Inspection is responsible for your contractors. So the court decided

[Демитрий]

Inspection is responsible for your contractors. So the court decided

Let's see who should be responsible for counterparties. And check them out. Businessman? After all, employees of fiscal authorities urge him to do this, even oblige him. Or the inspection, which is given the legal right to check and control?

Trust, but check or not check - this is the desire, but not the duty of a businessman. Wanted - took a word. It got into my head to conduct an investigation - please! This is purely his whim, this is his risk (Clause 1, Article 2 of the Civil Code of the Russian Federation). And the tax is manipulating this concept, including “failure to exercise due diligence”. “Wait, this is MY fear and risk, but not a bit YOUR, dear inspection. I and only I risk it. So, maybe it was you, dear tax officials, who did not show this due diligence? ”

So, closer to the point: Decree of the Volga Federal District Administrative Commission No. Ф06-34135 / 2018 dated 06/29/2018 in the case No. А12-37867 / 2017.
link: [DLMURL="https://docs.pravo.ru/document/view/104352714/118783202/"] SPS Pravo.ru [/ DLMURL]

Office check. Added taxes, penalties and fines. Reason: the presence of counterparty signs of dishonesty. Still would…

- Counterparties did not submit to the primary;
- Minimum tax reporting;
- "Mass" registration address;
- Lack of fixed assets (and leased including);
- Transit payments.

Plus, the inspectors found one very interesting thing ... Analysis of the current account showed the absence of the source of the goods. Where did they buy, from whom? Unknown ... Probably building materials, metal profiles, etc. counterparties took from the ceiling or from the air ... And after the taxpayer paid for the materials, these companies cashed money through corporate cards.

However, the courts lacked evidence. Indeed, “Legislation on taxes and duties of the Russian Federation proceeds from the presumption of good faith of the taxpayer and other participants in legal relations in the economic sphere. In this regard, it is assumed that the actions of the taxpayer, resulting in tax benefits, in particular tax deductions in calculating value added tax, are economically justified, and the information contained in the tax return and financial statements is reliable. ” Documents are drawn up in accordance with the requirements of Article 169 of the Tax Code. And at the time of the transaction, the counterparties were active legal entities.

So why did the company win?

1. The inspection did not refute reality and did not prove fictitiousness.
2. The findings of the tax authority are nothing more than assumptions based on an incomplete audit.
3. There is no evidence that there are criminal convictions against counterparties or their officials.
4. Invoices are signed by the managers who appear on the Unified State Register of Legal Entities or by their representatives on the basis of powers of attorney. The evidence did not provide evidence to the contrary.
5. The taxpayer is not responsible for the dishonesty of counterparties.
6. “Lack of managerial and technical personnel, fixed assets, production assets, storage facilities, vehicles, as well as non-payment of payments accompanying the actual implementation of activities (payment for communications, utilities, salary transfers, etc.) are not qualifying signs of the possibility (impossibility) of conducting relevant business activities ”;
7. There is no evidence of affiliation or interdependence.
8. The fact of applying the scheme aimed at the illegal use of deductions has not been proved: “Evidence that the money paid by the applicant to the disputed contractors was subsequently returned to the company (both for a paid and gratuitous transaction), that is, evidence that unconditionally testifies about the organized cash flow scheme or goods in a closed chain, the tax authority did not get it during the inspection and was not presented to the court, the inspection findings about the applicant’s participation in cash withdrawal are based on assumptions. ”

You’ll think: “Well, and what is so supernatural in this decision? Taxpayer - well done! And the inspection once again found fault with the case ... ". Indeed, the decision is unremarkable, if not for one moment that I left for dessert. The court put the tax service officers in their place and indicated who should control what and what: “Therefore, if the tax authority registered LLC“ ... ”and LLC“ ... ”as legal entities and registered, thereby recognizing the right of these legal entities to conclude transactions, bear the rights and obligations defined by law. The tax authority, unlike the taxpayer, is the only participant in tax relations who has the legislative right to monitor compliance by citizens and legal entities with the requirements of the legislation on taxes and fees. ”

It turns out that it is enough for a businessman to verify the legal capacity of counterparties. And that’s all. Point. I registered the tax, and I trust her. I do not doubt the competence of the tax authorities. I have no reason not to trust what is written in the register or the EGRIP ...

This is tantamount to going to the store for sausage. I’ll look at the expiration dates, the attractiveness from the point of view of “I want to eat immediately”, I will ask the price. And I will stop my choice on the one that I liked. I will buy it. I will come home. And inside ... rotten meat. So, who is to blame for the fact that I bought a product that caused “fuuu” and fooled my expectations? After all, the expiration dates are normal, and the appearance is quite appetizing. Well, it's definitely not my fault! Either a store that did not comply with storage conditions, or a manufacturer. But not me! So it is with counterparties ... A taxpayer, choosing a sausage, excuse me, counteragents, evaluates what he can evaluate. And the inspection is responsible for the internal content. It is the inspection that should control quality in terms of compliance with tax standards.

Why did it happen?
The ASK VAT-2 system is actually very good and at the same time one of a kind. This system has no analogues in the world. But this is only a program that needs to be checked by a person.

The tax inspector fully relied on the power of ASK VAT-2 and did not take into account the possible error (inaccuracy) of the system. As we can see, the disputed counterparty had enough formal signs to recognize the tax benefit as unjustified and, as a rule, such signs are quite enough.

The Federal Tax Service of Russia and the Investigative Committee of the Russian Federation have developed Methodological Recommendations "On the study and proof of the facts of intentional non-payment or incomplete payment of tax (fee) amounts." These recommendations are described in the Letter of the Federal Tax Service of Russia dated July 13, 2017 No. ED-4-2 / 13650 @ and sent to the territorial tax authorities for use in conducting tax audits.

In the above recommendations, the concept of direct evidence is disclosed, which testifies to unjustified tax benefit, namely witness testimonies, seized documents that reveal the person’s actual intentions and their implementation (records, documents and (or) “black bookkeeping” files), video and audio recordings, results of listening to telephone and other conversations.

In this case, the inspectors failed to get any direct evidence during the desk audit, and perhaps they were not searched. Result: conclusion of the court on the decency of the taxpayer.

At the same time, monetary funds in the amount of 2.4 million rubles, of which 370,000 rubles VAT, were received from the taxpayer on the accounts of the disputed counterparty. Even if we take the minimum turnover for VAT payers, 150 million rubles, the turnover of the disputed counterparty is 1.5% of the total taxpayer turnover. With such indicators, tax authorities need to try to prove unreasonable tax benefits.

This situation is not an isolated one, but, as a rule, taxpayers are not ready to defend their innocence and agree with the submitted requirements of the tax service before conducting a desk or field tax audit.

So until 2017, the Federal Tax Service had an effective tool for replenishing the budget, namely the “commission for legalizing the tax base”. It was enough to invite the taxpayer to yourself and clearly explain the consequences of not paying the tax arrears. But when the ASK VAT-2 was fully operational, the legalization commissions were considered less efficient and abolished.

However, the tax service did not want to refuse the debugged tool and issued the Letter of the Federal Tax Service of Russia dated July 25, 2017 No. ED-4-15 / 14490 @, in which it described the conduct of commissions on the legalization of the tax base on personal income tax and insurance contributions.
That's all...