Internal regulations for verification of counterparties. Get a sample.

In modern realities, every company that controls its risks must have internal regulations for checking counterparties!

This is the norm that life itself dictates. The presence of such an internal document, and most importantly adherence to its order, is a good indicator of due diligence. Yes, it does not guarantee 100% protection, but it helps reduce banking, business and tax risks, including the risk of recognizing an unjustified tax benefit.

It is no secret that banks love this document and regularly request it in order to understand how transparent the business is from the point of view of the Legalization Law No. 115 - Federal Law. Tax authorities, as a rule, do not request such a document. Their task, first of all, is to remove expenses and VAT. And the better prepared the taxpayer is, the more responsible he is in his choice, the more difficult it is for inspectors to defend their position.

Exercise due diligence when selecting contractors.

The concepts of “due diligence” and “unjustified tax benefit” were first introduced by Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53 “On the assessment by arbitration courts of the validity of a taxpayer receiving a tax benefit.” The Plenum pointed out that when assessing the activities of a company, one must look at 2 (two) important aspects of its life:

The reality of the transaction;
Exercise due diligence.

Paragraph 10 of Resolution No. 53 clarifies that a tax benefit can be recognized as unjustified only if inspectors prove the following:

the taxpayer acted without due diligence and care;
the taxpayer should have been aware of violations committed by the counterparty.

This position is still relevant today! Tax officials are trying to prove the fact that the transaction is fictitious (unreal) and the lack of due diligence. Taxpayers are trying to prove that they showed this very diligence and that at the time of the transaction no negative business factors were identified.

Here are some court decisions where exercise of caution has helped taxpayers in disputes with the tax inspectorate.

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated November 29, 2016 N 305-KG16-10399 in case N A40-71125/2015
Resolution of the Arbitration Court of the Moscow Region dated March 31, 2015 in case No. A41-26399/14 for ANT Firm LLC
Resolution of the Court of Justice of the West Siberian District dated 07/08/2016 N F04-2454/2016 in case N A46-9814/2015

Special Moments

When considering the concept of due diligence, you need to pay attention to the following points:

if the taxpayer has not shown it, this may result in cooperation with an unscrupulous partner
;
if the Federal Tax Service proves that the taxpayer did not exercise due diligence, then it will assess additional income tax and VAT
accepted for reimbursement from the budget;
Due diligence should be considered as one of the methods of checking a potential counterparty, used together with other methods of assessing the activities of business entities;
if due diligence is not exercised, an unjustified tax benefit may arise
, since these concepts are closely related;
when conducting proceedings, judicial authorities do not take into account the fact that the concept of due diligence is not regulated by the legislation of the Russian Federation, although they actively use it in their practice;
The legislation of the Russian Federation does not contain any criteria for assessing failure to exercise due diligence when analyzing counterparties.

Why do you need to check the supplier before the transaction?

In my opinion, caution in choosing a supplier, carried out before the start of the relationship, helps to minimize:

Banking risks;
Tax risks;
Entrepreneurial risks.

Banking risks are associated with the possibility of receiving “Refusals to carry out transactions.” If the supplier is not reliable from the point of view of banks, then by making a payment for him, it is quite possible to get an entry in the “black list” N 639-P. This has a bad effect on business, as it leads to additional losses and blocking of bank accounts.

Tax risks are associated with the fact that when making transactions with an unreliable partner, you can lose expenses that reduce the tax base and VAT. In addition, you will have to pay penalties and fines. If you are unable to pay your tax obligations, you may be subject to subsidiary liability.

Entrepreneurial risks are always associated with the fact that by trusting someone who does not deserve this trust, you can lose your property. When assessing the possibility of concluding a contract, you need to pay attention to the solvency of the applicant and the ability to fulfill its obligations under the contract. Many of the above risks can be avoided if you responsibly choose who to do business with. Excellent price quality of a transaction is not the main sign of a successful transaction. We need to think about its further consequences and understand all the risks.

How to check counterparties

A company may look prosperous on the outside, have a beautiful office and a polite sales department, but inside there are huge debts, courts and the director is on the run.

Alena Iva is a lawyer. If you deduct VAT, the tax office may give you years taken out just because the counterparty seems to be somehow unreliable. Therefore, the counterparties need to be checked.

Here's how to do it. Let me make a reservation right away: there are 16 ways to check a counterparty using different databases, sites and services, and if you use them all, it will cost time. On the other hand, a counterparty that has completed all 16 steps is gold. If you started checking, and the first five stages turned out to be a failure, you can immediately refuse this counterparty - it is unlikely that you will find anything good further. Request copies of the main documents from the potential counterparty. Receive

Regulations for verification of counterparties. How will it help?

Let’s imagine a situation where a company has a clearly defined procedure for analyzing a candidate before concluding a contract. Employees follow internal requirements and cut off many dangerous options in the bud. For example, when concluding a contract for processing products, you are offered an excellent price, but upon initial inspection it turns out that the processor does not have

required production capacity;
human resources;
the required OKVED code to complete the transaction.

Most likely, such a candidate is unlikely to cope with the task assigned to him. It may be necessary to continue further search for someone who will meet all the necessary conditions.

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If a counterparty refuses to provide the requested documents, the manager assigns such a counterparty the category “counterparty with risks,” which is noted in the counterparty’s legal file.

3. Legal matter of the counterparty. 3.1. The counterparty's legal file is formed simultaneously with the formation of documents for concluding an agreement. 3.2. In order to formalize the legal case of the counterparty, the manager requests documents and information on the list from the counterparty. The request for documents and information is placed in a legal file.

3.3. The counterparty's legal file includes: a) information on the method of obtaining information about the counterparty (printing advertisements in the media; recommendations from partners or other persons; the counterparty's website; memo from the manager about the source of information about the counterparty); b) an extract from the Unified State Register of Legal Entities (including the Internet; - preparation and sending by registered mail with notification to the Federal Tax Service at the place of registration of the future counterparty with a request to confirm (refute) the fact of bad faith of the future partner; - verification of the powers of the person signing the agreement from name of the counterparty, which includes: - verification of identification documents of the person signing the agreement on behalf of the counterparty; - if the agreement is signed on behalf of the counterparty by the director of an enterprise (not a separate division), it is necessary to verify the powers of the director of this person (from the order appointing the person director, from the minutes of the Meeting of the founders of the enterprise, etc.); - if the agreement is signed on behalf of the counterparty by any other person, verification of the power of attorney is necessary (mandatory presence of the signature of the director and the seal of the organization; date; period for which the power of attorney was issued; scope of powers of the person) .

TIN, address) Request According to para.

Regulations for verification of counterparties. What must be included in it?

It is important to pay sufficient attention to the following factors:

The procedure for checking a candidate before making a transaction:

How is the verification carried out?
What facts of the availability of property, capacities, warehouse areas and other resources may be, how this is recorded: photos, video shooting of objects, etc.
What Internet resources should be used, what to pay special attention to, how information is recorded.

Storage order and volume of required information:

As a rule, an organization that cares about reducing its risks establishes the maintenance of “personal files” for everyone with whom contracts were signed. “Personal files” collect all the data obtained during the analysis. These are documents, photos, videos and other documents that we managed to collect.
When checking a counterparty on online resources, it is important to correctly record the information received. To do this, screenshots are generated, which are printed and signed by the responsible persons. Do not forget that the time for drawing up the document must precede the signing of the contract. This is the only way to prove that all precautions were taken before the transaction, and not during the tax audit.

Signs of dishonesty of the counterparty, what to pay special attention to.

Such markers of bad faith were pointed out by the 53rd Plenum of the Supreme Arbitration Court of October 12, 2006. It would be useful to include them in your internal Regulations and strictly analyze the activities of the audited companies:

failure to fulfill the terms of the transaction due to inconsistency in the time and location of property and material resources;
lack of the required conditions for achieving results due to a lack of managerial or technical personnel, fixed assets, production assets, warehouses, vehicles;
there are no mandatory expenses for the type of activity;
there are no production capacities and other required resources in sufficient quantities;
the organization was created less than 6 months before the business transaction;
irregular nature of activity; violation of the law in the past;
one-time, non-typical nature of the operation;
carrying out the transaction at a place other than the location of the counterparty;
using a chain of intermediaries.

Perhaps the mere presence of some of the above factors in a candidate does not mean that he cannot be worked with. But, if several factors indicate this, and in some cases one is enough, then, most likely, you should think about it and refuse further cooperation.

You can find more detailed information on what to look for when assessing a candidate for a deal in my article:

How to exercise due diligence when choosing a counterparty?

Regulations on verification of counterparties: sample

The regulations and methodology for checking potential transaction partners are developed by business entities independently; no unified forms or structure are provided. It is recommended that the document indicate the persons who are appointed responsible for the implementation of this block of work. In different situations, an individual algorithm for checking the counterparty can be used:

an expanded set of verification measures is applied to recently registered companies, a minimum set of actions is applied to long-running companies;
a separate interaction mechanism can be provided for organizations with which transactions have already been concluded;
You can separate partners based on contract amounts.

The regulation on verification of counterparties contains information about a set of documents that responsible persons must request from potential partners. The regulations disclose the information to be collected and analyzed, the procedure for obtaining it and the processing methodology. The document is approved by the director and submitted for review to the responsible persons (against signature). It is recommended that the regulations establish a storage period for the enterprise's database of counterparties, outline measures of responsibility for officials, and ways to reward them.

Here are the online portals that I recommend using when checking a counterparty!

When analyzing the possibility of working with a particular partner, use:

https://pb.nalog.ru/ - “Transparent Business” service, the current status of the counterparty, its tax system are checked, an extract from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs is saved
https://service.nalog.ru/svl.do - the absence of information about disqualified managers and owners of companies is checked
https://fssprus.ru/iss/ - service of the Bailiff Service, checking the availability of writs of execution.
https://kad.arbitr.ru/ - information about the counterparty’s participation in arbitration processes is checked
https://www.vestnik-gosreg.ru/ - information about non-operating legal entities and companies that are in one or another stage of liquidation is checked.
https://services.fms.gov.ru/info-service.htm?sid=2000 - information about the validity of the passport of the manager/owner of the company is checked
https://service.nalog.ru/bi.do - information about the blocking of company accounts by the Federal Tax Service (presence of unpaid taxes or unfiled reports)

In the “personal file” of the new partner, along with the agreement, place printouts from the official sources above for storage.

Attention, be careful!

1. Remember that no amount of printouts from commercial systems can prove that you carefully and carefully approached the selection of a candidate. Courts do not accept such evidence and here's why. As you know, all commercial systems take information from official sources. Data may be distorted, truncated, or not updated. Commercial systems are not responsible for incorrect information. Technical glitch and that's it! Therefore, use and record in your “personal file” screenshots and documents only from official websites of government services.

2. Remember, you need to be careful when choosing a counterparty not on formal grounds ! Many businessmen believe that it is enough to request copies of constituent documents, certificates of state registration. registration and extract from the Unified State Register of Legal Entities and everything will be in chocolate! This approach is a utopia. Arbitration practice confirms this:

AS of the Krasnodar Territory in case A32-2566/2016;
AS of Moscow in case A40-112921/16-20-966.

Formal collection of evidence is not enough; other verification actions are also required. Write them down in your internal regulations and follow them. This is the only way to protect your business from fines and additional charges!

Find out information about an individual entrepreneur or legal entity

All information about counterparties is stored in the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs. You can find out information about legal entities and individual entrepreneurs there. To do this, you need to indicate your TIN:

The service will issue a report about the company in PDF format. Look into it and see if the counterparty has any signs of a fraudster. Among them:

discrepancy between activity codes and the niche in which the company operates;
too frequent change of founders - approximately once every few months;
records of unreliability of information in the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs based on information from open sources;
the minimum authorized capital is 10,000 rubles, despite the fact that the company positions itself as very reliable.

If you find one of the signs, check the legal entity using other registries. And if you didn’t find any information at all using the TIN you entered or another company is registered under it, this is a reason to immediately refuse the transaction.

It happens that everything is in order in the Unified State Register of Legal Entities, but after concluding an agreement with a company you find out that it has gone bankrupt or closed. Therefore, immediately look in the “Card Index” to see if a legal entity or individual entrepreneur is going to exclude information about itself from the registers. And if so, don't enter into a contract.

It would also be a good idea to check on the Federal Tax Service website to see if the company intends to make changes to any information in the register. And if yes, it is better to wait to conclude an agreement. It may happen that the company's founders change, and the new ones simply bankrupt it.

What is included in the measures to verify the integrity of the counterparty?

Both the Ministry of Finance and the Federal Tax Service do not ignore the issue of confirming due care and diligence when choosing a counterparty. In its latest letter on this issue dated December 17, 2014 N 03-02-07/1/65228, the Ministry of Finance indicates that the Tax Code does not define a specific list of actions and documents requested from counterparties, which can confirm that you have shown the same prudence and caution. As a result, it is possible that no matter how hard you try, you will not be able to avoid accusations that you were careless when choosing a partner. And yet, we must strive for this.

Here are a dozen possible control measures to check the counterparty. In practice, not all businessmen check their partner so carefully, but if the transaction is significant for you, then we recommend checking all possible risks, especially since most of these methods are free.

Find information about the future partner in the state register (Unified State Register of Legal Entities and Unified State Register of Individual Entrepreneurs). On our website we have posted a free form for obtaining information from the Unified State Register of Legal Entities/EGIP, which is fully linked to the corresponding official service of the Federal Tax Service. Thanks to it, you will receive comprehensive information about the official registration data of your counterparty in a minute. The search is possible by INN or OGRN, as well as by the name of the organization. To find information about an individual entrepreneur, you need to know his full name and region of residence.
Obtain information about the counterparty from open sources (official website, advertising, customer reviews).
Request documents from the counterparty. A typical package looks like this:

a copy of the state registration certificate;
a copy of the tax registration certificate;
a copy of the constituent documents;
copy of the manager's passport;
a copy of the license or access of the SRO, if the agreement is concluded for this type of activity;
documents confirming the authority of a person to sign an agreement (a copy of the protocol on the appointment of a manager or a power of attorney for another person);
copies of the order or power of attorney for the right of the counterparty’s employees to certify invoices and delivery notes.

Copies of documents must be certified by the seal and signature of the manager. In addition to these documents, you need to obtain an extract from the Unified State Register of Legal Entities (USRIP) for the counterparty; you can request it from the counterparty or order it yourself.

Make sure that the head of the counterparty is not a disqualified person.
Obtain information confirming that the counterparty submits tax reports and has no tax debts.
Find out whether the counterparty organization is in the process of liquidation.
Check the manager’s passport details against the list of invalid, lost or stolen passports.
Find out whether enforcement proceedings are ongoing against the counterparty. This means that the organization has an outstanding debt, which is being collected from it through the court.
Check whether there is information about the counterparty’s involvement in extremist activities or terrorism.
See if the future partner is included in the register of unscrupulous suppliers.
Check whether the counterparty's current account is blocked. To do this, you need to know the TIN of the counterparty and the BIC of his bank.
Make sure that the counterparty is not on the list of companies with which there is no connection at their legal address.

We have compiled a selection of available official services for verifying a counterparty in two articles, so you don’t have to wander around looking for this information on the Internet.

Useful services from the Federal Tax Service
Useful services for a businessman

How to check a counterparty through the online services of the Federal Tax Service?

Online services on the Federal Tax Service website will help you collect important information about a potential counterparty. The Tax Service registers taxpayers and therefore has the maximum possible amount of up-to-date information about all persons included in the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs.

By the name of the company, its address, INN and OGRN you can find out a lot of important information. Let's go through all the necessary services in order.

Check yourself and your counterparty

Using a request on this service, you can find out all the basic information about the counterparty:

whether the company being audited exists at all;
date and place of registration;
legal address of registration;
information about the size of the authorized capital, founders and directors;
information about changes to the register;
whether the company is in the process of reorganization, liquidation or bankruptcy.

The information is displayed in the form of an electronic document in “pdf” format, which can (and should) be saved and printed.

When analyzing information, pay attention to OKVED codes. You should be wary if there are a lot of them and they are in no way connected with each other. For example, the company is simultaneously engaged in woodworking, catering and software development. This is one of the signs of fly-by-night companies. They need different codes to transfer money between accounts, simulating activities in different areas.

Refuse the transaction if, according to the extract received, the company has already been excluded from the Unified State Register of Legal Entities. This means that someone is using its details for their own benefit, although the organization no longer exists. And most likely the tax authorities will refuse to deduct VAT for you.

Information about legal entities and individual entrepreneurs who submitted documents for state registration

The service will help you find out whether a company or individual entrepreneur has submitted documents for registration, including amendments to the constituent documents and register.

Such changes could be:

change of founder or director;
change of legal address;
change in the size of the authorized capital and shares in it;
reorganization, liquidation of the company

You can find out exactly what changes were made, when they happened and how the documents were sent to the tax authority.

Decisions of registration authorities on the upcoming exclusion of inactive legal entities from the Unified State Register of Legal Entities

An inactive legal entity is a person who during the year did not submit reports on taxes and fees and did not carry out transactions on at least one bank account. In this case, the Federal Tax Service has the right to exclude the company from the register.

It is better to refuse to enter into a transaction with a person who is going to be excluded from the register.

Mass registration addresses

This service will help you find out whether the counterparty is registered at a mass address, i.e., where many companies are located. Concluding a transaction with such a counterparty is another reason for recognizing a tax benefit as unjustified.

Registering a company at a mass address does not always indicate unreliability. Sometimes the address of a shopping or business center turns out to be widespread simply because many people are registered there. Therefore, if the counterparty is registered at a mass address, additionally find out whether this place is a business center.

Legal entities with whom there is no contact at the address indicated by them, entered in the Unified State Register of Legal Entities

If the company is actually absent from its registered address, then for the tax authorities this is one of the signs of bad faith.

Persons in respect of whom the fact of impossibility of exercising leadership has been established (confirmed) in court

This section will help you find out about the fact of disqualification of a company director, its duration and grounds. A disqualified manager does not have the right to sign documents on behalf of a legal entity. When concluding large transactions, the use of the service is mandatory.

Legal entity whose executive bodies include disqualified persons

This service expands the search for disqualified persons. With its help, you can check whether disqualified persons are included in the management bodies of the organization.

Another search engine for disqualified persons. It is more of an auxiliary nature. With its help, you can find out about the fact of disqualification based on the full name of a specific person. The main information is about the disqualification of the director of the company, but if you wish, using this service you can check, for example, members of the board of directors and other bodies of the legal entity.

Information about individuals who are managers or founders of several legal entities

Allows you to find out whether the person indicated in the extract from the Unified State Register of Legal Entities as a founder or director is a mass person. Yes, in addition to mass addresses there are mass founders/directors.

The reasons why a person became one can be different.

Sometimes this happens against the will of the person, for example, when a passport is lost. With its help, criminals register a couple of dozen fly-by-night companies for the unfortunate citizen, with the help of which they carry out fraudulent schemes.

There are people who deliberately agree to the role of a nominal director, i.e., who is a cover for the person who actually controls the company. Of course, they agree to the role of “nominee” for the appropriate fee.

If, when checking a company, it turns out that it has a mass founder and/or a mass director, then this is a good reason to terminate all relations with it.

Information about legal entities that have tax arrears and have not submitted tax reports for more than a year

The service helps you find out whether you have arrears in paying taxes and fees. Think for yourself, is it worth doing business with a company if it evades taxes and does not submit reports to the tax authorities? The answer is obvious.

Information on the suspension of transactions on taxpayer bank accounts

This service will help you find out whether a decision has been made regarding the company you are checking to suspend operations on its accounts in a particular bank. This system is intended for banks, but the information is open and accessible to everyone.

This is interesting: How the 1993 Constitution of the Russian Federation was adopted

On the search page, you need to select the very first item “Request for current decisions on suspension”, enter the taxpayer’s TIN and BIC of the bank in which he has an account.