The concept of due diligence when choosing a counterparty. What is due diligence? Ten simple rules avoid claims from the FTS. Evidence and refutation of action of action

Principles of due diligence when choosing a counterparty can be consolidated by the internal document of the company. It is registered in it that such proper care when concluding contracts, how to show it, how to prove and what documents to claim counterparties in 2018.

Companies are obliged to comply with the principles of due diligence when choosing a counterparty in their procurement activities - to thoroughly check each counterparty. Otherwise, tax authorities can exclude costs from the composition taken into account when determining taxable profits, and VAT will not accept a test.

Introduce the principles of due diligence helps the internal corporate regulations. We'll figure it out that we should consider in this document and how to apply it in practice.

The concept of "due diligence" appeared in 2006 in the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 53 "On the assessment of the reasons for the validity of the tax benefit of tax benefits." But in the past two years, the situation has tightened. During field checks, the tax authorities began to exclude certain expenses from the composition taken into account when determining taxable profits, and VAT is not taken to test. Cause - The taxpayer did not apply to the counterparty procedure for due diligence.

The courts, in turn, now even mark such, seemingly good arguments in defense of the taxpayer:

• "In civil and tax codes there is no fixed notion of" proper care ";
• "The terms of the transaction were arranged, the payment was in fact, the Inn was, the bank's account was opened, the constituent documents were requested. So there were no risks for us, and there is nothing to check. "

Including the principles of due diligence in the company helps the internal corporate regulations for the verification of counterparties, enshrined by the order of the head. It must be specified:

• principles and procedures that apply in order to show due diligence in procurement activities at the conclusion of contracts in 2018;
• company employees, whose duties include the verification of counterparties (security officers, lawyers, financiers, accountants).

When developing the regulations, I recommend to explore the letter of the Federal Tax Service of Russia No. E-4-3 / 20268, which the service has released November 30, 2012. Taking it as a basis, we'll figure it out that we should consider in this document how to thoroughly check the counterparties, showing, thereby, due diligence.

Principle 1. Request information from the register. Information from the register about state registration of a potential counterparty will help see:

• OGRN;
• legal address;
• the names of the founders and managers;
• codes by activity.

Request an extract from an incorporation in two ways:

1. Free through the site of the Federal Tax Service. This will be an electronic extract. However, there is one "but". Starting from 2016, tax inspectors put in the incorporation a special mark when they receive information that any data from the company is unreliable (fictitious founders, addresses, etc.). But in the electronic statement now there is no section "Additional Information" - it is in it that there are marks of this kind (Letter of the Federal Tax Service of Russia from 09/02/2016 № UF-3-14 / [Email Protected]).
2. Written request to the tax inspection. Service cost 200 rubles. Extract will be on paper.

You can submit a request to any tax inspection. But it is necessary to take into account the following points:

• the request is submitted in an arbitrary form or personally by the head of the organization, or by mail by registered letter. In it, it is necessary to specify all the details of the company, the information on which is requested by: name, TIN, OGRN. You also need to list all the information about your company, including contact phones and email address;
• before sending a request, you must pay for the service (200 rubles) and to the application to attach a confirmation of the document;
• the answer (extract) will be provided by mail or, if such an order is specified in the request submitted, personally by the head of the organization or another person by proxy. The time of information - within five working days from the date of request. Or in an accelerated order - the next business day (the cost of the service is above - 400 rubles).

Principle 2. Get information about its activities from the counterparty. Specify whether the counterparty has a valid bank account. Request information about the average number in order to evaluate the availability of a labor resource required to fulfill the terms of the transaction. Also get copies:

• certificates of state registration of the enterprise;
• certificate of registration with the tax authority;
• charter of the organization;
• decisions on the appointment (election) of the head of the organization, plus, the second and third pages of his passport (including for checking on the website of the Federal Migration Service) in order to verify its powers.

Make sure that all documents are certified properly - printing and signatures of authorized persons. Otherwise, the Court may not accept them as evidence of the proper dilution.

Principle 3. Check the counterparty and its officials. I will list the most informative and useful bases:

• the site of the Supreme Arbitration Court of Russia is the search for possible lawsuits and decisions, a certificate of arbitration and decisions bank;
• register of unscrupulous suppliers - His FAS Russia is leading;
• a single federal register of bankruptcy information;
• register of disqualified persons;
• information on legal entities who have tax arrears or which do not provide reporting in the FTS - the service operates in test mode;
• the site of the Federal Bailiff Service is a data bank of the executive proceedings;
• the FNS service for verifying the counterparty - while working in test mode, allows you to check the identification details of the IP and legal entities;
• the site of the federal migration service - here you can check the passport of the person of the person, as either the company can be registered with the fake passport, or such is the passport of the employee authorized to sign the transaction documents.
• - Here you can get a report in the PDF format, which contains data from EGRUL / EGRIP, arbitration cases, bankruptcy information, firm debts according to bailiffs, addresses of mass registrations and much more.

Principle 4. Analyze the accounting and tax reporting of the counterparty. Copies of VAT tax declarations are required for the last reporting period. The feasibility of such a request is confirmed by the Decree of the Presidium of the Court of Russia No. 181062/09 of 04/20/2010 regarding the case A11-1066 / 2009.

Accounting reporting is needed for the last closed reporting year. It can be obtained through systems such as spacre interfax or contour. Just consider that the reporting for the completed fiscal year is loaded there with a delay - approximately 9 months after the end of the year.

On the basis of the accounting statements of the counterparty, it is possible to analyze the company's financial condition - to calculate the coefficients of liquidity, security, assess the profitability of the business.

Also note:

• on the volume of authorized capital - it is unlikely that a serious company may have a charter capital in the amount of 10,000 rubles;
• on the volume of equity - if all profits are displayed through dividends and is not reinstited into a business, this is an approach, uncharacteristic for a normal company;
• it is comparable to the former business activity of the counterparty with the results of the current transaction.

Principle 5. Fix the history of the relationship with the counterparty. In addition to the above information, collect the following documents:

• business cards (or their scans) of all employees of the counterparty, who had to communicate with. It is desirable, not only the Director-General, but for specific specialists - procurers, logistics, etc.;
• copies of electronic correspondence with representatives of the counterparty, where some questions relating to the transaction or are appointed negotiations.

• short summary meetings;
• screenshots of the contracting site of the counterparty. This information is worth updating, and therefore it is necessary that the dates are visible on the screenshots;
• office / Counterparty Warehouse. The photographs are desirable shooting dates;
• photos with counterparty employees, for example, made during negotiations / joint conferences;
• press releases, booklets and other counterparty advertising materials;
• information from the media (articles, research, etc.), where the counterparty is mentioned;
• copies of advance reports if they refer to counter-charge meetings.

Principle 6. Word the additional benefits of cooperation with the counterparty. Fix in the form of a certain analytical note those additional benefits that arise during cooperation with the counterparty.

As judicial practice is evidenced, such arguments can be accepted by the courts:

• decree of the FAS of the Central District of 24.02.2012 No. A14-1076 / 2011;
• resolution of the FAS of the Moscow District of 01.02.2012 No. A14-6758 / 2011;
• resolution of the FAS of the Ural District of 18.05.2012 No. F09-3389 / 12.

Unfortunately, it is impossible to justify (this is the term that is appropriate here) only the attractiveness of the transaction. Although it would seem logical. After all, if one transaction is perfect on more favorable terms, and the state, and the company will not be "in the acclating". But, alas, now the obligation of the taxpayer is not only in assessing the commercial benefit of the potential transaction, but also in the assessment of the counterparty on the above algorithm.

Sometimes it is recommended to check counterparties in accordance with the concept of tax audits. This is stated in the order of the Federal Tax Service of Russia of 30.05.2007 No. MM-3-06 / [Email Protected] as amended from 10.05.2012. This document recommends that when assessing risks, pay attention to:

• the tax burden level and its correlation with medium-wide indicators;
• the presence of losses for several reporting periods;
• the volume of tax deductions (the share of deductions on VAT exceeds or equal to 89%);
• cost increase in income growth;
• salary per working below the average industry;
• deviations of profitability indicators from medium-wide values;
• the amount of expenses approximate to the amount of income (in the case of SP).

But it is unlikely that each company has the same capabilities as the tax authorities. It is not so easy to find information about the average tax burden on the industry or about the average industry salary in order to compare them with the data of the counterparty. Yes, and not every counterparty will give data about the average salary.

Even if the tax authorities determine that the company did not show due diligence, it does not always mean that all expenses will be removed. If companies manage to prove the reality of the transaction, the cost will be estimated at market value. Such a conclusion can be made from the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 3, 2012 No. 2341/12.

And completely fresh news. At the end of November, the definition of the Armed Forces of the Russian Federation dated November 29, 2016 No. 305-kg16 - 10399 in case No. A40-71125 / 2015. The case of LLC Centrregionanol. In it, the Cassation appeal of the taxpayer was satisfied.

So, there was hope that the reality of operations will prevail over document flow.

Elena Ageev, Financial Director of Goldel Electronics LLC. In the field of finance management, it has been working for more than 25 years, of which 14 years - in the company "Golder Electronics" (owner of Vitek, Rondell, Maxwell brands).

1. GENERAL PROVISIONS
1.1. Personal data processing policy (hereinafter - policies) developed in
accordance with the Federal Law No. 27.07.2006. №152-FZ "On Personal Data" (hereinafter - FZ-152).
1.2. This policy determines the procedure for processing personal data and measures to ensure the security of personal data in the Tax Lawyers Lawyers LLC (hereinafter referred to as the operator) to protect the rights and freedoms of man and citizen in the processing of its personal data, including the protection of the rights to privacy Life, personal and family mystery.
1.3. Policy uses the following basic concepts:
- automated processing of personal data - processing personal data using computing equipment;
- blocking personal data - temporary termination of personal data processing (except when handling is necessary to clarify personal data);
- information system of personal data - a set of personal data contained in databases and ensuring their processing information technologies and technical means;
- depletion of personal data - actions, as a result of which it is impossible to determine without the use of additional information affiliation of personal data to a specific subject of personal data;
- Processing personal data - any action (operation) or a set of actions (operations) committed using automation tools or without using personal data, including collection, recording, systematization, accumulation, storage, refinement (update, change), extract , use, transmission (distribution, provision, access), deletion, blocking, deletion, destruction of personal data;
- the operator is the state body, the municipal body, legal or individual, independently or together with other persons organizing and (or) processing personal data, as well as determining personal data processing goals, the composition of personal data to be processed, actions (operations), performed with personal data;
- Personal data - any information relating to directly or indirectly defined or determined to the physical person (subject of personal data);
- provision of personal data - actions aimed at disclosing personal data to a certain person or a certain circle of persons;
- Dissemination of personal data - actions aimed at disclosing personal data by an indefinite range of persons (transfer of personal data) or familiarizing with personal data of an unlimited range of persons, including the publication of personal data in the media, placement in information and telecommunication networks or the provision of access to personal data in any other way;
- cross-border transfer of personal data - transfer of personal data into the territory of a foreign state by the authority of the authority of a foreign state, a foreign physical or foreign legal entity.
- the destruction of personal data - actions, as a result of which it is impossible to restore the content of personal data in the information system of personal data and (or) the result of which material carriers of personal data are destroyed;
1.4. The company is obliged to publish or otherwise ensure unlimited access to this personal data processing policy in accordance with Part 2 of Art. 18.1. FZ152.
2. Principles and conditions for processing personal data
2.1. Personal data processing principles
2.1.1. The processing of personal data from the operator is carried out on the basis of the following principles:
- legality and fair foundation;
- restrictions on the processing of personal data to the achievement of specific, predetermined and legitimate purposes;
- preventing personal data processing incompatible with personal data collection purposes;
- preventing the association of databases containing personal data, the processing of which is carried out for purposes that are incompatible;
- processing only those personal data that meet the objectives of their processing;
- compliance of the content and volume of processed personal data the stated processing goals;
- the inadmissibility of processing personal data, redundant to the declared goals of their processing;
- ensuring accuracy, sufficiency and relevance of personal data with respect to the purpose of processing personal data;
- destruction or deleting personal data to achieve the objectives of their processing or in case of loss of need to achieve these goals, if the operator cannot be eliminated by the operator of violations of personal data, unless otherwise provided by federal law.
2.2. Personal data processing conditions
2.2.1. The operator processes personal data if there are at least one of the following conditions:
- processing of personal data is carried out with the consent of the subject of personal data on the processing of its personal data;
- processing of personal data is necessary for the implementation of justice, executing a judicial act, the act of another body or an official to be executed in accordance with the legislation of the Russian Federation on the executional production;
- processing of personal data is necessary for the execution of the contract, whose party either by the beneficiary or the guarantor of which is the subject of personal data, as well as for the conclusion of an agreement on the initiative of the subject of personal data or a contract for which the personality entity will be a beneficiary or guarantor;
- processing of personal data is necessary for the rights and legitimate interests of the operator or third parties or to achieve socially significant goals, provided that the rights and freedoms of the subject of personal data are not violated;
- the processing of personal data is carried out, the access of an unlimited range of persons to which is provided to the subject of personal data or at its request (hereinafter - publicly available personal data);
- the processing of personal data to be published or compulsory disclosure in accordance with federal law is carried out.
2.3. Privacy Policy
2.3.1. The operator and other persons who have gained access to personal data are obliged not to disclose to third parties and do not disseminate personal data without the consent of the personal data entity, unless otherwise provided by federal law.
2.4. Public sources of personal data
2.4.1. For information support, the operator can create publicly available sources of personal data of personal data entities, including reference books and address books. In publicly available sources of personal data with the written consent of the subject of personal data, its surname, name, patronymic, date and place of birth, position, contact phone numbers, email address and other personal data reported by the subject of personal data can be included.
2.4.2. Information about the subject of personal data should be excluded at any time from publicly available sources of personal data at the request of the subject of personal data, the authorized body to protect the rights of personal data entities or by the court decision.
2.5. Special categories of personal data
2.5.1. Processing by the operator of special categories of personal data concerning racial, nationality, political views, religious or philosophical beliefs, health, intimate life, is allowed in cases where:
- the subject of personal data agreed in writing to the processing of its personal data;
- Personal data was made by the publicly available subject of personal data;
- processing of personal data is carried out in accordance with the legislation on state social assistance, labor legislation, the legislation of the Russian Federation on pensions on state pension provision, on labor pensions;
- processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data or the life, health or other vital interests of others and the receipt of the consent of the subject of personal data is impossible;
- processing of personal data is carried out in medical and preventive purposes, in order to establish a medical diagnosis, the provision of medical and medical services, provided that the processing of personal data is carried out by a person who professionally engaged in medical activities and is obliged in accordance with the legislation of the Russian Federation to maintain a medical secret;
- personal data processing is necessary to establish or implement the rights of the subject of personal data or third parties, as well as in connection with the implementation of justice;
- Processing of personal data is carried out in accordance with the legislation on mandatory types of insurance, with insurance legislation.
2.5.2. The processing of special categories of personal data carried out in cases provided for in paragraph 4 of Article 10 of the FZ-152 should be immediately discontinued if the reasons were eliminated, as a result of which their processing was carried out, unless otherwise established by federal law.
2.5.3. Processing of personal data on criminal record can be carried out exclusively in cases and in the manner that are determined in accordance with federal laws.
2.6. Biometric personal data
2.6.1. Information that characterize the physiological and biological features of a person on the basis of which its identity can be established - biometric personal data - can be processed by the operator only in the presence of the consent of the subject of personal data in writing.
2.7. Order processing personal data to another person
2.7.1. The operator has the right to entrust the processing of personal data to another person with the consent of the personal data entity, unless otherwise provided by federal law, on the basis of the contract concluded with this person. A person carrying out personal data on the instructions of the operator is obliged to comply with the principles and rules for processing personal data provided for by FZ-152 and this policy.
2.8. Processing of personal data of citizens of the Russian Federation
2.8.1. In accordance with Article 2 of the Federal Law of July 21, 2014, N 242-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in terms of refining the procedure for processing personal data in information and telecommunication networks" in collecting personal data, including through information The telecommunications network "Internet", the operator is obliged to provide recording, systematization, accumulation, storage, refinement (update, change), extracting personal data of citizens of the Russian Federation using the databases located in the Russian Federation, except in cases:
- processing of personal data is necessary to achieve the goals provided for by the International Treaty of the Russian Federation or the Law, for the implementation and implementation of the laws by the legislation of the Russian Federation on the operator of functions, powers and responsibilities;
- processing of personal data is necessary for the implementation of justice, execution of the judicial act, the act of another body or an official to be executed in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter - the execution of the judicial act);
- Processing of personal data is necessary for the authority of the powers of federal executive bodies, state extrabudgetary fund authorities, the executive bodies of the state of the constituent entities of the Russian Federation, local governments and the functions of organizations involved in the provision of state and municipal services provided for by the Federal Law of July 27, 2010 N 210-FZ "On the organization of the provision of state and municipal services", including the registration of the subject of personal data at a single portal of state and municipal services and (or) regional portals of state and municipal services;
- Processing of personal data is necessary for the implementation of professional activities of the journalist and (or) legitimate activities of the media or scientific, literary or other creative activities, provided that the rights and legitimate interests of the subject of personal data are not violated.
2.9. Transboundary transfer of personal data
2.9.1. The operator is obliged to make sure that a foreign state, to the territory of which it is assumed to transmit personal data, adequate protection of the rights of personal data entities is ensured before the implementation of such a transfer.
2.9.2. Transboundary transfer of personal data on the territory of foreign states that do not ensure adequate protection of the rights of personal data entities can be carried out in cases:
- availability of consent in the written form of the subject of personal data on the transboundary transmission of its personal data;
- execution of the contract, the party of which is the subject of personal data.
3. Rights of the subject of personal data
3.1. The consent of the subject of personal data for the processing of his personal
3.1.1. The subject of personal data decides on the provision of its personal data and agrees to process them freely, by its will and in its interest. Consent to the processing of personal data may be given by the subject of personal data or its representative in any allowing to confirm the fact of its preparation, unless otherwise established by federal law.
3.2. Rights of the subject of personal data
3.2.1. The personal data entity has the right to receive information from the operator regarding the processing of its personal data, if such a law is not limited in accordance with federal laws. The subject of personal data is entitled to demand from the operator to clarify its personal data, their blocking or destruction if personal data are incomplete, outdated, inaccurate, illegally obtained or are not necessary for the declared target of processing, as well as to adopt their rights to protect their rights .
3.2.2. Processing personal data in order to promote goods, works, services in the market by carrying out direct contacts with the subject of personal data (potential consumer) through the means of communication, as well as for political agitation purposes only under the condition of the prior consent of the subject of personal data.
3.2.3. The operator must immediately terminate at the request of the subject of personal data processing its personal data in the above objectives.
3.2.4. The adoption on the basis of exclusively automated processing of personal data solutions that generate legal implications regarding the subject of personal data or otherwise affecting its rights and legitimate interests, except in cases provided for by federal laws, or in the presence of consent in writing the subject of personal data.
3.2.5. If the personal data entity considers that the operator processes its personal data with violation of the requirements of FZ-152 or otherwise violates his rights and freedoms, the subject of personal data is entitled to appeal against the actions or inaction of the operator to the authorized body to protect the rights of personal data entities or in court .
3.2.6. The subject of personal data is entitled to protect their rights and legitimate interests, including for damages and (or) compensation for moral damage.
4. Ensuring the security of personal data
4.1. The safety of personal data processed by the operator is ensured by the implementation of legal, organizational and technical measures necessary to ensure the requirements of federal legislation in the field of personal data protection.
4.2. To prevent unauthorized access to personal data, the following organizational and technical measures are applied:
- the appointment of officials responsible for organizing processing and protecting personal data;
- limitation of the composition of persons admitted to the processing of personal data;
- familiarization of subjects with the requirements of federal legislation and regulatory documents of the processing and protection of personal data;
- organization of accounting, storage and treatment of media containing information with personal data;
- determination of threats to the safety of personal data when processing them, formation based on their threat models;
- development based on the threat model of the personal data protection system;
- the use of information protection tools that have passed the procedure for assessing compliance with the requirements of the legislation of the Russian Federation in the field of information security, in the case when the use of such funds is necessary to neutralize current threats;
- verification of readiness and efficiency of using information security;
- delimitation of users access to information resources and software and hardware processing information;
- registration and accounting of the actions of users of personal data information systems;
- the use of antivirus and means of restoring the personal data protection system;
- Application in the necessary cases of the means of firewall, intrusion detection, the analysis of security and cryptographic information protection;
- organization of the throughput to the territory of the operator, the protection of premises with technical means of processing personal data.
5. Final provisions
5.1. Other rights and obligations of the operator in connection with the processing of personal data are determined by the legislation of the Russian Federation in the field of personal data.
5.2. Operator's employees, guilty of violation of the norms regulating the processing and protection of personal data, carry material, disciplinary, administrative, civil or criminal liability in the manner prescribed by federal laws.

Civil law (clause 5 of Article 10 of the Civil Code of the Russian Federation) is assumed as a given, since it corresponds to the interests of civil relations participants. Another meaning has acquired the concept in the tax sense. In order to obtain unreasonable tax gain, a large number of taxpayers deliberately goes to contacts with unfinished firms. At the same time, two tasks are achieved, the first of which is the reimbursement of VAT on the basis of invoices issued by one-day company, and the second is the cashing of funds listed addressed to the "one-day" cash.

Note. Under the company - "One-day" in the general sense means a legal entity that does not have the actual independence created without the purpose of entrepreneurial activity, as a rule, not representing, registered at the address of the mass registration, etc. (Letter of the Federal Tax Service of Russia of 11.02.2010 N 3-7-07 / 84).

Tax authorities are primarily concerned about evasion from, as a result, the entire arsenal of the means in their hands are directed to solving this problem. In conscientious taxpayers who are not related to illegal schemes, sometimes there is nothing to say in their justification by compromising them. They only may try to prove that they were unknown about the illegal activities of the counterparty and, when interacting with him, proper care was manifested. Next, the article will disclose the problem of due diligence in the light of the evolution of VAT payment methods.

Automation of VAT payment control

The noticeable part of the tax violations on VAT is associated with unreasonable tax reimbursement from the budget on the invoice issued by the company - "one-day". However, currently the tax authorities have sharply increased the level of awareness of cash leakage channels, which, subject to the legal circuit, the turnover would be due to the budget in the form of VAT. Modern software products, such as SUR ASC VAT and SUR ASC VAT-2 (Order of the Federal Tax Service of Russia from 14.08.2015 N SA-7-15 /, help the tax authorities. [Email Protected] "On holding a pilot project to approbate the software that implements the function of the task of the risk management system in assessing VAT taxpayers." Orders of the Federal Tax Service of Russia of 02.03.2016 N MMB-7-15 / [Email Protected] and from 20.06.2016 n MMB-7-15 / [Email Protected] The pilot project period is extended until 12/30/2016). Using these systems, controllers can process all invoices exhibited by the country's taxpayers, identify violations in a chain of incoming and outgoing invoices and on the basis of information received to taxpayers (a letter of the Federal Tax Service of Russia from 06.11.2015 N DF-4-15 / 19395) . In addition, the Sur ASC VAT-2 system automatically distributes taxpayers - legal entities who submitted, on three tax risk groups: high, medium, low (letter of the Federal Tax Service of Russia from 03.06.2016 N DF-4-15 / [Email Protected]).

Classification of taxpayers in terms of tax risk

As it can be assumed from the above classification, the problem of conscientiousness when choosing a counterparty occurs when invoicing taxpayers with high tax risk to taxpayers with low and medium tax rings. Taxpayers with high tax risk, as well as a part of taxpayers with an average tax risk, which participate in the chain of illegal VAT optimization, carry out their activities until the attention of the attention of "Sur ASK VAT" and "Sur ASK VAT-2" will attract. These firms may seem conscientious counterparties, lending their activities, but they cannot pay the VAT in the budget, otherwise they will lose the source to cash out. As for taxpayers with low tax risk, they should be borne in mind that they will calculate their disadvantaged counterparties an impartial robot, at the same time he will arm the tax authorities with specific facts that are much more difficult to refute than subjective judgments about proper or improper prudency.

The results of the analysis of information in SUR ASC VAT and SUR ASC VAT-2 are used by tax authorities on the top of the main areas of tax control of VAT payment: first, when reading the VAT declarations to compensation, secondly, when discrepancies are detected in VAT declarations to pay and, thirdly, when identifying chains of illegal tax optimization.

As can be seen, monitoring is practically total, avoiding close attention to your organization only an exception to one-day suppliers and a thorough check of counterparties for conscientiousness will help.

Despite the fact that the process of identifying firms "one-day" is put on the flow, the reimbursement of VAT depends on the manifestation of due diligence, and not from the group of tax risk of counterparty. Of course, if the taxpayer made contacts with an explicit company, "one-day", the tax authorities will prefer to go to court than to consider the evidence submitted by the taxpayer. Nevertheless, it is still in courts when making decisions, a position is dominated, formulated in the resolution of the Plenum of the Supreme Arbitration of the Russian Federation of 12.10.2006 N 53 "On the assessment of the arbitration courts of the validity of the taxpayer of the tax benefit": "The fact of violation of the taxpayer's violation of its tax duties by itself is not It is evidence of the taxpayer of unreasonable tax benefit. Tax benefits can be found unreasonable if the tax authority will be proved that the taxpayer acted without due diligence and caution and should it be aware of violations admitted by the counterparty, in particular, by virtue of relationships or affiliation relations Taxpayer with a counterparty.

Tax benefits can also be recognized unreasonable if the tax authority will be proved that the activities of the taxpayer, its interdependent or affiliates aims to carry out operations related to the tax benefit, mainly with counterparties that do not perform their tax duties "(paragraph 10 of the Resolution No. 53 ).

Impresses optimism that the tax authorities confirm their commitment to this position to this day. In particular, in the letter of the Federal Tax Service of Russia dated June 24, 2016 N UF-19-15 / 104, the controllers report that if the taxpayer is confirmed by the fact of the transaction, the claims will be presented with its counterparty.

To date, the main methodological document in the field of due diligence when choosing a counterparty remains an order of the Federal Tax Service of Russia of 30.05.2007 N MM-3-06 / [Email Protected] "On approval of the concept of planning system of field tax checks." This order includes an annex 2 "The publicly available criteria for self-assessment of risks for taxpayers used by the tax authorities in the process of selecting objects for conducting tax audits", paragraph 12 of which contains the main signs of financial and economic activities with high tax risk.

The main signs of high tax risks with the relationship with counterparties:

• The lack of personal contacts of the leadership (authorized officials) of the supplier company and leadership (authorized officials) of the buyer's company when discussing the delivery conditions, as well as when signing contracts;
• Lack of documentary confirmation of powers of the head of the contracting company, copies of the document certifying his identity;
• Lack of documentary confirmation of the powers of the representative of the counterparty, copies of the document certifying his identity;
• Lack of information on the actual location of the counterparty, as well as the location of warehouse, and (or) production, and (or) retail space;
• Lack of information on the method of obtaining information about the counterparty (no advertising in the media, there are no recommendations of partners or other persons, there is no counterparty site, etc.). In this case, the negativity of this feature is aggravated by the availability of available information (for example, in the media, outdoor advertising, Internet sites, etc.) on other market participants (including manufacturers) identical (similar) goods (works, services), including meetings offering their products (works, services) at lower prices;
• Lack of information on state registration of counterparty in the register.

The standard recommendations of the controllers on the manifestation of due diligence are usually reduced to carrying out such events as receiving a copy of the certificate of registration with the tax authority, checking the fact of entering information about the counterparty in the incorporation, the use of official sources of information characterizing the activities of the counterparty.

Below as a sample provides an exemplary profile of a conscientious counterparty. Some of the listed parameters are rigid, mandatory execution (for example, a partner registration in the incorporation), other indicators are softer, may not correspond to the control values \u200b\u200b(for example, the limit of participation in other organizations of the heads and founders of the counterparty). The proposed methodology is based on regulatory acts published by the FTS and the Ministry of Finance over the past 10 years.

Note. The proposed technology of checking the counterparty in the framework of the manifestation of due diligence is formed, in particular, on the basis of the following regulatory acts: the order of the Federal Tax Service of Russia N MM-3-06 / [Email Protected]; Emails of the Federal Tax Service of Russia on working on legal entities registered before and after 08/01/2016 (from 08/03/2016 N GD-4-14 / [Email Protected] and N gd-4-14 / [Email Protected] Accordingly), from 06/24/2016 N UF-19-15 / 104, from 07.24.2015 N EF-4-2 / [Email Protected], from 03/16/2015 N DF-4-2 / \u200b\u200b4124, from 11/30/2012 N DF-4-3 / [Email Protected], from 11.02.2010 N 3-7-07 / 84; Letters of the Ministry of Finance of Russia dated July 12, 2016 No. 03-01-10 / 41099 and from 06/17/2016 No. 03-02-07 / 1/35452.

Signs of conscientiousness of the counterparty:

I. Check the counterparty through the electronic service of the FTS "Business risks: Check yourself and counterparty"

• Counterparty is listed in the register
• Decisions on liquidation, reorganization, the reduction of the charter capital of the counterparty is not accepted
• The decision on the upcoming elimination of counterparty from the EGRUL is missing
• The executive bodies of the counterparty do not enter disqualified persons.
• The address of the counterparty is not an address of the mass registration as a location of legal entities
• The executive bodies of the counterparty do not include persons in respect of which the fact of the impossibility of participation (management) in the organization is established (confirmed) in court
• Information that the counterparty cannot be contacted at the address specified by them (location) is absent
• Counterparty has no debts on taxes and tax reporting
• The head of the counterparty is performed by the head of the head no more than five legal entities
• Counterparty members are no more than ten legal entities.

II. Check document counterparty

• Copies certified by the counterparty of documents (constituent documents, certificates of registration with an incorporation, certificates of registration with the tax authority, licenses, orders for the appointment of managers) confirm its legal status
• The authenticity of the powers of powers, authorizing this or that person to sign documents from the person of the counterparty, no doubt causes
• Accounting reports confirms the presence of facilities to fulfill the obligations taken by the counterparty
• The number of personnel confirms the reality of activity

III. Analysis of open sources of information

• Counterparty has a working site
• On the Internet there are reviews about the work of the counterparty
• Counterparty places advertising on the Internet and media

IV. Information about contacts with representatives of the counterparty

• Contacts with counterparty employees spent by video calls, personal meeting

Armed with technologically, the tax authorities raised the problem of due diligence at a higher level. Apparently, taxpayers to meet new requirements will have to carry out additional events. For example, large taxpayers will most likely be favorable to create a software product with a database for counterparties. Other taxpayers would be nice to have a dossier on large and medium suppliers and recorded the procedure for checking counterparties. It is possible more expedient to keep the counterparties not in paper, but in electronic form, with the preservation of the collected information in the form of electronic copies, scanned images, screenshots. As new documents are published, the tax service is also recommended to actualize the methodology for checking the counterparty.

from ships and overpayments

Dear colleagues. Today I want to touch on a very important topic that experienced companies know and beginners are not always familiar. This is a job prudence.

About Mr. X, Cherberry and the company A

But first, let me tell you one fictional story based on real events (all coincidences are an accident).

The company "A" lived in itself, developed in the market and resulted in income. And everything was good, until she wanted to conquer the next tops and expand their presence on the Internet.

She wanted to create a new site and promote it actively through SEO and other tools. We conducted marketers searching the contractor and chose the company "b", which had one of the lowest price tags to work. Concluded a contract and went.

And at this time, the Tax Inspector "Mr. X" attacked the trail of the company "Sharacken Constor", which had all the signs of considering it by one-day company.

And the Valiant Cerber, the ASK VAT-2 system, clearly demonstrated the relationship of the "Sharacken Office" with the company "B", thereby suspecting the illegal cashing.

Our "Mr. X", realizing that in any scheme there is an intermediary and accepting the company B ", began to look for a potential customer of cash and went on the trail of the company" A ".

Immediately an on-site inspection of this company was scheduled, during which the company "A" could not really explain why he chose the company "b" for cooperation. The answer "there is cheaper" did not suit the tax inspector.

As a result, the company "A" was suspected of a deliberate increase in costs for subsequent tax savings and received an account for 7 million rubles to tax documents that are obliged to pay in the FTS of the Russian Federation.

Of course, I got both the company "B", but the meaning of this story - to convey to you all the pain of the company A ", which in good faith tried to work on the market.

It seems to you that such a story is not real? Disappoint you, dear reader, and I suggest to read the arbitration practice. There are more and more such cases.

How to protect yourself from such a situation? How to lead their activities so that the nightmare in the form of tax leads from cooperation with non-painful contractors did not find you surprise? Here we come to the topic of this article - due diligence.

What is this term? The definition of due diligence was introduced by the Plenum of the Supreme Arbitration Court of the Russian Federation No. 53 of 12.10.2006, but there was no accurate concept.

Its the only mention is contained in the following paragraph: "The tax profit can be recognized unfounded if the tax authority will be proved that the taxpayer acted without adequate care and caution and should be aware of the violations made by the counterparty ...". However, the tax authorities actively use this concept.

Before the start of each new counterparty, check on the following items (and if existing ones are not checked, then you need to check each other):

The company is located in the list of EGRUL / EGRIZH and she has no problems identified during registration (the current version can be requested on the website of the Federal Tax Service of the Russian Federation or at the most counterparty).

The company is located in its actual address specified in the EGRUL / EGRIP and this address is not massive.

Documents are signed by an authorized person on which all the necessary documents are properly decorated.

Passport details of the authorized person are true.

The company has no open tax arrears or it is not attracted at the time of the conclusion of a deal to liability for non-payment of taxes (such information is not a tax secret, so it is easy to get on the website of the FTS RF).

A copy of the Charter and the Constituent Treaty (these documents are not secret and may be requested by you).

Copies of certificates of assigning TIN, OGRN.

Issue from EGRUL / EGRIP.

Copies licenses.

The protocol on the appointment of the Director-General for the position and power of attorney for other persons who have the right to sign an agreement and invoice.

Copies of passport data of the head and chief accountant.

Moreover, some data you can get from your online bank (Sberbank, Alfa-Bank, Tinkoff Bank accurately provide similar data), Spark, SBI, and so on. They can also be printed.

It will also be useful if you can force your marketers to collect a brief document with the presentation of their thoughts about why this particular contractor is selected. What are the reasons other than "cheap", why should it work with this counterparty? After all, if the choice is only by "cheap", then for the tax this signal, that the contractor can reduce the tax base due to tax manipulations.

And if the court?

As you can see, the list is quite impressive. But, I assure it worth it. What to do with all this good? In case everything is in order, then you need to put on these documents the date of checking and printing the organization, collect in one folder and put in a reliable place.

And if you have suspicions, then you should refuse to work with such a counterparty.

I immediately want to say that the manifestation of due diligence can not always save you from communicating with the tax in court. It is not necessary to be afraid, since the presumption of innocence of the company and the FNS should now be applied for the courts to prove the opposite.

And if you have a proper dilution, it will reduce all the efforts of the tax inspector to zero. Therefore, always collect data on your counterparties!

I have everything on this. If you have any questions - write. I will try to answer everyone.

All taxpayers before concluding a contract need to check the counterparty for good faith. From August 19, 2017, article 54.1 of the Tax Code of the Russian Federation on unreasonable tax profit (Federal Law of July 18, 197 No. 163-ФЗ) entered into force. Tell how to show due diligence in choosing a counterparty on the new rules of the Tax Code.

In Article 54.1 of the Tax Code of the Russian Federation, situations are indicated when the taxpayer is not entitled to receive the deduction of VAT and take into account the costs of transactions. The tax base is delivered deliberately prohibited. Also, the Organization is not entitled to reflect the tax accounting operations, which in reality was not.

For example, if the company has concluded a contract with an unscrupulous contractor, and in turn he fulfilled only part of the works, the auditors have the right to remove VAT deductions from the fictitious part of the work. Assets that the company acquired as part of a fictitious deal, it is not entitled to include in expenses.

In addition, the following criteria for good facilities are established in the Tax Code: the purpose of the transaction can not be evasion from paying taxes, and the obligations specified in the contract the counterparty must fulfill (paragraph 2 of Art. 54.1 of the Tax Code of the Russian Federation).

The amendments in the legislation will exclude disputes with controllers if:

• counterparty violated tax legislation;
• documents on behalf of the counterparty signed an unauthorized person;
• the deal could be concluded with another person.

Such circumstances cannot be considered an independent basis for recognizing costs and deductions illegal. Before the Tax Code of the Russian Federation introduced amendments, an increased fine in the amount of 40 percent of the unpaid amount of the tax for acts committed intentionally (paragraph 3 of Article 122 of the Tax Code of the Russian Federation) was envisaged.

After Article 54 has appeared. Tax risks for taxpayers who did not make sure that their counterparties did not have increased in the good faith. However, the likelihood of negative consequences for companies, which carry out measures to verify suppliers and contractors are also reduced.

Make sure that the counterpart has no obvious signs of unscrupiance, maybe any organization. Information is available on the site Nalog.ru in the section "Business Risks: Check yourself and counterparty." You can also use information from various databases to test counterparties, such as 1Cont.ru, Spark, etc.

However, to protect against possible claims of the tax authorities of this information is not enough. After all, information in the services for checking counterparties appears late. This, for example, accounting reporting or information about:

• tax debt;
• timeliness of reporting;
• elimination of counterparty.

Because of this, confirmation that at the time of the conclusion of the deal with the counterparty there was no question of dubious signs, will become a weighty argument in favor of the company.

To strengthen the company's tax security, it is advisable to develop and approve the application form, which guarantees the conscientiousness of the counterparty at the time of the conclusion of the contract. It will not be superfluous if such a statement will be present every counterparty.

In what form to make a document. Approved application form, which guarantees the conscientiousness of the counterparty, no. Therefore, the company has the right to develop an application form on its own.

What must be in the document must be. The contract of conscientiousness of the counterparty must contain:

• the name of the counterparty with which the company plans to conclude an agreement;
• INN, CAT and OGRN counterparty;
• address of the location of the counterparty;
• information about the activities of the counterparty;
• information on the leadership and owners of the counterparty.

Also in the statement, the counterparty must ensure that it has all the necessary material and labor resources to fulfill obligations under the contract. If the counterpart is an intermediary or attracts subcontractors (co-valves), then this information should also be reflected in the statement.

The application should indicate the name and details of subcontractors. It is important to fix the reasons why the counterparty attracts helpers. For example, lack of production capacity or lack of qualified personnel.

In addition, the counterparty must ensure that:

• pays taxes and fees;
• reports;
• not in the process of liquidation;
• present the companies primary documents on transactions;
• will reflect all operations in reporting;
• will submit documents on request of tax authorities.

What risks to consider additionally. Organizations It is advisable to develop a provision for verifying the conscientiousness of counterparties. Supplement to the general regulations will be a statement guaranteeing the conscientiousness of counterparties.

The position needs to detail the procedure for checking counterparties. In addition, it is necessary to record publicly available sources, of which the organization will take information. These are services on the site nalog.ru, reference databases, industry reference books (for example, an automated system for taking into account wood and transactions with it - leesgais.ru). Also in the position it is necessary to register that all counterparties must represent the company's copies of the Charter, constituent documents, etc.

If the counterpart is to fulfill obligations under the contract attracts subcontractors, you need to request a guarantee that he will check their good faith. It will not be superfluous if the counterparty requests similar applications guaranteeing good faith, in its suppliers and contractors.