Ukrain vs Sumykhimprom, December 2019, Supreme Court, Case No 818/1786/17

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The “Sumykhimprom” case concerned export transactions of fertilizers to a related party in Switzerland and import transactions of natural gas from a related party in Cyprus.

According to the tax authorities, the pricing of the controlled export transactions of fertilizers had been below arm’s length and the pricing of the controlled import transactions of natural gas had been above arm’s length.

Judgement of the Supreme Court

The Supreme Court confirmed the position of the tax authorities, determined based on the results of the audit of controlled transactions of a producer of mineral fertilizers, and the legality of additional corporate income tax in the amount of UAH 43 million and a reduction of losses carried forward by UAH 195 million.

If the company carried out potentially comparable with controlled uncontrolled operations, it can use them, including for the application of the net profit method. However, the delivery conditions must be comparable, since they affect the functionality of the company, the price and, therefore, comparability. In the calculation of profitability income and expenses from exchange rate differences must be taken into account.

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