The essence of the dispute is not new, but the outcome is different now. Importers have been proving to customs for years that the transaction price corresponds to the market level, provided price lists, stock quotes, appraisers' conclusions. Lower courts often sided with business. The April ruling of the Supreme Court changes this logic.
The key conclusion from the decision is that the cassation instance did not accept evidence of the market value of the price precisely because there was a fact of payment of dividends to a foreign supplier. The Court considered this to be sufficient to conclude that the relationship between the parties had an impact on the price. The Supreme Court agreed with this position.
What does this change in practice?
Previously, the connection between the buyer and the supplier was not in itself a reason for additional charges — customs had to prove that it was because of this connection that the price deviated from the market. Now the courts support the position: the fact of dividends = possible price dependence = basis for adjustment.
This affects a wide range of participants: Russian subsidiaries of foreign companies that purchase goods from their parent or sister companies, and partially Russian companies with foreign shareholders that trade with affiliated suppliers abroad.
What risks are emerging
The first risk is retrospective. Customs may raise previously closed declarations if dividends have been paid on them. The limitation period for customs disputes is three years.
The second risk is the current one. New shipments from affiliated contractors are now more vulnerable to verification. Even a well-executed declaration with the correct documents can be challenged.
The third risk is systemic. If the precedent is established in the practice of lower courts, importers with foreign shareholders will be under constant pressure under price controls.
What should importers do?
Check the structure of transactions with affiliated suppliers and the availability of dividend payments over the past three years. To prepare an expanded package of market price justifications — do not limit yourself to price lists, add independent estimates and stock indicators. Consult with a customs lawyer on the relevance of the current declarations. And the main thing is not to wait for a demand from customs, but to conduct an independent audit of vulnerable positions in advance.
