Analysis: What you need to know about the law on tax abuse. Clarified the procedure for applying the rules on the prohibition of tax abuse

Today, the Committee on Budget and Taxes approved for consideration in the second reading amendments to the bill No. 529775-6 "On Amendments to Part One of the Tax Code Russian Federation". This is the same bill that was twice submitted to the State Duma, lay on the shelf for three years and was completely revised for the second reading in the last two months. Behind the low-speaking title is an introduction to the Tax Code general norm on Counteracting Tax Avoidance (GAAR).

Consideration in the second reading at the plenary session of the State Duma is scheduled for July 5, and on July 7 the bill will become law.

You can familiarize yourself with the materials for the second reading on the page of the draft law; I also recommend discussion at the meeting of the Committee on Budget and Taxes (the last 15 minutes of the recording).

Yes, exactly 15 minutes at the very end of the meeting was enough for the committee to discuss this bill. I wonder how long it will take for the deputies at the plenary session to take it? I suggest you place your bets.

According to the chairman of the Committee A.M. Makarova, the main task the developers saw it as transferring the provisions of the 53rd Resolution of the Supreme Arbitration Court of the Russian Federation on tax benefits, necessary for taxpayers, into the law, so that they would be obligatory for tax authorities. It is planned to organize monitoring of the implementation of the law during 2018, and the Federal Tax Service is expected to provide preventive explanations on the system of tax authorities.

Apparently, anticipating criticism, he said that the bill had received reviews in which the leading business associations - the Russian Union of Industrialists and Entrepreneurs, Delovaya Rossiya, Opora - supported the revised version of the bill, and also noted that there are many dissatisfied, but these are mainly lawyers and consultants. who, with the advent of the law, may lose their fees.

The text of the bill, in comparison with one of the previous versions published, has generally changed, in my opinion, insignificantly. At the same time, I cannot fail to note the appearance in the future paragraph 2 of Art. 54.1 of the Tax Code of the word "simultaneously", meaning that tests of the business purpose and performance of the contract by the counterparty specified in it are applied to all actually executed transactions.

To overcome the opinion that the draft law provides for the presumption of bad faith of taxpayers, the new paragraph 5 of Art. 82: proving the circumstances provided for in paragraph 1 of Art. 54.1 (distortion of information about the facts of economic activity) and (or) the fact of non-compliance with the conditions provided for in paragraph 2 of Art. 54.1 (responsibility for "gaskets"), made by the tax authority during the events tax control in accordance with the Tax Code. In my opinion, such a provision has no special meaning and only as before states things known to every taxpayer and inspector.

Taking into account the terms of passage through further instances, the law will come into force, most likely, in late August - early September.

First impressions:

With the adoption of this law, the arsenal of rules on protection against tax abuse is expanding in Russia:

Article 45NK on the re-qualification of transactions (non-working norm);

The right of the tax authorities, in accordance with the Law on them, to file claims for the recognition of transactions as invalid and for the collection of everything received from such transactions to the state income (dormant rate);

Resolution 53 (gradually devalued);

Article 54.1 of the Tax Code.

The interpretation and application of the new article is left at the mercy of the tax service. At the mercy of the tax office ... It sounds.

It is obvious that the concept of the execution of the contract by the person indicated in it is much more convenient for tax service than the concept of discretion. The first can be checked automatically - with the help of ASK VAT, and prudence should be assessed, as lawyers say, in each specific case. It turns out that first a controlling instrument is created with the money of the business, and then the business is adjusted to this instrument. And it’s okay that this does not help to increase the competitiveness of Russian business and the Russian economy.

It is hardly worth expecting from the courts a progressive view of the new rules. At first, due to judicial conservatism and transitional provisions, the usual prevailing attitudes will prevail, which then, due to the conditions prevailing in the country, will pass into the formal application of the new norm.

Lack of tax reconstruction, ignorance of discretion by the law enforcement officer when choosing counterparties and other similar issues will require a principled position from the Supreme and Constitutional Courts. At least, sooner or later, these questions will be posed to them. It can be expected that the Plenum of the Supreme Council will cancel the 53rd and adopt a new clarification.

The work of consultants and lawyers will not decrease, but only increase. True, bad work - to combat the abuse of controllers in the application of the rule on abuse of taxpayers.

I must say that the text of the draft law is still full of real legal blunders, but about them - separately.

No, of course, this is not "horror-horror-horror". Just awful.

The apocalypse will not happen, life will not end. Taxpayers will cry, but continue to eat cacti.

And we know who to thank for this.

ExpertsEdisoftfigured out the innovations that are likely to affect many companies.

What happened?

Work on the bill began several years ago, and during this time it has undergone significant changes. Appeared in the Tax Code new article(54.1) forbidding to reduce tax base(the amount of tax), if information about the facts of economic life (a set of such facts) or about objects of taxation was distorted. The law also discourages the use of fly-by-night firms.

The new provisions set forth the criteria for those transactions and operations that will be considered justified for taxation. It will be possible to reduce the tax base only if two conditions are met simultaneously:

• The main purpose of the transaction is not tax evasion;
• The obligation under the transaction is fulfilled by the party to the contract or by the person to whom the right to perform under the contract or law has been transferred.

Signs of an unjustified tax benefit now look like this:

• Signing of primary accounting documents by an unidentified or unauthorized person;
• Violation by the counterparty of the taxpayer of the legislation on taxes and fees;
• If a taxpayer has an alternative to obtaining the same result of economic activity through other not prohibited transactions, it will be prohibited to reduce the amount of tax.

In fact, the law obliges taxpayers to independently verify who fulfills their obligations under contracts and whether there are grounds for the actual performance of contracts by other persons. If the company does not have documents confirming the proper execution of contracts, then this may become the basis for refusal to deduct expenses and VAT amounts.

Why was this law passed?

The FTS explains that earlier in the Tax Code there were no norms that prohibited the abuse of lawful actions to refund taxes or fail to pay them.

Legally savvy companies could use the letter of the law for their own benefit, to remove profits from taxation or dilute the tax base.

To assess and prove the unreasonableness of such a benefit, the tax authorities had to be guided by separate resolutions of the Supreme Arbitration court... For example, if the company performed transactions with goods that were never produced or could not be produced in the volumes specified in accounting documents; or the company did not have the necessary management and technical personnel, warehouses, production assets, this could lead the tax office to certain conclusions. But there was no direct prohibition on such actions in the law.

The tax authorities could only suspect the company of a violation, because the fact of the recent registration of an LLC, the interdependence of the participants in the transactions, the one-off nature of transactions, settlements through one bank could not serve as a basis for recognizing the tax benefit as unjustified. It was required to collect a set of facts and find other circumstances.

Therefore, the tax authorities sought to eliminate this "gap" in the legislation.

The taxpayer must understand with whom he directly concludes the contract, whether the counterparty has experience, the ability to execute this contract, whether the work will actually be performed. Agree, the statement sounds rather strange that the taxpayer is not obliged to check the company with which he is going to conclude a contract, which seriously affects him financial activities... Already today, the majority of participants in economic turnover, based on their capabilities, organize a control system for the selection of counterparties.

The law stipulates that a taxpayer will be banned from registering for tax purposes transactions and transactions that fall under the “criterion of depravity” established by the new provisions. These are operations and transactions with the main purpose of tax evasion, as well as unrealistic transactions. At the same time, it is confirmed that such facts are proved tax authorities only during tax audits... Formal claims against suppliers in the absence of facts that disprove the reality of the transaction do not indicate abuse.

Sergey Arakelov, Deputy Head Federal Tax Service of Russia in an interview with Kommersant

What do we have to do?

And now briefly about the consequences that new law for entrepreneurs :

• We'll have to check contractors stricter, for example, through a special service on the tax website. Do not sign contracts with obviously dubious legal entities;
• It is necessary to closely monitor the availability of certificates of completion and the content of contracts. If possible, use electronic document management in work with counterparties. For example, exchange electronic universal transfer documents (UPD), which simultaneously replace invoices, invoices, and acts;
• It is highly recommended to use a reinforced qualified electronic signature, which gives legal significance to almost any free format document;
• Deliberately using tax evasion tricks using the letter of the law will now be more difficult. This can be regarded as a violation of the law.
• But the tax inspectorate will be able to prove the violation only on the basis of cameral or on-site inspections... In this respect, business has a “presumption of good faith”.

To illustrate the material, a fragment of a reproduction of the painting "The Magician (Dodger)" attributed to Hieronymus Bosch was used.

On August 19, 2017, new provisions of the Tax Code of the Russian Federation entered into force. Federal law RF of 18.07.2017 No. 163-FZ and concerning the prohibition of tax abuse.

Changes to the Tax Code of the Russian Federation

Amendments to Tax Code the number of cases for recognizing the actions of legal entities as unscrupulous is limited. Tax officials report this in their letter dated 16.08.2017 No.СА-4-7 / [email protected], who were instructed by the regional tax authorities to avoid formalities in establishing the facts of evasion from tax liabilities... Also in the commented letter, the tax authorities noted that if the intent of tax evasion was established in the actions of the company, then such a taxpayer is deprived of the right to tax incentives and any tax refunds.

At the same time, the controllers must first prove that the company deliberately evaded taxes. To do this, officials considered several schemes used by unscrupulous taxpayers. In particular, such schemes are aimed, for example, at creating controlled activities through fictitious counterparties. The establishment of the fact of the company's work with one-day firms will also testify to the application of the schemes.

In addition, the new provisions of the Tax Code of the Russian Federation take into account that for the recognition of expenses for tax purposes, only such transactions will be accepted that meet two parameters at once, namely: the leading goal of the transaction is the company’s profit, and not the reduction of tax costs, and the transaction by the declared counterparty ... If at least one of these parameters is not met, the company will be denied reimbursement of expenses and a deduction for the full amount.

There are also positive aspects in the new law. In particular, tax authorities will no longer be able to refuse to reimburse expenses and receive deductions if the counterparty of the taxpayer of the second, third and subsequent links is recognized as unfair. So, the formality of claims to counterparties is no longer a reason to refuse deductions and accounting for expenses. The tax authorities are obliged to prove that the transaction is fictitious, but errors in the activities of real counterparties do not affect these conclusions.

In the above letter, the controllers also clarified the procedure for the tax authorities to establish the facts of deliberate distortion of data on the company's activities in order to reduce tax liabilities to the state.