One-day and mutually dependent companies will be a priority for tax audits in 2017. We will consider changes, new rules for desk and field audits and for debt collection in the article.
New rules for tax audits 2017: what are the changes?
The Federal Tax Service of Russia published on nalog.ru the “Tax Passport” of each region and statistics on arrears of companies in the country as a whole. Debts have risen like never before in recent years. Because of this, tax officials have been tasked with quickly reducing the amount of debt of companies. They will attack from all sides.
Let's figure out what tax audits will be like in 2017, what changes and new rules you should prepare for.
Desk and field tax audits in 2017
Tax audits in 2017 will be more dangerous - inspectors are trying to charge more and more not only during on-site audits, but also during desk audits. During all inspections, special attention will be paid to transactions with one-day transactions. This is reported by the tax specialists we interviewed. The company will be asked for explanations or documents regarding such transactions. And some inspections immediately require that expenses and deductions be removed if the counterparty is listed in the one-day database. There are still new trends in the coming inspections.
Frequent cameras. Inspectors now conduct in-depth cameras 20 percent more often than a year ago. This means that the likelihood that you will be required to provide explanations or documents for an in-depth audit and larger additional charges than before is also increasing. Thus, over the year the average price of one effective camera has increased sharply - up to 58 thousand rubles. This is 39 percent more than last year (RUB 41,700). Tax officials report that charges have increased due to VAT cameras - the Federal Tax Service program now automatically detects discrepancies between the supplier and the buyer. At the same time, the share of effective camera cameras is still stagnant - 5 percent.
Expensive on-site inspections. Every year, inspectors come to companies less and less often - in the nine months of 2016, tax officials inspected 17,362 organizations, and a year ago - 19,749. But almost no one manages to avoid claims - 99.3 percent of on-site inspections, as before, end additional charges. The average price of an on-site inspection increased by almost half - by 45 percent. According to data for the nine months of 2016, it amounts to 14,605,000 rubles, and a year ago the tax authorities charged much less - 10,044,000 rubles. But the price may vary in your region. For example, in Moscow it is 41.6 million rubles, in St. Petersburg - 71.8 million rubles, and in the Krasnodar Territory - 4.9 million rubles.
All this suggests that tax authorities are planning audits even more precisely. Tax audits in 2017 will not be an exception. Changes and new rules allow you to select potential violators using the ASK VAT-2 system. In 2017, tax officials will plan on-site audits primarily based on gaps that the program has identified in VAT returns.
In 2017, tax officials are also planning comprehensive audits of interdependent companies. That is, they want to check the entire group of such organizations at once. This way, inspectors will be able to analyze transactions between dependent counterparties and identify business fragmentation, including those carried out with the aim of remaining on a simplified basis.
But the most dangerous checks are still those carried out by tax authorities together with the police. Over the nine months of 2016, tax officials conducted 4,623 joint audits. The cost of the audit was RUB 25,428,000. This is 20 percent more than in 2015.
You can see the average price of on-site and desk inspections in your region in the table (below).
New contribution checks. Tax officials will check contributions. But inspectors will not start with on-site inspections. First, the work will be carried out using the same methods as for personal income tax (letter of the Federal Tax Service of Russia dated October 20, 2016 No. ZN-18-1/1103). That is, tax officials will begin to request explanations about low wages, call to salary commissions, and include in the inspection plan those companies that are suspected of understating the base for personal income tax and contributions.
On-site inspections of the Federal Tax Service for 2017: plan and schedule of inspections
Unlike other departments (for example, foundations), tax inspectors do not publish a plan and schedule of inspections for the coming year.
You can find out about non-tax audits on the website of the Prosecutor General's Office. In a special form you need to indicate basic information about (company OGRN, INN, name), and the service will show who, when and how often will check. The schedule for 2017 should appear soon.
Collection of tax debts in 2017
How tax debts have grown. According to official statistics from the Federal Tax Service of Russia for all major taxes - profit, VAT, personal income tax - the budget received an average of 5 percent more money than last year. A drop in payments was recorded only for mineral extraction tax, and the amount of property taxes decreased very slightly (by 2%). But at the same time, tax debts of companies are growing in all regions of the country. It turns out that this year companies paid more than a year ago, but at the same time they still owed more to the budget than last year.
According to the website nalog.ru, from January 1 to September 1, 2016, the debt increased by 16 percent. Over the past five years, such a sharp jump has never happened. Therefore, in all regions, tax authorities have begun enhanced measures to collect arrears. This will be especially felt by companies in Moscow, the Moscow region, St. Petersburg, the Kabardino-Balkarian Republic and the Krasnodar Territory - these are the largest debts.
How the Federal Tax Service will collect debts. Firstly, the company will be called to a debt commission. Many companies, even before the commission or immediately after it, transfer part of the debt to the budget in order to convince the tax authorities of their good faith. You can also agree with the tax authorities on a schedule for gradual payment of debts. Secondly, they will withdraw from bank accounts. Including if, after the commission, the tax authorities do not receive results. If there is not enough money in the account, debts will be collected from the property. Thirdly, they will try to collect debts from the new company if the business has been transferred to it. Or personally from the director, if the company became bankrupt as a result of large debts.
And fourthly, clarification will be required. Previously, inspectors often asked the company to submit an amendment and reduce the amount of tax to the one it actually paid, so that there were no debts. Now the service management prohibits such manipulation with clarifications. Therefore, such local requirements are not often possible. But regarding 6-NDFL they will ask for clarification. This year, according to inspectors, personal income tax debts have increased due to errors in 6-personal income tax. Arrears and penalties can be removed by clarification.
Advice
See the safe tax burden by industry in your region on the Federal Tax Service website nalog.ru in the section “Statistics and Analytics” > “Tax Analytics” > “Tax Passports”
Combating losses and low tax burden in 2017
Strengthening the work of unprofitable commissions is also one of the main tasks for tax authorities at the end of this year and at the beginning of 2017. We learned about this from a letter from one regional Federal Tax Service. Moreover, at the commissions, inspectors will process not only unprofitable companies, but also those whose tax amounts payable are lower than the industry average for the region. If they call you, they will demand that you submit an update on your profit for nine months and remove the loss. And in the declaration for 2016, reflect the amount of tax payable that is close to the safe indicator of the tax burden in your region.
It’s safer to go to the inspectorate and explain how you plan to get out of an unprofitable or low-profit situation. A low load can be justified by the fact that sales have decreased, expenses have increased, etc.
If you ignore the call to the commission, there is a risk of an on-site inspection and enhanced camera surveillance. And during inspections they will deal with the loss more thoroughly. This is evidenced by the statistics of the Federal Tax Service. Thus, based on the results of 9 months of 2016, tax authorities withheld losses of 50 billion rubles from commissions. less than during checks. And during inspections they reduced losses by a total of 358.8 billion rubles. - this is twice as much as in the same period last year (RUB 179.4 billion).
Important!
How else do you deal with losses?
From January 1, the rules for transferring losses to the future will change. Now companies have the right to write off losses from previous years without restrictions on the amount. Starting from 2017, it will be possible to take into account losses amounting to no more than 50 percent of the tax base of the current period. This limitation is introduced for all losses that have arisen since 2007. For example, as of January 1, 2017, the company has an unwritten loss of RUB 700,000. The tax base (profit) for the first quarter of 2017 is 500,000 rubles. Therefore, in the first quarter of 2017, a loss in the amount of 250,000 rubles can be taken into account. (RUB 500,000 × 50%). The remaining 450,000 rubles. (700,000 – 250,000) the company will transfer to the following periods.
If a company made a loss at the end of the reporting period, then losses from previous years cannot be written off. They can be taken into account only when profit appears. And no more than 50 percent of the tax base
How much does the Federal Tax Service extra charge for inspections (data for 9 months of 2016)
| Select your subject of the Russian Federation | Average price of a camera camera (RUB) | Average price of on-site inspection (RUB) |
| Central Federal District | ||
| Moscow | 126 200 | 41 611 200 |
| Belgorod region | 13 500 | 5 034 600 |
| Bryansk region | 22 800 | 4 595 900 |
| Vladimir region | 40 400 | 25 264 700 |
| Voronezh region | 10 800 | 3 919 200 |
| Ivanovo region | 12 000 | 5 363 500 |
| Kaluga region | 46 100 | 12 161 200 |
| Kostroma region | 24 100 | 4 339 600 |
| Kursk region | 19 800 | 36 942 800 |
| Lipetsk region | 18 800 | 9 204 700 |
| Moscow region | 49 700 | 9 018 200 |
| Oryol Region | 15 500 | 5 450 100 |
| Ryazan Oblast | 16 400 | 9 041 200 |
| Smolensk region | 17 500 | 4 409 900 |
| Tambov Region | 30 600 | 3 768 100 |
| Tver region | 15 300 | 6 316 700 |
| Tula region | 26 700 | 10 012 100 |
| Yaroslavl region | 18 000 | 14 806 300 |
| Northwestern Federal District | ||
| Saint Petersburg | 12 800 | 71 828 700 |
| Republic of Karelia | 12 300 | 3 644 700 |
| Komi Republic | 19 400 | 21 656 200 |
| Arhangelsk region and Nenets Autonomous Okrug | 19 400 | 20 665 100 |
| Vologda Region | 29 000 | 9 561 400 |
| Kaliningrad region | 64 700 | 27 580 100 |
| Leningrad region | 45 400 | 17 811 200 |
| Murmansk region | 21 200 | 22 383 400 |
| Novgorod region | 18 700 | 5 006 300 |
| Pskov region | 18 300 | 10 354 300 |
| North Caucasus Federal District | ||
| The Republic of Dagestan | 19 600 | 5 386 300 |
| The Republic of Ingushetia | 31 800 | 5 345 200 |
| Kabardino-Balkarian Republic | 4 940 300 | 40 115 900 |
| Karachay-Cherkess Republic | 13 600 | 1 879 300 |
| Republic of North Ossetia-Alania | 83 900 | 3 570 200 |
| Chechen Republic | 7 700 | 3 068 800 |
| Stavropol region | 66 800 | 11 583 400 |
| Southern Federal District | ||
| Republic of Adygea | 46 900 | 4 450 200 |
| Republic of Kalmykia | 10 700 | 2 691 300 |
| Republic of Crimea | 32 900 | 6 247 300 |
| Krasnodar region | 25 200 | 4 985 600 |
| Astrakhan region | 10 400 | 5 559 200 |
| Volgograd region | 25 900 | 11 235 300 |
| Rostov region | 46 100 | 8 940 300 |
| Sevastopol | 13 100 | 9 356 800 |
| Volga Federal District | ||
| Republic of Bashkortostan | 31 600 | 5 224 000 |
| Mari El Republic | 8 600 | 7 135 800 |
| The Republic of Mordovia | 14 000 | 5 044 000 |
| Republic of Tatarstan | 32 900 | 6 304 100 |
| Udmurt republic | 39 600 | 6 724 500 |
| Chuvash Republic | 22 900 | 6 433 100 |
| Kirov region | 15 700 | 9 985 000 |
| Nizhny Novgorod Region | 32 300 | 13 310 800 |
| Orenburg region | 11 200 | 8 167 700 |
| Penza region | 23 200 | 5 230 900 |
| Perm region | 23 100 | 9 594 900 |
| Samara Region | 33 900 | 5 787 800 |
| Saratov region | 11 800 | 4 490 200 |
| Ulyanovsk region | 11 000 | 8 698 000 |
| Ural federal district | ||
| Kurgan region | 13 800 | 3 426 300 |
| Sverdlovsk region | 23 700 | 7 234 200 |
| Tyumen region | 23 600 | 10 253 000 |
| Chelyabinsk region | 12 000 | 11 825 300 |
| Khanty-Mansiysk Autonomous Okrug-Yugra | 18 700 | 14 251 500 |
| Yamalo-Nenets Autonomous Okrug | 44 000 | 12 258 000 |
| Siberian Federal District | ||
| Altai Republic | 7500 | 12 371 300 |
| The Republic of Buryatia | 21 000 | 8 475 400 |
| Tyva Republic | 11 600 | 3 139 000 |
| The Republic of Khakassia | 7100 | 4 582 100 |
| Altai region | 17 600 | 4 866 900 |
| Krasnoyarsk region | 7000 | 6 736 900 |
| Irkutsk region | 14 100 | 10 191 100 |
| Kemerovo region | 42 400 | 13 941 900 |
| Novosibirsk region | 14 700 | 10 620 400 |
| Omsk region | 14 400 | 6 600 500 |
| Tomsk region | 11 600 | 11 628 500 |
| Transbaikal region | 18 900 | 6 042 700 |
| Far Eastern Federal District | ||
| The Republic of Sakha (Yakutia) | 14 900 | 6 355 900 |
| Primorsky Krai | 11 000 | 7 062 600 |
| Khabarovsk region | 75 400 | 21 776 100 |
| Amur region | 35 400 | 9 512 500 |
| Kamchatka Krai | 13 100 | 10 332 800 |
| Magadan Region | 12 400 | 6 690 200 |
| Sakhalin region | 7100 | 84 627 500 |
| Jewish Autonomous Region | 13 800 | 6 144 400 |
| Chukotka Autonomous Okrug | 15 400 | 10 621 100 |
Tax audits are necessary to monitor the payment of mandatory tax amounts by entrepreneurs, identify and eliminate violations. The tax service monitors the correctness of calculations and timely payment.
The implementation of tax audits is simplified. Non-standard control methods are being introduced.
Changes in tax policy in 2020
Tax policy plans for 2020 include increasing tax revenues to the budget without allowing an increase in the tax burden. There are more tools for obtaining arguments for the need for inspections.
Administration and reporting on contributions have changed significantly. The rules for calculating some taxes have also undergone changes.
Administration of insurance payments
Tax authorities control the payment of insurance contributions to the Social Insurance Fund, Pension Fund, and Federal Compulsory Medical Insurance Fund.
The calculation is provided monthly, no later than the 30th day of the current month (for previous month). Payment is made in next month until the 15th.
From January 1, 2017, payers whose total income for 9 months did not exceed 90 million rubles will receive the right to use this system. If in a year it does not exceed 120, work in the simplified tax system will continue. The maximum residual value of funds under the conditions of transition to the simplified tax system should not exceed 150 million rubles.
At zero tax rate
Used for main gas pipelines and gas production. This also includes the development of mineral resources, subsoil, helium production, and capital construction projects. Full list objects approved by the government of the Russian Federation.
In incentive payments
One-time incentive payments for sports projects are not taxed, namely, for prizes in the Olympic, Deaflympic, and Paralympic games to participants and their coaches (specialists involved in preparation).
What do these changes mean for taxpayers?
Pros for taxpayers:
- Reducing the deadline for filing objections based on the results of examinations and other events. Its length has been reduced to 10 working days from the completion of the controversial event.
- Eligibility of the requirement by the inspectorate additional information on tax benefits. In addition to supporting documents, the provision of explanations on problems of property and transactions in the field of benefits may be initiated. This information must be provided within 5 days. All explanations regarding VAT are accepted only in in electronic format. Paper versions of declarations are unacceptable. Penalties are imposed for failure to provide an electronic version of a document.
- More frequent verification of the reliability of the Unified State Register of Legal Entities. Moreover, all complaints and claims (for example, from a competitor) are considered. Based on received signals, additional checks are initiated and carried out within a month. Any suspicion that a company or its legal address is fictitious raises suspicion. For example, several legal entities are registered at one address. During the verification of doubtful information, the tax control has the right to suspend the registration of the company. But this should last no more than a month. If false information is confirmed, the business reputation of the manager and the entire company is damaged.
What will be checked more often in 2020
- Registration, registration. Operating a company without registration is classified as “illegal business” (faces up to 5 years in prison).
- Legality of income and full payment of taxes on it. Salaries and other income of employees are taken into account. The presence of “gray” salaries is revealed, although these violations are difficult to prove. When calculating additional contributions, only specifically identified amounts are taken into account.
- Creation of “left” companies. If you illegally create a legal entity and use documents for this purpose, there is a risk of imprisonment for up to 5 years, and for cashing out funds through shell companies - up to 7.
- Artificially inflating costs and purchasing prices. In 2020, there is an increase in tax penalties for the use of non-market prices.
Types of checks
Inspections are represented by office and on-site, scheduled and unscheduled.
Cameral
Conducted by the tax authority using data tax returns. It is legal to check documentation if (Article 88 of the Tax Code of the Russian Federation):
- the declaration states tax for budget reimbursement;
- the organization has submitted an application for a tax reduction and an increase in the amount of losses 2 years after the first declaration;
- a number of inconsistencies or contradictions have been discovered;
- claimed use of tax benefits.
If violations are detected based on the results of a desk inspection, an on-site inspection may be initiated.
Visiting
To avoid stressful situations, you must always be prepared for such meetings. Information may come from the counterparty, tax inspector. The database is closed to public access.
On-site inspections involve a thorough examination financial statements with the possibility of subsequent sanctions (from fines to arrest). There is no way to know about an upcoming visit in advance. But for 2020, tax officials are required to carry out an on-site audit based on the results of a desk audit if there are any shortcomings.
Stages of implementation: 
- Documentation analysis. It is carried out on the territory of the organization (enterprise) with preliminary notification and presentation of an official ID. Procedures: requesting documentation, obtaining the necessary explanations, inspecting the territories, seizing the necessary financial documents. The duration of the check should not be more than 2 months. An extension of up to 4 months is eligible in the following cases: the object is one of the largest taxpayers, force majeure circumstances.
- Summing up the results with a report. The report compiles the tax base, analyzes identified violations, and makes recommendations for correcting them. If necessary, additional taxes are assessed and sanctions are imposed.
What do tax authorities want to find first? If previously the priority of the search was unreasonable expenses for additional accrual of profit and VAT, now the search for undeclared revenue has been added. Even complaints from employees dismissed from the organization are considered. The courts often side with the tax authorities.
Suspension and extension
An audit of taxpayers (on-site or desk) may be suspended in the following cases:
- implementation of counter verification;
- removal of necessary documents;
- carrying out the examination.
An extension can be implemented for many reasons:
- if the taxpayer is one of the largest;
- according to available information from various sources about tax violations;
- in the event of a force majeure emergency (fire, flood, etc.);
- in the presence of separate divisions at the company;
- failure to provide requested documents on time;
- due to other circumstances.
The duration of a standard on-site inspection is two months (can be increased to 4-6).
Scheduled and unscheduled tax audits
Scheduled inspections are carried out mainly once every three years. The company is notified about them no later than three days in advance. But there are also unplanned ones. They can be carried out by Rospotrebnadzor in places Catering and drug sales.
The table shows situations, which may cause the initiation of unscheduled tax control in 2020.
| What is a signal to check (reasons for control) | What violations are expected? |
|---|---|
| Reducing the tax burden in relation to the industry average (by 10% and below) | There is a suspicion of tax savings |
| Lack of active communication during the conclusion of the contract, violation of the rules for its execution, lack of reliable information about the location of the premises | Interaction with counterparties that cause suspicion (mistrust) |
| Exceeding the rate of increase in expenses over income | Assumption of understatement of income, overstatement of expenses |
| Continued losses | Discrepancy between losses and increased sales revenue |
| Low employee salaries (10% below the industry average) | Suspicion of payments “in envelopes” |
| The dubiousness of contracts with existing intermediaries | Suspicion, for example, of manipulation with a product that simply could not be produced in a given volume at a given time. The discrepancy between the designated material resources and the actual data is another. |
| Change of location | Special delay to correct identified violations |
| Inconsistency with the industry average level of profitability | Underreporting |
Common measures used by tax officials to find information and evidence are following:
- Interviewing counterparties (employees under the contract) and all possible witnesses.
- Fining witnesses for failure to appear.
- Visiting witnesses, if they fail to appear when called, at home with drawing up a protocol and recording it on video.
- Using the capabilities of the district inspector in searching for witnesses, interrogating him in order to obtain information.
- Search for an informal approach, alternative sources, use of photos, audio, video recording facts, which since May 2016 are legal as evidence in court.
- Searching for information and evidence on the Internet, in the 2-NDFL database, on requests from banks, the State Traffic Safety Inspectorate, the Russian Federation.
- Seizure of material evidence (hard drives, computers) in the presence of police.
- Using call printouts cellular communication and social telephone surveys.
Tips for optimal options The director's behavior in the event of an audit may be as follows::
In 2020, enterprises will be included in the tax audit plan in the following cases:
- If the amount of violations is above 10 million rubles.
- In case of gross violations or complete disregard of tax reporting requirements.
- If the organization is included in the plan for 2020 based on the results of a desk audit.
- If the balance is zero, the liquidation process is initiated.
- When you become one of the largest taxpayers.
- On behalf of law enforcement agencies.
Responsibility based on results
The inspectorate has the right to apply tax liability sanctions to entrepreneurs and legal entities. Some documents may be transferred to the police department to initiate a criminal case. The degree of punishment depends on the violations identified and the conditions that aggravate or mitigate them.
Removal of tax liability is expected in following cases: when the statute of limitations has expired, not guilty of a tax-related offense. Natural disasters, force majeure, and execution of written instructions from regulatory agencies are excluded.
The list of mitigating and aggravating conditions is reflected in Article 112 of the Tax Code of the Russian Federation. Tax liability does not guarantee exemption from criminal or administrative charges.
The words “business purpose”, “unjustified tax benefit”, “due diligence”, “good faith” have become so deeply embedded in the life of an ordinary Russian entrepreneur that, perhaps, he will explain their meaning no worse than any tax inspector. And based on the results of attending the next tax seminar, instead of planning a new production line, will begin to draw in his imagination a weighty justification (with numbers, graphs, convincing evidence) of the need to attract a new counterparty.
Almost not a single tax audit act, not a single court decision is complete without mentioning that very unjustified tax benefit that caused damage to the budget. And this concept was introduced more than 10 years ago - by Resolution of the Supreme Arbitration Court No. 53 of October 12, 2006. The Supreme Arbitration Court has since sunk into oblivion, merging with the Supreme Court, but the concept it developed remains alive.
But, either it is undignified to refer to a court ruling (after all, we are not in England with its case law), or the vague concepts of good faith are outdated, it was decided to comply with the provisions in the Tax Code of the Russian Federation. On July 18, 2017, verified amendments to the code were signed by the President. A new article 54.1 was born. The new rules will begin to apply to inspections scheduled after August 19, 2017.
This means that all transactions for the period 2014 - 2016 and subsequent years can be assessed taking into account the new criteria.
Let's say right away that the revolution did not happen. The law, in a laconic form devoid of emotional overtones, includes provisions that reflect the meaning of the already familiar search for a “business goal”, proving the validity of a tax benefit, in order to exclude an evaluative approach to judgments about the taxpayer’s behavior. Let's assume that the courts will gradually move from citing Resolution No. 53 to citing the law. Time will tell how this will affect the statistics of tax disputes.
So, firstly, instead of the presumption of good faith of the taxpayer and the presumption of reliability of information in accounting and tax reporting, the law states:
“It is not permitted for a taxpayer to reduce the tax base and (or) the amount of tax payable as a result of distortion of information about the facts of economic life, about objects of taxation” in tax and/or accounting.
The Code does not use the familiar concept of “tax benefit”. However, when speaking about the inadmissibility of distorting information to reduce the tax base and/or the amount of tax, the legislator has in mind what was previously considered an unjustified tax benefit.
Secondly, if all the information in the reporting is taken into account correctly, the next test for the taxpayer will be to check whether two conditions are met simultaneously (clause 2 of Article 54.1):
- reducing tax liabilities is not the only purpose of the transaction;
- the obligation under the transaction was fulfilled by the person declared by the party to the agreement, or by the person to whom the obligation was transferred by law or agreement (for example, under an assignment agreement, by way of succession, etc.).
The first condition is nothing more than the “business purpose” of the transaction, which should not be related solely to reducing tax liabilities.
Sometimes you hear this answer to the question about the advisability of creating two sales companies that apply the simplified tax system: “If all the turnover is in one company, it will not be able to apply the simplified tax system due to the turnover, and the business will become unprofitable.” Remember: this is an example of sincere recognition for the tax authority - the entrepreneur has no other goal than compliance with the conditions for applying the special tax regime.
If we are talking about geographically separate sales departments, different target categories of clients, different management teams, and even those competing with each other in performance, then the effect of applying a reduced tax rate is no longer paramount.
The second condition says that the transaction must be executed by exactly the person indicated in the documents. Or another person to whom the obligation to fulfill the transaction has passed by law or contract. That is, not by some unidentified third party.
The condition is extremely important, as it can reverse the trend that has developed in the interests of the taxpayer of “establishing the actual amount of tax benefit” when it comes to income tax. Let us recall that back in 2012 the Supreme Arbitration Court ruled:
The actual amount of the expected tax benefit and costs incurred by the taxpayer when calculating income tax is subject to determination based on market prices applied for similar transactions.
A different legal approach entails a distortion of the real amount of tax liabilities for income tax...
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. A71-13079/2010-A17 dated 07/03/2012
This led to the fact that the tax authority stopped challenging the taxpayer's accounting of costs when it could not prove that costs were overstated. For example, a house was built - that means there were bricks; food products have been released and their composition can only be checked after an expensive examination - costs for meat, flour, other ingredients are accepted, etc. We emphasize that we were talking only about income tax, but at least in this part the taxpayer could be calm.
After the changes come into force, if the tax authority questions the possibility of executing a transaction, for example, the delivery of specific raw materials by a specific counterparty, the costs may be excluded when calculating income tax. Only the practice of applying the new provisions will show whether the taxpayer will still be able to claim that raw materials (materials, components) were and were actually used in production, construction or provision of services, despite the lack of proof of the relationship with a specific supplier.
Compliance with the above principles will allow the taxpayer to emerge victorious from a tax dispute.
- To make this easier than it seems, the law provides for circumstances that in themselves cannot confirm that the taxpayer is wrong (clause 4 of article 54.1 of the Tax Code of the Russian Federation):
A similar approach was reflected in the letter of the Federal Tax Service of Russia dated March 23, 2017 No. ED-5-9-547, which mentioned the urgent problem of the tax authorities formally collecting evidence for the purpose of confirming the receipt by the taxpayer of an unjustified tax benefit. Very often, tax authorities do not challenge the reality of transactions with counterparties, but simply limit themselves to arguments about the unreliability of primary documents, based on interrogations of the counterparties’ managers who declared non-involvement in the companies’ activities, and handwriting examinations. In this regard, the Federal Tax Service of Russia stated that the fact that the interrogated persons denied signing documents on behalf of counterparties or that they have managerial powers is not an unconditional and sufficient basis for concluding that the taxpayer has received an unjustified tax benefit. - violation of tax legislation by the taxpayer's counterparty. If the documents are drawn up by the supplier perfectly, the goods are delivered (services are provided), and there is no doubt about their necessity for real economic activity there was none, but suddenly it turned out that the counterparty stopped paying taxes, the audited taxpayer cannot be held responsible for this. Undoubtedly, enshrining this rule in law will benefit taxpayers;
- the possibility of the taxpayer obtaining the same result of economic activity when performing other transactions (operations) not prohibited by law. It is also a long-established rule that entrepreneurial activity
The question of how correctly an ordinary taxpayer has determined the tax base in accordance with the stated rules will be clarified during regular on-site and desk tax audits. In other words, the tax authority, as before, must prove the circumstances to which it refers, and the taxpayer will be given a chance to refute the arguments. There is no talk of any unilateral imputation of a violation or the creation of a separate verification procedure. Thus, the legislators did multi-stage work in which they were looking for consolidation in the code of what has developed in practice. We started with attempts to find a universal definition of “abuse of law”, but ended up with extremely laconic formulations, devoid of room for evaluation and subjectivity.
You can view it on the official website of the General Prosecutor's Office of the Russian Federation (http://plan.genproc.gov.ru/plan2017/). To find out whether inspections are planned for a specific company or individual entrepreneur, you need to enter the following data into the search form (you can limit yourself to one or more items):
- name of the organization or full name of the individual entrepreneur;
- month of inspection;
- name of the body state control or supervision;
- address of the object being checked.
If a business entity actually faces an inspection, the search results will include its duration in working days or hours, as well as the subject of the inspection (for example, ensuring consumer rights, sanitary and epidemiological supervision, fire supervision, supervision in the field of industrial safety, compliance with licensing regulations). requirements, etc.).
What should you consider when preparing a response to a request from a regulatory authority during an inspection? How to assess compliance with the law of inspectors' actions? Users of the GARANT system can receive prompt assistance from experts by phone by connecting New Product "Expert advice. Inspections, taxes, law" .
Let us recall that the General Prosecutor's Office of the Russian Federation publishes a consolidated plan for inspections of business entities annually based on data provided by regulatory authorities (, Federal Law dated December 26, 2008 No. 294-FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control”; hereinafter referred to as Law No. 294-FZ). However, tax audits are not included in the plan.
Starting from January 1, 2017, another form of inspection appeared - test purchase. But such purchases will be carried out without prior notification to the company or individual entrepreneur and on the grounds provided for unscheduled inspections (). Therefore, there is no information about them in the consolidated inspection plan.
Small businesses continue to enjoy supervisory holidays, which will last until December 31, 2018. This means that scheduled inspections are not carried out against them if they have not committed gross violations over the past three years. If a small business representative nevertheless finds a record of an upcoming inspection on the website of the Prosecutor General's Office of the Russian Federation, he can.
Questions about the reasons for ordering on-site tax audits and the frequency of their conduct never cease to worry taxpayers. How to find out whether auditors will be interested in the activities of a business entity and whether an on-site audit will begin in relation to it in the near future? How are organizations selected for inspections? Are there criteria for such selection?
To help taxpayers, regulatory agencies regularly issue clarifications regarding these issues. Based on them, the author of the article reveals some of the subtleties of the procedure for selecting organizations to conduct on-site tax audits against them.
Tax Code of the Russian Federation on on-site inspection.
By virtue of paragraphs. 2 p. 1 art. 32 of the Tax Code of the Russian Federation, the responsibility of tax authorities includes monitoring compliance with legislation on taxes and fees, as well as regulatory legal acts adopted in accordance with it. One of the forms of such control is in relation to an economic entity, the right to carry out which is expressly enshrined in paragraphs. 2 p. 1 art. 31 Tax Code of the Russian Federation.
The procedure for conducting on-site inspections, the timing and frequency of their conduct are regulated by Art. 89 Tax Code of the Russian Federation. According to paragraph 5 of this article, tax authorities do not have the right to conduct two or more on-site audits on the same taxes for the same period, just as they do not have the right to conduct more than two on-site tax audits in relation to one taxpayer during a calendar year (for with some exceptions).
The Ministry of Finance in Letter No. 03-02-08/7955 dated February 14, 2017 emphasized that the main task of tax control is maintaining a balance of interests of the state and business. On the one hand, the pressure on conscientious taxpayers who fulfill their obligations to the budget in a timely manner and in full is reduced, and on the other hand, the inevitability of punishment is ensured for those who deliberately evade paying taxes and violate tax laws.
One of the main goals of fiscal officials today is to conduct the optimal number of on-site tax audits. To achieve this, a timely system of tax control and administration is constantly being improved, which is built on the basis of analytical work that predicts risks and takes into account the specifics of financial and financial management. economic activity taxpayers.
Selection of candidates for inspection.
On-site inspections are not carried out in a continuous manner. The inspectorate, by analyzing information about the activities of the taxpayer, selects candidates that interest it. The result of the analytical work being carried out is the inclusion of taxpayers in the plan of on-site tax audits. The financial department recalled this in Letter dated February 15, 2017 No. 03-02-07/1/8547.
Officials also point out that the main document used in the analytical work of tax specialists is the Concept of the planning system for on-site tax audits, approved by Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ (hereinafter referred to as the Concept). It defines 12 tax risk criteria by which selection is carried out.
Why do you need self-analysis?
It is important that taxpayers themselves can use the risk criteria on an equal basis with the tax authorities in order to assess their activities and clarify tax obligations without waiting for an on-site tax audit (Letter of the Ministry of Finance of Russia dated February 21, 2017 No. 03-02-07/1/10004). These criteria are publicly available.
For your information.
Risk criteria are posted on the Federal Tax Service website (www.nalog.ru) and are regularly updated. The Federal Tax Service recommends that each taxpayer read the information posted on the website to independently assess the risks.
The calculation of the tax burden does not include VAT on goods imported into the territory of the Russian Federation, customs duties, as well as the amount of paid insurance premiums (letter of the Ministry of Finance of Russia dated January 11, 2017 No. 03-01-15/208, Federal Tax Service of Russia dated March 22, 2013 No. ED -3-3/1026@).
The tax burden indicators calculated in this way are compared with industry average values (shown in Appendix 3 to the Concept).
It is important that the calculation of industry average tax burden values in the Concept was made by the Federal Tax Service taking into account personal income tax revenues. The agency explains: the indicator is calculated as the ratio of all taxes paid by an organization, including those for which it acted as a tax agent, to revenue (on the Federal Tax Service website in the “Frequently Asked Questions” section there is financial advice on the question: how to calculate the criterion “ tax burden”, applied in accordance with the Concept of the planning system for on-site tax audits?).
The Concept does not specify for what period this indicator should be determined. The Federal Tax Service makes calculations for the calendar year. Consequently, for the purpose of comparability of the indicators under consideration, when calculating an organization’s tax burden, it is also advisable to use the ratio of taxes paid and income received for the year.
The tax burden is considered low by inspectors if its value is less than the average for the relevant industry.
Note.
If the tax burden of an organization is below its average level for business entities in a specific industry (type of economic activity), then an on-site audit may be assigned to it.
Let us give examples of calculating the tax burden of an organization located on OSNO and an individual entrepreneur using the “simplified tax system” for comparative analysis them with industry values.
Example 1.
The organization operates in the field of chemical production. Revenue for 2016 is 90 million rubles. The amount of taxes paid was 10 million rubles. The organization also withheld and transferred personal income tax from payments to employees in the amount of 250 thousand rubles.
The tax burden for business entities operating in the field of chemical production is 4.2%.
The tax burden of the organization is 11.4% ((RUB 10,000,000 + RUB 250,000) / RUB 90,000,000 x 100%), which is significantly higher than the industry average (11.4% > 4.2%) .
In this case, the risk of the inspectorate becoming interested in the taxpayer’s activities is extremely minimal.
Example 2.
An individual entrepreneur operates in the restaurant business. Income received for the year, according to data tax accounting, equal to 12 million rubles. At the end of the year, the merchant paid a single tax on the simplified tax system in the amount of 720 thousand rubles. Personal income tax for hired workers is transferred in the amount of 100 thousand rubles.
In the restaurant and hotel industry, the industry average tax burden is 9%.
0 rub.) / 90,000,000 rub. x 100%), which is significantly higher than the industry average (11.4% > 4.2%).
The tax burden of an entrepreneur is 6.8% ((RUB 100,000 + RUB 720,000) / RUB 12,000,000 x 100%).
Consequently, the tax burden of a businessman is less than the industry average (6.8%< 9 %). В таком случае налогоплательщику не избежать вопросов со стороны контролеров и дальнейшего предпроверочного анализа финансово-хозяйственной деятельности с целью включения в план выездной проверки.
If the salary is below the industry average.
Among the tax risks, as noted above, the indicators of payments by employers are taken into account wages below the industry average in the region, as well as conducting business activities using tax evasion schemes. This is also noted in the Letter of the Ministry of Finance of Russia dated February 14, 2017 No. 03-02-08/7955.
How and where to get information about statistical indicators average wage level by type of economic activity in a city, region or in a whole subject of the Russian Federation? You can refer to such sources as:
Fiscal authorities abandoned total control and switched to control based on risk criteria, which is based on a comprehensive analysis of the financial and economic activities of the taxpayer.
As stated in the Concept, priority for inclusion in the on-site inspection plan are those entities in respect of which controllers have information about their participation in tax evasion schemes or schemes for minimizing tax liabilities and (or) the results of an analysis of the financial and economic activities of the taxpayer indicate alleged tax offences.
Systematic independent analysis by the taxpayer of his financial and economic activities allows him to timely assess tax risks and clarify his tax obligations. And if the performance indicators assessed according to the criteria mentioned in the article differ from those established by the Federal Tax Service, then it is advisable to provide explanations to the tax authorities (on your own initiative or at their request), and if there is such a need, adjust your tax obligations in an updated declaration, which should be accompanied by an explanatory note note. In this case, we do not recommend ignoring communication with controllers.
Circumstances indicating that the taxpayer has received an unjustified tax benefit are specified in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53. A number of schemes for constructing financial and economic activities using a chain of counterparties without a business purpose are given in the appendix to the Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@.
If documents are lost as a result of force majeure (fire, flooding, damage, etc.) but not restored, tax authorities will also have every reason to include the taxpayer in the on-site audit plan.
The calculation of the indicator for the main types of economic activity is given in Appendix 3 to the Concept.
Posted on the website of the Federal Tax Service of Russia www.nalog.ru in section. "FAQ".
Information about the addresses of Internet sites of Rosstat territorial bodies is posted on the Rosstat website (www.gks.ru).
Information about the addresses of Internet sites of the Federal Tax Service departments for the constituent entities of the Russian Federation is posted on the Federal Tax Service website (www.nalog.ru).
Form explanatory note is given in Appendix 5 to the Concept.
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