What is meant by the term “counter check”
The concept of “counter tax audit” actually existed, but until 01/01/2007, when from para.
2 tbsp. 87 of the Tax Code of the Russian Federation excluded such additional tax control measures carried out during desk or field tax audits. Its essence was simple: the tax inspectorate requested documents from the counterparties of the taxpayer being inspected, and then compared the information received with that reflected in the organization’s documents.
However, instead of the term “counter check”, excluded from the Tax Code of the Russian Federation, a new article 93.1 was introduced into the code. It involves requesting information and documents about the taxpayer and specific transactions. At the same time, within the framework of such requests, the tax authorities have significantly increased powers.
However, in business practice, such events are still called a counter tax audit, since their essence has not changed: requesting documents and information from third parties to verify the accuracy of the information provided by the taxpayer being audited.
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Why documents must be submitted as part of the counter, read the material “The counterparty is obliged to submit the documents required by the tax authorities .
Counter audit of the tax inspectorate: its essence and purpose
Despite the name, counter check, according to Art. 87 of the Tax Code of the Russian Federation, is not included in the list of tax audits. The fact is that based on its results, decisions are not made that are binding on the taxpayer. This is just one of the activities carried out as part of tax control. As a result of its implementation, the tax inspectorate receives information about the taxpayer from his counterparties and partners. This essence of the counter-check can be judged by paragraph 1 of Art. 82, paragraph 1, art. 93.1, para. 3 paragraph 6 art. 101 of the Tax Code of the Russian Federation and letter of the Federal Tax Service of Russia dated April 16, 2007 No. ШТ-13-06/ [email protected]
The objectives of the counter audit of the tax inspectorate are as follows:
- checking the reality of the existence of a counterparty cooperating with the taxpayer on transactions of interest to the Federal Tax Service;
- the reality of transactions performed by the taxpayer;
- reconciliation of information on financial and economic transactions that is available to the audited taxpayer and its counterparty.
If discrepancies are detected between the data of the counterparty and the taxpayer, tax inspectors examine this data to determine whether these discrepancies affected the tax base or not. If the tax base has decreased, the data obtained is reflected in the audit report, the documents are attached to the report and are subsequently used as evidence of the taxpayer’s guilt in committing an offense.
It may happen that the taxpayer under audit remains above suspicion, but questions arise regarding the counterparty. In such circumstances, the counterparty should first wait for a desk audit, and then an on-site audit (if a preliminary analysis has confirmed its unreliability).
Documents that may be requested during a counter-inspection
There is no strictly regulated list of documents that the tax service may request. But, as a rule, this is a package of documents that characterizes the economic activities of an organization with its counterparties. Such documents include various kinds of acts, contracts, as well as invoices that meet the requirements for counter verification.
The tax agent, upon request from the Tax Service, must submit the necessary documents no later than within 5 days from the date of the request. Moreover, original documents are not required to be presented; copies can be used. A covering letter from the tax office that carried out the audit must be added to the package of documents.
If the tax agent cannot provide the requested documents within the established period, then he has the right to file a petition requesting to extend this period. The application must indicate the date by which the entire package of documents will be provided.
The counter-inspection of the counterparty is not verified; it only requires documents. But first, the tax authorities are required to send a covering letter to the tax agent, and only in writing. This letter must be sent to the tax office with which the organization or individual is registered. The reason for this inspection must be indicated in the letter.
After receiving the letter, within 5 days, the INS sends a request to the counterparty to present the necessary documents. A wide variety of documents can be requested, as a rule, these are invoices reflecting information on the payment of taxes, documents for the transportation of goods, contracts with a transport company. The response to the request must be provided within 5 days.
If the tax agent does not respond to the request, a fine may be imposed on him. In order to comply with the legality and legality of requesting documents, you must follow the following requirements:
- The request must be presented to a representative of the organization, and in person.
- If the request was sent by mail, the counterparty must be notified of its receipt.
- The request can only be made by the tax authority with which the organization is registered.
- The notification must contain the reason for the counter-inspection, as well as a complete list of documents required for submission.
- Absolutely all requirements and data must be formulated very clearly.
Before sending documents for verification, the tax agent must make sure that the tax authorities’ requirements are legal and legitimate. It is necessary to pay attention to the following nuances:
- The NS can request documents only if there is a certificate of a counter-inspection.
- The reason for requesting documents must be indicated.
- The request must contain complete information about the details of the documents being requested.
- Declarations of the enterprise cannot be requested by the tax authorities.
As a rule, counter-verification documents can be requested in two main cases: a transaction is being concluded for a particularly large amount, and the Tax Investor has reason to believe that the agreement with the counterparty is fictitious.
In what cases is a counter tax audit carried out?
pp. 1 and 2 tbsp. 93.1 of the Tax Code of the Russian Federation determines that a counter tax audit is carried out in the following cases:
1. If an on-site or desk inspection is carried out (paragraph 1, clause 1, article 93.1 of the Tax Code of the Russian Federation).
In this case, the on-site inspection may even be suspended while counter requests are sent. This norm is regulated by sub. 1 clause 9 art. 89 Tax Code of the Russian Federation; in addition, it is reflected in the letter of the Ministry of Finance of Russia dated October 28, 2008 No. 03-02-07/1-433.
2. After the counter or desk audit has already been completed (paragraph 2, clause 1, article 93.1 of the Tax Code of the Russian Federation).
In this case, a counter-check is carried out during the period of consideration of the materials and appears here, in accordance with paragraph. 3 paragraph 6 art. 101 of the Tax Code of the Russian Federation, as an additional tax control measure.
In addition, the tax authority has a little more time to conduct a counter audit. The Tax Code of the Russian Federation does not clearly define when tax control measures end during an audit. Therefore, courts may accept documents received in response to requests made after the completion of the on-site inspection, but before drawing up the final act. There is an instruction in this regard by the Supreme Arbitration Court of the Russian Federation, contained in the ruling dated February 11, 2010 No. VAS-24/10.
Apparently, the Supreme Court takes into account the norm of paragraph 2 of Art. 93.1 of the Tax Code of the Russian Federation, which determines that the tax authority may require information from third parties outside the framework of official inspections. However, inspectors have the right to make such requests only for specific transactions.
In what other cases a counter-inspection may be ordered, read the article “The inspection may request documents from you as part of an inspection of your counterparty’s counterparty .
The final stage of the counter check
Upon completion of the counter tax audit, the authorized person must draw up an act that contains all the details of the audit conducted, as well as its results. This act will serve as direct evidence if violations are discovered during the inspection. Moreover, information on each identified offense must be reflected.
Thus, we can conclude that a counter-inspection is not mandatory, and the basis for conducting this type of inspection is the detection of various types of inaccuracies that arise in the course of the business activities of the enterprise. The tax agent may not be notified about the start of a counter audit, but if any violations are identified, he will be held responsible for them.
What documents are the tax authorities entitled to request?
When conducting inspections, tax authorities have the right to demand any documents relating to the activities of a particular taxpayer. This is defined in letters of the Ministry of Finance of Russia dated October 9, 2012 No. 03-02-07/1-246 and dated October 8, 2012 No. 03-02-07/2-136.
According to the internal regulations of the Federal Tax Service, such documents are contracts, invoices, acceptance and delivery certificates, invoices - everything that may contain information about the interaction of the taxpayer being audited with counterparties.
Whether it is necessary to submit documents if their exact details are not indicated in the request, find out here.
The tax authorities may request from the counterparty information about the taxpayer who is being audited.
It should be borne in mind that if documents or information do not relate to the subject of the audit, then the tax authority does not have the right to demand their presentation.
Example
When conducting a desk audit, the tax inspectorate requested the staffing table from its counterparty, Gerkon LLC. Such a requirement is unlawful, since the staffing table of Gerkon LLC cannot be used to judge the activities of the company being inspected, even indirectly.
Arbitration courts share a similar opinion, which is reflected, in particular, in decisions of the FAS of the East Siberian District dated 02/25/2013 No. A10-2227/2012, FAS of the North-Western District dated 07/30/2010 No. A56-59024/2009 and the FAS of the Far Eastern District dated November 16, 2012 No. F03-5399/2012.
It may happen that the document is not directly related to the activities of the taxpayer being audited, but there is a mention of his business transactions. Such documents are likely to be requested. For example, when a counterparty's sales book contains a record of one transaction with a taxpayer. The tax authority has every right to request it in accordance with Art. 93.1 of the Tax Code of the Russian Federation (determination of the Supreme Arbitration Court of the Russian Federation dated January 19, 2012 No. VAS-17466/11).
However, it is possible to find out the validity of the request only in court, where qualified lawyers will check whether the requested document is really related to the activities of the taxpayer.
But the period to which such documents relate is not limited. For this reason, inspectors quite often request materials not only for the period for which the inspection is being carried out, but also for a wider time frame. The Ministry of Finance, in letter No. 03-02-07/1-519 dated November 23, 2009, confirmed that the tax authorities have such powers.
What to do if you have already submitted documents to the inspection, and it again asks you to submit them as part of a counter inspection, read the material “Can the inspection request for a “counter meeting” documents that have already been submitted in connection with a desk or field inspection? .
Deadlines and procedure for submitting documents
First, we will consider the deadlines for providing documents upon request, as well as the consequences of non-provision (late provision) of documents.
According to clause 5 of Article 93.1 of the Tax Code of the Russian Federation, a person who has received a requirement to provide documents (information) fulfills it within five days * from the date of receipt or, within the same period, reports that he does not have the requested documents (information).
