Companies Set To Enjoy New Tax Benefits For Intellectual Property

• Published date: 06 May 2022
• Subject Matter: Corporate/Commercial Law, Tax, Corporate and Company Law, Sales Taxes: VAT, GST, Tax Authorities, Franchising
• Law Firm: Gorodissky & Partners
• Author: Mr Valery Narezhny

In early April 2022, Parliament adopted a law to create VAT exemptions for the transfer of exclusive rights to:

• inventions;
• utility models;
• industrial designs;
• integrated circuit topographies;
• know-how under a franchise agreement; and
• the use of the results of intellectual activity based on a franchise agreement.

Such exemptions will apply only if a fee for the transfer of exclusive rights to the above IP items is allocated in the franchise agreement price.

VAT exemptions

The need to make such changes is caused by the government's intent to support companies that scale up their businesses using the franchise model and to remove uncertainty in the legal regulation of transactions in the transfer of IP rights within franchise relations.

Russian tax legislation has long included a provision on VAT exemptions of the assignment of rights to the above items. However, until recently, there has not been any complete regulation on whether this exemption may be extended to franchise transactions.

A franchise agreement is specified in the Civil Code as an independent type of agreement, although it contains the mandatory elements of a licence. Thus, in accordance with article 1027 of the Civil Code, a franchise agreement stipulates that only the rights holder (ie, the franchisor) has the ability to grant another party (ie, the franchisee) access to their exclusive rights. This includes the right to a trademark or a service mark and the rights to other subject matters that the agreement sets out - in particular, trading names and know-how. Therefore, a franchisee can obtain various IP items for use under a franchise agreement.

Under this new law, the key items that will not be VAT-exempt are trademarks and service marks. This has given rise to a problem of the use of tax benefits, particularly where the royalties under the franchise agreement have been set out as a single amount for the entire scope of rights granted. Under national tax legislation, there is a provision in clause 4...