The inspectorate regularly sends out summonses to directors at commission meetings. No one is immune from this. What to do if you receive such a call?

What's wrong with a loss?

The mere fact of receiving a loss is neither good nor bad.
If we turn to the legislation, then clause 1 of Art. 2 of the Civil Code of the Russian Federation explains that entrepreneurship is an independent activity that is carried out at one’s own risk. Moreover, this activity must be legal, and its goal is the systematic receipt of profit. Please note that making a profit is precisely the goal, and not a mandatory result of entrepreneurship. This interpretation of the law is also confirmed in court documents, for example, in the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation “On some issues that arise for the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses” dated October 24, 2006 No. 18, as well as in the resolutions of the Federal Antimonopoly Service of the Moscow District dated 09.11.10 No. A40-175533/09-35-1333 and dated 04.05.10 No. A40-114683/09-4-826.

Thus, losses in the economic activities of enterprises and entrepreneurs are quite acceptable and often justified (for example, at the very beginning of their work). Another thing is that there are quite serious reasons for unprofitable activities - these are carefully analyzed and studied by controllers.

If you have access to ConsultantPlus, find out in what cases the tax office can call for a loss-making commission . If you don't have access, get a free trial of online legal access.

What are the criteria for selection for the tax commission?

The main criteria by which the Federal Tax Service selects candidates for the commission are:

• unprofitability of the company;
• low wages;
• large amounts of VAT deductions;
• low level of tax burden;
• other criteria.

As a rule, a call to the commission is associated with the need to identify the reasons for deviations in indicators. But, if we turn to practice, it will be clear that the main task of tax officials is not to obtain explanations from taxpayers, but to make adjustments to tax indicators of past periods, as well as to contribute to an increase in payments in the future.

Commission for losses in the Federal Tax Service - what is it?

The procedure for conducting tax commissions is explained in the open letter of the Federal Tax Service “On the work of the commission on the legalization of the tax base and the base for insurance premiums” dated July 25, 2017 No. ED-4-15 / [email protected]

Its only goal, as follows from this document, is to increase tax revenues to the budget. There is also an opinion that one of the reasons for the emergence of tax commissions is to increase the investment attractiveness of Russian business.

The Tax Base Legalization Commission operates on the basis of an order, and its composition is approved by the head of the tax authority.

Who can be a member of the commission at the tax office? These are managers and authorized employees of departments performing the following functions:

• carrying out inspections (desk and on-site);
• carrying out pre-test analysis;
• debt settlement.

The commission may also include representatives of the executive branch, law enforcement officials, the Pension Fund of the Russian Federation, the State Labor Inspectorate and the prosecutor's office.

Let's look at the tax commission's action plan to legalize the tax base. It consists of several successive stages:

1. A selection of “suitable” taxpayers is made, and appropriate lists are formed for summons to the tax commission.
2. Analytical activities are being carried out regarding the financial and economic activities of selected taxpayers, and information is being prepared for the upcoming meeting. It should be understood here that such an analysis is carried out comprehensively. Therefore, even if the reason for the inspectors’ attention was a loss on income tax, tax specialists will study declarations and documents not only for this tax, but also for others - VAT, transport, excise taxes, personal income tax, etc.
3. Selected taxpayers are sent information letters in the prescribed form containing a proposal to independently make appropriate changes to the reporting. This document must be drawn up in accordance with Appendix 11 to the Federal Tax Service letter No. AS-4-2/ [email protected] If the taxpayer does not respond to the inspectors’ message or refuses to make changes to the reporting, he is summoned to a meeting.

1. A meeting of the tax commission on legalization takes place directly (we will examine this stage in more detail a little later). The case is considered on an individual basis. At the end of the meeting, a protocol is drawn up, which records recommendations for the taxpayer and the deadline by which the recommended measures must be implemented (10 days are given for this).
2. Post-commission monitoring of taxpayer reporting. After the meeting, inspectors quarterly study the dynamics of changes in the financial performance of the company in a variety of areas.
3. Continuation of work with taxpayers who have not eliminated the identified problems. At this last stage, there is a possibility that they will be included in the on-site inspection plan.

What facts can be revealed during the tax commission? This:

• incomplete reflection of business transactions in the taxpayer’s records;
• entering false information into tax and accounting reporting;
• use of schemes for unreasonable VAT refunds;
• inclusion of unlawful expenses in income tax returns;
• the use of “envelope” and other illegal salary schemes;
• late payment of personal income tax;
• payment of wages in the amount of the minimum wage or below the subsistence level.

It is interesting that to analyze the activities of taxpayers caught in the “tax pencil”, Federal Tax Service employees are allowed to use a variety of sources:

• accounting and tax reporting of the taxpayer;
• information from the Unified State Register, Unified State Register of Individual Entrepreneurs, Unified State Register of Legal Entities and many other documents;
• data obtained when requesting documents in accordance with Art. 93.1 Tax Code of the Russian Federation;
• information from the media and the Internet;
• information received from various commercial and government institutions and organizations - banks, law enforcement agencies, funds, customs authorities, etc.;
• letters and complaints from legal entities and individuals;
• information received from employees or participants of enterprises;
• other sources.

As can be seen from the above list, almost any information about a taxpayer that comes to the attention of inspectors can serve as a reason for a closer study of its activities.

Recommendations and suggestions

Based on the results of the meeting of the commission on the legalization of taxable objects and bases, it formulates its recommendations:

• to eliminate violations that occurred during the formation of the base for taxes and contributions;
• on measures that need to be taken to close debts to the budget.

Recommendations must contain a specific deadline for eliminating violations and distortions in accounting that have caused the understatement of personal income tax bases. The Federal Tax Service offers an approximate period of 10 working days from the date of the commission meeting.

The commission may suggest submitting updated declarations, calculations in Form 6-NDFL, calculations of insurance premiums for past periods, in which the reporting indicators should be clarified. For example:

• entrepreneur's expenses;
• expenses of the payer of contributions for payment of insurance coverage;
• amounts not subject to contributions;
• the amount of additional tariffs for contributions and the amount of contributions calculated for them;
• number of employees to whom income is accrued;
• transfer the debt for personal income tax and contributions, taking into account penalties.

Based on the results of reviewing the activities of the person, the legalization commission may send the relevant information to:

• to law enforcement agencies;
• regulatory authorities;
• other authorities (OVD, migration officers, labor inspectorate, etc.).

Please note that tax authorities are required by law (!) to send every quarter about the facts of accrual of wages below the subsistence level or the minimum wage:

• at the local level - to local authorities;
• at the level of a subject of the Russian Federation - to labor and employment authorities, as well as to the labor inspectorate.

Also see “Minimum wages from July 1, 2021: table by regions of Russia.”

The tax office calls you to a meeting on profits - is it worth going?

This question is probably asked by every taxpayer who has received a written notice of a summons to a commission at the tax office. Really, is it worth it? Let's see what the law says about this.

On the one hand, the Tax Code does not provide for such a tax control measure as a commission. The basic tax law distinguishes only 2 forms of control measures - an on-site tax audit and a desk audit. According to subparagraph 11 clause 1 art. 21 of the Tax Code of the Russian Federation, taxpayers are allowed not to comply with unlawful (which do not comply with the code or other laws) demands of tax authorities. So you don't have to go anywhere? However, not all so simple.

According to Art. 82 of the Tax Code of the Russian Federation, tax control is carried out through tax audits, by obtaining explanations from taxpayers, checking accounting and reporting data, inspecting relevant premises, as well as in other forms provided by law. Let's turn to Art. 31 of the Tax Code of the Russian Federation, from sub. 4 clause 2 of which we can conclude: tax workers have the right to call the taxpayer with a special written notice in order to receive clarification regarding the taxes he pays, both in connection with tax audits and in other cases provided for by law. At the same time, the form of this notification is established by order of the Federal Tax Service of Russia dated 05/08/2015 No. ММВ-7-2/ [email protected]

Thus, tax officials still have legal grounds for calling the taxpayer to such commissions, and their demands cannot be ignored. The same is confirmed by judicial practice: judges come to the conclusion that the actions of tax inspectors in this case are within the scope of their powers and do not violate the rights and interests of the taxpayer.

How is the selection carried out?

A certain algorithm for selecting candidates is in place, reporting indicators are monitored, and analytical work is carried out. The benchmark indicators of the risk-based approach of the Federal Tax Service are known to everyone.

In the preparation process, tax authorities use data from their information resources, control algorithms of ASK VAT-2, ASK KKT, “relationship tree”, information from counterparties as part of counter audits, information from the media and the Internet, information from banks, law enforcement and licensing authorities, customs officers, authorities, Rostrud, other available sources, as well as complaints and statements of legal entities and individuals, employees and shareholders.

The selection criteria for the commission coincide, as a rule, with the selection criteria for inspection. This includes data from control algorithms for gaps, inconsistencies, discrepancies and dubious counterparties, these are also those 12 self-test markers that are defined by the Concept of the planning system for on-site tax audits - in Appendix No. 1 to Order of the Federal Tax Service of Russia dated May 30, 2007 N MM-3-06 / [email protected]

But when the tax office is not sure that an on-site audit will bring significant amounts of additional charges, but there are already assumptions about a violation, you will be invited to a conversation - to hear explanations about the reasons for deviations of control indicators from the “standards” and your comments about suspicious facts, transactions and counterparties.

The legality of an invitation to a commission - is there liability for failure to appear?

The notice of the taxpayer's summons to the commission may indicate both a specific date when the inspector would like to see you, as well as information about his office hours and a requirement to contact him at the specified time - to set the exact date for your visit to the inspection.

If you do not appear on the appointed day for the commission meeting, this will be recorded by the inspector in the minutes. Please note that your failure to appear may be regarded by tax authorities as disobedience to the legal requirement of a supervisory authority official, which, according to Part 1 of Art. 19.4 of the Code of Administrative Offenses of the Russian Federation, threatens to collect a fine:

• 500–1,000 rubles from citizens (although individuals can get off with a warning);
• 2,000–4,000 rubles - from entrepreneurs and organizations (officials).

If you cannot attend a meeting for a good reason, be sure to inform the inspectors about this - in this case, most likely, it will be postponed to another day. If you ignored the invitation to the commission or did not show up for it without a good reason, the following actions by the tax authorities are possible:

• callback direction;
• a call to a loss-making commission at the regional level Federal Tax Service;
• summons to a commission in the administration or local government;
• conducting a pre-check analysis of the violator’s activities;
• preparation of materials for an on-site audit in relation to a given taxpayer.

Separately, it is worth mentioning the issue of providing such a document as a “Questionnaire reflecting the main financial and economic indicators of an organization in the city of Moscow,” which is often requested by tax authorities when calling for a loss-making commission, not only from Moscow taxpayers, but also from those registered in other regions. Should I fill it out or not?

Let's remember when tax authorities may require documents. The answer to this question is given by Art. 93 and 93.1 of the Tax Code of the Russian Federation: requesting documents is possible only within the framework of on-site and desk audits, to which the tax commission, as we have already found out, has no relation. But even as part of the audits, the taxpayer is obliged to provide the tax authorities only with those documents on the basis of which he calculated and paid a particular tax.

Such documents include primary documentation, as well as reporting - accounting and tax. The preparation of any other certificates or reports is not provided for by the tax legislation of the Russian Federation, and therefore any written explanations for the losses you have can be given at your own discretion.

Another significant point is that the form of the questionnaire was approved by Decree No. 701-PP dated August 10, 2010, which has become invalid. Therefore, the requirement to fill it out is, in principle, illegal. However, tax officials, apparently out of habit or because this form is convenient for them, continue to send out questionnaires along with notices of summons to the commission.

Another thing is that the same questionnaire contains information that will not be difficult to enter:

• basic information about the company (TIN, address, date of tax registration);
• information about the manager and chief accountant (full name and contact details);
• information about the founders;
• information about the types of actual activities;
• information about occupied and leased premises and land plots;
• main reporting indicators (revenue, costs, income and expenses, profit, amounts of rental and salary payments, information on the cost of fixed assets, etc.);
• information about investment programs, etc.

Almost all the information that is necessary to fill out the questionnaire is contained in the financial statements and is entered quite quickly. Such a certificate can be useful not only to tax authorities, but also to yourself, since it will help you to reasonably operate with the necessary figures during a meeting of the tax commission. But still, keep in mind that tax officials will not be able to force you to fill out this paper.

Operating procedure of the commission of the Federal Tax Service

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Procedure for the work of the Federal Tax Service commission on compliance with the requirements for official conduct of state civil servants of the Federal Tax Service of Russia and the resolution of conflicts of interest

I. General provisions

1. This document determines the procedure for the work of the commission of the Federal Tax Service on compliance with the requirements for official conduct of state civil servants of the Federal Tax Service and the resolution of conflicts of interest (hereinafter referred to as the commission).

2. The Commission in its activities is guided by the Constitution of the Russian Federation, federal constitutional laws, federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation, Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (hereinafter - Federal Law), Regulations on commissions for compliance with the requirements for official conduct of state civil servants of the Russian Federation and the settlement of conflicts of interest, approved by Decree of the President of the Russian Federation of March 3, 2007 No. 269 “On commissions for compliance with requirements for official conduct of state civil servants of the Russian Federation and settlement of conflicts of interest”, as well as this Procedure.

3. The main tasks of the commission are:

a) assistance to the Federal Tax Service of Russia in ensuring compliance by state civil servants of the Federal Tax Service of Russia (hereinafter referred to as civil servants, civil servants) with requirements for official conduct;

b) assistance to the Federal Tax Service of Russia in resolving conflicts of interest that could lead to harm to the legitimate interests of citizens, organizations, society, a constituent entity of the Russian Federation or the Russian Federation.

4. The Commission considers issues related to compliance with the requirements for official conduct and the settlement of conflicts of interest in relation to civil servants holding positions in the federal state civil service of the central apparatus of the Federal Tax Service, as well as positions of heads and deputy heads of departments of the Federal Tax Service of Russia in the constituent entities of the Russian Federation and positions of chiefs and deputy chiefs of interregional inspectorates of the Federal Tax Service of Russia (hereinafter referred to as civil service positions).

II. Commission work procedure

5. The basis for holding a meeting of the commission is:

a) information received from law enforcement, judicial or other government bodies, from organizations, officials or citizens about the commission of acts by a civil servant that discredit his honor and dignity, or about other violation by a civil servant of the requirements for official conduct provided for in Article 18 of the Federal Law;

b) information about the civil servant’s personal interest, which leads or may lead to a conflict of interest.

6. The information specified in paragraph 5 of this Procedure must be presented in writing and contain the following information:

a) last name, first name, patronymic of the civil servant and the civil service position he fills;

b) a description of the violation by a civil servant of the requirements for official conduct or signs of personal interest, which leads or may lead to a conflict of interest;

c) information about the source of information.

7. The commission may be presented with materials confirming a civil servant’s violation of the requirements for official conduct or the presence of a personal interest that leads or may lead to a conflict of interest.

8. The commission does not consider reports of crimes and administrative offenses, as well as anonymous requests, and does not conduct checks on facts of violation of official discipline.

9. The chairman of the commission, within 3 days from the date of receipt of the information specified in paragraph 5 of this Procedure, makes a decision to verify this information, including the materials specified in paragraph 7 of this Procedure.

Verification of information and materials is carried out within a month from the date of the decision to conduct it. The inspection period may be extended to two months by decision of the chairman of the commission.

If the commission has received information that a civil servant has a personal interest that leads or may lead to a conflict of interest, the chairman of the commission immediately informs the employer’s representative about this in order for him to take measures to prevent conflicts of interest: strengthening control over the performance of the civil servant’s duties duties, removal of a civil servant from a civil service position to be filled for the period of resolving a conflict of interest or other measures.

10. At the written request of the chairman of the commission, a representative of the employer or the head of a specially authorized department of a state body provides additional information necessary for the work of the commission, and also requests information from other state bodies, local governments and organizations in the prescribed manner for submission to the commission.

11. The date, time and place of the commission meeting are established by its chairman after collecting materials confirming or refuting the information specified in paragraph 5 of this Procedure.

The secretary of the commission resolves organizational issues related to the preparation of the meeting of the commission, and also notifies the members of the commission about the date, time and place of the meeting, about the issues included in the agenda no later than seven working days before the day of the meeting.

12. A meeting of the commission is considered valid if at least two thirds of the total number of members of the commission are present.

13. If a conflict of interest may arise among members of the commission in connection with the consideration of issues included in the agenda of the meeting of the commission, they are obliged to declare this before the start of the meeting. In such a case, the relevant member of the commission does not take part in the consideration of these issues.

14. The meeting of the commission is held in the presence of a civil servant. A representative authorized by a civil servant may be present at a meeting of the commission. A commission meeting is postponed if a civil servant cannot participate in the meeting for a valid reason.

Officials of state bodies, local government bodies, as well as representatives of interested organizations may be invited to the meeting of the commission.

15. At the meeting of the commission, explanations of the civil servant are heard, materials related to the issues included in the agenda of the meeting are considered. The commission has the right to invite other persons to its meeting and hear their oral or consider written explanations.

16. Members of the commission and persons participating in its meeting do not have the right to disclose information that became known to them during the work of the commission.

17. Based on the results of consideration of the information specified in subparagraph “a” of paragraph 5 of this Procedure, the commission may make one of the following decisions:

a) establish that in the case under consideration there are no signs of violation by a civil servant of the requirements for official conduct;

b) establish that the civil servant violated the requirements for official conduct. In this case, the employer’s representative is recommended to point out to the civil servant the inadmissibility of violating the requirements for official conduct, and also to carry out measures in the government body to explain to civil servants the need to comply with the requirements for official conduct.

18. Based on the results of consideration of the information specified in subparagraph “b” of paragraph 5 of this Procedure, the commission may make one of the following decisions:

a) establish that the case under consideration does not contain signs of personal interest of a civil servant, which leads or may lead to a conflict of interest;

b) establish the fact that a civil servant has a personal interest, which leads or may lead to a conflict of interest. In this case, the employer's representative is offered recommendations aimed at preventing or resolving this conflict of interest.

19. Decisions of the commission are made by a simple majority of votes of the members of the commission present at the meeting. If the number of votes is equal, the vote of the chairperson at the meeting of the commission is decisive.

20. The decisions of the commission are documented in protocols (appendix), which are signed by the members of the commission who took part in its meeting. The commission's decisions are advisory in nature.

21. The commission’s decision shall indicate:

a) last name, first name, patronymic, position of the civil servant in respect of whom the issue of violation of the requirements for official conduct or the presence of personal interest that leads or may lead to a conflict of interest was considered;

b) the source of information that became the basis for holding a meeting of the commission;

c) the date of receipt of information by the commission and the date of its consideration at a meeting of the commission, the substance of the information;

d) last names, first names, patronymics of commission members and other persons present at the meeting;

e) the essence of the decision and its rationale;

f) voting results.

22. A member of the commission who disagrees with the decision of the commission has the right to express his opinion in writing, which is subject to mandatory inclusion in the minutes of the commission meeting.

23. Copies of the commission’s decision within three days from the date of its adoption are sent to the employer’s representative, a civil servant, and also, by decision of the commission, to other interested parties.

24. The decision of the commission can be appealed by a civil servant within 10 days from the date of delivery to him of a copy of the commission’s decision in the manner prescribed by the legislation of the Russian Federation.

25. A representative of the employer, who became aware of the emergence of a personal interest in a civil servant, which leads or may lead to a conflict of interest, including if such a fact is established by the commission, is obliged to take measures to prevent or resolve the conflict of interest.

In order to prevent or resolve a conflict of interest, the employer's representative must exclude the possibility of the civil servant participating in decision-making on issues that involve a conflict of interest.

The employer's representative has the right to remove a civil servant from the civil service position being filled (not allow him to perform official duties) during the period of resolving a conflict of interest in accordance with Part 2 of Article 32 of the Federal Law.

26. If the commission establishes circumstances indicating the presence of signs of disciplinary misconduct in the actions (inaction) of a civil servant, including in the event of his failure to fulfill his obligation to inform the employer’s representative about personal interest in the performance of official duties, which may lead to a conflict of interest, as well as If a civil servant fails to take measures to prevent such a conflict, the representative of the employer, after receiving relevant information from the commission, may bring the civil servant to disciplinary liability in the manner prescribed by Federal Law.

27. If the commission establishes the fact that a civil servant has committed an action (inaction) containing signs of an administrative offense or a crime, the chairman of the commission is obliged to transmit information about the commission of the specified action (inaction) and documents confirming this fact to law enforcement agencies.

28. The decision of the commission made in relation to a civil servant is kept in his personal file.

29. Organizational, technical and documentation support for the activities of the commission is assigned to the structural unit of the central apparatus of the Federal Tax Service of Russia for civil service and personnel issues.

30. A copy of the commission’s decision and materials collected during the commission’s work are compiled into a file in accordance with the nomenclature of cases.

3.2 Order of the Federal Tax Service of Russia dated 02/26/2009 No. MM-7-4/ [email protected] on amendments to the order of the Federal Tax Service of Russia dated 07/09/2007 No. MM-3-15/420 “On commissions for compliance with the requirements for official conduct of state civil servants” Federal Tax Service and conflict of interest resolution"

In order to implement clause 3 of Section II of the National Anti-Corruption Plan, approved by the President of the Russian Federation on July 31, 2008 No. Pr-1568 in the annex to the order of the Federal Tax Service of Russia dated July 9, 2007 No. MM-3-15/420 “On commissions for compliance with official requirements the following changes have been made to the behavior of state civil servants of the Federal Tax Service and the settlement of conflicts of interest:

Clause 2 of Section I “General Provisions” shall be stated as follows:

“The Commission in its activities is guided by the Constitution of the Russian Federation, federal constitutional laws, federal laws, acts of the President of the Russian Federation and the Government of the Russian Federation, Federal Law dated December 25, 2008 No. 273-FZ “On Combating Corruption,” Federal Law dated July 27, 2004 No. 79 -FZ “On the State Civil Service of the Russian Federation” (hereinafter referred to as the Federal Law), Regulations on commissions for compliance with the requirements for official conduct of state civil servants of the Russian Federation and the settlement of conflicts of interest, approved by Decree of the President of the Russian Federation dated 03.03.2007 No. 269 “On commissions” on compliance with the requirements for official conduct of state civil servants of the Russian Federation and the resolution of conflicts of interest”, the National Anti-Corruption Plan, approved by the President of the Russian Federation on July 31, 2008 No. Pr-1568, as well as this Procedure.”

2.2. Clause 3 of Section I “General Provisions” is added with the following paragraph:

“c) carrying out, within the limits of their powers, activities aimed at combating corruption in the Federal Tax Service of Russia.”

2.3. Clause 4 of Section I “General Provisions” is added with the following paragraph:

“The Commission exercises the following powers in the field of anti-corruption:

— coordinates the implementation of the anti-corruption policy of the Federal Tax Service of Russia;

— studies, analyzes and summarizes documents and other materials on corruption and anti-corruption received by the commission from the structural unit of the Federal Tax Service of Russia for the Prevention of Corruption Violations, and also informs civil servants about the results of this work.”

2.4. Section I “General Provisions” should be supplemented with the following paragraph:

"4.1. During the work of the commission, civil servants are guaranteed compliance with their rights granted by the Constitution of the Russian Federation, the legislation of the Russian Federation on the state civil service, Decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, Regulations on the Federal Tax Service, Service Regulations of the Federal Tax Service, other regulatory legal acts, as well as the service contracts concluded with them and their job regulations.”

2.5. Clause 5 of Section II “Order of work of the commission” should be supplemented with the following paragraph:

“c) information about signs and facts of corruption activities received from the structural unit of the Federal Tax Service of Russia for the prevention of corruption violations.”

Call to the Loss Commission: Who do they pay attention to?

According to tax officials, there are two categories of taxpayers who are most likely to be invited to the commission (by the way, not only taxpayers, but also tax agents may be of interest to tax authorities):

1. Legal entities and individuals whose activities, according to controllers, have tax risks. If this fact is discovered, such taxpayers are given the opportunity to correct the situation on their own.

2. Unscrupulous taxpayers who have an underestimated tax base that is insufficient to warrant an on-site audit. The commission also gives them a chance to improve the situation, but if they do not take advantage of it, an on-site inspection will most likely not be avoided.

What actions of taxpayers may cause increased interest of controllers? This:

• declaration by the organization of losses when conducting financial and economic activities (if a loss is declared in line 100 of sheet 02 of the income tax return, the same as for the previous 2 tax periods, or if this line is not filled in);
• low tax burden for income tax, as well as for other taxes.

The tax burden on profits is determined using a fairly simple formula:

Nnp = Npo / Drv,

Where:

Nnp - the value of the tax burden;

NPO - the amount of income tax for the reporting period (line 180 of sheet 02 of the declaration);

Дрв - the total value of income from sales and non-operating income (sum of lines 010 and 020 of sheet 02 of the declaration).

A profitable tax burden is considered low if it is less than 3% for manufacturing organizations and less than 1% for trading organizations.

Correctly calculating the tax and tax burden can only be done on the basis of well-designed tax registers - for information on how to create them, read the article “How to independently develop tax registers for income tax?”

Arrears Commission

If a company has become a tax evader for the first time, the tax authorities can only request written explanations. However, if the company refuses to provide them, the manager will be summoned to the commission for a personal conversation. That is, taxpayers who ignore the requirements of tax officials and are constant defaulters are called to the arrears commission.

The company can explain its tax arrears due to its difficult financial situation. This, in turn, can be justified by debt from the company’s counterparties. Inspectors should be convinced that the current situation in the company is temporary and all tax debts will be repaid in the near future. If a company ignores the demands of the tax authorities and refuses to appear at the commission, then it faces the possibility of issuing a collection order or collection at the expense of the property. Therefore, it would be reasonable for the company to personally meet with tax representatives and announce the timing of debt repayment.

How does the commission work?

The loud name “commission” refers to the usual conversation between tax officials and the head of the enterprise and the chief accountant - sometimes formal, sometimes not very formal. Moreover, controllers most often want to see precisely these company representatives and no one else. However, they can be completely legally replaced by an authorized representative.

What motivates this position? Let's turn again to the law. As we have already found out, according to sub. 4. clause 2 art. 31 of the Tax Code of the Russian Federation, tax authorities have the right to call the taxpayer to give explanations in cases established by law. However, there is no question here that it is the manager or chief accountant who should come to the inspection, much less them together. According to Art. 29 of the Tax Code of the Russian Federation, authorized representatives can also give explanations to controllers. Therefore, you have the right to choose who will represent your company at a meeting of the loss-making profit commission.

How does the tax commission work in practice? During a conversation with company representatives, inspectors find out the reasons for the taxpayer’s loss (this is where the data from the “Questionnaire” can come in handy) and ask him to announce the measures that he plans to take to get out of the unprofitable state. The purpose of this conversation is one - to exclude “bad” indicators from reporting.

Further, depending on the specific situation, tax officials offer one or another way to solve this alleged problem. Why "allegedly"? Yes, because in many cases the loss is not a problem for the taxpayers themselves.

As a rule, tax specialists see few options. Most often it is proposed to reduce expenses of the current tax period. In other words, inspectors are trying to get taxpayers to increase their income tax accruals for the “problem” tax period or reduce losses by submitting an amendment.

At the same time, questions may be asked about other taxes, in particular, VAT. And if representatives of the funds are present at the meeting, then it is possible to discuss the problems that the taxpayer has regarding the payment of insurance premiums.

The results of the conversation are recorded in the protocol, which also indicates the period for eliminating the violations (in general, this is 10 days). If the taxpayer refuses to adhere to the recommendations given to him, the following measures of influence on him are possible:

• increased attention to the “obstinate” company and increased desk control of the reporting it submits is a very likely option;
• the promise of an early on-site inspection (however, as the inspectors themselves admit, refusal to submit clarification is not always a reason for carrying out “global” control measures - the decision on an on-site inspection is made based on a combination of factors and risks);
• promise of bankruptcy - tax authorities believe that they have the right to this measure on the basis of Art. 20 of the Law “On Limited Liability Companies” and Art. 35 of the Law “On Joint-Stock Companies”, however, this position is based on an incorrect interpretation of these norms and the equation of concepts such as “liquidation” and “bankruptcy”; The judges in this case are on the side of the taxpayer.

In principle, this is an exhaustive list of enforcement measures, however, as practice shows, not every announced measure is implemented.

VAT commission

The VAT commission threatens companies with a fairly high share of deductions. Generally, the safe percentage is around 89%, but this may vary by region. There are also other reasons for a company to be called to the VAT commission. These include:

• VAT refund application;
• lack of responses to the inspection's request to provide explanations on discrepancies between sales from suppliers and deductions;
• signs of fly-by-night companies.

In order to prepare for the commission, the company should know for what reasons it is possible to claim a large amount of VAT deduction:

• the company has purchased quite a lot of goods, but it is impossible to sell them in such quantities;
• features of the company’s activities (for example, the purchase price of goods with high VAT, and the selling price with low).

At the commission, companies wishing to refund VAT will need to prove that the supplier was checked for good faith before the transaction was concluded, and that the transaction itself is real. In this case, you will need to prepare an extract from the Unified State Register of Legal Entities, primary documents for the purchase and delivery of goods.

Important! If the evidence prepared by the company seems unconvincing to the inspection, then the VAT refund may simply be refused.

How to behave?

So, it happened: you were called to the loss commission. What to do? First of all, don't worry or panic. As we have already figured out, a commission meeting is an ordinary meeting between inspectorate employees and representatives of the taxpayer. However, of course, you need to prepare for it.

The most important thing is that you should never ignore written requests from the inspectorate. When you receive an invitation to a meeting of a loss-making commission or a notification about the need to explain the reasons for the loss, be sure to write a reasoned response. At the same time, the description of the reasons should be sufficient for tax authorities to understand the situation, but still general, without details - in order not to give them unnecessary information and not to attract increased attention to specific transactions.

If for some reason you cannot attend the inspection on the appointed day, be sure to inform the inspector about your situation in writing - and the meeting will be rescheduled.

As for the results of the conversation, the taxpayer in this situation has only 2 options:

• Do not change the reporting, but it is necessary to prepare an objective and convincing justification in favor of this choice. This option should be preferred if you have documented evidence of expenses incurred.
• Eliminate losses by artificially adjusting reporting. It is more rational to use this option if tax risks are high and you are afraid of a more detailed examination of your documents by tax authorities.

The article “How and for how long can you carry forward losses to the future?” will help you correctly transfer losses to other tax periods.

Salary commission

Quite often, businessmen believe that only those companies whose employees receive low wages can be called to a commission. Or rather, the salary is below the minimum wage established in the region. However, this is only partly true. As a rule, when selecting, they focus on companies whose salaries are below the regional average. Thus, the following organizations can receive an invitation to the salary commission at the Federal Tax Service, in which:

• employee salaries are lower than the industry average depending on the region;
• there is personal income tax debt;
• the amount of personal income tax decreased by more than 10% compared to previous reporting periods.

Important! If a company has been called to a salary commission, then first of all you will need to have a copy of the staffing table with you. This document will need to be presented for all years for which the Federal Tax Service requests information. In addition, you will need to prepare information on the average number of employees and the average amount of their wages.

The following can be cited as arguments to justify low wages:

• the employee works under part-time conditions (as evidence, in addition to wages, an order for a reduced work schedule must be presented);
• The company's main employees work in regions where the average wage level is lower.

If the company does not appear at the salary commission and does not present sufficiently significant arguments confirming the justification of the low level of wages, then most likely it will be included in the on-site inspection plan.

With the advent of new personal income tax reporting from 2021, companies are more willing to invite companies to a salary commission. Moreover, the company is warned that if it does not review the salary amount, then it will be invited to the salary commission every quarter.

How to “justify” a loss?

And finally, let’s talk about what reasons for losses are convincing to tax inspectors and what can be cited as an explanation:

1. During the “problem” period, prices for goods (works, services) sold by the company decreased due to a drop in demand, lower prices, changes in market conditions, expiration of the product, refusal of the buyer from an earlier order, work to develop new markets sales, seasonal fluctuations in demand.

2. The cost of sales and production costs have decreased, so the taxpayer is forced to sell previously purchased goods or manufactured products at a loss.

3. There was a decrease in sales and/or production volumes.

4. A situation occurred as a result of which business relations with some previous customers ceased (for example, a change of owners).

5. During the reporting period, any major expenses were incurred: repairs, research, equipment modernization, etc.

6. A natural disaster occurred, force majeure situations arose.

7. The most banal and objective reason for the loss is that the company recently opened and began conducting business activities.

Naturally, to justify each of the above reasons, it will be necessary to prepare supporting documents:

• orders from the manager;
• office notes;
• inventory acts;
• correspondence with suppliers and buyers;
• business plan;
• marketing research;
• information from the media and the Internet;
• reports and calculations;
• primary care for large expenses;
• certificates from government or special services (in case of an accident, natural disaster, etc.).

You can give controllers one more completely objective explanation, although it is only suitable for non-annual losses (for a quarter, half a year, 9 months). Since profit is calculated on an accrual basis for the year, the interim results do not provide any grounds for making hasty conclusions about the “problematic” and unprofitable nature of the company. In this case, it makes sense to invite tax authorities to consider the results of its activities later - at the end of the year.

ConsultantPlus experts have prepared an example of explanations of losses in a profit declaration. If you do not have access to the K system, get a trial online access and go to the Typical Situation for free.

As we see, there can be many objective reasons to explain a loss. Which one to choose is up to you, but this choice must be made based on a thorough analysis of possible tax risks and consequences.

Subsequent monitoring and analysis of taxpayer reporting

When preparing materials for consideration at commission meetings, an analysis of financial and economic performance indicators is carried out in relation to selected candidates, and tax control measures are carried out.

To analyze the activities of organizations and individual entrepreneurs, which are subject to consideration at commission meetings, the following are used:

• data from information resources (USRN, Unified State Register of Individual Entrepreneurs, Unified State Register of Legal Entities, AIS “Nalog-3”, PIK “VAT”, SOUN, etc.);
• information received under Art. 93.1 Tax Code of the Russian Federation;
• information contained in the media and the Internet;
• information received from credit institutions, law enforcement agencies, the Pension Fund of the Russian Federation, extra-budgetary funds, licensing authorities, customs authorities, municipal authorities, Rostrud, the Central Bank of the Russian Federation, etc.;
• complaints, statements of legal entities and individuals;
• information received from employees, shareholders (participants) of organizations;
• information received from other sources.

The directions of analysis are given, and the appendices to it provide recommended forms. So, the analysis is carried out in the following areas:

• analysis of accounting data and other information characterizing the taxpayer (tax agent, insurance premium payer) (Appendix 1);
• analysis of accounting (balance sheet) indicators (Appendix 2);
• analysis of indicators of the level of wages paid by the tax agent, as well as the fulfillment of his obligations to calculate and transfer personal income tax (Appendix 3);
• analysis of performance indicators for the calculation and transfer of insurance premiums (Appendix 4);
• analysis of reporting indicators of individual entrepreneurs (Appendix 5).

Based on the analysis, tax risks are identified, and the summary results of the analysis are reflected in the form recommended in Appendix 6. In addition, in relation to payers selected for consideration of their activities at commission meetings, an analysis of the level of tax burden is carried out (the form is recommended in Appendix 7).

Even after the taxpayer has attended the “salary” commission and signed the corresponding protocol, the tax authority will monitor his activities. This is due to the need to monitor the implementation of the recommendations specified in the protocol.

The following types of monitoring are provided.

If the results of the monitoring do not reveal positive trends and officials (individual entrepreneurs) do not provide reasonable explanations, the entire package of documents for these taxpayers will be transferred to the pre-audit analysis department to consider inclusion in the plan of on-site tax audits.

* * *

The Federal Tax Service in Letter No. ED-4-15/ [email protected] presented an updated procedure for the work of “salary” commissions. One of the features of this document is that its effect will extend to the analysis of data on the accrual and payment of both personal income tax and insurance premiums. The selection of payers whose activities are subject to consideration by the commission is carried out on the basis of lists that are formed by analyzing the available information on the financial and economic activities of payers.

Results

Loss commission is an event carried out in connection with the filing of an income tax return in which the taxpayer showed a loss. You cannot ignore the invitation of the tax authorities - liability for failure to appear at the tax commission can be applied under Art. 19.4 Code of Administrative Offenses of the Russian Federation. However, when going to a loss commission, you need to know both your rights and the rights of the tax authorities.

Sources:

• Tax Code of the Russian Federation
• letter of the Federal Tax Service “On the work of the commission on the legalization of the tax base and the base for insurance premiums” dated July 25, 2017 No. ED-4-15/ [email protected]

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Who creates the commissions

Commissions for the legalization of the tax base are created at three levels.
The first level is the “ordinary” tax office. The second level is the regional department of the Federal Tax Service of Russia. The third, highest level is interdepartmental, under the administration of a constituent entity of the Russian Federation and local government bodies. The commission includes tax specialists who are responsible for desk and field audits, pre-audit analysis and for settling debts to the budget. If necessary, the commission includes representatives of executive authorities, the Pension Fund, the labor inspectorate, the police and the prosecutor's office.

Protocol

All circumstances of the meetings are recorded in the minutes of the legalization commissions. These include recommendations and deadlines for eliminating violations and distortions in accounting and reporting.

This document is maintained and executed by the secretary of the commission.

At the end, the protocol is signed by the chairman and secretary of the commission. It must be presented to the payer for examination. If desired, you can request a copy of it.

For more information about this, see “What the protocol of the commission on legalization of the tax base looks like from 2021.”