New rules for tax audits from August 2021
From 2021, the Federal Tax Service will cease to apply the rules of the Plenum of the Supreme Arbitration Court of the Russian Federation 10/12/2006 N 53 “On the assessment by arbitration courts of the validity of a taxpayer receiving a tax benefit”?
Tax lawyer Gordon A.E.
Moscow
When conducting tax audits in 2021 of tax deductions and expenses declared in declarations, Russian tax authorities should not apply the criteria of “justified/unjustified tax benefit” and other rules established by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006. No. 53.
According to the rules of the new Article 54.1 of the Tax Code of the Russian Federation, as part of tax audits in 2021, the validity of the use of deductions and expenses will be assessed by tax authorities according to the criteria of “ abuse of rights” introduced by this article .
To be precise, that is, from mid-August 2021. Tax authorities, in addition to the existing rules of parts 1 and 2 of the Tax Code of the Russian Federation, have at their disposal two new grounds for withdrawing deductions and expenses, and taxpayers have a new obligation: for each declaration, and in each field trip, the business will have to prove the right to apply deductions and expenses .
New rules for conducting tax audits in 2021 apply when conducting desk tax audits of VAT returns - starting from the date of entry into force of this article (from August 19, 2017), and for on-site audits - starting from the year of appointment of the on-site audit in which Article 54.1 came into force Tax Code of the Russian Federation. That is, on-site inspections scheduled after 08/19/2017 will be carried out by tax authorities taking into account the rules of Article 54.1 of the Tax Code of the Russian Federation. Accordingly, tax authorities will not take into account the rules of Resolution No. 53, even for transactions completed before August 2021.
The rules for conducting tax audits under Article 54.1 of the Tax Code are set out in the letter of the Federal Tax Service of the Russian Federation dated October 31, 2021 N ED-4-9 / [email protected] and are formally advisory in nature, but reading the full text leaves no doubt: from August 2021 tax authorities are required to apply the new tax audit rules.
At the same time, the letter also contains carrots for taxpayers:
1) From August 2021, when drawing up tax audit reports, conclusions about tax violations must be motivated by references to the rules of Article 54.1 of the Tax Code of the Russian Federation, as well as be “generally” motivated. This means that inspectors cannot use the terms of Resolution No. 53, for example, “unjustified tax benefit” and “due diligence” to motivate decisions of inspectors.
2) Now the following cannot independently serve as a basis for filing tax claims: signing of primary accounting documents by an unidentified or unauthorized person; violation of tax laws by the counterparty; the possibility of the taxpayer obtaining the same result of economic activity when performing other transactions (operations) not prohibited by law.
The requirements of Article 54.1 of the Tax Code were brought to the attention of the territorial tax inspectorates of the Russian Federation in order to exclude the possibility of tax authorities making formal claims against taxpayers during tax audits.
An unambiguous conclusion follows from the letter from the Federal Tax Service: inspectors should file tax claims in a motivated and systematic manner, based on the totality of evidence . For example, if “toxic” invoices are discovered, the tax audit report will not just be motivated by this fact alone, but in addition several other circumstances will be included for consistency and motivation.
Where can I get a plan for on-site tax audits for 2021?
The plan for on-site tax audits is annually posted on the Federal Tax Service website until December 31 of the year preceding the year of control activities. Therefore, 2021 has already shown who will face an on-site tax audit in 2021.
Taking into account clause 4 of Art. 89 of the Tax Code of the Russian Federation in 2021, tax authorities can conduct an on-site tax audit in relation to 2015, 2021, 2021. At the same time, the arbitrators admit that during an on-site tax audit, regulatory authorities have the right to request documents from the current year, i.e., in addition to the previously indicated years, you must be prepared to submit documentation relating to 2021.
Details are in our materials:
- “The RF Armed Forces recognized that an on-site inspection of the current calendar year is legal”;
- “Does the tax authority have the right to check the current year?”.
Identification and assessment of distortions in accounting as part of a tax audit 2021
Rules clause 1 of Article 54.1 of the Tax Code of the Russian Federation
Clause 1 of Article 54.1 of the Tax Code of the Russian Federation establishes a prohibition 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 (the totality of such facts), about objects of taxation that are subject to reflection in tax and (or) accounting or tax reporting of the taxpayer.
The clause is aimed at combating tax evasion through distortion.... .
The Federal Tax Service explains: The provisions of clause 1 of Article 54.1 of the Tax Code presuppose deliberate actions of the taxpayer himself to introduce distortions. This circumstance must be established by the tax audit 2021. How will it be established.
When conducting a tax audit in 2021, the tax authority must prove: conscious distortion by the taxpayer of information about the facts of economic life (the totality of such facts), about objects of taxation that are subject to reflection in tax and (or) accounting or tax reporting of the taxpayer and the purpose of such actions is to reduction by the taxpayer of the tax base and (or) the amount of tax payable, incorrect application of the tax rate, tax benefit, tax regime, manipulation of the status of the taxpayer, deliberate actions of the tax agent for non-withholding (incomplete withholding) of tax amounts subject to withholding by the tax agent.
If there is no evidence of such intent on the part of the taxpayer in the materials of the 2018 tax audit, a methodological (legal) error in itself cannot be recognized as a distortion for the purposes of applying paragraph 1 of Article 54.1 of the Tax Code of the Russian Federation.
What actions will the Federal Tax Service consider as intentional distortions for paragraph 1 of Art. 54.1 Tax Code of the Russian Federation:
The text of the letter from the Federal Tax Service sets out specific signs of intentional distortion , although the list is open and obviously evaluative, which puts those being audited in a deliberately high-risk position.
In tax audits 2021 inspectors must consider distortions intentional and consider them as elements of a tax scheme if at least one of the following signs occurs:
1) creation of a “business fragmentation” scheme aimed at the unlawful use of special tax regimes;
2) taking actions aimed at artificially creating conditions for the use of reduced tax rates, tax benefits, tax exemptions;
3) creation of a scheme aimed at the unlawful application of the norms of international agreements on the avoidance of double taxation;
4) unreality of execution of the transaction (operation) by the parties (lack of fact of its completion).
The Federal Tax Service considers (in particular) the following methods of distortion of information about objects of taxation, which, during an audit, may be qualified under paragraph 1 of Article 54.1 of the Tax Code of the Russian Federation: failure by the taxpayer to reflect income (revenue) from the sale of goods (work, services, property rights), including in connection with with the involvement of controlled persons in business activities, as well as the reflection by the taxpayer in the accounting and tax registers of obviously unreliable information about the objects of taxation.
At the same time, controllability can be viewed in different ways - from “legal” interdependence to the use of fly-by-night accounts. Accordingly, the identification of fly-by-night companies in the supply chain, in itself, should not be considered as a basis for removing deductions and expenses. At the same time, taking into account the clarifications of the Federal Tax Service under consideration and the data provided by the tax service earlier, one should not expect any simplification of tax audits. Now the withdrawal will be proved by circumstantial evidence and the totality of evidence.
How to appeal an on-site tax audit report
The completion of the on-site tax audit is evidenced by a certificate drawn up by the tax authorities. After its registration, inspectors have 2 months to draw up and submit an act (Clause 1 of Article 100 of the Tax Code of the Russian Federation), which indicates:
- date of;
- details of the person being checked;
- Full name of inspectors from the Federal Tax Service;
- number of the decision to conduct the inspection;
- documents submitted by the taxpayer;
- review period;
- other important information.
This is discussed in more detail in the material . Here you can also find a sample act.
After receiving the report, the taxpayer has the opportunity to appeal within a month. “Objections to an on-site tax audit report - sample” will tell you how best to do this .
After considering the objections, the Federal Tax Service Inspectorate within 10 days (according to paragraph 1 of Article 101 of the Tax Code of the Russian Federation, this period can be extended by 1 month) makes a decision on whether or not to hold the person being inspected accountable.
Like in 2021 Tax authorities will prove violations of clause 1 of Article 54.1 of the Tax Code of the Russian Federation
The elements of the composition (Circumstances under the above-mentioned points 1, 2 and 4) are identified in documents, and therefore the methodology for their establishment by inspectors when conducting a tax audit in 2021. obviously will not differ from that used previously.
The intent of the person being audited is to reduce the tax base, etc. precisely due to distortions - it is much more difficult to prove, and as a rule, inspectors approach this issue formally. Traditionally, in tax audit reports, inspectors replace evidence by listing certain circumstances. Pointing to this, the Federal Tax Service in a letter simultaneously explains the inadmissibility of such an approach.
How will they prove the taxpayer’s intent to apply the tax scheme in 2021:
The Federal Tax Service instructs inspectors as part of a tax audit in 2018. prove intent to apply a tax scheme by identifying the simultaneous presence of circumstances indicating that:
1) the person was aware of the illegal nature of his actions (inaction) - the use of an illegal scheme, as a result of which the tax is reduced
2) wanted or consciously allowed the occurrence of harmful consequences of such actions (inaction) - a reduction in the amount of tax.
Thus, according to the Federal Tax Service, one of the signs of unlawful intentional actions of a taxpayer to illegally reduce taxes is the facts of legal, economic and other control of the participants involved in the tax scheme. Therefore, tax audits in 2021 of any taxpayers will contain a mandatory element - checking the interdependence and controllability of participants in transactions.
Now, when submitting reports electronically, this is not difficult to do. At the first stage, the detection of the listed signs is established automatically - by a robot program. Back in 2015, the automated control system “AIS Tax-3” was developed and fully put into operation in 2021 ( Order of the Federal Tax Service of February 10, 2021 N ММВ-7-15 / [email protected] ).
Tax control in 2021: new trends, ways to protect the interests of the taxpayer
IN A PROGRAMME
Session 1.
Rights of tax authorities and new responsibilities of taxpayers: a new reality
Taxpayer control: changing the principles and rules of the game
· The concept of the Federal Tax Service of Russia regarding industry control: what is important for the market to understand
· Automation of tax administration: “cloud” tomorrow has already arrived
· “Electronic” traces of business transactions under tax control: threat models for falling into the “red zone” of tax control
· TMS (taxpayer behavior management system): how it works
· How can a taxpayer mitigate tax risks?
How tax and law enforcement authorities identify and prove cases of intentional tax evasion
· Modern methods of identifying cases of tax evasion
· New technologies for “tracking” business (ASK VAT-2, ASK VAT-3): how it works
· Joint inspections of tax and law enforcement agencies: main goals and means
· Which operations are attacked first?
· Business prevention – what should be done today
Bringing to subsidiary liability in bankruptcy - what chief accountants and tax directors of companies need to know
· Vicarious liability: bankruptcy law and the position of the Federal Tax Service of Russia
· The relationship between subsidiary liability in bankruptcy and other types of liability for tax offenses. Commentary on the Resolution of the Constitutional Court of the Russian Federation dated December 8, 2017 No. 39-P
· In what cases is the chief accountant, tax or financial director recognized as the subject of liability?
· The flip side of reorganization and other business transactions: how not to become a controlling person involuntarily
· Features of proving the status of a person's controlling debtor. What circumstances indicate his innocence?
· Should we be afraid of subsidiary liability: a brief commentary on the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 No. 53 “On some issues related to holding persons controlling the debtor liable in bankruptcy”
Session 2.
Practical application of Art. 54.1 of the Tax Code of the Russian Federation: how tax authorities and taxpayers read the law
Tax control measures: how to pass the test for misrepresentation of information about business activities, the test for the presence of a business purpose, the test for the actual fulfillment of an obligation
How should the algorithm for including costs in expenses and applying deductions work?
· Misrepresentation of information about economic activities: how the Federal Tax Service of Russia interprets it and what factors are examined when proving intent
· The reality of a business transaction and the reality of execution by the counterparty: situations in the taxpayer’s risk zone
· What are the criteria for a “good” transaction and what situations will the tax authorities consider “tax evasion”
Development of judicial practice on the application of Art. 54.1 Tax Code of the Russian Federation: expectations and reality
· What tax authorities and courts examine in practice when resolving the issue of the presence or absence of exceeding the limits of the exercise of rights in the field of taxation: law enforcement practice after August 2021
· Back to the past: how Art works. 54.1 in relation to previously completed transactions
“Toxic” counterparties: how to identify them and how not to make a mistake
· Policy of diligence when working with counterparties: minimum and additional criteria
· Collection of evidence of the reality of the transaction and the reality of the supplier at the “entrance” to the transaction: practical recommendations
· How to rebuild the company’s business processes and the organization of contract work in connection with new requirements
Session 3.
On-site tax audits: what to expect and what taxpayers can count on
3 years of waiting for a tax audit: what happened, what will happen, how it will end, or tax compliance to help us
· Organizing and conducting tax audits in a company: how to place emphasis
· Assessment of the degree of tax risk and a matrix of risk decision-making options
· Practical issues of calculating, monitoring and managing the maximum tax burden of a company: strategy, tactics
· Practical examples of forecasting tax risks using the example of Art. 54.1 Tax Code of the Russian Federation
· Local regulations and their effective application during tax control activities
TAX GR: learning to build a working relationship with the Federal Tax Service during a tax audit
· Vertical and horizontal distribution of responsibilities in contacts with the Federal Tax Service / Federal Tax Service / Federal Tax Service Inspectorate
· Complaints about the actions of the tax inspectorate: when it works
· Procedure for planning a tax audit by the tax authority: is it possible to set convenient deadlines?
· How to respond to tax inquiries during an audit: practical recommendations
How can the GR division of a company help?
· Work with the media
· Participation in pilot projects of the Federal Tax Service
How to fail an interrogation at the tax office: bad advice
How to NOT prepare for an interrogation
· Top tips from failed taxpayers
· How to ensure maximum additional charges for verification and much more
Session 4.
Pre-trial settlement of tax disputes: window of opportunity
Refund of overpaid and collected taxes
· Overpaid taxes: administrative procedure and deadline for exercising the right to a refund. Acceptable cases of overcoming it
· Excessively collected taxes. New edition of clause 3 of Art. 79 of the Tax Code of the Russian Federation: is it possible to file a claim for a refund if there is an inspection decision on bringing to tax liability, which has not been declared invalid
What not to read in the Tax Code, or alternative ways to protect the interests of the taxpayer (using real cases as examples)
Manual taxes: how can a taxpayer attract the central office of the Federal Tax Service to his side in a dispute with the tax inspectorate (using real cases as an example)
· In what cases and how does the Federal Tax Service intervene in tax disputes?
Is such an intervention good or bad for the taxpayer?
· Settlement agreements between taxpayers and tax authorities
· Strategy for the control work of the Federal Tax Service of Russia for 2021 and plans for the future: the view of practitioners
What must a taxpayer prove in every tax audit starting from 2021?
The burden of proof for the taxpayer is actually established in Part 2 of Article 54.1 of the Tax Code
From August 2021, after the introduction of Article 54.1 of the Tax Code, taxpayers will always have to additionally prove two circumstances when submitting tax reports:
1) the main purpose of the transaction (operation) is not non-payment (incomplete payment) and (or) offset (refund) of the tax amount;
2) the obligation under the transaction (operation) was fulfilled by a person who is a party to the agreement concluded with the taxpayer, and (or) a person to whom the obligation to perform the transaction (operation) was transferred under the agreement or law.
A more correct statement: the tax authorities in 2021. two new grounds established by law (Tax Code of the Russian Federation) for withdrawing deductions and expenses have appeared . According to the Federal Tax Service, according to the new rules of Part 2 of Article 54.1 of the Tax Code, expenses can be withdrawn during an inspection if:
1) the tax authority has evidence that the taxpayer has the main purpose of completing the transaction (operation) - non-payment (incomplete payment) and (or) offset (refund) of the tax (fee) (clause 1, part 2, article 54.1 of the Tax Code);
2) if the inspection materials indicate that the goods (work, service) come from another person and not from the declared counterparty (clause 2, part 2, article 54.1 of the Tax Code).
The listed characteristics are evaluative, and one can assume how inspectors will apply them. For example, in its letter, the Federal Tax Service evaluates the information (evidence) obtained during inspections not as direct, but as indirect.
Discussion moderators:
Evgeniy TIMOFEEV – partner, head of tax practice in Russia/CIS at the law firm Goltsblat BLP
Dzhangar DZHALCHINOV – partner and head of the Russian tax and customs practice of the international law firm Dentons
Main themes:
- Rights of tax authorities and responsibilities of taxpayers: a new reality
- How tax and law enforcement authorities identify and prove cases of intentional tax evasion
- Subsidiary liability in bankruptcy: what chief accountants and tax directors of companies need to know
- Practical application of Article 51.1 of the Tax Code of the Russian Federation: how tax authorities and taxpayers read the law
- Three years of waiting for a tax audit: how to anticipate and minimize future risks
- TAX GR: learning to build a working relationship with the Federal Tax Service during a tax audit
- How to behave during interrogation at the tax office and what interrogation tactics you should know about: tips for taxpayers
- Refund of overpaid and collected taxes
- What you can’t read about in the Tax Code, or alternative ways to protect the interests of the taxpayer (using real cases as examples).
- Manual taxes: how a taxpayer can attract the central office of the Federal Tax Service to his side in a dispute with the tax inspectorate (using real cases as an example).
Representatives of the Federal Tax Service of Russia, experts from leading consulting companies, and business representatives will take part in the discussion:
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Konstantin NOVOSELOV – Ph.D., Deputy Head of the Control Directorate of the Federal Tax Service of Russia, State Advisor of the Russian Federation, 2nd class
Elena SUVOROVA – Head of the Department of Pre-trial Settlement of Tax Authorities of the Federal Tax Service of Russia
Rustem MIFTAHUTDINOV – Candidate of Legal Sciences, Associate Professor of the Department of Business and Corporate Law of the Moscow State Law Academy (MSAL) named after. O.E. Kutafina, retired judge of the Supreme Arbitration Court of the Russian Federation
Alexander ERASOV – lawyer, head of the tax dispute resolution group of Goltsblat BLP, criminal defense group for tax crimes of Goltsblat BLP
Galina AKCHURINA – partner, head of tax disputes practice at FBK Legal
Nikolay PAVLENKO – lawyer, forensic economic expert, chairman of the board of the Foundation of Independent Consultants and Experts, deputy chairman of the Moscow Chamber of Control and Accounts (retired)
Raisa ALEXAKHINA – Partner at PwC Legal, Head of the Practice for Resolving Disputes with Government Authorities
Maxim KHVALIBOV – Director of the Department of Taxes and Duties of Arkonik Russia
Dmitry KOSTALGIN – managing partner of TaxAdvisor, expert of the working groups of the Ministry of Economic Development of the Russian Federation and the Ministry of Finance of the Russian Federation, member of the expert council of the tax committee of the State Duma of the Russian Federation
Viktor BATSIEV – Actual State Counselor of Justice, 3rd class, until August 2014 – Judge of the Supreme Arbitration Court of the Russian Federation, Chairman of the Tax Commission, Member of the Presidium of the Supreme Arbitration Court of the Russian Federation, Honorary Worker of the Judiciary, Head of the “Tax. Support"
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Anton ZYKOV – partner, head of the tax dispute resolution group at Deloitte, CIS
We invite you to participate: tax and financial directors of companies, chief accountants, tax lawyers, business owners
What guidelines will law enforcement practice give us and is there any good news for the taxpayer?
Detailed information on the event page:
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