Protection of the legitimate interests of the taxpayer: presumption of good faith of the taxpayer

How is the presumption of good faith of the taxpayer established in the Tax Code of the Russian Federation?

In tax legislation there is no definition of the concept of “presumption of good faith”, and the term itself is not used in legal regulations. At the same time, from Art. 108 of the Tax Code of the Russian Federation it follows that:

a person is considered innocent of committing a tax offense until his guilt is proven;
the burden of proving guilt lies with the tax authorities - the taxpayer himself is not obliged to prove his “tax” innocence;
all irreducible doubts about the taxpayer’s guilt are interpreted in his favor.

The provisions of this article establish at the legislative level the principle of the presumption of good faith of the taxpayer.

To find out whether the principle of presumption of good faith of the taxpayer helps to defend the VAT deduction in court, follow the link .

In practice, the taxpayer in most cases has to prove his innocence himself. With the advent of Art. 54.1 on the prohibition of tax abuse, the taxpayer must take its provisions into account when proving his innocence. Let's look at the contents of this article in more detail.

We talked about the appearance of Article 54.1 in the Tax Code of the Russian Federation here .

About the criteria of integrity

Thus, a taxpayer who:

pays employees an average salary not lower than the average level for the corresponding type of economic activity in the constituent entity of the Russian Federation;
has everything necessary to achieve the results of the relevant economic activity: technical or managerial personnel, fixed assets, production assets, vehicles, warehouses;
carries out real operations taking into account the time, location of the property, the volume of material resources economically necessary for the production of goods, performance of work or provision of services;
plans to make a profit as a result of any transaction;
does not carry out transactions with companies against which criminal or administrative proceedings have been initiated;
does not make transit payments with organizations participating in interrelated business transactions;
has already made transactions with counterparties. At the same time, he approaches the formalization of financial and economic relationships responsibly;
is careful in choosing each counterparty;
has not violated tax laws in the past.

Prohibitions and rights of taxpayers under Article 54.1 of the Tax Code of the Russian Federation

Art. 54.1 determines the limits of the taxpayer’s rights to calculate the amount of tax, fee, and insurance payments.

In paragraph 1 of Art. There is a ban on reducing the tax base or tax amount if the taxpayer used inaccurate data when calculating them:

about the facts of your economic life (or their totality);
objects of taxation to be reflected in accounting or reporting.

If a business entity uses reliable factual data when determining tax liabilities, it is allowed to reduce the tax base (clause 2 of the article in question). In this case, 2 conditions must be met simultaneously:

the purpose of the transaction should not be directly related to the reduction of tax liabilities (non-payment (incomplete payment) and (or) offset (refund) of tax);
the executor of the operation (transaction) must act as a party to the agreement with the taxpayer or other authorized person to whom the obligation to fulfill the agreement has been transferred (by virtue of the agreement or by law).

In the last paragraph of the article, the legislator provides a kind of concession for the taxpayer (we will talk about it later).

This article, although devoted to issues of tax benefit, does not directly explain the concept of unjustified tax benefit, in which controllers are trying to incriminate business entities. In the next section you will learn how judges interpret this concept.

See also: “The Federal Tax Service explained how taxpayer abuses are proven .

The concept of unjustified tax benefit

This term is not deciphered in the Tax Code of the Russian Federation, although proving an unjustified tax benefit (UNB) is widely used by tax authorities in court.

Charges for obtaining INV may come from controllers if:

in their opinion (based on a preliminary analysis), you are engaged in activities with a high tax risk, and there is a likelihood that you will receive an INV;
The preliminary opinion of the tax authorities is supported by the results of the tax audit.

The concept of “tax benefit” is deciphered in the resolution of the Plenum of the Supreme Arbitration Court “On the assessment by the courts of the validity of the taxpayer’s receipt of a tax benefit” dated October 12, 2006 No. 53 as a reduction of tax liabilities due to the receipt of:

rights to a tax deduction, tax refund (offset) and/or refund;
tax benefits;

And also due to:

reducing the size of the tax base;
application of a lower tax rate;

A tax benefit may be recognized as an INV if its receipt is not related to the actual activities of the taxpayer.

With the advent of Art. 54.1, tax legislation now establishes a clear relationship between the actual activities of an economic entity and the possibility of reducing tax liabilities.

Is the concept of a “bona fide taxpayer” a presumption?

In our opinion, no. Firstly, the “presumption of good faith” cannot be recognized as a legal presumption, since it is not enshrined in the law. Secondly, this concept cannot be attributed to an actual presumption, since the same actions usually performed by taxpayers are assessed differently by different subjects of law. Thus, most taxpayers rightly believe that it is unnatural and unusual for them to strive to pay taxes in the maximum amount and enter into transactions with the worst tax consequences. It is unnatural for a commercial organization specially created to make a profit (Clause 1 of Article 50 of the Civil Code of the Russian Federation) to divert working capital in the form of tax overpayments or VAT not reimbursed from the budget. In this sense, the usual behavior of a taxpayer who promptly returns tax overpayments, reimburses VAT from the budget, uses legal tax benefits and legal methods of tax optimization should be recognized as natural. This point of view was also supported by the Constitutional Court of the Russian Federation: “It is unacceptable to establish liability for such actions of the taxpayer, which, although they result in non-payment of tax or a reduction in its amount, but consist in the use of the rights granted to the taxpayer by law related to legal exemption from paying tax or with the choice of the most profitable forms of entrepreneurial activity for him and, accordingly, the optimal type of payment" [footnote 11]. It is natural for a taxpayer to minimize labor costs and protect property (including in court), and an unwillingness to submit to unreasonable demands of tax authorities.

Other law enforcers (the majority of them in the tax authorities) consider the same actions of a taxpayer (especially a large one) to be unfair. In their opinion, only a taxpayer who complies with any requirements of the tax authorities and does not challenge their actions and non-normative acts can be considered conscientious. At the same time, it is considered unnatural that during the audited period the taxpayer has never violated tax legislation and the tax audit report does not contain any comments. Not only attempts to return tax overpayments are declared dishonest (this is explained by causing significant damage to the budget), but also the filing of amended declarations in which the amount of tax payable is reduced (this complicates tax control). Some tax officials consider it a sign of bad faith if a taxpayer erroneously interprets the tax law in his favor in the event of a legal gap. And even the incorrect, in the opinion of the tax authority, establishment by the taxpayer of the target provisions of the tax law is a sign of his bad faith [footnote 12]. This approach could be considered debatable if it did not directly contradict the presumption of interpretation of the tax law (clause 7 of article 3 of the Tax Code of the Russian Federation) and the presumption of innocence of the taxpayer (clause 6 of article 108 of the Tax Code of the Russian Federation).

Taking into account the above, it can be argued that the concept of “good faith of the taxpayer” is not a presumption as such, and the concept of “bad faith of the taxpayer” is a refutation of the presumption. The legal nature of these phenomena is similar to a legal fiction. Legal fiction is a legal device that allows you to regulate existing legal relations with an existing legal gap, that is, to apply to these legal relations the rules of law that regulate similar legal relations by analogy [footnote 13]. But if this statement is true, then the use of legal fiction to regulate administrative legal relations is unacceptable. Thus, paragraph 3 of Article 2 of the Civil Code of the Russian Federation prohibits the extension of civil law provisions to administrative (including tax) legal relations. The application of any administrative sanctions is possible only in case of violation of regulations and prohibitions that are either directly established by law or inevitably follow from the law. The uncertainty of a norm, especially a norm establishing legal liability, is absolutely unacceptable both from the point of view of Article 55 (Part 3) of the Constitution of the Russian Federation, and taking into account the fact that it entails a high probability of arbitrary application, which in such cases has been repeatedly recognized by the Constitutional Court of the Russian Federation as contrary to Article 19 (Part 1) of the Constitution of the Russian Federation [footnote 14]. It seems that the above fully applies to the legal fiction of “bad faith of the taxpayer.”

The Tax Code of the Russian Federation is built on the permitting principle: you should only do what is specified in the law. At the same time, the Tax Code of the Russian Federation does not allow the taxpayer to interfere with tax control: the tax authority resorts to compulsory methods of obtaining possible evidence of a tax offense and has the right to use a calculation method for determining tax arrears (clause 7 of Article 31 of the Tax Code of the Russian Federation). To establish the bad faith of a taxpayer, neither the Tax Code of the Russian Federation nor the Arbitration Procedure Code of the Russian Federation contain special procedures. In practice, bad faith is established by refuting the good faith of the taxpayer. It is noteworthy that some tax officials admit that “the mechanism capable of solving this problem (tax evasion) has fairly become good faith (bad faith), replacing the need to prove a complex legal structure to recognize the taxpayer’s actions as unlawful” [footnote 15]. It is this circumstance that makes the use of the legal fiction of “bad faith” most attractive for some tax authorities and courts: it exempts, in their opinion, from proving the illegality of the taxpayer’s behavior. However, the application of any sanctions to the taxpayer for violating the legal fiction of “good faith” in this case will be fictitious (unfounded and illegal), encouraging incompetence, dishonesty and arbitrariness of tax authorities when they carry out tax control measures.

P.A. Gavrilov argues that dishonesty is not a type of offense, and therefore does not entail any sanctions; an unscrupulous taxpayer is simply not provided with a guarantee of rights from the state [footnote 16]. We cannot agree with such a statement, since depriving a state body of any person (including an offender) of his subjective rights not on the basis of the law for a state body means becoming an offender himself. For the court, this means that it becomes not an arbiter of justice, but an accomplice in reprisals, lynching and lawlessness.