The Federal Tax Service and the Investigative Committee explained how to properly imprison businessmen for tax evasion. Analytics of the publication How to prove intentional tax violation

Door arches 30.05.2022

By letter of the Federal Tax Service of Russia dated July 13, 2017 No. ED-4-2/13650@, methodological recommendations “On research and proof of facts of deliberate non-payment or incomplete payment of tax (fee)”, developed jointly with the Investigative Committee of Russia, were sent to territorial authorities for implementation.

The Recommendations describe in sufficient detail the methods proposed for use to prove facts of intentional non-payment or incomplete payment of tax (fee) amounts in order to bring to justice under clause 3 of Art. 122 of the Tax Code of the Russian Federation, which provides for the application of sanctions in the amount of 40% of the unpaid amount. At the same time, the authors of the document do not hide the fact that they not only pursue the goal of increasing the amount of the fine under this article, but also count on improving the criminal legal perspective of the materials sent to the investigative authorities to resolve the issue of initiating a criminal case.

To achieve these goals, the document provides for a very controversial distribution of competencies of the parties. For example, tax authorities should, when making decisions on bringing to responsibility for committing a tax offense, resolve issues of qualification of the taxpayer’s actions under clause 3 of Art. 122 of the Tax Code of the Russian Federation, taking into account the recommendations of employees of the investigative body based on the results of their preliminary familiarization with the materials of tax audits. This is not provided for either by the tax code or by the Order “On approval of the procedure for interaction between internal affairs bodies and tax authorities for the prevention, detection and suppression of tax offenses and crimes,” registered with the Ministry of Justice of the Russian Federation.

How to prove intentional tax violation

Of greatest interest are the methods of identifying and proving the taxpayer’s intent to commit a tax violation.

The Recommendations propose the following algorithm for proving intent.

1. Investigate the question of whether there was intent to commit an offense(clause 4 of the Recommendations).

The Recommendations contain the conclusion that proving intent is not always accompanied by an assessment of the internal mental attitude of the subjects who committed a tax offense to the crime. Courts reveal guilt by establishing the absence of accidents in a series (chain) of events and actions related to the circumstances of the offense committed. At the same time, it is worth noting that this series of non-random actions, even if supposedly by independent persons, must be subordinated to a single will and lead to an unlawful result.

This position is illustrated by examples from practice, according to which intent is proven by identifying a set of circumstances, for example, the presence of unreliable primary documents, the use of large amounts of cash, the lack of registration of the counterparty in the Unified State Register of Legal Entities, the formal nature of the document flow, interaction with one-day companies, etc.

Indeed, in judicial practice there is a similar approach. However, it is worth noting that more and more often courts are beginning to turn to the subjective side of intent and refuse to prosecute under paragraph 3 of Art. 122 of the Tax Code of the Russian Federation, if all elements of guilt are not established, for example:

when bringing the taxpayer to justice under clause 3 of Art. 122 of the Tax Code of the Russian Federation, the tax authority must establish and confirm with evidence not only the circumstances of the commission of an imputed tax offense, as a result of which the taxpayer failed to pay or incompletely paid the tax (objective side), but also the circumstances characterizing the actual attitude of the taxpayer to the act committed by him (subjective side) (Resolution of the Volga District Court of July 28, 2016 in case No. A65-24268/2015);

The elements of an intentional tax offense are: awareness by the person who committed the offense of the illegal nature of his actions; desire or conscious assumption of the occurrence of harmful consequences of such actions (Article 110 of the Tax Code of the Russian Federation). The court of first instance rightly stated that the necessary elements of an intentional form of guilt were not established by the tax authority and were not reflected in the decision under consideration (Resolution 7 of the AAS dated December 19, 2016 in case No. A27-18563/2015);

the tax authority established and described in detail the objective side of the offense, but the subjective side of the offense was not properly recorded (Resolution 4 of the AAS dated 04/12/2017 in case No. A78-10713/2016).

Thus, taxpayers should draw the attention of the courts to the absence of a description of the subjective side of intent in the decision made based on the results of a tax audit.

The Recommendations also propose to avoid assessing transactions as imaginary or feigned and not to use the following formulations when proving guilt in the form of intent: “bad faith of the taxpayer,” “failure to exercise due diligence,” “aggressive tax planning.”

This is due to the fact that the courts can interpret these formulations as an indication of guilt in the form of negligence (Resolutions of the Volga District Administrative Court dated April 26, 2016 in case No. A72-3624/2015, 4AAS dated February 15, 2017 in case No. A78-7357/2016 ).

At the same time, the courts take into account that if the intent to commit an offense is not proven, then their competence does not include changing the qualifications of the taxpayer’s actions from clause 3 of Art. 122 of the Tax Code of the Russian Federation on paragraph 1 of Art. 122 of the Tax Code of the Russian Federation (Resolutions 19 AAS dated November 5, 2015 in case No. A08-3638/2014, 4 AAS dated April 12, 2017 in case No. A78-10713/2016). In this case, the courts must refuse the tax authority to hold the taxpayer accountable.

2. Identify the officials of the organization as a result of whose actions a tax offense was committed (clause 5 of the Recommendations).

Such persons may include:

head of the taxpayer organization,

chief accountant (accountant),

persons who actually performed the duties of a manager or chief accountant (accountant);

other persons, if they were specifically authorized by the organization’s management body to perform such actions.

For this purpose, during a tax audit, the following are collected and examined: staffing, orders for appointment to a position, documents on bringing persons to administrative responsibility, an agreement with a managing organization or manager, powers of attorney, job descriptions, explanations from officials.

The above materials are correlated with primary documents, including to identify facts of “atypicality” of document flow, individual contracts, conduct of individual transactions not in accordance with the internal rules of the company, execution of individual transactions by “trusted” management persons, lack of information about individual transactions from persons usually responsible for their preparation.

This is due to the fact that, by virtue of clause 4 of Art. 110 of the Tax Code of the Russian Federation, the guilt of an organization in committing a tax offense is determined depending on the guilt of its officials or its representatives, whose actions (inaction) led to the commission of this tax offense.

In cases where the tax authority does not identify specific persons guilty of committing the offense charged, he may be denied prosecution under clause 3 of Art. 122 of the Tax Code of the Russian Federation (Resolutions of the Administrative Court of the East Siberian District dated May 19, 2017 in case No. A78-1080/2016, dated May 22, 2017 in case No. A78-7357/2016, Arbitration Court of the Volga District dated March 17, 2016 in case No. A72-15231/ 2014).

3. Identify and use external sources, namely court verdicts, to confirm intent(clause 6 of the Recommendations).

Moreover, these sentences may apply to both officials of the audited organization and its counterparties. The presence of a verdict against officials of partners in a transaction is often assessed by the courts as evidence of the absence of reality of the transaction and, as a consequence, the presence of intent to commit an unlawful act (Resolution of the Volga District Court of 02/09/2017 in case No. A65-9775/2015, West Siberian District Court district dated July 20, 2017 in case No. A45-18177/2015, AS of the Ural District dated November 8, 2016 No. F09-9526/16 in case No. A76-1603/2016).

It is worth noting that in practice, tax authorities often include decisions to initiate criminal proceedings or indictments in the audit materials as confirmation of an offense or the guilt of specific individuals. It is necessary to understand that, unlike a verdict, which may have prejudicial significance, these documents only reflect the position of law enforcement agencies, the legality of which must be confirmed in a legally established manner, for example, by a court verdict.

4. Collect evidence of a tax offense and the presence of intent to commit it(clauses 7–9 of the Recommendations).

For this purpose, tax control measures provided for by the Tax Code of the Russian Federation are used: obtaining explanations from the taxpayer, interrogations, requesting documents (information), inspections, seizure, sending requests to banks.

At the same time, in relation to surveys, it is proposed to use the tactics of repeated interrogations, when, based on the testimony of other persons, an additional list of questions is formed for a new interrogation.

In light of these circumstances, it is worth remembering that within the framework of tax control measures, a witness cannot be brought in. At the same time, the liability of a witness for failure to appear or giving false testimony is provided for in Art. 128 of the Tax Code of the Russian Federation in the form of a fine from 1000 to 3000 rubles.

Since Art. 92 of the Tax Code of the Russian Federation provides for the possibility of conducting an inspection of the premises and territory only of the taxpayer being inspected, then if there are suspicions that the counterparty to the transaction is a fly-by-night company, it is proposed to direct the inquiry body to carry out operational investigative activities within the framework of the law “On Operational Investigative Activities”. According to the investigative authorities, the most effective way is to inspect the premises at the possible location of the primary documentation. The documents collected as part of operational investigative activities are analyzed by the tax authority.

Please note that in these cases, the taxpayer has the opportunity to challenge in court the admissibility of evidence collected as part of operational investigative activities.

5. Identify and investigate circumstances indicating intent(clauses 11–12 of the Recommendations):

coordination of actions of a group of persons;

legal or actual control of the taxpayer of shell companies;

facts of imitation of economic relations with fly-by-night companies;

complex and intricate, ongoing over time, repeated nature of the taxpayer’s actions within the framework of the tax scheme, excluding their commission as part of ordinary activities or through negligence;

direct evidence of illegal activities: for example, the presence of “black accounting”, the discovery of seals and documentation of shell companies on the territory (premises) of the taxpayer being inspected, facts of cashing out funds along with established facts of their spending on certain needs of the taxpayer-organization and its officials persons and founders (participants);

attempts to hide or destroy documentation;

the taxpayer's awareness of such circumstances of the offense that can only be known to the direct perpetrator.

In addition, it is necessary to check requests received by the tax authorities regarding issues of “prudence” in relation to counterparties to identify cases of imitation by the taxpayer of “compliance with prudence.”

6. Identify schemes aimed at tax evasion(Clause 13 of the Recommendations).

the use of fictitious transactions in order to increase the cost of purchased goods (services) - inflating the expenditure side or in order to understate the income side, namely, selling goods at a reduced cost (economically unjustified transactions;

fragmentation of business for the purpose of unjustified application of special tax regimes;

unreasonable use of tax benefits, preferential tax rates;

substitution of civil law relations in order to extract tax benefits.

7. When questioning employees and managers of the taxpayer and its counterparty, use the questionnaires attached to the recommendations (Appendices No. 1 and No. 2).

Each application contains about 40 questions, the answers to which will allow us to identify those responsible for the violation, the circumstances of transactions or record keeping, and the range of possible witnesses for the purposes of further interrogations.

The list of questions set out in the appendices can be supplemented by tax authority employees.

When preparing for a tax audit, the taxpayer can conduct a survey of employees himself in order to identify controversial situations in the company’s activities and prevent or eliminate violations of tax legislation. However, if the tax authority establishes that such an internal survey was conducted to identify problem areas in illegal tax optimization schemes, these circumstances may be regarded as evidence of intent to commit a tax offense.

conclusions

To summarize, I would like to believe that bringing the reviewed Recommendations to the attention of taxpayers is one of the stages in implementing the principle of public transparency declared in paragraph 2 of Art. 24 of the Constitution of the Russian Federation. According to this article, the authorities state power and local government bodies and their officials are obliged to provide everyone with the opportunity to familiarize themselves with documents and materials that directly affect their rights and freedoms, unless otherwise provided by law.

Nevertheless, concern is caused by a certain accusatory bias in the Recommendations, as well as the actual analysis of tax control measures as one of the structural elements for bringing individuals to criminal liability.

However, as they say, forewarned is forearmed. Therefore, taxpayers should carefully study the Recommendations and try to avoid mistakes that could result in criminal or tax liability.

Arbitration court.

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

THE FEDERAL TAX SERVICE

ABOUT THE DIRECTION
METHODOLOGICAL RECOMMENDATIONS FOR ESTABLISHING DURING TAX
AND PROCEDURAL CHECKS OF CIRCUMSTANCES INDICATING
ABOUT INTENT IN THE ACTIONS OF TAXPAYER OFFICIALS,
DIRECTED TO NON-PAYMENT OF TAXES (FEES)

Federal Tax Service in accordance with paragraph 3.4 of the protocol of the joint meeting of the boards of the Federal Tax Service of Russia and the Investigative Committee Russian Federation dated 06/07/2016 N 2/4 on the issue “Increasing the efficiency of interaction between tax and investigative authorities in identifying and investigating crimes in the field of taxation”, this letter sends methodological recommendations for territorial tax and investigative authorities of the Investigative Committee of the Russian Federation on identifying during tax and procedural audits circumstances indicating intent in the actions of the taxpayer's officials aimed at non-payment of taxes (fees), agreed upon with the Investigative Committee of the Russian Federation.

At the same time, it is reported that these methodological recommendations were sent by the Investigative Committee of the Russian Federation on the system of investigative bodies by letter dated 07/03/2017 N 242/3-32-2017.

The departments of the Federal Tax Service for the constituent entities of the Russian Federation will bring this letter to the lower tax authorities and ensure its application.

Valid
state councilor
Russian Federation
2 classes
D.V.EGOROV

Application

INVESTIGATIVE COMMITTEE OF THE RUSSIAN FEDERATION

DEPARTMENT OF PROCEDURAL CONTROL OVER THE INVESTIGATION
SPECIFIC TYPES OF CRIMES

THE FEDERAL TAX SERVICE

CONTROL MANAGEMENT

ABOUT RESEARCH AND PROOF
FACTS OF INTENTIONAL NON-PAYMENT OR INFULL PAYMENT OF AMOUNTS
TAX (FEES)

The Investigative Committee of the Russian Federation (hereinafter referred to as the Investigative Committee) and the Federal Tax Service (hereinafter referred to as the Federal Tax Service of Russia) in order to implement the powers to ensure the economic security of the Russian Federation and the responsibilities assigned to them by the Constitution of the Russian Federation, the Tax Code of the Russian Federation, and the Federal Law of December 28. 2010 N 403-FZ "On the Investigative Committee of the Russian Federation", Law of the Russian Federation dated March 21, 1991 N 943-1 "On the tax authorities of the Russian Federation" and other regulatory legal acts of the Russian Federation, in pursuance of paragraph 3.4 of the protocol of the joint meeting of the boards of the Federal Tax Service of Russia and The Investigative Committee dated 06/07/2016 N 2/4 on the issue “Increasing the efficiency of interaction between tax and investigative authorities in identifying and investigating crimes in the field of taxation” prepared these methodological recommendations for the territorial tax and investigative authorities of the Investigative Committee on establishing circumstances during tax and procedural audits , indicating intent in the actions of the taxpayer's officials aimed at non-payment of taxes (fees).

1. Circumstances indicating the taxpayer’s intent to not pay taxes (duties) are common to both the tax and investigative authorities. The difference lies only in the procedure, nature and type of actions performed to consolidate these circumstances (for the tax authority these are actions to implement tax control, for the investigative authority these are procedural actions when checking a report of a crime and investigative actions). Therefore, employees of the investigative bodies of the Investigative Committee are required, within the framework of the powers granted to them, to carry out verification, investigative and other procedural actions aimed at securing evidence obtained by the tax authorities and establishing additional ones. Tax authorities, when making decisions based on the results of tax audits to prosecute for committing a tax offense, must approach the issue of qualifying the actions of taxpayers under paragraph 3 of Article 122 of the Tax Code in the most balanced manner, and also taking into account the recommendations of employees of the investigative body based on the results of preliminary familiarization with the materials of tax audits. of the Russian Federation (hereinafter referred to as the Code).

In accordance with paragraph 3 of Article 122 of the Code, intentional non-payment or incomplete payment of tax (fee) amounts as a result of understatement of the tax base, other incorrect calculation of tax (fee) or other unlawful actions (inaction), if such an act does not contain signs of tax offenses provided for in articles 129.3 and 129.5 of the Code entails a fine in the amount of 40 percent of the unpaid amount of tax (fee).

Tax and investigative authorities must take into account that non-payment or incomplete payment of tax amounts (fees) can be the result of both guilty acts (intentional and careless) and acts that can be classified as innocent.

For example, an unintentional arithmetic (technical) error when calculating tax does not have a sign of guilt.

A tax offense is recognized as committed through negligence if the person who committed it did not realize the illegal nature of his actions (inaction) or the harmful nature of the consequences that arose as a result of these actions (inaction), although he should have and could have been aware of this. For example, a tax offense was caused by the low qualifications or temporary disability of an organization’s accountant, but according to established practice, the personal and professional circumstances of the organization’s employees cannot be legitimate grounds for the organization’s innocence, which ultimately entails, for example, tax liability in the form of a fine of 20% of the unpaid amounts. , provided for in paragraph 1 of Article 122 of the Code.

An example of the intentionality of committing a tax offense, entailing the application of tax liability in the form of a fine of 40% of unpaid amounts, provided for in paragraph 3 of Article 122 of the Code, is a set of actions by the taxpayer aimed at building distorted, artificial contractual relations, simulating real economic activity figureheads (shell companies). These circumstances do not allow us to doubt the absence of random elements in what is happening. Thus, a tax evasion scheme, which consists in artificially “fragmenting” a business in order to maintain or obtain the status of a tax payer under a special tax regime, can be characterized as an elementary imitation of the work of several persons, while in reality they all act as one person. Thus, the first signs of premeditation are imitation. Since when using a dummy the taxpayer incurs some expenses, his goal is at the same time to try to reduce these “unproductive” expenses; as a result, a full-fledged imitation does not occur, and the tax and investigative authorities must identify and document these signs.

The use of dummy persons (shell companies) usually occurs deliberately, and the task of the tax and investigative authorities is to identify and prove this. For example, there are several intermediaries between the supplier and the buyer, and one of them has clear and unambiguous signs of a shell company, including not paying taxes. This scheme is presented on the official website of the Federal Tax Service of Russia as one of the ways to conduct financial and economic activities with a high tax risk and is located at: https://www.nalog.ru/rn77/taxation/reference_work/conception_vnp/. In such cases, the tax authority must establish the affiliation of the shell company (supplier or buyer) and prove it.

Under a commission agreement, one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions on its own behalf, but at the expense of the principal (Clause 1, Article 990 of the Civil Code of the Russian Federation).

Taxation under a commission agreement occurs as follows. The principal transfers the goods to the commission agent. In this case, the ownership of the goods does not pass to the commission agent, and therefore, on the basis of Article 39 of the Code, the committent does not receive income from the sale of goods subject to VAT and income tax. The principal writes off as expenses the amount of remuneration paid to the commission agent and deducts VAT on this amount. And the commission agent calculates income tax and VAT only on the commission fee.

If the commission agreement is reclassified as a purchase and sale agreement, then the former principal will be the seller. For him, the date of transfer of ownership and the date of sale of the goods will be considered the day the goods are transferred to the buyer. As of this date, the former principal must reflect the proceeds from sales in tax accounting when calculating income tax and VAT, since he did not do this, during the audit the tax authority must charge tax, fines and penalties. The tax authority must exclude the amount of remuneration that he paid to the intermediary from expenses and refuse VAT deductions from this amount.

The former commission agent becomes a buyer and subsequently a seller. When conducting an audit, the tax authority must request and analyze the following documents and terms of the transaction: a report from the commission agent (agent), the date of transfer of funds, a change in price under the terms of the contract, a condition on payment for goods no later than a certain period, a condition on the transfer of payment for goods in installments, regardless of its implementation.

In case of intermediary agreements in accordance with Art. 999 of the Civil Code of the Russian Federation, a report of the commission agent (or agent - in case of an agency agreement) is required. According to paragraph 1 of Art. 990 of the Civil Code of the Russian Federation, a commission agreement must be executed at the expense of the principal. The establishment, during the analysis of the flow of funds in the taxpayer's current accounts, of the transfer of funds before the sale of goods indicates that the agreement is executed at the expense of the commission agent, which contradicts the legal nature of intermediary relations.

The presence in the contract of a condition on payment for goods no later than a certain period also contradicts the concept of an intermediary transaction. Under a commission agreement, the intermediary transfers money for the goods after they are sold. By accepting the obligation to pay for the goods no later than a certain date, the commission agent agreed to bear the risk of impossibility of further sale of the goods, which corresponds to purchase and sale agreements, and not commission agreements (clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 N 85 “Review of the practice of permitting disputes under the commission agreement", hereinafter referred to as Letter of the Supreme Arbitration Court of the Russian Federation No. 85);

Under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the lessee from a seller specified by him and to provide the lessee with this property for a fee for temporary possession and use. In cases where purchase and sale agreements are replaced by leasing agreements, payment is actually made in installments and is designated as leasing payments.

The main benefit of a leasing agreement is that its use allows the taxpayer to use accelerated depreciation, which means that the cost of the fixed asset will be written off as income tax expenses three times faster.

When conducting an inspection, you must pay attention to the following terms of the leasing agreement:

The leasing agreement was concluded for a period significantly shorter than the term full depreciation property;

The agreement does not contain conditions specific to a leasing agreement. All components and conditions (subject, seller, term, payment, conditions) must be reflected in the leasing agreement. In addition, the contract must indicate on whose balance sheet the property will be accounted for.

If such circumstances exist, the leasing agreement can be re-qualified as a purchase and sale agreement on installment payment terms.

Sale of shares in the authorized capital - this transaction is not subject to VAT (clause 12, clause 2, article 149 of the Code). Therefore, in order to avoid paying VAT, taxpayers sometimes register the sale of real estate or equipment as the sale of a share in the authorized capital.

For example. The taxpayer “seller” agreed with the buyer to sell the property. To do this, he created a Company with a minimum authorized capital (10,000 rubles), and then, through a loan agreement, contributed 65 million rubles to the company’s charter capital. With this borrowed money, the newly created Company, controlled by it, bought a property from the taxpayer-“seller”. After which the buyer acquired a share in this Company. IN in this case the transaction for the acquisition of a share covered the transaction for the purchase and sale of real estate.

When conducting an audit, it is necessary to pay attention to the totality of the circumstances of the transaction, namely:

Carrying out real financial and economic activities by the created LLC before and after the specified transaction, providing zero reporting to the tax authority;

Availability of property for conducting business;

Interdependence of counterparties;

Cash flow (settlements in a short time, through one bank, actual use of the same amount);

Availability of an appraiser's report on the market value of the property, the purpose of the assessment.

The schemes used are rarely used in their pure form; most often in practice there is an intersection of several schemes, which in itself indicates the planned actions of the taxpayer, and therefore it becomes more difficult and time-consuming to prove the presence of a subjective side in the actions of the taxpayer’s officials.

Let's consider several related schemes.

Creation of an extensive business structure with the involvement of affiliated organizations, relations with which the real taxpayer formalizes agency agreements.

This scheme is adjacent to the business fragmentation scheme, while it includes elements of attracting fly-by-night companies, substitution of civil contracts, etc. At the same time, the goal of its implementation is not to reduce the tax burden by optimizing the chosen taxation system, but to divert real income from taxation. The scheme is more often used by enterprises carrying out export operations, while in order to reduce the amount of income received in the form of foreign currency earnings to the organization’s foreign currency accounts, the taxpayer enters into agency agreements(commission agreements) with fictitious suppliers, according to which the taxpayer, who is actually the owner of the exported products (has its own resources: production bases, forest areas, vehicles for their transportation, workers, many years of experience work in this area), allegedly provides services for loading and customs clearance of the principal’s cargo, as well as the holder of a foreign exchange contract, that is, acts at the expense and in the interests of the principal. As a result, his taxable income is only commission (agency) remuneration for services provided to the principal. Practice shows that taxes on revenue are not paid by either the committent or the commission agent, since the commission agent does not carry out real financial and economic activities, reflecting in the accounting of the enterprise expenses that are actually equal to the income portion.

In this case, to establish intentionality in the actions of the taxpayer, it is necessary:

Prove the fictitiousness of the commission agreement (by analyzing the agreement and supporting documents for it, interrogating the taxpayer’s employees, analyzing its resource base with the inclusion of information from the State Traffic Safety Inspectorate, Rostechnadzor, Rosreest and other registration authorities about the owner Vehicle, real estate objects, specialized equipment used in the production and supply of products sold for export);

Identify the scheme for cashing out funds (as a rule, cashing out is carried out by the organization of the principal), establishing and interrogating individuals, actually cashing out cash(it is advisable to involve the inquiry body), the results of operational investigative activities should be included in the tax audit material;

Establish the affiliation of the principal and the commission agent (it would be advisable to involve an investigative body); the results of operational investigative activities should be included in the tax audit materials submitted to the investigative body; In this case, information about a single center for the preparation and submission of tax reports (sending a request to link the IP address to the actual location of the computer from which reports are sent or work with a client bank on current accounts) is of significant evidentiary value; the information received is subject to inclusion to tax audit materials;

Interrogate persons from among the accountants of both the principal and the commission agent, establishing the fact of maintaining a unified accounting of enterprises and their interdependence;

Establish the actual suppliers and the owner of the exported products, the awareness of the head of the organization about the real supplier, which will prove his awareness of the fictitious relationship with the consignor.

Ensuring illegal VAT refunds by increasing the cost of products sold for export by increasing the number of affiliated sellers, as well as the volume and value of costs incurred for their production.

This scheme is new in terms of identification and proof, but is currently becoming increasingly widespread and used. It is implemented by affiliated organizations, including real manufacturers of products, fictitious suppliers of work (services) for its production, as well as fictitious exporters. The involvement of these fictitious links allows, in the absence of justification of costs, to increase the cost of exported products and, as a consequence, VAT, which is subsequently illegally reimbursed from the budget.

To form an evidence base for the intentionality of a tax offense and the involvement of officials in its commission, it is necessary:

Collect evidence of the fictitious relationship between a real supplier and fictitious producers of works (services) (interrogations of representatives of fictitious organizations, analyze the history of the organization’s creation (as a rule, organizations are created and used by persons involved in the implementation of criminal scheme); identification of the persons who actually controlled the current account of the organization, the relationship with which was fictitious; identify and interrogate persons who provided accounting services (as a rule, these are the same persons who provide services for the taxpayer being audited), send inquiries and request information about IP addresses at the place of access to the network for sending tax reports and managing a current account via a remote system electronic access;

Establish the affiliation of the taxpayer and fictitious participants in the scheme (request and attach information about the creation and transfer of rights to participate in the organization to the tax audit material), analyze the nature of the economic activities of fictitious affiliated organizations (as a rule, participants in the scheme are the only counterparties of fictitious organizations), interrogate persons from the number of employees of organizations affiliated with the taxpayer, clarifying from them the role and nature of their activities (if there are such persons at all), who is the real head of the said organization, the participation in its activities of officials of the taxpayer being inspected;

Obtain information about the involvement of officials of the taxpayer being inspected in the actual management of the fictitious activities of affiliated organizations (conducting an inspection of the office at the place of accounting of enterprises in order to detect documents indicating the issuance of binding instructions (it is advisable to carry out with the involvement of the inquiry body), as well as the requisition and inclusion to the materials of the tax audit of information about the persons actually managing the current account of the organizations used in the scheme (requests to the bank at the place of opening the current accounts of the organizations, interrogations of bank representatives servicing such accounts).

In practice, there are other tax evasion schemes that are committed through inaction, for example, deliberate failure to display adjustment invoices when receiving a discount from a supplier for exceeding the premium purchase limit, which are proven by comparing the tax reports of the taxpayer and his supplier, checking incoming correspondence, and also interrogating accounting employees.

The number of schemes is increasing every year, and their quality is also improving, they are becoming more multi-stage, because on the side of unscrupulous taxpayers there is a huge professional resource of economists, accountants, and lawyers, which once again obliges law enforcement and regulatory authorities to work more unitedly.

14. In order to qualitatively collect evidence of intent, it is advisable for tax authorities to organize on-site tax audits with the participation of internal affairs officers, as well as additionally consult with employees of internal affairs bodies taking part in the on-site tax audit, and employees of investigative authorities in accordance with concluded agreements of the Federal Tax Service Russia with the Russian Ministry of Internal Affairs and the Investigative Committee, as well as within the framework of the activities of interdepartmental working groups.

Recommendations on the issue of attracting employees of internal affairs bodies to participate in on-site tax audits conducted by tax authorities are given in paragraph 1.2 of the letter of the Federal Tax Service of Russia dated July 25, 2013 N AS-4-2/13622 @.

Issues on which these consultations are appropriate include issues of tactics, techniques and methods for carrying out tax control measures that have direct analogues in criminal proceedings, in particular, conducting interrogations of witnesses, inspection of territories, premises, documents, objects and seizure, seizure of documents and items, identification of questions that may be posed to an expert during examinations related to the possible falsification of documents, signatures on documents, and other forensic examinations.

In order to improve the quality of evidence collection, as well as determine the directions of tax control activities, it is advisable for tax authorities to use the results of operational investigative activities sent to the tax authorities on the basis of Part 3 of Article 11 of the Federal Law of August 12, 1995 N 144-FZ "On Operational Investigative Activities" "and in accordance with the procedure approved by order of the Ministry of Internal Affairs of Russia and the Federal Tax Service of Russia dated May 29, 2017 N 317/MMV-7-2/481@.

15. Real Guidelines do not contain legal norms, do not specify regulatory requirements and are not a normative legal act. They are of an informational and explanatory nature and do not prevent taxpayers (fee payers, tax agents), tax authorities, investigative authorities and courts from being guided by the norms of the legislation of the Russian Federation in an understanding that differs from the stated interpretation.

Appendix No. 1

SCROLL
QUESTIONS SUBJECT TO MANDATORY CONCLUSION FROM EMPLOYEES

VALUES (HEREINAFTER referred to as goods and materials)

1. When did you begin to perform duties in your position?

2. What is your education, specialty?

3. What are your job responsibilities?

4. Have you performed similar duties before?

5. Where and with whom did you work before LLC "1"?

6. Who is involved in the selection of suppliers and subcontractors for LLC "1"?

7. How do you search for counterparties, what sources of information do you use when choosing counterparties?

8. Who initiates the conclusion of an agreement with Suppliers, and from whom does the offer to work with a specific supplier come?

9. Is the approval of this or that counterparty your sole decision or a collective one?

10. Are there persons or departments in the organization who are responsible for choosing a particular counterparty? Please indicate them.

11. What responsibilities does your organization have when identifying a supplier?

12. Do you personally know the head of the counterparty organization, under what circumstances, when did you meet?

13. What relationships (friendly, business) unite you?

14. What work (services) did the counterparty organization perform for you, what goods did it supply?

15. Has this organization previously provided similar services for you, performed work, or supplied goods?

16. What actions did you take to establish the business reputation of the counterparty organization?

Signing the contract.

17. Who gives instructions for the preparation of draft agreements?

18. Who in your organization is responsible for preparing the draft agreement, or do you use standard agreements?

19. Do you personally communicate with prospective partners, on whose territory?

20. What questions do you ask during a meeting, what documents do you review?

21. If the counterparty is not located in Moscow or the Moscow region, how do you interact?

22. If necessary, who do you ask for your partner’s contact information?

23. Who coordinates draft agreements for subsequent signing by you?

24. Are there any regulating documents on document flow in the organization?

25. Who is responsible for the quality of supplied goods and materials (fuels and lubricants, spare parts, etc.), services (transport, etc.), works (subcontracting)?

26. Name the program that is used to account for inventory items.

27. How is document flow organized in your Company from the moment the document is received from the supplier until the goods (work, services) are accepted for delivery? accounting and reflected in the accounting program?

28. Who has access to the databases 1C-Accounting, 1C Trade, 1C-Warehouse?

29. Have you come across unscrupulous suppliers of goods (works, services); what actions did you take in such cases?

30. Who in LLC "1" is responsible for the safety of inventory items, who keeps records, and what internal documents are used to write off inventory items for their departments for work?

31. Is there a warehouse and where is it located?

32. Who controls the quality and quantity of goods (works, services) supplied?

33. If work is performed by subcontractors, who deals with everyday issues of workers and engineering personnel at the work site?

34. Are you personally present when accepting work from a subcontractor? What documents do you sign?

35. In the event of a defect or violation of construction technology for work performed by a subcontractor, who is responsible for the violations to the Customer, to LLC "1"?

36. Does LLC “1” have a security service or employee who deals with the economic security of the organization? Indicate the name, duties and responsibilities.

37. Specify the official who endorses the documents you are preparing.

38. List the names of the documents you are preparing.

Appendix No. 2

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QUESTIONS SUBJECT TO MANDATORY CLEARANCE FROM THE MANAGER
(FOR EXAMPLE, LLC "1"), BY SELECTION OF CONTRACTORS, PROCEDURE
SIGNING CONTRACTS, ACCOUNTING OF COMMODITY AND MATERIALS
VALUES (HEREINAFTER referred to as goods and materials)

1. Who and in what position do you work at LLC "1"?

2. When did you begin performing duties in your position?

3. Who appointed you to this position?

4. Where and with whom did you work before LLC "1"?

5. Have you performed similar duties before or is working at LLC “1” a new professional skill?

6. Do the founders directly interfere with the financial and economic activities of LLC "1"?

7. If the founders interfere in the financial and economic activities of LLC "1", then how does this happen?

8. Do you submit reports on the results of financial and economic activities of LLC "1" to the founders?

9. Do you agree on the choice of counterparties or expenses that need to be incurred with the founders?

10. Who in your organization is responsible for preparing contracts for signing by the parties?

11. Who is involved in the selection of suppliers and subcontractors for LLC "1"?

12. How is the search for counterparties carried out?

13. What sources of information do you use when choosing contractors?

14. How many people in your department search for suppliers?

15. How do you usually communicate with the supplier: by mail, in person, through an intermediary?

16. Describe the process of preparing a contract within an organization when identifying a supplier.

17. Is approval of a particular counterparty a sole or collective decision?

18. If the decision is collective, name the decision makers.

19. If the decision is made individually, do you initiate the conclusion of an agreement with this particular supplier?

20. Are there persons or departments in the organization who are responsible for choosing one or another counterparty? Please indicate them.

21. What responsibilities does your organization have when identifying a supplier?

22. Who determines which suppliers to choose?

23. Who gives instructions for the preparation of draft agreements?

24. Who initiates the conclusion of an agreement with suppliers, and who makes the proposal to work with a specific supplier?

To establish the identity of the counterparty manager and the business reputation of the counterparty organization.

25. Do you personally know the head of the counterparty organization, under what circumstances, when did you meet?

26. What relationships (friendly, business) unite you?

27. What work (services) did the counterparty organization perform for you, what goods did it supply?

28. Previously, did this organization provide similar services for you, perform work, or supply goods?

29. What actions did you take to establish the business reputation of the counterparty organization?

Signing a contract and accounting for goods (works, services).

30. Does the organization have any regulating documents on document flow?

31. Who is responsible for the quantity and quality of supplied goods and materials (fuels and lubricants, spare parts, etc.), services (transport, etc.), works (subcontracting)?

32. Who accepts the primary documents from the supplier (TN, TN, TORG-12, Acts), who signs the document, where the goods (works, services) are accepted according to the document?

33. Who must be present when accepting goods (works, services)?

34. Have you come across unscrupulous suppliers of goods (works, services); what actions did you take in such cases?

35. Who in LLC "1" is responsible for the safety of inventory items, who keeps records?

36. Is there a warehouse and where is it located, who is the storekeeper?

37. If representatives of the Customer are present when accepting work from a subcontractor, who exactly is present and what documents are signed?

38. In the event of a defect or violation of technology for work performed by a subcontractor, who is responsible for the violations to the Customer, to LLC "1"?

39. Who draws up claims from LLC "1" to the subcontractor in the event of a defect or technology violation, and who signs such documents?

40. Does LLC “1” have a security service or employee who deals with the economic security of the organization?

41. On which official’s computer are the 1C-Accounting, 1C-Trade, 1C-Warehouse databases installed?

42. Who has access to the databases 1C-Accounting, 1C-Trade, 1C-Warehouse?

The presence in the contract of a condition on payment for goods no later than a certain period also contradicts the concept of an intermediary transaction. Under a commission agreement, the intermediary transfers money for the goods after they are sold. By accepting the obligation to pay for the goods no later than a certain date, the commission agent agreed to bear the risk of the impossibility of further sale of the goods, which corresponds to sales and purchase agreements, and not commission agreements (clause 1 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 N “Review of the practice of resolving disputes under a commission agreement”, hereinafter referred to as Letter of the Supreme Arbitration Court of the Russian Federation No. 85);

When conducting an inspection, you must pay attention to the following terms of the leasing agreement:

The leasing agreement was concluded for a period significantly shorter than the period of full depreciation of the property;

If such circumstances exist, the leasing agreement can be re-qualified as a purchase and sale agreement on installment payment terms.

For example. The taxpayer “seller” agreed with the buyer to sell the property. To do this, he created a Company with a minimum authorized capital (10,000 rubles), and then, through a loan agreement, contributed 65 million rubles to the company’s charter capital. With this borrowed money, the newly created Company, controlled by it, bought a property from the taxpayer-“seller”. After which the buyer acquired a share in this Company. In this case, the transaction for the acquisition of a share covered the transaction for the purchase and sale of real estate.

When conducting an audit, it is necessary to pay attention to the totality of the circumstances of the transaction, namely:

Carrying out real financial and economic activities by the created LLC before and after the specified transaction, providing zero reporting to the tax authority;

Availability of property for conducting business;

Interdependence of counterparties;

Cash flow (settlements in a short time, through one bank, actual use of the same amount);

Availability of an appraiser's report on the market value of the property, the purpose of the assessment.

Let's consider several related schemes.

Creation of an extensive business structure with the involvement of affiliated organizations, relations with which the real taxpayer formalizes agency agreements.

This scheme is adjacent to the business fragmentation scheme, while it includes elements of attracting fly-by-night companies, substitution of civil contracts, etc. At the same time, the goal of its implementation is not to reduce the tax burden by optimizing the chosen taxation system, but to divert real income from taxation. The scheme is more often used by enterprises engaged in export operations, while in order to reduce the amount of income received in the form of foreign currency earnings to the organization’s foreign currency accounts, the taxpayer enters into agency agreements (commission agreements) with fictitious suppliers, according to which the taxpayer, who is actually the owner of the goods supplied to the export of products (has its own resources: production bases, forest areas, vehicles for their transportation, workers, many years of experience in this field), supposedly provides services for loading and customs clearance of the consignor’s cargo, and is also the holder of a foreign exchange contract, that is, it acts at the expense and in the interests of the principal. As a result, his taxable income is only commission (agency) remuneration for services provided to the principal. Practice shows that taxes on revenue are not paid by either the committent or the commission agent, since the commission agent does not carry out real financial and economic activities, reflecting in the accounting of the enterprise expenses that are actually equal to the income portion.

In this case, to establish intentionality in the actions of the taxpayer, it is necessary:

Prove the fictitiousness of the commission agreement (by analyzing the agreement and supporting documents for it, interrogating the taxpayer’s employees, analyzing its resource base with the inclusion of information from the State Traffic Safety Inspectorate, Rostechnadzor, Rosreest and other registration authorities about the owner of vehicles, real estate objects, specialized equipment used in production and supply products sold for export);

Identify the scheme for cashing out funds (as a rule, cashing out is carried out by the organization of the committent), identifying and interrogating the individuals actually cashing out the funds (it is advisable to involve the inquiry body), attach the results of operational investigative measures to the tax audit material;

Interrogate persons from among the accountants of both the principal and the commission agent, establishing the fact of maintaining a unified accounting of enterprises and their interdependence;

Ensuring illegal VAT refunds by increasing the cost of products sold for export by increasing the number of affiliated sellers, as well as the volume and value of costs incurred for their production.

To form an evidence base for the intentionality of a tax offense and the involvement of officials in its commission, it is necessary:

Collect evidence of the fictitious relationship between a real supplier and fictitious producers of works (services) (interrogations of representatives of fictitious organizations, analyze the history of the organization’s creation (as a rule, organizations are created and used by persons involved in the implementation of a criminal scheme); identification of persons who actually controlled the organization’s current account, relations with which were fictitious in nature; identify and interrogate persons who provided accounting services (as a rule, these are the same persons who provide services for the taxpayer being audited), send inquiries and request information about IP addresses at the place of access to the network for sending tax reports and management of the current account via the remote electronic access system;

In order to improve the quality of evidence collection, as well as determine the directions of tax control measures, it is advisable for tax authorities to use the results of operational investigative activities sent to the tax authorities on the basis of Part 3 of Article 11 Federal Law dated 08/12/1995 N 144-FZ “On operational-search activities” and in accordance with the procedure approved by order of the Ministry of Internal Affairs of Russia and the Federal Tax Service of Russia dated 05/29/2017 N 317/MMV-7-2/481@.

15. These Methodological Recommendations do not contain legal norms, do not specify regulatory requirements and are not a normative legal act. They are of an informational and explanatory nature and do not prevent taxpayers (fee payers, tax agents), tax authorities, investigative authorities and courts from being guided by the norms of the legislation of the Russian Federation in an understanding that differs from the stated interpretation.

Appendix No. 1

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QUESTIONS SUBJECT TO MANDATORY CONCLUSION FROM EMPLOYEES