Former President of “Rosneft” and the owner of an Independent oil company Eduard khudainatov leases a headquarters in the heart of Moscow, in the building at Arbatskaya square, house 1 (total area — 31 sq. m 410,1). The owner of this building — unknown company “Salico-Nedvizhimost, OOO — more than a year had legal proceedings with the tax authorities regarding VAT refund.
In proceedings before the courts of first two instances have come to unexpected conclusions: for example, the fact that the building, which rents Khudainatov, was bought with the money “Rosneft” and its NPF Neftegarant”. Also the courts at two instances decided that “Rosneft” oil company Khudainatov “part of the same group of companies” and the transaction for the sale of a building on Arbat square its current owner had intended to only refund VAT in the amount of RUB 1.5 billion But on Thursday, July 7, in the appeal, the parties suddenly announced that it was ready to conclude the agreement. The court approved it, having cancelled decisions of the previous instances.
Building on Arbat square, D. 1, which houses the headquarters of the NOC
Photo: Oleg Yakovlev/
From hand to hand
Starting in 2012, building on Arbat square at least three times changed ownership. Until January 2012 it was to build his company “the Investment project”. In the course of bankruptcy proceedings, the firm sold the building in order to settle with creditors (the VAT on the sale the company has not paid).
The buyer was the company “Novelty estate. It belonged to Nicholas Sudarikova (at the time — the General Director of IK “Region”), but the money for the deal — about 6.3 billion rubles through a complex financial chain that the firm provided “Rosneft”, Moscow arbitration decided on the basis of materials of tax checks and Bank statements (see scheme). This conclusion was confirmed in appeal.
The President of “Rosneft” at the time of the transaction for the purchase of a building firm “Novelti estate was Hudaynatov. In may 2012 the head of the company he was replaced by former Deputy Prime Minister Igor Sechin. Khudainatov until July 2013, continued to work in “Rosneft” his Deputy, after which he left the company in order, as written media, to build from scratch his own oil business.
But before Khudainatov left Rosneft in November 2012 — building on Arbat square again changed hands: two closed-end investment Funds managed by the company “Region” of its ultimate owner was the NPF Neftegarant”, decided by the court.
From the court’s records, it follows that such a complex structure of the transaction could be necessary in order to circumvent the number of legislative restrictions, for example, according to the law, NPF have no right to invest in the property with the encumbrance, and at the time of the transaction with the “Investment project” the building on the Arbat square was laid.
The current owner of the building company “Zaliko real Estate.” Who is behind this firm is unknown: from the decisions of the courts should be just that the founder of the company Cyprus Trading Zaeliko. Its ultimate owner (through several Cypriot companies), a citizen of Cyprus angel Paphitis.
“Zaliko Realty purchased the building on Arbat square in November 2013 for $302,08 million (9,87 billion rubles at the exchange rate at the time).
Until the end of 2013 the building on the Arbat square was not used, and since September 2014, he rents created Khudainatov Independent oil and gas company (NNK) and its “daughter”, follows from court materials.
What are the terms of the company lease Khudainatov headquarters “Salico-Nedvizhimost” is unknown. The court this issue was not considered, and the representative of the NOC to answer the questions refused.
After the 2012 presidential election gave way Khudainatov President of Rosneft Igor Sechin, soon left the company and founded an Independent oil and gas company (NNK). When Khudainatov went from Rosneft, Sechin has called him a friend. The main asset of NNK — company “Alliance”, purchased from Musa Bagaeva in 2014. According to various estimates, the amount of the transaction amounted to from $2.4 billion to $3.5 billion In photo: Khudainatov (right) and Sechin, September 2012
Now Neftegarant” is not the owner of the building on Arbat square, said the first Deputy Executive Director of the Foundation Yury Okhlopkov. “At the time we have invested money in it. It was our portfolio investments. As soon as the building offered a large sum, it was sold,” he said. The General Director of “Salico-real Estate” Alexander Lysenko and the representative of the company “Region”, participating in transactions on the resale of the building, declined to comment. As the press service of “Rosneft” has informed only that the company is not a party to these transactions and litigation.
About the deals is unlikely to become widely known, if “Salico-Nedvizhimost” does not tried to obtain a tax deduction, upon presentation of VAT refunds to 1.5 billion rubles, the Tax authorities refused, and the company then appealed to the court.
Usually when taxpayer buys property, he pays the seller the price, including VAT, and is entitled to a refund of this VAT, explains partner law firms “Petrov, Shapovalov Sergey Shapovalov. In turn, the seller transfers the VAT to the budget, thus creating a source for reimbursement.
But in a dispute with “Salico-real Estate” the tax authorities came to the conclusion that the VAT refund is “unreasonable” because the company had not incurred “costs for the acquisition of the building, and both the court of arbitration and appeal — agreed with it (the cassation has cancelled their decisions, as “Zaliko real Estate” and FNS agreed on a settlement).
The arguments to the court
In order to prove that “Salico-Estate” had no right to a VAT refund, the tax in the first two instances cited a number of arguments. They are all listed in the trial materials.
Of them, in particular, it follows that “Salico-Nedvizhimost was established over 13 working days before the transaction for the purchase of the building, and its leader Oleksandr Lysenko before appointment to the post of Director General of “Zaliko since 2008 he was unemployed. Independent decisions related to the purchase of the building, as follows from the interrogations Lysenko, he was not accepted and 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 would meet her in Moscow in October 2013. But tax authorities found that heads from 24 organizations in Cyprus Constantine Christian in 2013 did not enter the territory of Russia and had not even applied for a visa at the Russian Embassy (data of the Federal migration service and Ministry of foreign Affairs).
From the decisions of the courts of first two instances also be that the company itself Zaeliko Trading Limited was bought by an unnamed interested persons on the Russian site for the sale of offshore companies (htpp://arzumanov.EN).
In the oil and gas business Eduard khudainatov came in 2003, leading the “a daughter” “Gazprom” “Severneftegazprom”. Forbes wrote that his appointment was held under the patronage of the then Vice-President of Board “Gazprom” Alexander Ryazanov — previously, they worked together with the deputies of the Tyumen regional Duma. Khudainatov was engaged in the development of the Yuzhno-Russkoye field, which was to become the base for the gas pipeline “Nord stream”. In 2007, the field launched
Photo: Vladimir Smirnov/TASS
Finally, the tax came to the conclusion that “Salico-real Estate” and its founder couldn’t be the money for the purchase of a building on Arbat square. In court materials it is said that under this deal the Russian “Zalico” raised a five-year loan of $330 million at 6.5% of the Cypriot company Elsyomo Enterprises Limited. The loan was drawn immediately prior to the transaction, November 14, 2013. 18 Jun 2014 Elsyomo opened Zalico” another credit line for €20 million (it was chosen €5.1 million). But six months later, December 15, 2014, Elsyomo assigned its rights of claim on these loans in favor of the Cypriot founder of “Zalico”.
Then Zaeliko forgave “daughter” part of the debt, and another part transferred into rubles. Ruble debt ultimately was forgiven by making the parent company contributed assets “daughter” almost 10 billion rubles, found by the court. All this testifies to “the formal nature of the relationship between the company and the lender, as the actual repayment of loan and interest thereon was not originally expected,” — says the decision of the court of appeal.
Finally, the CEO of the company “Ital Engineering rogue valley international Olga Kruk, who conducted repair work in the building on Arbat square, in the course of a tax audit reported that the design, procurement of furniture, etc. consistent with the contractor’s representatives “Rosneft”. And the contract “Zaliko signed with this company on 16 December 2013, two months before transition to it ownership rights to the building (20 February 2014). On this basis, the court of appeal came to the conclusion that “the real beneficiary (owner) of a building on Arbat square is “Rosneft”.
FNS representative declined to comment until the end of the dispute in appeal. will ask them again.
Examining the complaint “Salico”, the courts of first two instances have come to the conclusion that this company was created specifically for the purchase of a building on Arbat square “to obtain tax benefits in the form of VAT refunds”.
“Novelty estate, which acquired the building for money “Rosneft”, and then the two closed-end funds, bought the building in parts in the interests of “Neftegarant”, has already received tax deductions from these transactions, stated in the arbitration decision. He Neftegarant”, buying the building directly to get the VAT refund from the budget could not: the activities of the NPF shall be exempt from taxation, the court pointed out, citing the Tax code.
Ninth arbitration court of appeal in March 2016 has indicated that the transfer of ownership of the building between related companies from January 2012 until its sale “specially created company” “Salico-real Estate”, as well as his renting of NNK indicates the coherence between all participants of the transaction.
To the conclusion about the interdependence of “Rosneft” and NOCS the court came based on the fact that the structures of both companies were co-founders of the company LLC Kondor ATP, and Khudainatov at the time of purchase of a building on Arbat square worked in “Rosneft”. In addition, evidence on provided extracts from a Bank statement, NOC, according to which “traced the transfer of funds from PNC as to the “Rosneft”, and Vice versa: for transportation, for oil, a Deposit Agency fee under the contract”. Finally, registry data 2-NDFL for 2013 confirm the intersection of “Rosneft” and NOCS to employees: at least five people in 2013 received income in both companies, pointed out the court. These circumstances indicate that NNK and Rosneft are included in the same group of companies of the oil business, have a common commercial interest, are direct counterparties are interdependent, which indicates mutual opportunities to influence the results of economic activities,” the court decided.
In 2008, Khudainatov was Vice-President of “Rosneft”. According to “Vedomosti”, the then Deputy Prime Minister and Chairman of the Board of Directors of “Rosneft” Igor Sechin was looking for a replacement for the President of the company Sergey Bogdanchikova, who was considered a wayward and poorly managed. This replacement was Hudaynatov: in September 2010 he became the head of “Rosneft”. Photo: Rosneft President Khudainatov (right) with Vladimir Putin at the refinery in Samara, October 2010
Photo: Maxim Shemetov/TASS
In the decisions of the courts of first two instances of “Rosneft” and NOCS are seen as interdependent and related. Judges who consider tax disputes, sometimes confuse these concepts, says Director of KPMG’s dispute resolution Anton Zykov. Under interdependence, we can understand any legal relationship (for example, a contract) between the two organizations, which has tax implications. And affiliation (in contrast to interdependence) is determined only on the basis of signs enshrined in the laws “On protection of competition” and “On competition and restriction of monopolistic activity on commodity markets”, continues the head of Department of the corporate right of company Sameta Margarita Sologubenko. But the decision of the arbitration court of these links there, so in fact, the court did not establish the affiliation and NOC “Rosneft”, she said.
The representative of Rosneft did not comment on the court’s conclusion about the affiliation with PNC, referring to the fact that the company “has no information on the merits of the questions”. Khudainatov before the announcement of the decision in cassation also refused to comment.
An unexpected outcome
Thursday, July 7 the Arbitration court of the Moscow district considered this argument in the appeal. The meeting, as the correspondent , did not last more than five minutes. “Parties want to be reconciled”, — said the early jurists on (the court the Agency was represented by four lawyers), and confirmed the member Saliko”.
The essence of the settlement agreement is that the parties recognize that “Zaliko real Estate” and “Investment” (the first seller of the building) are not interdependent, affiliates in relation to the “Rosneft”, read out in court the representative “Zalico”. Also from the settlement agreement that “Investment” has nothing to do with NOC.
Other details of the agreement were read by the judge Faith Cherepuhina. From its words followed that FNS recognizes that “Salico-Nedvizhimost” is the “actual owner” of the building on Arbat square and performs the real work.” The “Salico” agreed that in the application of the tax credit. “Society justifies the refusal of tax deduction and tax refund. Considers valid additional. Undertakes to pay the taxes and provide the appropriate reports. The fact is that society recognizes the decision on [the refusal to refund VAT to RUB 1.5 billion],” said the judge.
“You are unable to close this issue, without a settlement?” — asked the judge the representatives of FNS and Saliko”. “The Trustees came to this way of settling this dispute”, — responded the lawyer, on. “You need to cancel two of the judicial act [of the arbitration and appeal courts have taken the side on]”, the judge wondered, and retired to a judgement. In ten minutes she returned, declaring that the court approve the settlement agreement and cancel the judicial acts of lower courts.
Obviously, for “Zalico” it was more important to preserve the reputation of the companies that participated in the purchase of a building than to get a VAT refund, commented on the results of the appeal Zykov from KPMG. “In fact, during the statement on the absence of affiliation, the firm “pays” 1.5 billion rubles”, — the expert believes. FNS apparently went to meet her to keep the money in the budget, he said.
The representative of “Zaliko real Estate,” the court refused to answer the questions . Lawyers FTS have forwarded the issues to the press service of the Ministry, its representative has not yet responded to the request .
With the participation of albert koshkarova