“I invited you, gentlemen, in order to tell you some very unpleasant news: an auditor is coming to us.”
How should the head of an enterprise behave in the event of an impending tax audit? Is it worth having intimate conversations with inspectors in the smoking room, calling them by name more often and telling them all the “appearances and passwords” or is it better to assign a separate employee to accompany the tax authorities, keep an “audit diary” and contact specialists in legal support of tax audits? About this in the next blog for BUSINESS Online from lawyers of ANP Zenit Yulia Zazdravnaya and Guzel Valeeva.
“ZERO” CHECKS ARE NONSENSION
We live in amazing times - everyone becomes an expert after reading a couple of articles from the Internet. There are, of course, areas of life in which we have always been experts, long before the advent of the World Wide Web, such as football, hockey, relationships and running a country.
But now we have additionally mastered specialties that require specific knowledge. For example medicine. Google to the rescue - and so we correct the doctors, diagnose ourselves and prescribe treatment. And only when things get really bad, when the rooster continuously starts pecking at the place where the back loses its noble name, we run to the doctor, who has to not only treat the advanced disease, but also deal with the consequences of our Internet treatment.
The situation is similar with taxes. The Internet is replete with all kinds of advice on how and what to do during a tax audit, which very often directly contradict each other.
Some people advise immediately turning on a video camera and a voice recorder, others suggest setting aside an office with a kettle, a microwave oven and a stocked refrigerator. Some suggest keeping verbal communication to a minimum, others give advice on how to win them over, in the style of “call them by name more often,” “compliment, but don’t flatter,” “ask for advice for the future.” Some advice is too general, others are too specific, and some are downright dangerous and can lead to negative and unpredictable consequences.
Feeling a desire to bring knowledge to the masses and sincerely concerned about the tax health of our fellow citizens, we carefully analyzed the available information on tax audits, and also summarized our 7 years of experience in supporting tax audits.
Our task is to determine specific rules of conduct, an algorithm of actions for the taxpayer, the result of which will be the minimization of possible additional charges.
Please note - this is a minimization, since, of course, there will be additional charges. “Zero” checks are nonsense. Today in Tatarstan, tax audits with additional charges below 3 million rubles are considered ineffective. And the inspection performance and, accordingly, employee bonuses depend on the effectiveness of inspections. Therefore, there will be additional charges, but the extent to which and, most importantly, whether you will have grounds to challenge them in court, largely depends on the quality of your actions during the tax audit.
So, you are informed that a tax audit is coming, maybe it has already arrived, tax inspectors are waiting in the reception area for you to sign the decision to conduct the audit.
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RULE #1. CALM, ONLY CALM!
Despite the comic nature of the rule, it must be followed. It is not emotions that will help you, but sober, cold calculation. There must be the right attitude.
Remember, generals do not run, because in peacetime it looks funny, but in wartime it causes panic.
If you have nerves of steel and tax verification is an ordinary event for you, then immediately proceed to rule No. 2.
For most, a meeting with inspectors is a situation close to extreme.
The following settings will help you get into the right frame of mind.
Firstly, communication with inspectors should be considered as business negotiations.
They have their own tasks, you have yours. Your task is to build correct, respectful interaction.
Secondly, do not try to seem smart, concentrate on your main task - to protect the interests of your business.
Remember, you are not in an exam. If you are asked a question that you do not understand, or you feel there is a problem, no one is stopping you from taking a break and thinking or, for example, consulting with a lawyer. It is the desire to seem knowledgeable that leads to unnecessary words, and therefore to serious problems. A smart person is not afraid to appear stupid, but a stupid person wants to appear smart. You must have the right focus - you are not at the “Most Knowledgeable Director/Accountant/Employee” competition, your goal is to minimize additional tax charges and possible risks. It is the focus on the main task that will allow you to choose the optimal behavior.
Third, never underestimate your opponents.
We had one familiar inspector. A very strong and qualified specialist. But when he came to the audit, he gave the impression of complete incompetence and lack of understanding of the basics of accounting and tax accounting. He constantly asked him to suggest something, show him, explain, saying that this was the first time he had seen such complex accounting. He looked shy and unpretentious. After a couple of days, those being tested relaxed, began to treat him condescendingly, periodically making fun of him, teasing him. In response, the inspector only blushed and awkwardly laughed it off. After some time, relaxation reached the level of sloppiness - no one monitored or looked at the transferred documents, they provided access to 1C - he still wouldn’t understand anything, they reported to the director - everything is in order, everything is under control. But the situation turned upside down on the day of delivery of a voluminous, weighty and very high-quality act based on the results of a tax audit. The accounting department turned pale, the director blushed, and the inspector remained imperturbable. He looked and spoke, however, completely differently...
If you want to further protect yourself, as well as minimize the inconvenience that arises during a tax audit, you can contact law firms that provide legal support for tax audits.
What should you pay attention to when choosing a law firm?
Firstly, it is desirable that the company has a specific tax specialization. Lawyers, like doctors, must have a specialization. If your teeth hurt, you will go to a dentist, not a proctologist, or even a general specialist. The same is true for lawyers. You should be wary of legal assistants who position themselves as specialists in family, labor, and corporate law. " Tax law? Yes, of course, we do it too!” Beware of this - it won't fly.
Secondly, the specialists you attract should have positive experience in conducting similar projects. It should not act as a testing ground.
Thirdly, yes, a lawyer removes most of the problems from you, you get the opportunity to concentrate on your main activity, but in any case you must keep your finger on the pulse. You should establish checkpoints to ensure that legal support is effective and useful. For example, we prepare a weekly report for the manager on the work done, the current situation and planned activities.
It is very important to understand that the specialists involved should not start a small war with the tax inspectorate, wanting to show their “deep knowledge”, and should not provoke a tax vendetta. On the contrary, they must provide qualified protection of your interests and minimize tax risks by creating a normal microclimate for conducting an audit and building correct relationships with inspectors, allowing you to concentrate on your core business.
Thus, legal support for a tax audit should contribute to a calm, controlled process of its completion.
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RULE #2. FOLLOW THE NARROW NECK PRINCIPLE
How does the inspection usually take place? Some requests for documents are received and executed by the accounting department (each accountant is responsible for his or her part of the accounting), technological issues are clarified by production workers, and everyone shares their vision of the state of affairs: salespeople, logisticians, personnel officers, and even installers.
In our practice, there was a case when installers of workshop No. 5 testified that workshop No. 6, located in a newly built building, began operating in May 2010. The workers made this conclusion because they saw the lights burning in the room. Based on these testimonies, the inspection concluded that the organization did not register the building in a timely manner and assessed additional property tax on the company.
It took enormous effort to prove in court that the lights were on because installation work was being carried out...
In such a situation, it is extremely difficult to figure out which of the inspection requirements have been fulfilled and which documents and explanations have been submitted.
And unpleasant surprises cannot be ruled out when it becomes clear from the inspection report that the sales department presented an invalid version of the agreement or a draft agreement, the essential terms of which (unlike the current one) entail different tax consequences...
Or the driver said: “I don’t know such a counterparty. Didn't deliver anything to him. I sort everything out myself". However, it turns out that during the period under review, this driver was either not yet working or was no longer working, and therefore could not have known.
Well, a classic case - an offended storekeeper, fired for drunkenness, who knows little about the issues of choosing contractors, testifies at the inspection.
That is why all communication with tax authorities must occur through one responsible person (the so-called “bottleneck” principle). One bad commander is better than two good ones.
It is the responsible person who receives requests for the submission of documents, transmits documents and information to inspectors; all tax control activities (inspections, seizures, inventories, interrogations) take place in his presence.
This is convenient both for the company itself, since other employees are not distracted from performing their direct duties, and for the tax authority, which has a responsible person at its disposal.
RULE #3. PLACE INSPECTORS CORRECTLY
Seating inspectors at a free table in the accounting department (where previously there were cookies and a microwave with a kettle) is not the best idea. It is better to allocate a separate room (not an archive), free from unnecessary folders and from computers with access to 1C.
By the way, in our practice there was a case when an inspector was indignant that the window in his office was too small. It is clear that we would all be happy to work in an office with a view of the sea or ocean, so that the sea breeze rushes in through the open window, and the cries of seagulls soothe our ears... But the harsh realities are as follows: if the room is suitable for work, get it and sign for it.
If the company does not have free premises, it should contact the inspectorate in writing with a request to conduct an inspection on its territory. As justification, cite the lack of free premises and renovations.
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RULE #4. DEVELOP AND IMPLEMENT REGULATIONS FOR CONDUCT OF EMPLOYEES DURING INSPECTIONS
Your employees should know how to respond to requests (persuasions, orders) from inspection workers (the best decision is to refer them to the person responsible for the inspection). It’s an unhealthy situation when for two months (or even more) the entire staff is “working” for an audit, and accountants are constantly running to explain to the inspectors where did this figure in the report come from?. In the end, everyone should mind their own business.
To do this, we recommend developing an internal regulation of conduct during audits (not only tax audits) and familiarizing all employees with it against signature. This may seem funny, but intimate conversations and revelations with inspectors in smoking rooms are not only not uncommon, but one of the ways to collect information.
The purpose of the regulations is to ensure: a) the normal functioning of the organization; b) monitoring employees’ performance of their direct work; c) provision of reliable information to the inspectors.
The key rule of the regulations is that all employees without exception must immediately report any requests from inspectors (both oral and written - for example, delivery of a notice of summons for questioning) to the person responsible for the inspection.
RULE #5. RECORD THE PROGRESS OF THE CHECK
When accompanying on-site tax audits, we use an “inspection diary”, in which we record all the data on the procedural actions carried out by the inspectors, the information requested (including oral information), and the documents presented.
By analyzing the data from the “diary”, it is possible to predict with high accuracy possible claims from inspectors. This means that the time to form and strengthen the company’s legal position increases.
The second, no less important practical significance of such recording is that it is much easier to identify procedural violations of the inspection when all information on the inspection is collected in one place.
An incident that we often remember. The tax authority seized documents. To justify the legality of its implementation, he referred to the refusal of the head of the company to receive the request. The refusal was confirmed by the signatures of two witnesses.
Having restored the course of the audit, we discovered that the director of the company could not refuse to receive it.
The fact is that on the day of refusal to receive the request, the director was absent from the territory of the Russian Federation, he was abroad, which was confirmed by a mark in his passport.
During the trial, we asked a number of clarifying questions - did the inspectors remember the day the demand was served, how the director refused, what he said, where they found witnesses. The response was, it must be said, a colorful and detailed story about how the inspectors came to the company’s office, how the director rudely refused, ran out of the office and left. It was clear that the judge sympathized with the representatives of the inspectorate, internally indignant at the negligence and irresponsibility of the taxpayer.
When we provided a foreign passport, this should have been seen. One participant in the process turned red with indignation - no one likes to be made a fool of, another participant turned pale with fear and shame. It is clear that the court's position has changed dramatically. After all, if a person lies about parts, then the whole is called into question. The tax authority's decision was declared illegal.
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RULE #6. SEND DOCUMENTS STRICTLY ACCORDING TO THE DESCRIPTION
A very important rule. Recording the fact of transfer of documents (not only copies, but also originals for review) solves the following problems:
Ensuring the safety of documents;
- protection from fines for failure to provide documents;
- tracking which documents are transferred;
- protection from re-request of documents (for example, previously submitted during a desk audit);
- justification for the illegality of the seizure.
Several years ago, the inspector refused to sign the inventory (nowadays this is rarely seen - the level of tax authorities is constantly growing). In this case, the taxpayer has the opportunity to submit documents with an inventory through the inspector’s office or send them by registered mail with an inventory and notification. But under no circumstances should you imagine it just like that. Remember: the rights and obligations of the taxpayer and the tax authority are interconnected.
RULE #7. IDENTIFY TAX SAFETY BAGS
Almost every taxpayer has so-called hidden tax overpayments. Search, identify it yourself, or involve specialists.
For example, accountants do not like to include in their profits the costs of paying for mobile communications for employees, the costs of ensuring normal working conditions (air conditioning, an aquarium, a coffee machine). However, with proper documentation, such expenses can and should be written off as expenses.
Another example is the management of unfavorable letters from the Ministry of Finance, which contradict established judicial practice, and often other letters from the department itself. He, the Ministry of Finance, is so fickle in tax matters... For example, about the need to restore VAT on the amount of shortage of goods.
In three years it accumulates.
In one case, we reflected unaccounted expenses identified during the audit in objections to the audit report. Some of the expenses were recognized by the inspection itself, some by the management, and the legality of accepting the remaining expenses was confirmed by the court. As a result, for the entrepreneur, the on-site tax audit ended not in arrears, but in the return of the overpayment from the budget. Just imagine, the tax audit ended with the return of overpaid taxes from the budget - we are especially proud of this matter.
In conclusion, we repeat once again - appoint a person in charge, allocate a separate room, instruct employees, hand over documents strictly according to the inventory, record the progress of the audit, identify overpayments and, most importantly, train calm.
In the film “Bridge of Spies” (recommended for viewing), Soviet intelligence officer Rudolf Abel remained calm in all situations. When Tom Hanks’s character asked him: “Aren’t you worried at all?” - every time he calmly answered: “Will this help?”
So, when you start to worry, ask yourself: “Will this help?”
P.S. For your convenience, we have prepared an infographic “A tax audit has arrived” .
P. P. S. Write tax topics that interest you in the comments.
Yulia Zazdravnaya, Guzel Valeeva
Guzel Valeeva- senior partner of the law firm "ANP Zenit".
Education: Kazan State Financial and Economic Institute with a degree in taxes and taxation; Moscow State Law Academy named after. Kutafina (MSAL) with a degree in civil law.
Speaker of the international conference “Tax Law in the Decisions of the Constitutional Court of the Russian Federation”, Volga Tax Forum and other industry conferences.
Yulia Zazdravnaya- Managing partner of the law firm "ANP Zenit".
Education: Kazan State Institute of Finance and Economics, majoring in taxes and taxation.
Speaker of the international conference “Tax Law. Experience of Russia and other countries”, Volga tax forum and other industry conferences.
Everyone knows that if inspectors come for an inspection, they need to be allowed into the company’s territory. What if this is not done?
If inspectors come to the company with a tax audit, the first thing you need to do is look at their documents. Only if the auditors have permits, management should allow inspectors into the territory of the enterprise. We are talking about official IDs and the decision of the head of the tax authority (or his deputy) to conduct an audit. Moreover, both documents must be available to officials. If auditors show only a certificate, then they do not have the right to conduct an inspection. At least until they get a solution. Until then, they can safely invite them to come another time. Are there any other legal options to keep the inspectors out? Let's figure it out.
If the company does not have the opportunity to provide premises for conducting an on-site inspection, the control event can be carried out at the location of the inspection. This is true. This is precisely the rule enshrined in Article 89 of the Tax Code. It turns out that in certain cases it is possible to transfer the audit to the territory of the tax authorities. However, it is reasonable to do this only if you think that this “alignment” will be more profitable for the company. The question is, what can be considered obstructive circumstances? These include, for example, repairs in the office, production, warehouse, etc. Indeed, if the premises are under reconstruction, it is simply impossible to conduct an inspection there.
However, the arbitrators did not side with the company. They confirmed that the absence of the signature of the person being checked was not a violation, since a note was made on the paper that he refused to put his autograph on it.
There is another “loophole”. It will be of interest, first of all, to current and former individual entrepreneurs. The fact is that tax officials do not have the right to enter premises against the will of the citizens who live in them. That is, we are talking about apartments, houses, rooms, etc. Thus, if an entrepreneur, for example, has stopped working, then inspectors can only enter the residential premises with his permission. Thus, in this case, inspectors can conduct an audit only at the location of the tax authority.
Don’t forget, if everything is in order with the inspectors’ documents, then the company’s management has no reason not to let them into the territory of the enterprise; in this case, it is better not to interfere with the auditors. Why? I'll explain now. If access to tax officials conducting an audit is obstructed, the head of the inspection team will first draw up a report. This paper will be signed by the inspector and a representative of the company being inspected. Refusing to put an “autograph” on this document does not make any sense, because in this case the document will simply record the corresponding decision of the representative of the organization. The form of the act on obstructing the access of officials conducting a tax audit to the territory or premises of the person being inspected was approved by Order of the Federal Tax Service of Russia dated March 6, 2007 No. MM-3-06/106@.
Later, on the basis of this paper, the inspection, based on the data it has about the organization being inspected or by analogy, has the right to independently determine the amount of tax to be paid.
And here a reasonable question arises: is this good for the company? Most likely not.
What does "by analogy" mean? The fact is that tax authorities have the opportunity to determine the amount of fees payable by calculation, based on the information they have about other similar companies. Such a right arises precisely when the company being inspected refuses to allow inspectors into its territory.
Now let’s figure out what arbitration practice is on the issue under consideration. It is worth noting that it is not very numerous: companies rarely risk refusing inspectors entry into an office, production or warehouse premises.
The fact is that tax authorities have the opportunity to determine the amount of fees payable by calculation, based on the information they have about other similar companies. Such a right arises precisely when the company being inspected refuses to allow inspectors into its territory.
It is interesting to read the resolution of the Federal Antimonopoly Service of the West Siberian District dated September 30, 2011 in case No. A70-9334/2010. The company asked the arbitrators to invalidate the inspectorate's decision. Why? Due to obstruction of access to the building, auditors conducted an inspection in their premises and decided to collect arrears of the single tax, personal income tax, penalties and fines. According to the organization, officials violated the audit procedure. The company's management insisted that the act did not record when, where and to whom the inspector presented the official identification and the decision to conduct an inspection; the document did not indicate who specifically carried out actions to prevent entry into the company's territory and what these actions consisted of . In general, it was not clear to the plaintiff whether the persons who prevented the auditors from entering the office had any connection with the company being audited.
However, the arbitrators did not side with the company. They confirmed that the absence of the signature of the person being checked was not a violation, since a note was made on the paper that he refused to put his autograph on it.
It is interesting that the management of the organization at the time of the trial stated that it had the opportunity to provide premises for conducting a tax audit. However, the judges admitted that these words were not enough, because in fact the inspectors were never allowed into the office.
The organization referred to the fact that the accounting documents are in a safe in a room for which there is no key. Accordingly, there is no way to submit papers. The courts came to the conclusion that in such a situation the auditors had every right to conduct an audit on their territory and determine the amount of taxes payable based on the data they had about the company.
What did the analysis of this arbitrators' decision give? The main conclusion that can be drawn is: if you have already decided not to allow inspectors onto your territory, and you do not like their further calculation, there is no point in challenging it. It is even more useless to state that you had the opportunity to provide premises for control activities. As they say, after a fight you don’t wave your fists. Therefore, if you did not let the tax authorities in, then you need to accept their decision.
The visit of the tax authorities can hardly be called a friendly event. Fortunately, on-site inspections are now carried out quite rarely - the brave employees of the Federal Tax Service are increasingly limited to desk inspections. And yet you always need to be prepared for the fact that one day employees of this department will knock on the doors of your company. The main thing in such cases is not to panic and quickly build the right strategy for interacting with uninvited guests. Let's figure out how to do this.
Let us remind you: an on-site tax audit is an event based on the results of which the tax authorities assess additional taxes, fees and penalties, hold the taxpayer accountable (both tax and administrative) and engage in other legalized types of extortion.
Scheduled on-site inspections are carried out once every three years, and extraordinary ones - a maximum of once a year. Unscheduled inspections usually begin if the tax and law enforcement authorities have repeatedly received complaints from clients, counterparties, competitors or simply “concerned” citizens.
For an entrepreneur, tax audits become a chronic source of conflicts with the Federal Tax Service, which abuses its powers. Tax officials often arbitrarily (in their favor) interpret tax legislation and commit a lot of both minor and very significant offenses. The situation is aggravated by the fact that in 2015 the legislator provided employees of the Federal Tax Service with new opportunities.
Federal Tax Service employees directly involved in inspections are vested with a very wide range of powers. They can carry out the following activities:
As you can see, the list is quite solid. However, this does not mean that tax officers have the right to everything. Your task is to ensure that they do not go beyond their powers (and, if possible, to suppress all excesses of this kind).
Sometimes tax authorities come completely unexpectedly. You did not receive notifications or warnings (or received the corresponding document literally the day before the visit), and the Federal Tax Service is already on the doorstep. How legal is this?
The fact is that the decision to check must first be sent to the head of the company by mail. And not just send, but wait for a response in which the manager must confirm receipt of the letter with the decision and notification. It is clear that the letter does not always arrive the very next day after sending, and you do not check your mailbox every day. But the Federal Tax Service is not interested in this - employees simply count 6 days from the moment the correspondence was sent and come with a check, even if they have not received a response. But the warning requirement is considered fulfilled only after receiving a confirmation letter! Consequently, a tax audit without warning should be considered unlawful. You can’t just keep the inspectors out—it’s fraught. But you will have an additional “ace up your sleeve” if you subsequently have to appeal the decision of the tax authority.
If you learned about the upcoming visit of the inspectors at least a day or two in advance, you need to urgently start preparing for the meeting of the “guests”.
And here it is, the moment of truth - the inspectors are on the threshold. The tax audit has arrived, and something needs to be done next.
If you follow these simple rules, surviving a tax raid will become much easier. By the way, you can fight the arbitrariness of inspectors in other ways - more ambiguous, but very effective. Some of them may seem ugly to you. Whether to use them or not is a matter of personal choice.
The experience of many entrepreneurs allows us to identify several effective counteractions. With their help, you can minimize the likelihood of being subject to fines and additional payments.
Always look at the situation to see if it is worth using the methods listed above. Remember that poorly taken measures can sometimes turn against you. The statement that during a tax audit you need to do everything possible - they say, in a critical situation, all means are good - is incorrect.
So, the scheme is clear: a violation - a complaint in a departmental or judicial manner - declaring the conclusion of the inspection commission illegal (or at least canceling a separate decision). This combination does not always work, but quite often, and with due persistence you can achieve your goal. And if you don’t like to take risks, just carefully monitor the progress of the audit and immediately point out to the Federal Tax Service employees their mistakes.
There can be many tricks and violations, and some of them are almost impossible to recognize. It’s not possible to protect yourself 100% – alas, but this is true. You can only minimize the risks by following the recommendations above.
In 2015, tax audits of organizations began to be more “hardcore” in nature due to the expansion of the powers of the Federal Tax Service. But you shouldn’t be afraid of inspectors - they are not omnipotent. Don’t lose your head, show them your absolute readiness to defend your interests - and everything will end well for you. Tax officials prefer not to get involved with entrepreneurs who can fend for themselves.
Say hello and turn on the voice recorder. Turn on the recorder and record openly. You say: “Gentlemen, inspectors, one second. This is a voice recorder, it’s on. Please speak.”
If you are afraid to turn on the recorder and record everything that happens on it, then assign (assign) to each inspector one of your employees with a tablet and paper and let him record every action, every step, every word of the inspectors. It is necessary to record openly and exactly what is happening and/or being said, without your own conclusions or comments. If necessary, show the reviewer what you write down.
If you are afraid to do this too, then let the “assigned” employees remember everything that happens and is said.
Remember:
“Staff members are so “reasonable” that they think that these representatives of suppressive groups are there out of necessity, or perform some useful function, or have something to prove to them. This is all nonsense.
... There are no good agents of authorities or suppressive groups. The longer you try to be nice to them, the worse it will be for you. And the sooner you understand this, the happier you will be.” L.R. Hubbard work dated December 26, 1966.
Ask to see their ID personality. They are obliged to do this. They are required to hold them in their hands at a distance accessible to you for reading.
Rewrite all identity data for yourself all police officers (tax office, Ministry of Emergency Situations, Federal Migration Service, etc.). Do not forget to write down the name of the authority that issued the certificate and the period until which it is valid. Remember, often “stray” comrades who have “confused” the territory for inspection come to check. Sometimes they come for inspection with IDs that have expired. Calmly ask such comrades to leave the premises.
Ask to see the Inspection Order.
Make a copy of the Resolution. They are obliged to allow you to make a copy, they are obliged.
Compare the names of the inspectors from the certificates with the data specified in the Resolution. It often happens that “extra” police officers not specified in the Resolution come to check. Also ask them to leave the premises.
Present your documents(passports). The director may also present the Minutes of the meeting of Participants (founders) on his appointment as a director. There will be nothing wrong if you present a rental agreement for the premises and notarized copies of the constituent documents. Please keep the original articles of incorporation out of the office. For government agencies, notarized copies are sufficient.
Ask from the inspectors boss's phone number, who sent them for verification, and call him, having found out whether he really sent them to you for verification. Usually they give the telephone number to the duty station. Remember: at least 30% of inspection orders are completely fake. Those. written out by the operas themselves. And another 20% of the Resolutions were actually signed by the chief, but just like in the first case, they were not registered in the inspection log at the Internal Affairs Directorate. I took these data from the police officers themselves and are confirmed by various sources and my practice.
Give the inspectors the Checklist book. and let them write themselves in this book.
Check the correctness of the drafting (content) of the Resolution for compliance with laws. As of May 1, 2009, I did not find the form of the Resolution approved by the Ministry of Internal Affairs. For now, use the standards of Article 14 of Law 294-FZ.
If everything is correct, show them all the documents they request. If not, invite them to stop (not start) the check and leave the premises. If they refuse to leave the premises, then comply with their demands. There are different situations in business and here you need to be reasonable in providing documents and information.
Do not leave inspectors without attention and complete control. Record on a tape recorder or paper all their actions, words, absolutely everything.
Remember: inspection of the premises, inspection of drawers, cabinets, personal belongings, seizure of anything, occurs only in the presence of two witnesses who are not interested in the outcome of the inspection. Witnesses are not brought by police officers with them and are not appointed from among them or from among your employees. This point is chronically violated.
Do not answer questions if you do not know the answer or are not sure that the answer is correct and it will not harm you. But don't be silent either. Say whatever you want, give evasive answers, etc.
Read all Protocols, Acts, etc. carefully. and feel free to write down all your disagreements there. Don't refuse to sign. This does not work. It is better to write down in the protocols (and other documents) everything that you do not agree with and that, in your opinion, the inspectors did wrong.
Remember that if you strictly follow the letter of the law, then government officials have the right to inspect the enterprise only in the presence of the general manager. Director (IP) or other person to whom the general. the director issued a power of attorney for the right to represent the interests of the enterprise on the basis of Article 185 of the Civil Code of the Russian Federation. According to Art. 2.4 and 25.3. Code of Administrative Offenses, according to Article 40 of the Federal Law on “LLC”, Law 129 of the Federal Law “On State Registration...” the only legal representative of a legal entity is the general. director (director, executive director). In the absence of a legal representative of a legal entity, the inspection can be carried out in the presence of two representatives of the district Administration.
Based on the results of the inspection, they are required to draw up an Inspection Report and, if there were violations, then a Protocol on Administrative Offense.
If they inspected your premises, tables, cabinets, personal belongings (Article 27.7 of the Administrative Code), etc., then they were obliged to do this in the presence of 2 disinterested witnesses and, based on the results of the inspection, they were obliged to draw up an Inspection Protocol. This point is also constantly violated by them.
If they decide to confiscate some documents and things from you, then a Seizure Protocol is also drawn up (Article 15 of the Federal Law “On Operational Investigations”), with a detailed list of the seized documents attached. And here, employees of the authorities constantly make mistakes.
It is necessary to remember this - any check, and whatever its results, this is just the first step, which does not yet mean any punishment. Those. here, at this step, no decision on punishment is made. This is just a statement of some facts from the point of view of the inspectors and nothing more.
Take a walk. While walking, direct your attention to the objects around you. You need to take a little break from the negative emotions you received during the test.
Write down on paper all your negative emotions, if any, and when you finish, tear up what you wrote. Write down your decisions and realizations on a separate sheet of paper. In the process of writing out negative emotions, you (it is possible) will have reasonable decisions and awareness.
Describe the entire process of testing “as-is” yourself. You and your lawyer will need the facts. Describe the progress of the inspection without any distortion.
Let each of your employees who was in one way or another related to the inspection describe the situation and everything that he saw “as-is.”
Make a printout of the voice recording.
Collect all the Resolutions, Acts, Protocols, etc. that the police officer left for you based on the results of the check.
Study everything stated in paragraphs 3-6. Pay attention to the links that are present in the official documents of the inspectors. Explore them all.
Collect and study all the information about exactly how the inspectors should have acted. (See the CD with materials). While studying these materials, write down those articles of laws that were violated by the inspectors. Write down exactly what was violated.
Do a full inspection of your enterprise yourself or with the help of specialists for violations of the laws of the Russian Federation.
Create a program to eliminate deficiencies and begin to implement it, starting with those deficiencies that were identified during the audit.
If you have been given a date for consideration of your case literally the next day, and you do not have time to prepare well, then file ANY complaint addressed to the head of the Authority and express your disagreement with the results of the inspection and ask to postpone the consideration of your administrative offense to a later date. They are required to give you up to two weeks.
Quickly eliminating your shortcomings, prepare a Report notification (complaint), following the following algorithm (the following steps):
Give the reality factor about when the check took place, what, who was checked, who checked. The boss reading the complaint should not guess who and what you are.
Give confirmation to the system. You don't fight the system and you don't blame the system. Give confirmation to your boss. It is quite possible that he did not send anyone anywhere. Thank your boss for the opportunity to bring more order to your business.
In this section, describe all violations of the inspectors, indicating exactly what was violated, what was said in violation of the law, and what was done in violation of the law. Exactly quote the articles of the laws that were violated by them.
Invite your boss to take administrative (if necessary criminal) measures against his employees who have violated the law. Give your boss exact quotes from the laws on the basis of which he must punish his subordinates. Show him the way in which he should act towards his subordinates.
This item is not required in the first report. You operate along a gradient of ethical actions. When sending a complaint to the prosecutor's office, in this paragraph indicate the procedure for the prosecutor's office to verify compliance with the law on the part of the police. Remember, it is the direct responsibility of the prosecutor’s office to monitor the legality of police activities.
Write that you have eliminated the shortcomings that the inspectors found.
Referring to Art. 26.2. clause 3 of the Administrative Code, etc. suggest that, due to the violations committed by the inspectors, you should not be punished and the case should be dropped.
Direct your boss's attention to compliance with the laws of the Russian Federation and wish him success in his work.
Please attach copies of the following to your complaint:
Explanatory notes from your employees, from which the inspectors’ violations follow, but there is no description of your violations.
protocols, acts and other documents confirming that you have eliminated all violations.
orders to punish your employees who committed violations.
Any other documents confirming that the shortcomings have been eliminated and there is nothing to punish you for, but it is necessary to settle the ethics of the employees of the authorities.
Give one copy of this document to the office of the authority, ensuring that they put a mark on the acceptance of this document on the second copy.
With the third copy, go to the senior inspector, let him read your complaint and ask him what he thinks about all this. Ask if there is a legal way to end the case. If there is antagonism, settle it. If that doesn't work, move on to the next step.
Leave the third copy. with the senior inspectors, and with the fourth, go to an appointment with the head of all inspectors. Let him read your complaint and ask what you should do next. Usually this is where it all ends.
If not, then wait for the date of consideration of the case and come to the consideration of the case about the admin. violation with your lawyer by your representative (preliminarily write out a simple form of power of attorney for him on the basis of Articles 185 - 186 of the Civil Code) or a lawyer. Don’t make excuses, don’t blame, direct the conversation towards resolving the situation. If you encounter harsh criticism..., stop this conversation and let him issue a Resolution regarding your violation.
Write down all your disagreements in this resolution.
Next, your actions are as follows:
Prepare (let a competent lawyer or lawyer prepare it) applications to the court for (there may be options here):
Illegal actions of law enforcement officers.
To recognize as illegal a non-normative legal act of an authority.
Apply to the court.
Win the case, it is usually not difficult at all.
Complete the establishment of order in the business (possibly its legalization) and complete the implementation of the State of Emergency. See the book "Ethics".
Keep all the legal nuances of your organization entered and implemented.
What legislators and people who advocate for the application of the Criminal Code of the Russian Federation in relation to entrepreneurs cannot understand is that this problem cannot be solved with harsh measures, cameras and punishments. And the fact that it is the government that is responsible for ensuring that the entrepreneur pays taxes voluntarily and enjoys it. It's not hard to do. And this is the topic of the following articles.
Enjoy your life and pay your taxes. Yes, pay, despite the fact that taxes are stolen, despite the fact that a significant part of your taxes goes to the personal consumption of the owners of the financial and economic pyramid created on this planet.
You can only get out of the swamp by walking through it. And being a conscientious tax payer, you and your “neighbor” will be able to influence the authorities using ethical methods, in order to change the tax system, making it at least acceptable.
In some article I read that in 2008 more than 3 billion rubles were spent on tax reform and changes in tax legislation. I don't know if this is true or not. I know something else for sure (and I’m ready to personally do it, once and for all, for the same three billion rubles), the Tax Code can fit on 50 pages, it can be made simple, understandable to everyone, and not changed for decades.
I know that the state apparatus and all budget expenditures can easily fit within 10% of the total taxation of your “dirty” profits, and I am ready to prove this to anyone with facts and figures. And you know, not much needs to be done for this. All you need is your desire to do it, your intention and your actions towards this goal.
This work was written based on the laws of Russia and the personal experience of the author in 2009 ( based on materials from http://www.legalbis.ru)
The Tax Code of the Russian Federation distinguishes two types of tax audits: field and desk audits. In practice, there is also a third type called “counter check” (“counter check”), which in the text of the Tax Code is known as “request for documents”. However, it cannot be called an independent check, and it serves only as a means of confirming the fact of business transactions.
A desk audit is carried out at the tax office. On-site - “on the road”, that is, in the premises (office) of the organization being inspected. It is important to note that an on-site tax audit is usually a “planned event,” that is, for its appointment there are certain prerequisites, indicators of the organization’s tax unreliability, and others.
It seems obvious that despite the recent significant strengthening of the Federal Tax Service, tax officials will not be able to cover all taxpayers with on-site inspections at least once every 2-3 years. And if earlier tax inspectors looked for violators “by eye,” now, to detect them, the Federal Tax Service uses a specially created database “Legal entities controlled in the first place” (YL-KPO). A complete list of indicators of “tax unreliability” was formulated in the order of the Federal Tax Service dated May 30, 2007 No. MM-3-06/333 “Publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits.”
However, if your company is nevertheless “selected” and you receive a notice that an on-site inspection will be carried out against you, this is not the end. During a desk audit, tax officials examine tax returns and calculations, documents that, in accordance with the Tax Code, must be attached to the tax return, documents independently submitted by the taxpayer, and other documents on the taxpayer’s activities available to the tax authority.
As a general rule, the tax authority does not have the right to request from the taxpayer additional information and documents that are not directly related to the subject of the desk audit. All other documents, as follows from the explanations of the regulatory authorities, tax authorities have the right to request, and the taxpayer is obliged to submit them within the period established by the Tax Code of the Russian Federation. The taxpayer, in turn, provides the necessary explanations regarding the identified errors and contradictions or makes corrections to the tax return. Explanations must be provided within five days, and updated declarations must be provided within the deadline established by the tax authority. Let us note that the issuance of documents confirming the accuracy of the data entered in the tax return is a right, and not an obligation, of the taxpayer.
A special procedure for conducting a desk tax audit has been established in relation to the tax return for value added tax, which declares the right to its reimbursement. The tax authority may request from the taxpayer documents confirming the legality of applying tax deductions. Failure to submit documents requested by the tax authority entails liability in accordance with Art. 126 of the Tax Code of the Russian Federation. In all other cases, the tax authority’s requirement to submit additional documents during a desk audit will not comply with the Tax Code.
The desk inspection report is signed by the persons who conducted the relevant inspection and the person in respect of whom the inspection was carried out (his representative). A corresponding entry is made in the tax audit report regarding the refusal of the person subject to the tax audit or his representative to sign the act. In addition, the document must be delivered to the taxpayer against a signature or transferred in another way indicating the date of receipt. If the taxpayer avoids receiving the audit report, the tax authority will send it by registered mail. In this case, the date of receipt will be considered the 6th day from the date of dispatch, regardless of the fact that the taxpayer received this document. It should also be noted that the tax authority sends correspondence to the address indicated in the organization’s constituent documents as the main one, i.e., to the “legal address”. In case of disagreement with the facts stated in the audit report, the taxpayer has the right to submit written objections. The deadline for filing objections is 15 working days from the date of receipt of the inspection report. After writing the act, the tax authority has the right to take interim measures, for example, to prohibit the alienation of the taxpayer’s property without the consent of the tax authority and to suspend transactions on bank accounts according to the rules of Art. 76 Tax Code of the Russian Federation.
New edition of Art. 89 of the Tax Code of the Russian Federation of 2010 contains clear and fairly transparent rules defining the place and time of on-site inspections, as well as their subject and period of coverage. Clause 2 of Art. 89 of the Tax Code of the Russian Federation specifies which tax authority makes the decision to conduct an audit and, accordingly, inspects the organization. Taxpayers have the right to be inspected only by the inspectorate located at the location of the organization. The subject of an on-site tax audit is primary documents that give an idea of the compliance of the declared information with the actual information. It must be remembered that the tax service can only check those issues and for the period that are specified in the decision to conduct an audit. If they require documents that do not relate to the declared period, then the taxpayer has the right to refuse them. It must be remembered that if the commencement of business contracts is beyond the scope of the inspection, but the contracts were not executed and continued to be valid during the period under inspection, the inspector has the right to demand these contracts. The same applies to documents on the basis of which a loss from previous years is declared, accepted for profit tax purposes of the audited period. The audit can be carried out for one or more taxes. This fact is legally enshrined in paragraph 3 of Art. 89 Tax Code of the Russian Federation.
It should be mentioned that the Tax Code of the Russian Federation does not give tax authorities the right to make changes to an already made decision to conduct an audit, in particular, to indicate a different subject of the audit. The tax authority may make a new decision to conduct an audit, which will name taxes not previously covered, but this will be a different audit.
Tax authorities often decide to suspend on-site audits. The head (deputy head) of the tax authority has the right to suspend an on-site tax audit, for example, to conduct an examination. In this case, the expert is selected by the tax inspectorate, but if he is not satisfied with the organization being inspected, then he may be challenged, which the tax inspectorate can satisfy only if it is proven that the expert does not have the necessary knowledge, is not impartial, or will be cited other similar grounds.
A more common reason for suspending an inspection is obtaining information (conducting counter inspections). The tax authority has the right to suspend the audit for up to 1 month for each request. However, the period and procedure for suspension are clearly regulated by the Tax Code of the Russian Federation and cannot be more than 6 months, and in the case of requesting documents from a foreign counterparty - 9 months. It should be noted that during the period of suspension of the audit, the tax authority does not have the right to demand documents from the taxpayer; it is obliged to leave its territory and return all originals of previously received documents.
However, in practice, the tax authority uses the suspension of the audit to enable the taxpayer to submit the requested documents. According to Art. 93 of the Tax Code of the Russian Federation, the tax authority requests the necessary documents and information, and the taxpayer is obliged to submit certified copies of documents within ten days. If the taxpayer cannot provide documents within the established period due to their volume and informs the inspector about this, by decision of the head of the tax authority the deadline for providing documents may be extended. In this regard, using the time of suspension of the audit to prepare documents is an abuse of the tax authority.
Reasons for verification
There are two grounds for conducting a repeat on-site audit: a repeat audit is carried out by a higher tax authority in order to control the activities of the tax authority that conducted the audit, or it is carried out by the tax authority that previously conducted the audit, if the taxpayer submits an updated tax return, which indicates the amount of tax in the amount less than previously stated.
The priority for Federal Tax Service employees when conducting inspections is to identify shell companies in the chain of suppliers or buyers, identify sources of “black cash” and (or) unjustified payments to non-resident companies, check transfer chains of goods distribution (both incoming and outgoing), identify real manufacturers , buyers and clarifying the circumstances of the validity of including intermediaries in economic relations, as well as their status as a taxpayer.
The result of this work is the refusal to accept VAT paid to such organizations as a deduction, as well as an increase in the income tax base by the amount of expenses incurred. The basis is a violation of Art. 169 of the Tax Code of the Russian Federation (correct filling of invoices) and violation of Art. 250 of the Tax Code of the Russian Federation (economic feasibility and documentary evidence of expenses incurred). In their decision, tax authorities are guided by the provisions of Resolution of the Supreme Arbitration Court of the Russian Federation No. 53.
During the audit, a circle of interdependent companies is also identified, market prices are considered in accordance with Art. 40 Tax Code of the Russian Federation; non-monetary forms of payments and their economic feasibility, business purpose are controlled, evidence of the use of “tax schemes” is collected.
The economic feasibility of the actual circumstances of the execution of intangible contracts is checked: legal, consulting and marketing services, customer search services, etc. Systemic errors in the organization of accounting and tax accounting are identified: accounting of assets and liabilities, control of accounts receivable, etc.
Rights and obligations
The rights and obligations of the taxpayer arising during tax audits are determined by Articles 21 and 23 of the Tax Code of the Russian Federation. The most important of them are: the right to be present during an on-site tax audit; the right to receive copies of the tax audit report and decisions of the tax authorities, as well as notifications and demands for payment of taxes; the right to demand that officials of tax authorities comply with the legislation on taxes and fees when they carry out actions in relation to taxpayers; the right not to comply with unlawful acts and demands of tax authorities and their officials that do not comply with the law.
At the same time, taxpayers are also obliged to: submit to the tax authorities and their officials, in cases of cases, documents necessary for the calculation and payment of taxes; not interfere with the lawful activities of tax officials in the performance of their official duties, etc. It is most interesting to pay attention to the wording obliging the taxpayer to “provide the tax authority with the necessary information and documents in the cases and in the manner prescribed by the Tax Code of the Russian Federation.” At the same time, the concept of “necessary” information is not defined by the Legislator in any way, which means that what exactly is “necessary” will be determined by the inspector.
Before starting an inspection, you should definitely inquire about the powers and composition of the inspection team. According to clause 1 of Article 91 of the Tax Code of the Russian Federation, access to the territory or premises of a taxpayer is carried out upon presentation by these persons of official identification and a decision of the head (his deputy) of the tax authority to conduct an on-site tax audit. If the person who is trying to enter the territory of the enterprise is not included in the decision, it is possible and necessary to prevent him from entering the organization’s premises.
All documents must be submitted to tax authorities for verification only after they have been assessed for legality, consistency, comparability of data, compliance with approved forms, and the presence of the necessary details. Even if this has not been done in advance, you need to “select employees” who will review the documents submitted for verification (a fresh, and even more so, a professional look is always necessary).
If original documents are seized, copies must be made of them and transferred to the taxpayer within five working days. Tax authorities usually insist that copies of documents must be made by the taxpayer. However, the Tax Code of the Russian Federation obliges tax authorities to issue copies of confiscated originals. The taxpayer’s refusal to provide his duplicating equipment for making copies does not mean that the tax authorities’ obligation to make copies ceases. You cannot transfer documents in “folders” or “boxes”: later they may contain papers that the company did not put there, or, conversely, there may be something missing. You should not allow inspectors to access the accounting program, or print out data on accounts and registers in front of them. Moreover, it is impossible to open access to the program so that they themselves look for information there.
Employee support
Employees should also be instructed on how to behave during the inspection. If the inspectors decide to interrogate company employees as witnesses, they should involve a lawyer who will be present. It’s best if employees say something like this: “I am Ivan Ivanovich Ivanov, here is my passport. I work in the company as a sales manager. I receive a salary according to the statement (by transfer to the card) in the amount of 20,000 rubles. I’m satisfied with the work” and further: “I don’t know anything about this, please contact my management.” To all possible illegal demands of tax officials (“Do you know that this business transaction, as the Ministry of Finance “officially” explained, must be confirmed by such documents? Do you have them?”) you should react harshly, motivating your position with references to laws and judicial practice . This is especially important at the beginning of the test.
Experience shows that the more rigorously and competently the company’s specialists position themselves, the fewer claims that are not based on the law in the future. This is a largely psychological question (when testing, it is better to “lead” than to be “followed”). Reaching the level of familiar relations with inspectors is a harmful and dangerous tactic. In such a situation, a certain psychological barrier of “non-resistance” is created, which is then difficult to overcome. As a result, the company falls into a vicious circle of agreement: “Let’s not argue and spoil the relationship...”. The relationship is already quite bad, because there is an audit in your office.
In certain situations, it can be beneficial to leave tax officials captive to their own delusions (for example, when on a controversial issue, judicial practice has developed in favor of the taxpayer, but the Federal Tax Service and the Ministry of Finance continue to ignore this). That is, guided by their delusion and having accumulated “violations” for the required amount, tax officials will not “dig” further. And what has already been “dug up” can then be challenged in court. If tax authorities make claims based on formal arguments and the dispute remains within the framework of a dispute on issues of law, it will be much easier to build a position in the interests of the taxpayer in court. “Enlightened” inspectors can correct their mistakes and continue to “dig” further.
Final decision
At the end of the on-site (desk) tax audit, the inspector draws up a certificate, which records the subject of the audit and the timing of its conduct. An inspection report is also drawn up indicating the violations found and recommendations for their elimination. If the taxpayer does not agree with the facts set out in the act, then he has the right, within 15 days from the date of receipt of the audit report, to submit to the relevant tax authority a written explanation of the reasons for the refusal to sign the act or objections to the act as a whole or to its individual provisions.
In this case, the taxpayer attaches to a written explanation (objection) or, within the agreed period, transfers to the tax authority documents (their certified copies) confirming the validity of the objections or the reasons for not signing the audit report. Then, within no more than 10 days, the head (deputy head) of the tax authority reviews the tax audit materials, as well as documents and materials submitted by the taxpayer, and makes a decision based on the results of the tax audit. If the taxpayer, despite the notice, does not appear, then the audit materials, including objections, explanations, other documents and materials submitted by the taxpayer, are considered in his absence.
Based on the results of consideration of the audit materials, the head (deputy head) of the tax authority makes a decision: on bringing the taxpayer to tax liability for committing a tax offense; on refusal to hold the taxpayer accountable for committing a tax offense. Also, the head of the tax authority may make a decision to extend the consideration of the GNP materials and appoint additional tax control measures.
Additional control
The decision on the appointment of additional tax control measures sets out the circumstances that caused the need to carry out such additional measures, and indicates the period and specific form of their implementation. Additional tax control measures may include requesting documents in accordance with Articles 93 and 93.1 of the Tax Code of the Russian Federation, questioning a witness, and conducting an examination.
The list of events is closed. Appointment of other activities not expressly specified in Art. 101 of the Tax Code of the Russian Federation is a gross violation of the rights of the taxpayer. The period for consideration of GNP materials can be extended by no more than 1 month.
Based on the decision made to hold the taxpayer accountable for committing a tax offense, the taxpayer is sent a demand for payment of arrears of tax and penalties.
If it comes to court
Cases regarding the collection of tax sanctions based on claims by tax authorities against organizations and individual entrepreneurs are considered by arbitration courts in accordance with the arbitration procedural legislation of the Russian Federation. If a taxpayer believes that his rights have been violated and does not agree with the act or the decision of the tax authority adopted based on the results of a tax audit, then, in accordance with Article 139 of the Tax Code of the Russian Federation, he has the right to file an appeal in any written form to a superior official or to higher tax authority. Supporting documents are attached to the complaint.
It should be noted that from January 1, 2010, the mechanism for filing an appeal with a higher tax authority is mandatory. Without consideration of the appeal by a higher tax authority, the taxpayer cannot appeal to the arbitration court. The complaint is submitted through the inspectorate that conducted the inspection.
Defense against attack
The complexity of determining tax risks depends on various factors, but primarily on the specifics of the organization’s activities, for example, the number of counterparties, the volume of movement of commodity assets, etc. Often, taxpayers do not pay due attention to this issue, and, as a result, the results of tax control measures In the audit reports, additional tax charges appear that exceed the company’s annual turnover.
The most common form of business protection is tax planning, which includes assessing tax risks. Currently, a new form of forecasting and preventing tax risks has emerged - legal audit, focused on verifying the company's transactions and counterparties, protecting the taxpayer from potential tax risks. Article 45 of the Constitution of the Russian Federation proclaims that “everyone has the right to defend their rights and freedoms by all means not prohibited by law.”
Judicial practice shows that tax authorities often interpret the law too zealously in their favor. Therefore, it is better to prepare for the test in advance, without waiting for the thunder to strike. An enterprise can begin legal proceedings in advance on an important but controversial issue. You can initiate a legal case if you disagree, for example, with a negative response from a financial or tax authority to a request regarding a specific business situation. A court decision will allow you to achieve legal certainty in advance and pay taxes correctly (or not pay, in the case of a positive court decision).
It should be remembered that creating positive precedents, especially at the level of higher judicial bodies, is a very complex and responsible matter. Companies building a serious business must understand the need to attract competent specialists to participate in such work.
Konstantin Andreev
Christian Lawyer,
President of the Association of Russian Christian Lawyers.
7-909-935-82-78
If you have any difficulties conducting a tax audit in an organization or church, the employees of the Christian law firm “Legal Consulting and Audit” in Moscow will help in resolving the problems that have arisen.
Consultations for Christians are free at: [email protected]
