Former President of” Rosneft “and the owner of the Independent oil company Eduard Khudainatov
«Rosneft» and NOCs Eduard Khudainatov members of the same group of companies decided to courts, examining the dispute over building where the NOC office is located. Tax tried to prove that the same group may be treated and the owner of the building – the company that tried to recover from the budget of 1.5 billion rubles. But in the appeal the parties went to the world, and the court quashed the previous instances
Former President of “Rosneft” and the owner of Nezavisimaya Edward Hudaynatov oil company leases its headquarters in the center of Moscow, in the building at Arbat Square, 1 (total area – 31 410.1 sq. m). The owner of the building – an unknown company “Zaeliko Real Estate” – more than a year pleaded with the tax authorities regarding VAT refund
In the course of proceedings, the courts of the first two instances have come to an unexpected conclusion: for example, that building that. Hudaynatov leases, was purchased with the money of “Rosneft” and its NPF “Neftegarant”. Also, the courts – in two instances – decided that “Rosneft” oil company Khudainatov “belong to the same group of companies”, a deal to sell the building on Arbat Square to its current owner had the only purpose of VAT refund in the amount of 1.5 billion rubles. But on Thursday, July 7, at the cassation side suddenly announced that they are ready to conclude the agreement. The Court approved it, to cancel the decision previous instances.
The building on Arbat Square, 1, which houses the headquarters of the NOC
From hands
Starting from 2012, the building on Arbat Square at least three times changed owners. “The investment project” Build it belonged to the company until January of 2012 it. During the bankruptcy proceedings, this company sold the building to pay off creditors (VAT on the sale of the company did not pay).
The buyer was the company “Novelty Estate.” She belonged to Nicholas Sudarikova (at that time – the general director of the IR “Region”), but the money under the deal – about 6.3 billion rubles. – Through a complex chain of financial firms to provide “Rosneft”, the Moscow Arbitration Court decided on the basis of tax audits and bank statements of materials (see diagram.). This conclusion was confirmed in appeal.
President of “Rosneft” at the time of the transaction for the purchase of the building company “Novelty Estate” was Hudaynatov. In May 2012, the head of the company he was replaced by former Deputy Prime Minister Igor Sechin. Hudaynatov until July 2013 continued to work in “Rosneft” his deputy, and then left the state company, in order to, as written media, to build from scratch its own oil business.
But even before Hudaynatov left “Rosneft” – in November 2012 – building on Arbat Square again changed its owner: by buying two FTRA under the control of the company “Region” of its ultimate owner became the APF “Neftegarant”, the court decided
. from the court’s records, it follows that such a complex structure of the deal could be necessary in order to get around a number of legislative restrictions: for example, according to the law of APF are not allowed to invest in assets with the encumbrance, and at the time of transaction “investment projects” building on Arbat Square was laid.
mystery shopper
The current owner of the building – the company “Zaeliko Real Estate.” Who is behind this firm – is unknown: only the decisions of the courts should be that the founder of the company – the Cyprus Zaeliko Trading. Its ultimate owner (a few Cypriot companies.) – A citizen of Cyprus Angel Paphitis
«Zaeliko Real Estate” purchased the building on Arbat Square in November 2013 for $ 302.08 million (9.87 billion RUB. the rate at the time).
Until the end of 2013, the building area is not used on the Arbat, and from September 2014 it rents created Khudainatov Independent Oil and Gas company (NOC) and its “daughter “it follows from the court’s records.
what are the terms of the company Khudainatov rented headquarters at” Zaeliko Real Estate “is unknown. Court this question is not considered, and the representative of the NOC at RBC questions refused to answer.
After the presidential 2012 elections yielded Hudaynatov president of “Rosneft” Igor Sechin, soon left the company and founded an independent oil and gas company (NOC). When Hudaynatov left of “Rosneft”, Sechin called his friend. The main asset of the NOC – the company “Alliance” redeemed from Musa Bazhaev in 2014. According to various estimates, the deal was worth between $ 2.4 billion to $ 3.5 billion in the picture:. Hudaynatov (right) and Sechin, September 2012
Now “Neftegarant” is not the owner of the building on Arbat Square, said RBC’s first deputy executive director of the Fund Yuri Okhlopkov. “At one time we put money into it. These were our portfolio investments. Once the building is offered for a larger amount, it was sold, “- he said. General Director of “Zaeliko-Real Estate” Alexander Lysenko and a representative of the company “Region”, which participated in transactions on the resale of the building, declined to comment. And the press service of “Rosneft” is only reported that the company is not a party to these transactions and litigation.
About ourselves transactions are unlikely would be widely known, if “Zaeliko Real Estate” is not trying to get a tax deduction by presenting to the return of VAT to 1.5 billion rubles. Tax she was refused, and then the company went to court.
Usually, when a taxpayer buys a property, he pays the seller the price, including VAT, and will be entitled to a refund of the VAT, explains partner of law firm “Shapovalov Petrov “Sergey Shapovalov. seller lists the VAT to the budget, thereby creating a source for compensation in turn.
But in a dispute with “Zaeliko-real estate” tax inspection concluded that the VAT refund “unreasonably “because the company did not suffer ‘own expenses on the acquisition of the building,” and both courts – arbitration and Appeal – agreed with this (cassation quashed their solution, since “Zaeliko Real Estate” and the Federal Tax Service agreed to the settlement agreement).
The arguments of the court
In order to prove that “Zaeliko Real Estate” had the right to a VAT refund the tax in the first two instances resulted in a number of arguments. They are all listed in the judicial records.
Of these, in particular, that “Zaeliko-Real Estate” was created for the 13 business days prior to the transaction for the purchase of the building and its leader Alexander Lysenko before appointment “Zaeliko” general director since 2008 was unemployed. Independent decisions related to the purchase of the building, according to the interrogation Lysenko, he did not take, but acted on the orders of the founder in the face of the head Zaeliko Trading Limited Cypriot Constantine Christian. From the testimony of Lysenko, it follows that he met her in Moscow in October 2013. But the tax authorities found that heads the once 24 companies in Cyprus Constantinou Christian in 2013 does not enter the territory of Russia and not even applied for a visa at the Russian Embassy (FMS and MFA data).
From the decisions of the courts of the first two bodies also implies that the company Zaeliko Trading Limited was purchased by unnamed persons concerned on the Russian website for the sale of offshore companies (htpp: //arzumanov.ru)
in the oil and gas business Hudaynatov Edward came in 2003, leading the “daughter” of “Gazprom” “Severneftegazprom.” Forbes wrote that his appointment was held under the patronage of the then Deputy Chairman of the Board of “Gazprom” Alexander Ryazanov – they previously worked together deputies of the Tyumen Regional Duma. Hudaynatov engaged in the development of the South-Russian field, which was to be the base for the pipeline “Nord Stream”. In 2007, the mine put into operation
Finally, tax came to the conclusion that ” Zaeliko-Property “and its founder could not have the money to buy the building on Arbat Square. In the materials of the court said that under the deal the Russian “Zaeliko” drew a five-year loan of $ 330 million at 6.5% in the Cypriot company Elsyomo Enterprises Limited. The loan was issued immediately prior to the transaction, November 14, 2013. June 18, 2014 Elsyomo opened “Zaeliko” another credit line of € 20 million (for it was chosen by € 5,1 mn). And six months later, December 15, 2014, Elsyomo ceded the right of claim on these loans in favor of the founder of the Cypriot “Zaeliko».
After that Zaeliko forgiven “daughter” of the debt, and another part transferred into rubles. Ruble debt eventually has also been forgiven by making a contribution to the parent company property “daughter” of almost 10 billion rubles., The court found. All this testifies to the “formal nature of the relationship between the company and the lender, since the real return of the loan and interest thereon not originally assumed,” – said in the appeal court decision
Finally, the CEO of the company “Ital Engineering Interneshln” Olga. Crook, who conducted repair works in the building on Arbat Square, in the course of a tax audit reported that the design, procurement of furniture, etc. were consistent with the contractor of “Rosneft”. A contract agreement “Zaeliko” concluded with the company December 16, 2013, two months prior to the transfer to it of ownership of the building (20 February 2014). On this basis, the Court of Appeal came to the conclusion that “the real beneficiary (owner)” building on Arbat Square is “Rosneft».
FTS representative declined to comment until the end of the dispute in the appeal. RBC will ask them again.
Related parties
In analyzing the complaint “Zaeliko” courts of first two instances have come to the conclusion that this company was created specifically for the purchase of the building on Arbat Square “to obtain a tax benefit in the form of reimbursement of the VAT».
«Novelty Estate”, which acquired the building for the money “Rosneft”, and then two FTRA, bought building in part for the benefit of “Neftegarant” already received a tax deduction from these transactions, according to the decision of the arbitration. Sam “Neftegarant” bought the building directly, VAT refund from the budget could not: the activities of NPF exempt from taxation, the Court pointed out, referring to the Tax Code
The Ninth Arbitration Court of Appeal in March 2016 indicated that transition. ownership of the building between related companies from January 2012 until its sale, “a specially created company” “Zaeliko Real Estate”, as well as its rental NOC indicates synergy between all the parties in the transaction.
to the conclusion of the interdependence of “Rosneft” and NOCs court came on the grounds that the structures of the two companies have been co-founders of the company LLC “ATP Condor” and Hudaynatov the time of purchase of the building on Arbat Square worked in “Rosneft”. In addition, as the Federal Tax Service of the evidence presented excerpts from the bank statement NOC, according to which “traces the transfer of funds from both the NOCs in the address of” Rosneft “, and vice versa: for the transportation of oil, there is a prepayment of agency fees under the contract.” Finally, the data from the Register 2-PIT confirm the intersection of “Rosneft” for the year 2013 and the NOC for employees: at least five people in 2013 received the income in both companies, the court pointed out. These circumstances show that the NOCs and “Rosneft”, “belong to the same group of oil industry companies have a common commercial interest, are direct counterparts, are interdependent with each other, reflecting the mutual ability to influence the results of economic activity,” the court decided.
In 2008 Hudaynatov became Vice-President of “Rosneft”. According to “Vedomosti”, the then deputy prime minister and head of the Board of Directors of “Rosneft” Igor Sechin, I was looking for a replacement to the president of the company Sergey Bogdanchikov, whom he regarded as wayward and poorly managed. This replacement has become Hudaynatov: he led the “Rosneft” in September 2010. In the photo: the president of “Rosneft” Hudaynatov (right) with Vladimir Putin at the refinery in Samara, October 2010
The decisions of courts of the first two instances of “Rosneft” and NOCs are called as interdependent and affiliates. The judges, who are considering tax disputes, sometimes confuse these concepts, says the director of KPMG dispute resolution Anton Zykov. Under the interdependence can be understood as any legal relationship (for example, the conclusion of the contract) between the two organizations, which has tax implications. A affiliation (in contrast to the interdependence) is determined only on the basis of features laid down by law “On Protection of Competition” and “On competition and restriction of monopolistic activity on commodity markets”, continues to head of the company’s corporate Sameta Margarita Sologubenko. But the decision of the arbitration court of the links do not, so in fact the court has not established affiliation NOCs and “Rosneft”, says she.
«Rosneft” representative did not comment on the conclusion of the court of the affiliation with the NOCs, saying that the company “has no information on the questions posed.” Hudaynatov to the announcement of the decision in the appeal and refused to comment.
The sudden isolation
On Thursday, July 7, the Arbitration Court of Moscow District considered the dispute in appeal. The meeting, as the correspondent of RBC, lasted no more than five minutes. “Parties are willing to reconcile,” – said at the beginning of FTS lawyers (in the court department was represented by four lawyers) and confirmed only representative “Zaeliko»
The essence of the settlement agreement is that the parties recognize that. ” Zaeliko Real Estate “and the” investment project “(the first seller of the building) are not interdependent, affiliates with respect to the” Rosneft “, read out in court, the representative” Zaeliko “. Also from the settlement agreement should be that the “investment project” has nothing to do with the NOC.
Other details of the agreement read out the judge Vera Cherpuhina. From her words implied that FTS acknowledges that “Zaeliko Real Estate” is the “beneficial owner” of the building on Arbat Square and “carries out real activity.” The “Zaeliko” agreed that he had no right to the use of the tax deduction. “Society justifies the refusal to apply the tax deduction and tax reimbursement. He considers legitimate additional charge. Is obliged to pay taxes and provide relevant reports. That is actually the society recognizes the FTS decision [to refuse to refund VAT to 1.5 billion rubles.] “, – The judge announced
« Sami can not close the matter, without a settlement. “-? The judge asked the representatives of the Federal Tax Service and “Zaeliko”. “Principals have come to such a method of settlement of the dispute”, – said the lawyer of this FTS. “To do this, undo two court act [arbitration and appellate courts have taken the side of the Federal Tax Service]” – surprised the judge and retired to a judgment. Ten minutes later she returned, announcing that the court approves the settlement agreement and cancel the judicial acts of lower courts.
Obviously, “Zaeliko” was more important to save the reputation of the companies that participated in the purchase of a building than to receive a VAT refund, commented on the outcome of the appeal Zykov KPMG. “In fact, for the approval of the absence of affiliation of the firm” pays “1.5 billion rubles.”, – The expert believes. FTS, apparently, went to meet her, to keep the money in the budget, he said.
The representative of “Zaeliko Real Estate” in the court declined to answer questions about the RBC.
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