Position of the tax authority
During the audit, the tax authority established that the invited consultant was awarded the qualification “electromechanical technician”. He did not undergo training in other specialties and was not awarded any other qualifications. The entrepreneur could not answer questions related to accounting, citing the lack of legal sources. The inspectorate issued a requirement to him to provide documents (information) confirming the right to conduct consultations in the field of accounting, tax and legal spheres (diplomas, certificates, etc.). Neither the taxpayer nor the entrepreneur submitted the requested documents.
The company's accountant clarified that consultations with the entrepreneur were carried out orally on the application of arbitration practice, changes in taxation and accounting legislation. Moreover, before using the information received in her work, she independently checked and assessed its relevance.
During the inspection, the inspectorate discovered that the founder of the company and the invited consultant are married, that is, they are interdependent persons.
From the information received, the tax authority concluded that the document flow was artificially created for the consulting services provided in order to obtain material benefits.
Is it possible to include payments for environmental pollution in the costs of forming the tax base?
Amounts of taxes and fees are included in expenses that reduce the income tax base (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation). This may also include payment for negative impact on the environment. However, when excess emissions are committed, payments in amounts exceeding the established limit are not classified as expenses that reduce the taxable base (clause 4 of Article 270 of the Tax Code of the Russian Federation).
Example
The production organization Saturn LLC makes payments for negative impacts on the environment. Over the past year, she transferred 108,930 rubles for these purposes, including 90,775 rubles. for emissions in excess of established standards. When determining the taxable base, Saturn LLC takes into account only the amount of the fee, equal to 108,930 – 90,775 = 18,155 rubles. for emissions into the environment within established limits.
Read about the procedure for calculating payments for negative environmental impact in this article.
The court decided
Clause 1 of Article 252 of the Tax Code establishes the ability of a taxpayer, when calculating income tax, to reduce income received by the amount of expenses incurred.
Expenses are recognized as justified and documented expenses (losses) incurred (incurred) by the taxpayer.
Justified expenses mean economically justified expenses, the assessment of which is expressed in monetary form. Documented expenses mean expenses supported by documents drawn up in accordance with the legislation of the Russian Federation.
The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 1 of Resolution No. 53 of October 12, 2006 “On the assessment by arbitration courts of the validity of the taxpayer receiving a tax benefit” explained that the submission by the taxpayer to the tax authority of all properly executed documents provided for by the legislation on taxes and fees, in for the purpose of obtaining a tax benefit is the basis for receiving it, unless the tax authority proves that the information contained in these documents is incomplete, unreliable and (or) contradictory. The same resolution in paragraph 4 states that a tax benefit cannot be considered justified if it is not related to real business or other economic activity.
As follows from the case materials, an agreement for information and reference services was concluded between the company and the individual entrepreneur, under which the contractor assumes the obligation to consult the company’s business, and the customer undertakes to pay for the services of the contractor in the manner, on time and under the conditions specified in the agreement.
The presence of an accountant on the staff of the organization does not exclude the possibility of attracting third-party specialists to provide additional services, however, in this case, as reasonably indicated by the tax authority, the entrepreneur, without special education, is not a specialist in the field of accounting and reporting. Taking into account all the circumstances of the case, the court came to the conclusion that the taxpayer unreasonably reduced income for expenses on consulting services provided by the individual entrepreneur.
The documents submitted by the company on business transactions with the entrepreneur do not confirm the expenses incurred related to economic activities. The company has created the appearance of formal compliance with legal requirements in order to obtain unjustified tax benefits.
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Expenses that do not reduce profit
Russian tax portal
When determining the tax base, the following expenses are not taken into account:
1) in the form of amounts of dividends accrued by the taxpayer and other amounts of profit after taxation;
2) in the form of penalties, fines and other sanctions transferred to the budget (to state extra-budgetary funds), interest payable to the budget, as well as fines and other sanctions levied by government organizations that are granted the right to impose these sanctions by the legislation of the Russian Federation;
3) in the form of a contribution to the authorized (share) capital, a contribution to a simple partnership;
4) in the form of a tax amount, as well as the amount of payments for excess emissions of pollutants into the environment;
5) in the form of expenses for the acquisition and (or) creation of depreciable property, as well as expenses incurred in cases of completion, additional equipment, reconstruction, modernization, technical re-equipment of fixed assets;
6) in the form of contributions for voluntary insurance;
7) in the form of contributions to non-state pension provision;
in the form of interest accrued by the taxpayer - borrower to the creditor in excess of the amounts recognized as expenses for tax purposes in accordance with Art. 269 Tax Code of the Russian Federation;
9) in the form of property (including funds) transferred by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement;
10) in the form of amounts of deductions to the reserve for depreciation of investments in securities created by organizations in accordance with the legislation of the Russian Federation, with the exception of amounts of deductions to reserves for depreciation of securities;
11) in the form of guarantee contributions transferred to special funds created in accordance with the requirements of the legislation of the Russian Federation, intended to reduce the risks of non-fulfillment of obligations under transactions when carrying out clearing activities or activities for organizing trading on the securities market;
12) in the form of funds or other property that are transferred under credit or loan agreements, as well as in the form of funds or other property that are used to repay such borrowings;
13) in the form of amounts of losses for objects of service industries and farms, including objects of the housing, communal and socio-cultural sphere in part;
14) in the form of property, work, services, property rights transferred in advance payment by taxpayers determining income and expenses on an accrual basis;
15) in the form of amounts of voluntary membership fees (including entrance fees) to public organizations, amounts of voluntary contributions from participants in unions, associations, organizations (associations) for the maintenance of these unions, associations, organizations (associations);
16) in the form of the cost of gratuitously transferred property (work, services, property rights) and expenses associated with such transfer;
17) in the form of the value of property transferred as part of targeted financing;
18) in the form of a negative difference resulting from the revaluation of precious stones when the price lists were changed in accordance with the established procedure;
19) in the form of amounts of taxes presented by the taxpayer to the buyer (acquirer) of goods (work, services, property rights);
20) in the form of funds transferred to trade union organizations;
21) in the form of expenses for any types of remuneration provided to management or employees in addition to remuneration paid on the basis of employment agreements (contracts);
22) in the form of bonuses paid to employees from special-purpose funds or targeted revenues;
23) in the form of amounts of financial assistance to employees;
24) to pay additional vacations provided under the collective agreement (in excess of those provided for by current legislation) to employees, including women raising children;
25) in the form of bonuses to pensions, one-time benefits to retiring labor veterans, income (dividends, interest) on shares or contributions of the organization’s workforce, compensation charges in connection with price increases made in excess of the income indexation according to decisions of the Government of the Russian Federation, compensation increasing the cost of food in canteens, buffets or dispensaries or providing it at reduced prices or free of charge (with the exception of special food for certain categories of workers in cases provided for by current legislation, and with the exception of cases where free or reduced-price meals are provided for in employment agreements (contracts) and (or) collective agreements;
26) to pay for travel to the place of work and back by public transport, special routes, departmental transport, with the exception of amounts to be included in the costs of production and sale of goods (work, services) due to the technological features of production, and with the exception of cases when the cost of travel to and from work is provided for by employment agreements (contracts) and (or) collective agreements;
27) to pay price differences when selling goods (work, services) to employees at preferential prices (tariffs) (lower than market prices);
28) to pay price differences when selling products from subsidiary farms at preferential prices for the organization of public catering;
29) to pay for vouchers for treatment or recreation, excursions or travel, classes in sports sections, circles or clubs, visits to cultural, entertainment or physical education (sports) events, subscriptions not related to subscriptions to normative-technical and other used for production purposes literature, and payment for goods for personal consumption of employees, as well as other similar expenses made for the benefit of employees;
30) in the form of expenses of taxpayers - organizations of the state reserve of special (radioactive) raw materials and fissile materials of the Russian Federation on operations with material assets of the state reserve of special (radioactive) raw materials and fissile materials associated with the restoration and maintenance of the specified reserve;
31) in the form of the value of shares transferred by the taxpayer - issuer, distributed among shareholders by decision of the general meeting of shareholders in proportion to the number of shares owned by them, or the difference between the par value of new shares transferred in replacement of the original ones and the par value of the initial shares of the shareholder when distributing shares among shareholders with an increase the issuer's authorized capital;
32) in the form of property or property rights transferred as a deposit or pledge;
33) in the form of amounts of taxes accrued to budgets of various levels in the event that such taxes were previously included by the taxpayer as expenses, when writing off the taxpayer’s accounts payable for these taxes;
34) in the form of amounts of targeted contributions;
35) in the form of amounts of paid allowances in excess of the norms established by the legislation of the Russian Federation;
36) for compensation for the use of personal cars and motorcycles for business trips, for payment of food rations for the crews of sea, river and aircraft in excess of the norms for such expenses established by the Government of the Russian Federation;
37) in the form of a fee to a state and (or) private notary for notarial registration in excess of the tariffs approved in the prescribed manner;
38) in the form of fees, deposits and other obligatory payments paid to non-profit organizations and international organizations;
39) to replace defective, out-of-marketable and missing copies of periodicals, as well as losses in the form of the cost of out-of-marketability, defective and unsold media products and book products;
40) in the form of entertainment expenses in excess of their amount;
41) in the form of expenses provided for in paragraph 3 of Art. 264 Tax Code of the Russian Federation;
42) for the purchase (production) of prizes awarded to the winners of drawings of such prizes during mass advertising campaigns, as well as for other types of advertising;
43) in the form of contributions to the Russian Foundation for Basic Research, the Russian Humanitarian Science Foundation, the Fund for Assistance to the Development of Small Innovative Enterprises in the Scientific and Technical Sphere, the Federal Fund for Manufacturing Innovation, the Russian Fund for Technological Development, as well as to other industry and inter-industry funds for financing scientific- research and development work registered in the manner prescribed by the Federal Law “On Science and State Scientific and Technical Policy”;
44) negative difference resulting from the revaluation of securities at market value;
45) in the form of expenses of the trust management founder related to the execution of the trust management agreement, if the trust management agreement stipulates that the beneficiary is not the founder;
46) in the form of expenses incurred by religious organizations in connection with the performance of religious rites and ceremonies, as well as in connection with the sale of religious literature and religious items;
In accordance with Federal Law No. 313-FZ dated November 29, 2010, from January 1, 2012:
“in the form of funds transferred to medical organizations to pay for medical care to insured persons in accordance with the agreement for the provision and payment of medical care under compulsory health insurance, concluded in accordance with the legislation of the Russian Federation on compulsory health insurance.”
47) in the form of expenses, including remuneration to the management company and the specialized depository, made at the expense of organizations acting as insurers for compulsory pension insurance, when investing pension savings intended to finance the funded part of the labor pension;
48) in the form of amounts that are sent by organizations acting as insurers for compulsory pension insurance to replenish pension savings intended to finance the funded part of the labor pension, and which are reflected in the pension accounts of the funded part of the labor pension;
49) in the form of pension savings funds to finance the funded part of the labor pension, transferred in accordance with the legislation of the Russian Federation by non-state pension funds to the Pension Fund of the Russian Federation and (or) other non-state pension fund, which act as an insurer for compulsory pension insurance;
50) expenses of shipowners for maintenance, repairs and other purposes related to the maintenance and operation of ships registered in the Russian International Register of Ships;
51) expenses of a development bank - a state corporation;
52) incurred by taxpayers who are Russian organizers of the Olympic Games and Paralympic Games in accordance with Art. 3 of the Federal Law “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi, the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation”, including costs associated with engineering surveys during construction , architectural and construction design, construction, reconstruction and organization of operation of Olympic facilities;
53) in the form of amounts of remuneration and other payments made to members of the board of directors;
54) expenses of a non-profit organization performing the function of providing financial support for major repairs of apartment buildings and relocation of citizens from emergency housing stock in accordance with the Federal Law “On the Fund for Assistance to the Reform of Housing and Communal Services”, incurred in connection with the placement of temporarily available funds;
55) in the form of payments to the victim made in the form of direct compensation for losses in accordance with the legislation of the Russian Federation on compulsory insurance of civil liability of vehicle owners by the insurer that insured the civil liability of the victim;
56) expenses of state institutions in connection with the performance of state (municipal) functions, including the provision of state (municipal) services (performance of work);
57) incurred by taxpayers who are Russian marketing partners of the International Olympic Committee in accordance with Art. 3.1 of the Federal Law of December 1, 2007 No. 310-FZ “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi, the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation” , in connection with participation in the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi during the organization of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi, established by Part 1 of Art. 2 of the specified Federal Law;
58) expenses related to ensuring safe conditions and labor protection during coal mining, carried out (incurred) by the taxpayer and accepted by him for deduction, with the exception of expenses provided for in paragraph 5 of Art. 325.1 Tax Code of the Russian Federation;
59) other expenses that do not meet the criteria specified in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation.
