The counterparty is one of the key participants in the transaction.He assumes obligations in accordance with the concluded contract. Each entity that signed the agreement will act as a counterparty to the other party to the transaction.
The correct choice of the counterparty affects the right of the payer to receive a tax deduction for VAT. In this regard, the manifestation of prudence is of particular importance in concluding a transaction.
The key tax and fee control body is the Federal Tax Service. The counterparty is checked in the automated system.
The scheme of its work is as follows. The system compares the tax deductions that the payer stated on his purchases, with information from the seller's invoices - the tax counterparty.
If the latter has not filed a declaration or has not reflected in the sales book the data on transactions or revealed other significant deficiencies, the control body lays claims to the buyer.
The bodies of control of the Federal Tax Administrationthe services in the conduct of inspections take into account a set of circumstances that may become evidence of the payer receiving unreasonable benefits.
Any entity that conducts businessactivity, must understand the risk. When choosing a business partner, great attention should be paid to the consequences that can arise after the conclusion of certain transactions.
Tax counterparties "one-day" cancause significant damage to both the payer and the state as a whole. The purpose of such unscrupulous partners is tax evasion. The payer, in turn, will have to prove the validity of the benefit when recording expenses or refunding VAT.
Controls of the Federal Tax Administrationservice in their activities are guided by the provisions of the Resolution of the Plenum of the Supreme Arbitration Court No. 53 (October 12, 2006). This document fixes the key signs of bad faith of a tax counterparty.
As for payers, they can take advantage of publicly available criteria for independent risk analysis used by control bodies when selecting sites for on-site inspections.
How not to become a partner of a problematic counterparty? Tax has developed several recommendations for payers.
First of all, before making a deal, you must request a copy:
It is also advisable to receive an extract from the Unified State Register of Legal Entities, as well as a certificate confirming that the tax counterparty has no debts to the budget.
In addition, you can request information aboutnumber of partner staff, its financial position, cost and composition of the OS (fixed assets), reputation, work experience. All these actions are considered a manifestation of due diligence.
It is worth saying that the courts do not have a common opinion on the need to confirm the actual activity of the tax counterparty.
Some authorities believe that to confirm the conscientiousness of the payer is not enough to confirm the status of the partner's legal entity.
Separate courts believe that it is necessarymake sure that the tax counterparty is indeed able to fulfill the terms of the transaction. In particular, the authorities explain, it is necessary to ensure the availability of qualified personnel, proper equipment, vehicles, other assets, permits necessary to fulfill obligations.
To some courts it is enough to confirm the factstate registration for the fulfillment by the payer of the requirements for the exercise of due diligence. For example, individual instances consider that the registration of an employment contract is by no means the only way to attract employees. Employees can also work under agreements of a civil-law nature.
If the reality of the performed business transactions is confirmed, the courts often establish the good faith of the payer with certain document defects.
If the extract from the Unified State Register of Legal Entities granted the taxcounterpart, it is advisable to independently verify the information in it with the data posted on the IFTS website. Some unscrupulous partners can forge a document.
Search by TIN - the most common wayconfirmation of the integrity of the partner. The official inspection portal has a special form. On the site of the Federal Tax Service, the TIN search is carried out online and takes a few minutes.
On the corresponding page, choose "Legal Entity" or "Individual Entrepreneur" / "Peasant (Farm)" (PF). " Next, the TIN itself is entered.
You can check the counterparty in the tax by sending a written request. Courts consider such an act as a manifestation of due diligence.
On the tax site, by checking the counterparty on the TIN, you can also get information:
From the site you can download and print an extract from the registry. It contains the following data:
The tax base for counterparties contains a complete list of information listed in the order of the Ministry of Finance No. 115n (December 5, 2013). The data is updated daily.
If the individual number of the payer is unknown, you can conduct a tax audit of the counterparty on the site by name.
As can be seen from the above information, it is not difficult to find a counterparty on the tax website. In addition, the portal provides the following information:
It should be said that some courtsadhere to the position that the discrepancy between the actual and legal addresses can not in itself be the basis for refusing the payer to provide deductions.
In order to obtain this information, it is necessary to study the files file on the BAC website. The database contains information about all arbitration cases, including the content of disputes.
To obtain information, you need touse a special form of search. In it there is a field "Participant of the case". You can enter a name, OGRN or TIN and click on the "Find" button. The system will issue a list of cases with procedural documents and information about the current stage of the process.
That there is no conflict with the taxinspection, the counterparty needs to know as much as possible. Make sure that the partner is not at any stage of bankruptcy can be in the register of data on the facts of the activities of legal entities. Here you can find other information. For example, in the register there are data on the value of assets of JSCs at the reporting date.
Information that the partner does notenforcement proceedings have been initiated, it is available on the FSSP portal. The site has a search form for the database. You can get information about both a legal entity and an entrepreneur.
Some courts indicate the need to confirm the existence of licenses for counterparties. Of course, the permit should be given to those entities that conduct licensed activities.
You can get information on the organ's website,issuing this document. It is worth saying that for each type of license it will be your own. For example, on the site of Rospotrebnadzor you can find information about licenses issued for activities in the sphere of using radiation sources.
The main normative act, which followsto be guided by the payer, is the PBU approved by the order of the Ministry of Finance No. 34. As indicated in the 89th paragraph of this Regulation, the annual reporting of the enterprise is an open document for all stakeholders. These include, in particular:
These persons have the right, on a legal basis, not only toread the annual accounts, but also make extracts from it or copies. In turn, the company is obligated to provide access to information to interested subjects.
Information on annual accounts is provided by organizations free of charge to Rosstat.
The potential counterparty, of course, may not participate in the procurement for municipal and state needs. However, the probability of this can not be ruled out.
Lawyers recommend checking the counterparty on the register of unscrupulous suppliers. This database is maintained and updated by the FAS.
Many courts consider it an obligatory stage for the recognition of the payer in good faith. If it does not pass, you can lose the case.
So, if the subject has received all the information anddocuments, but did not ascertain the authority of the person signing the contract on behalf of the counterparty, this will serve as a basis for recognizing the payer as dishonest.
In some cases during the proceedingsRepresentatives of counterparties refuse to sign their documents. In such situations, a graphological examination is assigned. Although the case may be resolved without it.
Nevertheless, many judicial instancesare of the opinion that a visual comparison of the paintings and the testimony of the payer's representative can not act as a sufficient basis for recognizing the fact that the papers were signed by improper persons.
Some courts recognize the payer as dishonest if the authorized representative of the partner has died or his powers have ceased by the time of signing the agreement.
Other courts believe that the latter case can not indicate the receipt of unreasonable benefit, if prior to the registration of the transaction its members were in long-term economic relations.
Before signing contracts and other important documents it is necessary to check:
We have already said a few words about him. Let us dwell on the query a little more.
The request is sent to the IFTS at the partner's registration address.
District Courts confirm the dutycontrol bodies to answer the request and provide information within the framework of information not related to tax secrecy (Article 102 of the Tax Code). At the same time, some instances emphasize that the refusal of the Tax Inspectorate to provide data affects the rights of the payer associated with obtaining a deduction.
Some courts in cases arethat the payer, having the opportunity to send a request to the inspection, does not do so. However, in practice, there are cases when instances come to the conclusion that the subject could not really apply to the inspection at the partner registration address because he does not have such authority (they have tax authorities).
As lawyers note, even if the payer willrefused to provide the requested information, the very fact of the appeal will be a proof of the manifestation of discretion. Specialists say that it is more expedient to transfer the application personally to the Tax Inspection or to send it by registered letter with notification. In the first case, there will be a copy of the request with a stamp of the supervisory authority on the application, and in the second there will be a notification that the request was received.
As can be seen from the foregoing, the positions of judicialinstances of the scope of activities necessary to verify the integrity of the partner, are very different. In normative acts, there is no list of actions to be taken by the payer to confirm his due diligence.
It is worth saying that the presence of any onethe sign of bad faith of the partner does not usually act as an obstacle to the recognition of the tax benefit as unreasonable. The set of criteria, in turn, often makes the supervisory bodies prick up their ears, and the courts - make decisions in favor of payers.
