and exports mineral to – foreign related companies.
The tax authority carried out an audit and concluded that the controlled prices of these transactions had not been determined in accordance with the arm’s length principle, which had resulted in an understatement of taxable income.
Rivneazot disagreed. According to the company the CUP method had correctly been applied to the controlled natural gas import transactions and the TNMM had correctly been applied to the controlled export transactions.
In 2018 the Administrative Court decided in favor of Rivneazon and set aside the tax assessment. The court concluded that information provided by the company were sufficient to use the preferred CUP method with a defined market price range for natural gas.
The decision was then appealed to the Administrative Court of Appeals. The Court of Appeal upheld the decision of the Administrative court.
This decision was then appealed by the tax authorities to the Supreme Administrative Court.
Judgement of the Supreme Administrative Court
The Supreme Court partially set aside the decision of the Court of Appeal. According to the Supreme Administrative Court, amendments to the Tax Code of Ukraine, which took effect on 1 January 2015, introduced more clarity in regards to transfer pricing methods. The CUP method has priority (compared to other methods) in case of its applicability. However, the use of the CUP method for the controlled natural gas import transactions is not possible due to the absence of information on the underlying uncontrolled transactions. Therefore, the tax authority had rightly used the TNMM as the most appropriate method for determining the prices of these transactions.
Ukrain vs Rivneazot Oct 2019 no 817-1737-17ORG