How to survive a tax audit?
Our regular partners, the law firm Vetrov and Partners, continues to acquaint you with the most pressing issues of the legal aspect of iT-entrepreneurship and the registration of intellectual property rights. A new article from lawyers from Winds and Partners is devoted to taxes and tax audits.
According to official information from the Federal Tax Service, since 2010, the gain in tax disputes in favor of the budget in disputed amounts has increased by 30%. Over the past year, this figure was 74% in all cases involving tax authorities, which is 6% more than in the previous year. In addition, in 2013, the budget was considered to be 40 billion rubles more than last year.
')
Just think, 74% (!!!) of tax disputes ends in favor of the tax authorities. What is the reason for this? First of all, it should be recognized that tax administration by the tax authorities has become objectively better than it was several years ago. Even a large staff turnover in inspections does not affect statistics in a negative way. This also confirms that the tax authorities have developed a clear and understandable mechanism for identifying tax arrears, proving relevant facts in court.
Currently, the State Duma is “brewing” a bill submitted by the President of the Russian Federation, allowing to initiate criminal cases on tax crimes in a general manner, without first checking the taxpayer by the tax inspectorate. As practice shows, often taxpayers themselves dig a hole when they make wrong and rash actions at the stage of checking against them.
So let's talk about what checking is and what to do with it.
1. Tax audit is cameral and exit.
2. Cameral check is carried out every year after filing the declaration.
3. As a rule, the sample of taxpayers for the on-site inspection is carried out automatically by comparing various indicators.
4. The selection criteria are specified in the Order of the Federal Tax Service of Russia of 30.05.2007 N MM-3-06 / 333 @ “On the approval of the Concept of the system of planning of field tax audits”.
1. In the event that you cannot provide the tax authority with premises for the inspection, notify them in writing. The check will be conducted without the presence of employees in your office.
2. Carefully read every request for documents. Those documents which the inspection is not entitled to request should not be submitted.
3. There should be no additional reports, references and other documents, the preparation of which is not mandatory.
4. Submit documents on the last day of the period specified in the request.
5. If you cannot provide the documents on time, ask the inspection to extend the deadline for submitting the documents with a justification of the reasons.
6. Make a detailed inventory of the documents provided.
7. Always submit to the inspection only copies of documents. Even if the volume of documents is very large and you don’t have time to copy, hire an employee for photocopying during the inspection.
8. An important rule: do not need to be led by the inspection staff. Strictly fulfill only those requirements that are required to comply with the law. One of the biggest misconceptions is that by defending your position, you “quarrel” and lose the “loyalty” of inspectors. There is no loyalty to the taxpayer initially.
9. Warn your counterparties that they may require documents. Ask them to respond promptly to requests from the tax authorities.
1. Do not go to the interrogation without being prepared. You must formulate answers to your questions in advance.
2. If among your counterparties there are “doubtful” companies, you will definitely be asked about the criteria for choosing this counterparty, about the conditions of work with such companies, find out all the details of the deliveries (works, services, etc.), including with whom you signed the relevant documents, how the delivery was carried out, where the products were stored, etc.
3. You should be aware that, as a rule, the manager, chief accountant and persons responsible for accepting or shipping goods are called in for questioning (usually, these are persons who are indicated in the overhead documents, acts, etc.).
4. As a general rule, the head of the company can not answer questions in the context of "I do not know", "I do not remember", "it was a long time ago, I forgot." Such answers will only aggravate the situation and confirm your lack of information about the work of the company.
For example, if you are asked to work with one of the counterparties, you will certainly need to know how you started working with the counterparty, what product it delivered, what the contract price is. If you are not aware of the details of interaction with the counterparty, indicate which department in your company deals with this issue.
5. Do not fantasize. If the question is not part of your official duties, answer: "This question is outside the scope of my official duties."
6. If you are not sure of the answer or do not know exactly what to answer, refer to Article 51 of the Constitution and indicate that you will answer the question only in the presence of your lawyer.
7. After interrogation, ask the inspector to provide you with a copy of the interrogation report.
1. Objections to the act may be filed within a month. However, even if you missed this deadline, you can still submit them before considering the tax audit materials.
2. Carefully read the inspection report for errors by the tax authorities. They can be procedural, factual and substantive.
3. Virtually all procedural errors (non-compliance with the inspection deadlines; failure to bring to the taxpayer any document attached to the act; not posing any questions to the experts) are not independent grounds for declaring the final decision of the tax authority illegal.
Do not waste your time on stating such violations, if they do not lead to some fundamental violations of your rights.
4. Exceptions to the rule in terms of procedural irregularities that may be grounds for cancellation of the tax authority’s decision are consideration of the audit materials without your notice or signing of the tax authority’s decision by a person who actually did not participate in the examination of the audit materials.
It should be borne in mind that when appealing a decision on these grounds, the superior inspectorate has the right to review all the verification materials independently and make a new decision.
5. All taxpayer's objections boil down to two key points:
- Conjugation of the reliability (completeness) of the evidence provided by the inspectorate;
- objections to the merits.
6. When challenging the authenticity (completeness) of the inspection evidence, it must be remembered that such arguments can be presented in objections to the act only when the inspection cannot supplement the available evidence.
For example, the inspectorate claims that the supplier company could not deliver the goods to your address, because she has no vehicles. At the same time, the inspectorate did not clarify the question of whether the supplier company attracted carriers to provide such a service.
From a tactical point of view, the case of incomplete investigation by the inspection of the actual circumstances should be stated not in the objection, but in the complaint against the inspection decision.
7. Carefully read all the documents on which the inspection bases its findings. Some errors during the interrogation of witnesses (not explaining their rights or not warning about criminal liability) may be grounds for excluding such evidence.
8. The objections on the merits - this is a misinterpretation of the tax laws by the inspectorate or incorrect conclusions regarding the actual circumstances of the case.
For example, when the inspectorate claims that a transaction is subject to VAT, the taxpayer claims the opposite.
9. When preparing objections on the merits, regarding the application of tax legislation, it is necessary to consistently present arguments for upholding one's position, based on the interpretation of the text of the Tax Code itself; the practice of the Supreme Arbitration Court of the Russian Federation; the practice of your district court; letters of the Ministry of Finance and UFNS.
10. If the claims of the tax authorities are justified, then it’s too early to give up. Try to independently verify all tax accruals for the last three years. Perhaps an overpayment will be revealed, or your right to receive deductions.
In our practice, there was a case when, during a field audit, the taxpayer additionally accounted for several million arrears, however, during the analysis of the taxpayer’s documents, it turned out that he had not fully declared the VAT to be reimbursed. As a result, all the questions were able to close the offset requirements.
1. Issue a power of attorney to participate in the examination of the case. The power of attorney for the director is not issued, since he acts on the basis of the statute.
2. Your statement to the reviewers should not be reduced to the reading of objections. You can not speak as you write.
3. Tezisno voice your arguments. As mentioned above, it is not worth spending time on pointing out non-essential procedural violations.
4. Feel free to submit additional documents in support of your position, law enforcement practice reviews.
5. Both you and the inspection can try to “bargain”: the inspection will remove some of the claims in return for the fact that you recognize the other part. These proposals need to be approached carefully, assessing all possible prospects of the case.
Often this can be a good way to “reduce” the amount of additional charges.
6. If you have no objections on the merits, and you understand that you have to pay the arrears, ask the inspection to reduce the amount of the fine, citing mitigating circumstances. For example, that you are involved in tax liability for the first time.
7. If you believe that some action or evidence will be in your favor, then in writing, ask the inspectorate for this in writing a written request. For example, you believe that the interrogation of a witness will affect the formation of evidence in your favor - ask him to call by attaching a list of questions.
1. Sometimes, based on the results of consideration of objections, the inspectorate appoints additional tax control measures.
2. As part of the activities, the inspectorate is not entitled to investigate and collect evidence for those episodes that are not specified in the inspection report.
3. If you have requested documents that do not relate to the episodes set forth in the act, then you can refuse to provide them.
4. If you previously refused to testify as a witness, referring to article 51 of the Constitution, ask the inspectors to interrogate you again. At the same time, do not forget that you should have a copy of the old interrogation protocol with all the questions.
5. After all the events, the tax authority is obliged to familiarize you with the documents and information that are received as part of these events.
6. A decision is made on the results of the events.
1. For the basis of the complaint, you take previously prepared objections.
2. Expressions need to be reworked: remove those arguments that were made by the inspectorate and were not included in the final decision; If additional arguments from the inspection are included in the decision, you should provide counter arguments.
3.Add to the complaint those arguments that you did not voice in objections for tactical reasons. As a rule, these are arguments regarding the incompleteness of the evidence base on the part of the inspection, or about the inadmissibility (perversity) of certain evidence.
4. Use all means to provide additional evidence in your favor with the complaint: examination; interviewing witnesses with the help of a lawyer; self-inspection of premises, etc.
5. Check the tax calculation performed by the inspection.
6. Be sure to file your complaint through the office so that you have a note of acceptance of the complaint.
7. Complaints are considered, as a rule, without calling the taxpayer.
8. If the inspection decision on your complaint is left unchanged, then you will be required to pay arrears and penalties.
9. Remember that if you intend to go to court to defend your position, then you must, as soon as possible, submit a reasoned statement about the application of interim measures in the form of suspension of the inspection decision. Otherwise, your bank accounts will be arrested, and the amount of the additional charges will be forcibly deducted from your account.
Andrei Bezrukov, partner of the law firm Vetrov and Partners .
Ask questions you are interested in in the comments, we will definitely answer the most important in the following posts of our weekly legal column in the blog of the collective investment platform VCStart.com. We remind you that our project, created to attract venture capital investments in start-ups, is fully launched in 20 days. Currently, the platform works for registering investors and authors of startups in the pre-launch mode.
According to official information from the Federal Tax Service, since 2010, the gain in tax disputes in favor of the budget in disputed amounts has increased by 30%. Over the past year, this figure was 74% in all cases involving tax authorities, which is 6% more than in the previous year. In addition, in 2013, the budget was considered to be 40 billion rubles more than last year.
')
Just think, 74% (!!!) of tax disputes ends in favor of the tax authorities. What is the reason for this? First of all, it should be recognized that tax administration by the tax authorities has become objectively better than it was several years ago. Even a large staff turnover in inspections does not affect statistics in a negative way. This also confirms that the tax authorities have developed a clear and understandable mechanism for identifying tax arrears, proving relevant facts in court.
Currently, the State Duma is “brewing” a bill submitted by the President of the Russian Federation, allowing to initiate criminal cases on tax crimes in a general manner, without first checking the taxpayer by the tax inspectorate. As practice shows, often taxpayers themselves dig a hole when they make wrong and rash actions at the stage of checking against them.
So let's talk about what checking is and what to do with it.
General
1. Tax audit is cameral and exit.
2. Cameral check is carried out every year after filing the declaration.
3. As a rule, the sample of taxpayers for the on-site inspection is carried out automatically by comparing various indicators.
4. The selection criteria are specified in the Order of the Federal Tax Service of Russia of 30.05.2007 N MM-3-06 / 333 @ “On the approval of the Concept of the system of planning of field tax audits”.
Check started
1. In the event that you cannot provide the tax authority with premises for the inspection, notify them in writing. The check will be conducted without the presence of employees in your office.
2. Carefully read every request for documents. Those documents which the inspection is not entitled to request should not be submitted.
3. There should be no additional reports, references and other documents, the preparation of which is not mandatory.
4. Submit documents on the last day of the period specified in the request.
5. If you cannot provide the documents on time, ask the inspection to extend the deadline for submitting the documents with a justification of the reasons.
6. Make a detailed inventory of the documents provided.
7. Always submit to the inspection only copies of documents. Even if the volume of documents is very large and you don’t have time to copy, hire an employee for photocopying during the inspection.
8. An important rule: do not need to be led by the inspection staff. Strictly fulfill only those requirements that are required to comply with the law. One of the biggest misconceptions is that by defending your position, you “quarrel” and lose the “loyalty” of inspectors. There is no loyalty to the taxpayer initially.
9. Warn your counterparties that they may require documents. Ask them to respond promptly to requests from the tax authorities.
Interrogation of witnesses
1. Do not go to the interrogation without being prepared. You must formulate answers to your questions in advance.
2. If among your counterparties there are “doubtful” companies, you will definitely be asked about the criteria for choosing this counterparty, about the conditions of work with such companies, find out all the details of the deliveries (works, services, etc.), including with whom you signed the relevant documents, how the delivery was carried out, where the products were stored, etc.
3. You should be aware that, as a rule, the manager, chief accountant and persons responsible for accepting or shipping goods are called in for questioning (usually, these are persons who are indicated in the overhead documents, acts, etc.).
4. As a general rule, the head of the company can not answer questions in the context of "I do not know", "I do not remember", "it was a long time ago, I forgot." Such answers will only aggravate the situation and confirm your lack of information about the work of the company.
For example, if you are asked to work with one of the counterparties, you will certainly need to know how you started working with the counterparty, what product it delivered, what the contract price is. If you are not aware of the details of interaction with the counterparty, indicate which department in your company deals with this issue.
5. Do not fantasize. If the question is not part of your official duties, answer: "This question is outside the scope of my official duties."
6. If you are not sure of the answer or do not know exactly what to answer, refer to Article 51 of the Constitution and indicate that you will answer the question only in the presence of your lawyer.
7. After interrogation, ask the inspector to provide you with a copy of the interrogation report.
Getting the act of verification. Preparation of objections to the act
1. Objections to the act may be filed within a month. However, even if you missed this deadline, you can still submit them before considering the tax audit materials.
2. Carefully read the inspection report for errors by the tax authorities. They can be procedural, factual and substantive.
3. Virtually all procedural errors (non-compliance with the inspection deadlines; failure to bring to the taxpayer any document attached to the act; not posing any questions to the experts) are not independent grounds for declaring the final decision of the tax authority illegal.
Do not waste your time on stating such violations, if they do not lead to some fundamental violations of your rights.
4. Exceptions to the rule in terms of procedural irregularities that may be grounds for cancellation of the tax authority’s decision are consideration of the audit materials without your notice or signing of the tax authority’s decision by a person who actually did not participate in the examination of the audit materials.
It should be borne in mind that when appealing a decision on these grounds, the superior inspectorate has the right to review all the verification materials independently and make a new decision.
5. All taxpayer's objections boil down to two key points:
- Conjugation of the reliability (completeness) of the evidence provided by the inspectorate;
- objections to the merits.
6. When challenging the authenticity (completeness) of the inspection evidence, it must be remembered that such arguments can be presented in objections to the act only when the inspection cannot supplement the available evidence.
For example, the inspectorate claims that the supplier company could not deliver the goods to your address, because she has no vehicles. At the same time, the inspectorate did not clarify the question of whether the supplier company attracted carriers to provide such a service.
From a tactical point of view, the case of incomplete investigation by the inspection of the actual circumstances should be stated not in the objection, but in the complaint against the inspection decision.
7. Carefully read all the documents on which the inspection bases its findings. Some errors during the interrogation of witnesses (not explaining their rights or not warning about criminal liability) may be grounds for excluding such evidence.
8. The objections on the merits - this is a misinterpretation of the tax laws by the inspectorate or incorrect conclusions regarding the actual circumstances of the case.
For example, when the inspectorate claims that a transaction is subject to VAT, the taxpayer claims the opposite.
9. When preparing objections on the merits, regarding the application of tax legislation, it is necessary to consistently present arguments for upholding one's position, based on the interpretation of the text of the Tax Code itself; the practice of the Supreme Arbitration Court of the Russian Federation; the practice of your district court; letters of the Ministry of Finance and UFNS.
10. If the claims of the tax authorities are justified, then it’s too early to give up. Try to independently verify all tax accruals for the last three years. Perhaps an overpayment will be revealed, or your right to receive deductions.
In our practice, there was a case when, during a field audit, the taxpayer additionally accounted for several million arrears, however, during the analysis of the taxpayer’s documents, it turned out that he had not fully declared the VAT to be reimbursed. As a result, all the questions were able to close the offset requirements.
Inspection case review
1. Issue a power of attorney to participate in the examination of the case. The power of attorney for the director is not issued, since he acts on the basis of the statute.
2. Your statement to the reviewers should not be reduced to the reading of objections. You can not speak as you write.
3. Tezisno voice your arguments. As mentioned above, it is not worth spending time on pointing out non-essential procedural violations.
4. Feel free to submit additional documents in support of your position, law enforcement practice reviews.
5. Both you and the inspection can try to “bargain”: the inspection will remove some of the claims in return for the fact that you recognize the other part. These proposals need to be approached carefully, assessing all possible prospects of the case.
Often this can be a good way to “reduce” the amount of additional charges.
6. If you have no objections on the merits, and you understand that you have to pay the arrears, ask the inspection to reduce the amount of the fine, citing mitigating circumstances. For example, that you are involved in tax liability for the first time.
7. If you believe that some action or evidence will be in your favor, then in writing, ask the inspectorate for this in writing a written request. For example, you believe that the interrogation of a witness will affect the formation of evidence in your favor - ask him to call by attaching a list of questions.
Additional tax control measures
1. Sometimes, based on the results of consideration of objections, the inspectorate appoints additional tax control measures.
2. As part of the activities, the inspectorate is not entitled to investigate and collect evidence for those episodes that are not specified in the inspection report.
3. If you have requested documents that do not relate to the episodes set forth in the act, then you can refuse to provide them.
4. If you previously refused to testify as a witness, referring to article 51 of the Constitution, ask the inspectors to interrogate you again. At the same time, do not forget that you should have a copy of the old interrogation protocol with all the questions.
5. After all the events, the tax authority is obliged to familiarize you with the documents and information that are received as part of these events.
6. A decision is made on the results of the events.
Appeal against the inspection decision
1. For the basis of the complaint, you take previously prepared objections.
2. Expressions need to be reworked: remove those arguments that were made by the inspectorate and were not included in the final decision; If additional arguments from the inspection are included in the decision, you should provide counter arguments.
3.Add to the complaint those arguments that you did not voice in objections for tactical reasons. As a rule, these are arguments regarding the incompleteness of the evidence base on the part of the inspection, or about the inadmissibility (perversity) of certain evidence.
4. Use all means to provide additional evidence in your favor with the complaint: examination; interviewing witnesses with the help of a lawyer; self-inspection of premises, etc.
5. Check the tax calculation performed by the inspection.
6. Be sure to file your complaint through the office so that you have a note of acceptance of the complaint.
7. Complaints are considered, as a rule, without calling the taxpayer.
8. If the inspection decision on your complaint is left unchanged, then you will be required to pay arrears and penalties.
9. Remember that if you intend to go to court to defend your position, then you must, as soon as possible, submit a reasoned statement about the application of interim measures in the form of suspension of the inspection decision. Otherwise, your bank accounts will be arrested, and the amount of the additional charges will be forcibly deducted from your account.
Andrei Bezrukov, partner of the law firm Vetrov and Partners .
Ask questions you are interested in in the comments, we will definitely answer the most important in the following posts of our weekly legal column in the blog of the collective investment platform VCStart.com. We remind you that our project, created to attract venture capital investments in start-ups, is fully launched in 20 days. Currently, the platform works for registering investors and authors of startups in the pre-launch mode.
Source: https://habr.com/ru/post/235125/
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