Free gratuitousness – Newspaper Kommersant No. 228 (7429) dated 12/08/2022

The Ministry of Economy has prepared a bill exempting those who receive rights to the results of intellectual activity (RIA) free of charge from taxes on profits or on incomes of individuals, in particular, in the execution of government contracts. The department considers the current need to pay taxes in such cases as a barrier to the active management of RIA and the introduction of developments into production.

The Ministry of Economy proposes to exempt companies and individuals from paying taxes when they transfer the results of intellectual activity (for example, databases, inventions, know-how) to them free of charge. The need for changes is due to the fact that since 2022 the rules governing RIAs created in the performance of a state or municipal contract have changed. In particular, it has been established that exclusive rights to intellectual property can be transferred free of charge to legal entities and individuals who are their authors or performers under state or other (for example, labor) contracts, as well as to third parties. This was done to more actively manage the rights to RIA (especially those that are not used) and transfer them to stimulate innovative industries. At the same time, as Maxim Kolesnikov, deputy head of the Ministry of Economy, explains, the restriction for the application of this mechanism is still the rule that the income of recipients of rights to RIA is subject to income taxes or personal income tax.

According to the developed amendments to the Tax Code, it is planned to exempt from taxes income in the form of an exclusive right to RIA, which are created by the contractor in the performance of a state contract (as well as the right to use RIA transferred to him by the state customer free of charge). This rule will also apply to the transfer of rights to RIA to third parties. For example, the Ministry of Economy explains that if a company has created and patented a technology during the implementation of a state contract, then it will no longer have to pay income tax when it is put on the balance sheet (developments created under government contracts are often put on the balance sheet at a cost that can be hundreds of thousands or even million rubles). At the same time, the company will be able to use RIA in production or earn money by providing licenses. At the same time, authors are exempted from paying personal income tax, to whom employers transfer the rights to official RIA. It is also planned to exempt from income tax and obtain licenses free of charge within holdings.

The Ministry of Economy believes that all this will allow recipients of rights to reduce costs and direct the released money to the commercialization of technologies. It should be noted that the authorities have already tried to stimulate the intellectual property market with tax breaks – in particular, to ensure that companies put RIA on the balance sheet at their real value, for 2022-2024 they were exempted from income tax in relation to the rights to them identified during the inventory (see. “Kommersant” dated April 7). This is due to the fact that most companies accounted for intangible assets at the cost of the fee paid (about 30 thousand rubles), which reduced income from the transfer of licenses for intellectual property, as well as the amount of compensation for its misuse.

According to Natalya Ilyina, Director for Management of Scientific and Technical Programs and Projects of Rosatom, the bill will be relevant for participants in complex programs implemented on the principles of co-financing, and for technology companies. As Natalya Mazur, Advisor to the Deputy General Director of Almaz-Antey Concern VKO JSC, notes, these measures are also a “logical conclusion” to stimulate technology transfer from the military to the civilian sector, which should have a positive impact on the intellectual property market.

Dmitry Gorbunov, a partner at the law firm Rustam Kurmaev & Partners, believes that “the logic of the project, if we talk about the goal of pumping up the RIA business in order to stimulate innovation, is quite understandable.” However, he says, if an organization obtains rights for the purpose of using them, then taxes will not become an obstacle to the implementation of an investment project, the cost and return on which are incomparable with the increase in the tax burden. In those cases when a company accumulates rights and does not use them in any way, Dmitry Gorbunov believes, there is no point in granting it benefits.

Evgenia Kryuchkova