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Events > IFA Ukraine > IFA Ukraine Seminar on Latest Changes in Ukrainian Antitrust Practice and Tax Compliance Issues

IFA Ukraine Seminar on Latest Changes in Ukrainian Antitrust Practice and Tax Compliance Issues

22 september, 2015, Kyiv, Ukraine

September 22nd, 2015, IFA Ukraine organized a seminar focused on latest trends in Ukrainian antitrust practice and its impact on tax compliance issues.

Senior-level lawyers specializing in antimonopoly, competition and tax laws provided status update on ongoing AMC investigations of bonuses, credit notes, marketing agreements and other sensitive practices, as well as covered latest court practice with regard to taxation of various promotion tools, and summarized anticipated changes to antimonopoly regulations, i.e. new approach to fines calculation, publications of AMC decisions etc.

The speakers' panel was joined by Oleh Boichuk, Egorov Puginsky Afanasiev & Partners Ukraine, Andrii Fomichov, Juscutum, Oleksandr Maydanyk, Egorov Puginsky Afanasiev & Partners Ukraine, and Dmytro Taranyk, Sayenko Kharenko.

Oleh Boichuk in his presentation discussed ongoing AMC investigations concerning bonuses, credit notes, marketing agreements and other sensitive practices. In particular, Oleg updated on status and focus of investigations in the range of sectors, i.e. oil (retail), energy, utilities, airlines, pharmaceuticals, food, FMCG and public sector.

With regard to concerted actions, the most topical issues, according to Oleh, refer to incentive schemes (discounts, bonuses, credit notes) and marketing agreements, information exchange and price signaling, facilitation of cartel conduct, discrimination and resale price maintenance (RPM), and abuse of dominance. Also competition concerns were referred to unfair advertising practices, bid rigging (jeopardizing tenders), and various discriminatory practices.

Oleksandr Maydanyk briefed the attendees on major issues and recent court practice with regard to taxation of various promotion tools - bonuses, discounts, credit notes. In particular, Oleksandr covered the cases of GlaxoSmithKline (retro discounts, business purpose), ASBIS-Ukraine (bonuses, business purpose), Slavuta Roofing Felt Factory J.S.C. (bonus payments not provided by the supply agreement), Apopharm (credit-notes from a non-resident, goods obtained free of charge).

When discussing in details the listed court cases, Oleksandr highlighted positions of both tax authorities and High Administrative Court of Ukraine.

Andrii Fomichov, in his turn, examined a number of court cases with regard to tax treatment of merchandising and promotion payments (tools). It was concluded that tax treatment would be different, depending on qualification of the payment - either a marketing service or promotion tool.

Andrii recommended to IFA Ukraine seminar participants some tools that would mitigate relevant tax risks, i.e. to provide payment for promotion tools in the main contract between parties, to justify rendered services with acts of acceptance and reports, to maintain clear connection between expenditures and income receipt and to ground the business purpose of purchasing merchandising services.

Dmytro Taranyk presented the topic "Summary of recent changes to antimonopoly laws: new approach to fines calculation & decisions publication by AMC".

Dmytro focused on the issues of fine calculation, base amount, aggravating circumstances (increasing the base amount by up to 50% of the initial base amount), mitigating circumstances, and amnesty provisions. With regard to amnesty, Dmytro pointed out that starting from September 16, 2015 fines for the violations disclosed to the AMC will be fixed at UAH 20,400, and at UAH 102,000 level - during the subsequent 6 months.

The good news from Dmytro was that for the first time in several years AMC recently issued a comprehensive clarification with respect to antitrust regulations. Seminar participants discussed in details the new document and its possible practical implications.

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