New documents were invented by the tax authorities dossier on the counterparty. Papers that are dangerous to give to a counterparty

24.04.2020

Electronic journal

The approach of inspectors to tax audits has changed. Farms will be deprived of expenses and deductions due to an unscrupulous counterparty. Therefore, it is safer to collect a dossier on the counterparty before concluding an agreement.

Just an extract from the Unified State Register of Legal Entities is not enough. The editors have prepared a checklist for a full check of counterparties. It is not necessary to break through all the counterparties on this list in a row - each needs an individual approach. Details are below.

Important article:

What to ask the counterparty

Many companies have already developed a tradition of asking counterparties standard documents: charter, certificates of state registration and tax registration, an order to appoint its director, etc. This information really needs to be collected, but it is not enough.

Also ask for an extract from the Unified State Register of Legal Entities or download it for free on the website of the Federal Tax Service. Inspectors now make entries about inaccurate information about companies in the extract. We talked about this in more detail in No. 10, 2017, p. 65. Check if there are any such marks in the statement of your counterparty. If there is, find out what it is connected with and recommend clarifying the data. Only after that start cooperation.

Tax authorities now check companies for the availability of the necessary resources - production equipment, qualified personnel, experience. Pay attention to this too.

After all, even judges agree with the tax authorities that it is not enough to check only the legal status of the counterparty for the Unified State Register of Legal Entities for due diligence (decree Arbitration Court of the North-Western District of September 21, 2017 No. Ф07-9897 / 2017).

What documents in the dossier on the counterparty to issue independently

To request everything from the counterparty Required documents and do not miss anything, use the checklist. You can copy it and distribute it to managers or take a list of documents from the checklist and make a request for a new company. It is not necessary to check all counterparties according to this list.

Inspectors will not pay attention to minor and one-time contracts. It is better to spend time on counterparties with whom you enter into contracts for large sums.

Some experts mistakenly believe that the more documents about the counterparty the company collects, the better. But it's not. If the counterparty did not actually execute the transaction, bundles of papers will not help to save deductions and expenses. On the contrary, for inspectors it is a signal that the actions of the company and contractors are coordinated.

A checklist that will help you create a dossier on a counterparty

To make it clear to all employees how to work with future counterparties, approve the regulations.

Sample. Counterparty verification procedure

This document will be useful not only for the internal purposes of the company, but also for tax audit. After all, the Federal Tax Service advises tax authorities to find out who and how in the company chooses counterparties and concludes agreements with them (letter of the Federal Tax Service of Russia dated July 13, 2017 No. ED-4-2 / 13650).

But the regulation itself will not save the economy from the claims of inspectors. It is necessary to show the tax authorities that the company carried it out - it received and checked those documents and data on counterparties, formed a dossier on the counterparty.

Recently, the so-called “due diligence in choosing a counterparty” has become a very topical issue at the suggestion of the tax authorities. After the high-profile Decree of the Supreme Arbitration Court (http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=63894), this phrase is now known to almost every taxpayer. Although the concept itself is not defined anywhere, you will not find it either in tax legislation or in civil law.

What needs to be done, what documents to request from the counterparty and how to form such a dossier in order to prove such prudence in the event of claims from the tax authority or litigation.

Valid extract from the Unified State Register of Legal Entities (30 days)
Certificate of tax registration (TIN)
Certificate of state registration(OGRN)
Licenses or special permissions

Documents are requested in copies, certified by the signature of the head of the counterparty and the seal. They are filed in a folder (get a standard folder "Counterparties", broken down by each) and stored for 4-5 years (as well as accounting and tax documents).

If the agreement (contract) is signed not by the head ( executive body having the right to act without a power of attorney), then the authority will be confirmed by the original or a certified copy of the power of attorney. The power of attorney must indicate the validity period and authority of the signatory - check whether he has the right to conclude such a transaction.

Also, orders on the appointment of authorized persons or powers of attorney for the right to sign should be requested if the primary accounting documents (especially for invoices) are not signed by the CEO and Chief Accountant. The specific type of documents must be specified in the power of attorney. Filed in the same folder for the corresponding counterparty.

If the counterparty does not submit documents upon oral request, we advise you to request them by official letter with acknowledgment of receipt. Even if the counterparty does not respond (and he does not have such an obligation), then the dossier will contain a supporting paper. And you can check the registration and tax registration of the counterparty yourself using the services on the website of the Federal Tax Service.

In some cases, they try to request accounting and even tax reporting, as well as copies of passports of managers and chief accountants. However, your partner has every right to refuse to provide you with such information. Which is what happens most of the time. At the same time, if you yourself work with some large government customer, such a refusal on your part may adversely affect the outcome of negotiations and disrupt the planned deal.

We advise you not to collect all the information for everyone, but to cross out, for example, one-time suppliers or contractors. Set (by order for the company, for example) some minimum transaction amount for which you will collect a dossier on the counterparty, and so on. For example, one should probably not insist on providing all of the above documents from Gazprom. But the more documents from dubious suppliers, the better. If you see that the supplier is doubtful - request a copy of the passport of the head, chief accountant, financial statements for the last couple of reporting periods (with a tax mark of acceptance). For such suppliers, additional supporting documents can be attached - an extract from the visitor register, a copy of the car pass, i.e. additional evidence that representatives of the counterparty were present at the negotiations.

All of the above cannot give you a 100% guarantee that no claims will be brought against you by the tax authorities, but will give additional arguments in disputes with them, including in courts.

You can also use the service of the Federal Tax Service of the Russian Federation "Check yourself and the counterparty" http://egrul.nalog.ru/

On-line, you can find out if information about the counterparty has been entered into the Unified State Register of Legal Entities, mass addresses and other useful information.

Counterparties deliberately began to request piles of papers under the guise of due diligence. Information from documents is used to use company secrets or to lure valuable employees to themselves. The editors of the UNP, together with lawyers, compiled a list of documents that should not be distributed.

Copy of director's passport

Counterparties request a copy of the director's passport - usually a spread with a photo and a page with a residence permit. Partners want to make sure that the leader is real.

Giving out copies of your passport is dangerous. If a copy falls into the hands of fraudsters, they can, for example, issue a loan to the head. Therefore, managers do not agree to provide a copy of the passport. A document can be transferred only with the personal consent of the director ( paragraph 1 of Art. 6 federal law dated July 27, 2006 No. 152-FZ). Otherwise, Roskomnadzor will fine the company up to 75 thousand rubles. ( Part 2 Art. 13.11 Administrative Code).

In order not to argue with the counterparty, explain to him that he will be able to check the director using other documents. And the company is ready to provide them (see table). For example, the authority of the head will be confirmed by the decision on the appointment to the position and an extract from the company's charter. Also, the future partner can receive a free extract from the Unified State Register of Legal Entities using the TIN of the company and see information about the director in it.

What to offer the counterparty in exchange for the securities he wants to receive

Dangerous Document	replacement documents.
Copy of director's passport	Extract from the Unified State Register of Legal Entities Extract from the charter on powers Decision on the appointment of a director Certificate of non-disqualification
Employment contracts, diplomas, certificates of employees
SZV-M, certificate 2-NDFL	Help about average headcount Outstaffing agreement Extract from the staffing table 6-personal income tax
Bank card with samples of signatures and stamps	Decision on the appointment of a director Extract from the charter Power of attorney of the responsible officer
Dossier on the partner	Letter of guarantee from the counterparty A copy of the partner's decision to increase authorized capital
Lease contract	Landlord's letter of guarantee Extract from the rental agreement Extract from USRN Transfer-acceptance certificate Photos of buildings, warehouses, office space
Declarations (reporting)	Copy of the title page of declarations Receipt of acceptance of reporting to the IFTS Certificate of no debt to the budget Extracts from the book of purchases and sales on transactions with a counterparty
	Extract from USRN Financial statements A copy of the license by type of activity A copy of the permit of the self-regulatory organization Transfer and acceptance certificates No. OS-1, OS-1a, OS-1b Invoice for the internal movement of fixed assets (form No. OS-2)

SZV-M and 2-NDFL

Counterparties are interested labor resources companies. After all, if they are not there or not enough, then it is risky to conclude an agreement - the inspectors recognize the deal as fictitious. This means that the counterparty will be charged expenses and VAT deductions.

To protect themselves, future customers are asked to provide SZV-M or income statements of employees. So contractors want to make sure that the company has the right number of employees, the organization pays them, transfers contributions and personal income tax for them. So the employees are really working. But do not rush to fulfill the request of the counterparty.

The reports contain personal data of employees - full name, SNILS and TIN, as well as information about salaries. By law, in order to transfer this information to a partner, the company must obtain the consent of each employee (Art. 6 , 7 Law No. 152-FZ). Otherwise, Roskomnadzor will issue a fine of 75 thousand rubles to the company, and 20 thousand rubles to the director or chief accountant. ( Part 2 Art. 13.11 Administrative Code).

Explain to the counterparty that taking written consent from each employee to provide their data to a particular company is a laborious task. Especially if there will be many employees involved in the execution of the contract. Offer the counterparty a replacement document instead of SZV-M. For example, a certificate of the average number or 6-personal income tax.

According to these documents, he will check the number of employees and their salaries, but the data will be for the whole company, and not for individual employees. 6-NDFL - quarterly reporting, so you can give up-to-date information.

Employment contracts

Future customers to check the counterparty request information about its employees. For example, their employment contracts, diplomas, certificates, personal and contact details. Customers want to make sure that the company will perform the work professionally. But usually they are not interested in ordinary specialists, but highly qualified ones. It is dangerous to share information about them.

Employers are familiar with such a technique as " hunting". Competitors poach valuable employees from each other. It is possible that the real goal of the negotiations is not a deal, but a dishonest acquisition of experienced specialists.

The imaginary customer will find out the conditions under which your employee is employed and offer him the best salary, social package or a convenient schedule. Therefore, you should not provide the counterparty with the contact details of employees.

It is impossible to prohibit your specialists from working for a competitor even after they leave the company ( letter of the Ministry of Labor of October 19, 2017 No. 14-2 / V-942). If you write down such a prohibition in your employment contract, you violate the constitutional rights of workers. And for this, a fine of 50 thousand rubles is possible. ( Part 1 Art. 5.27 Administrative Code).

In order not to fulfill the counterparty's request, refer to the confidentiality of personal data, due to which you cannot give papers ( Art. 7 Law No. 152-FZ). But if the partner is persistent, then sign an agreement with him on the prohibition of poaching employees from each other - " non-solicitation agreement».

Reflect in the document the condition of compensation. If the future counterparty violates the contract, then the company will at least have money for the expensive selection of a replacement for a key employee.

Dossier on partners

Tax authorities check transactions involving interdependent partners of the third or fourth link. If the inspectors find a connection with a one-day trip, they remove the costs and VAT deductions. Companies do not want to take risks and ask for securities for counterparties of their direct supplier. For example, letters of recommendation or a dossier on a partner.

The counterparty may turn out to be a dishonest competitor. It is possible that he will bypass the company and conclude deals with its suppliers directly. It is impossible to prohibit the counterparty from doing this. The company will lose profit. Therefore, it is safer not to disclose unnecessary information about yourself and your partners.

Provide the counterparty with a letter of guarantee stating that the company and your partners are real organizations (see UNP No. 7, 2018). Promise in the contract to compensate for property losses if, through your fault, the counterparty loses VAT deductions. With such a document, the future partner should have no doubts about your integrity.

Lease contract

Inspectors recognize the transaction as fictitious if they do not find a company by legal address. In this case, both partners are at risk. It is logical if the counterparty asks for a lease agreement. But you should not make concessions, it is dangerous to give information about the landlord.

A contract is an agreement between partners, each of which assumes obligations ( Art. 420 GK). In this case, the parties have the right to set prices, terms and other conditions. Disclosing this information to outsiders, including other counterparties, is risky. After all, the company discloses not only its own, but also someone else's trade secret (sub. 4 p. 2 art. 6.1 of Federal Law No. 98-FZ dated July 29, 2004). Because of this, the landlord may suffer losses and go to court to recover them from the culprit.

There are also tax risks. The counterparty on inspection can transfer your contract with the landlord to the inspectors as proof of their own discretion. If the rent payments are below market rates, then the tax authorities may be interested in your deal. Then both the company and the landlord will be included in the list of candidates for verification. The tax authorities will start looking for schemes from you.

Instead of a lease agreement, submit a letter to the counterparty. Ask your landlord in advance. Let him confirm that he is the owner and rents the office to you for a long time. This will convince the counterparty that the company is real and will fulfill the obligations under the transaction.

For a partner, you can make an extract from the lease agreement for some items. Write down the address details and a condition on the prohibition of disclosing the terms of the transaction to other organizations. Certify the statement not only with your signature, but also with the signature of the landlord. This should convince the counterparty of the accuracy of the address.

VAT declaration

The company transfers information from the purchase and sales book to the VAT return. Therefore, the reporting shows all information about the sale of goods, works or services, as well as the company's expenses for its own consumption. Therefore, the VAT declaration should not be disclosed even to trusted counterparties.

From section 8, the partner can learn about suppliers, the amounts and dates of their deliveries, and from section 9 - information about buyers. This information can be used for personal gain. For example, to lure regular customers.

In order not to disclose all reporting, give the counterparty only title page and section 1, which reflects the total amount of VAT for the period. If he requires a declaration in in full justify your refusal.

The arguments are like this. Firstly, the reporting contains information that is classified as a trade secret. Secondly, the declaration includes data on transactions of previous periods, when there were no transactions with the counterparty yet. Therefore, old declarations cannot be a guarantee of VAT deduction from the counterparty.

Instead of a declaration, you can send a receipt to the counterparty about its acceptance by the inspection. This will confirm that you are submitting your tax returns on time.

Turnover balance sheet for account 01

Counterparties want to be sure that the company has sufficient material base to execute the transaction. Therefore, future partners require to show how much the organization has machines, equipment, real estate, etc.

Information about the company's assets is reflected in the registers on account 01 "Fixed assets". But the company can lease the property and take it off the balance sheet. Leased assets are also reflected if they are listed on the balance sheet of the lessor before redemption. In addition, the accounting department does not want to present to the counterparty balance sheets. Accounting registers are not excluded from trade secrets (Art. 4 , 5 Law No. 98-FZ).

Provide the counterparty with a certificate of availability of only those fixed assets that will be needed to complete the work on the transaction. Otherwise, the partner will not appreciate your capabilities. There is a risk that he will choose a competitor.

What documents can be given to the counterparty without risk

Extract from the charter (memorandum of association)

Extract from the Unified State Register of Legal Entities

Extract from USRN

A copy of the certificate of state registration (OGRN)

A copy of the certificate of registration with the IFTS

Notice of registration with the FIU

Powers of attorney of responsible employees who sign documents

Certificate of the IFTS on the absence of the director in the register of disqualified persons

Decision on the appointment of the CEO

Certificate of no debt to the budget

Copies of activity licenses

Balance sheet as of the last reporting date

Report on financial results behind Last year

Copies of permits in the SRO

Copies of receipts for electronic change reporting

Information about the average number of employees

Letter of guarantee on the availability of resources for the execution of the transaction

Information about the presence / absence of the site

Ideal refusal in case the counterparty requires extra documents

What is the problem: contractors are overly cautious when choosing a partner and ask for documents with company secrets. You can refuse to give papers, but not break off relations with the counterparty.

Counterparties began to carefully check partners before a deal in order to protect themselves from claims from the inspection. Therefore, buyers ask for piles of papers. Moreover, they are even interested in those documents that contain commercial, banking and tax secrets. Companies are faced with a choice: to give information to a counterparty or to refuse secret information.

Refusal can derail the deal, especially if the order is large and the company has many competitors. Therefore, it is worthwhile to delicately respond to the counterparty's request in order to maintain a reputation and not declassify information about yourself. Lawyers offer different ways.

One option is to compromise on the principle of reciprocity. That is, the company gives the counterparty exactly as many documents as he submitted himself.

It is dangerous to hand out papers to partners that contain company secrets.

Another option is to make a dossier on yourself in advance. Explain to counterparties that you provide the same information to everyone and do not create special conditions. That is, you operate on the principle of pure competition. This will give the company credibility and convince the counterparty of your integrity.

If the counterparty insists, write him a reasoned refusal. Explain the reason why you do not give the paper. In the text, refer to the laws that prohibit the disclosure of secrets. For example, if the counterparty asks for a copy of the director's passport or SZV-M, then refer to the requirements for the protection of personal data ( Art. 6 Federal Law No. 152-FZ dated July 27, 2006). From the letter, the counterparty must understand that it is impossible to disclose SZV-M without the consent of the company's employees, and obtaining it is a laborious task.

If the counterparty requests a lease agreement, information about the lessors of offices, buildings, warehouses or other premises, then this is a commercial secret ( paragraph 2 of Art. 3 Federal Law No. 98-FZ dated July 29, 2004). Therefore, you can give this information only with the consent of the partners. How to write an answer, we showed on the sample.

Reasons for refusal Argument the refusal with references to laws. This will convince the counterparty that the company deliberately does not hide anything, but only complies with the mandatory requirements. Documents on requestIt is safer to present documents that do not contain secret data to the counterparty. Otherwise, he will consider that the company is not interested in the deal, and will turn to competitors.

Do not fulfill dangerous requests of contractors

What is the danger: counterparties deliberately ask to deviate from the terms of the transaction in order to benefit. The editors of the UNP found out which requests it is better to refuse a partner.

All terms and conditions of the transaction are specified in the contract. It is not necessary to fulfill the rest of the counterparty's desires, and sometimes it is completely dangerous.

Pay off a debt to another creditor

The company risks if it pays for the goods by paying off the supplier's debt to his creditors. Especially when such a condition is not in the contract.

If the deal with the counterparty fails, then it will be difficult to return the money from someone else's creditor even through the courts. The companies are denied the claim. The judges decide that the creditor is not obliged to check the intentions of the one who repays the debt for his supplier ( determination of the Supreme Arbitration Court dated June 23, 2014 No. VAC-7103/14).

: explain that the company is not obliged to transfer money to an unknown creditor if there are no conditions in the contract. But if you are afraid of losing a partner, compromise.

Ask the counterparty for an official letter, where he personally asks to transfer money for your delivery to creditors. The letter must contain the amount of payment, the details of your contract, act, invoice for the supply of goods. The information is necessary to prove that the supplier asked you to transfer the payment for the goods, but not to him, but immediately to the creditor.

Break one shipment into several smaller ones

Counterparties ask to conduct one large transaction according to the documents as several small ones. For example, to stretch the delivery for two, three, or even four quarters, but only on paper. But in fact, they want to get all the goods at once. Most often, such requests are made budget organizations. They can buy from sole supplier if the contract price is not more than 100 thousand rubles. ( p. 4 h. 1 art. 93 of the Federal Law of 05.04.2013 No. 44-FZ). Therefore, they ask to split the deal, but the goods are taken away immediately, and the documents are signed only in part.

If there is a dispute over payment, it will not be possible to recapture the cost of the entire delivery in court ( Decree of the Arbitration Court of the Moscow District dated December 13, 2017 No. Ф05-18005/2017).

There are also tax risks. If inspectors take inventory and find no goods, they can accuse the company of hiding revenue. This means that there is a risk of additional charges of income tax and VAT.

How to refuse a request to a counterparty: explain to him - the FAS can prove that the transaction is over 100 thousand rubles. Then the director of the counterparty will be fined for violating the rules of contract procurement ( FAS letter dated April 25, 2017 No. RP/27902/17, Part 2.1 of Art. 7.29 Administrative Code).

Change document dates to earlier

For example, the counterparty asked to change the date from April to March. If you use simplification, there are no risks. The company determines income on a cash basis, and the date in the act does not affect income ( paragraph 2 of Art. 346.17 NK). On general mode the company will need to adjust the amount of VAT and income tax. And this is extra work for the chief accountant.

changing dates to another reporting period may raise suspicion of falsification of documents. Tax authorities can deprive the counterparty of expenses and deductions.

Transfer old debts to a new organization

If the counterparty closes the LLC every three years and asks to transfer the debts to the successor, then there is a risk that the debts will not be returned. This is what organizations that hide from audits do. So, the counterparty is not respectable.

In the event of an audit, the tax authorities will have claims against you. For example, if you write off debts as bad. The inspectors will ask why you have lost the right to collect the debt, and will check the counterparty itself. If the arguments are unconvincing, then the inspectors will charge additional taxes ( Decree of the Arbitration Court of the Volga District dated December 1, 2017 No. Ф06-27193/2017).

How to refuse a request to a counterparty: send a claim to the counterparty demanding payment. If he doesn't answer, go to court.

Issue a corrected invoice instead of a corrective invoice

It is dangerous to change a corrective invoice to a corrected one. Even if it is a request from a trusted counterparty.

Both counterparties on adjustment invoices have the right to declare a deduction, but only in different cases: the supplier - when the price is reduced, and the buyer - when the price is increased. Since the wrong invoice was drawn up, the tax authorities may decide that there are no grounds for a deduction. In addition, inspectors will charge a fine for gross errors in accounting.

How to refuse a request to a counterparty: send a letter to the counterparty explaining the risks for both parties. When prices change, create an adjustment invoice. But if the counterparty is not satisfied with this document, then accompany each corrected invoice with a letter stating that there was an error in the original document. In this case, do not draw up an agreement to change the delivery price.

Real Stories: How Excessive Openness Has Hurt Companies

What is the danger: contractors use company secrets to benefit.

Competitors and scammers obtain information about companies to use for personal gain. We learned real stories how organizations have suffered due to the fact that they gave too much information about themselves.

UNP Council: it is dangerous to distribute personal contacts of employees, they can be poached by competitors. Therefore, place only corporate details on business cards, flyers. And with leading competitors, agree that you will not poach employees from each other.

UNP Council: keep information about transactions with clients secret, otherwise you will lose them. Competitors engage in unfair competition. They use information from contracts and account statements. For example, to send out your commercial offer.

UNP Council: make sure that your own company dossier does not contain personal information of employees. The data is used by scammers, for example, to issue loans, open a one-day business.

UNP Council: account information is a banking secret that is dangerous to disclose to partners ( Art. 26 of the Federal Law of December 2, 1990 No. 395-1). If the counterparty asks to confirm that the company will be able to complete the transaction, give him a replacement document. Eg, balance sheet or a guarantee.

Why signature examination is not enough for additional charges

The Federal Tax Service of Russia has issued a letter in which it orients the tax authorities to avoid additional charges for formal violations and check transactions for reality. What to expect from tax audits and how to prove it now due diligence, - in the article for "BUSINESS Online" from partners law firm ANP "Zenith" Guzel Valeeva and Yulia Zazdravnaya.

Photo: ©Natalia Seliverstova, RIA Novosti

EVERY YEAR TAXPAYERS WIN IN THE COURTS EVERY LESS

Thus, in 2016, more than 80% of cases were considered in favor of the tax authorities.

Why is this happening?

Reason #1. Increasing the technical equipment of the tax authorities, which makes it possible to quickly identify suspicious transactions and collect an evidence base, as well as improving the skills of tax inspectorate employees.

Reason number 2. Ignoring by local courts of the legal positions formed by the Supreme Arbitration Court of the Russian Federation (after the abolition of the latter); pro-budget bias of judicial decisions.

Reason number 3. The passive position of the taxpayers themselves (“the tax authority did not prove”, “we should not be responsible for the supplier”, “we have invoices and invoices, more tax code does not require") .

Disputes about unjustified tax benefits remain the most numerous and complex in tax law. Difficult, first of all, because there are no clear criteria - when the tax benefit is justified and when it is not; and how an entrepreneur should check his counterparty so as not to be responsible for him later.

The criteria formulated by the Supreme Arbitration Court of the Russian Federation more than 10 years ago (the famous Decree No. 53 on unjustified tax benefits), revolutionary for their time, require serious revision and clarification. Legislative initiatives taken on this issue have not yet materialized.

And recently, the Federal Tax Service of Russia issued a letter where it told the tax authorities how to identify and prove this notorious unreasonable tax benefit. The key and, I must say, very important conclusions for taxpayers are the following.

CONCLUSION 1. A DEFECT IN SIGNATURES IS NOT YET A REASON FOR ADDITIONAL CHARGES

The tax authorities must prove that the counterparty is under the control of the taxpayer himself and / or the unreality of the transaction, and not be limited to the interrogation of the director and the examination of the signature. An extremely important postulate for entrepreneurs.

A case from our practice. Construction company signed a contract with a subcontractor - a living company, I personally know the director and chief accountant. The work was completed, documents received. What was the surprise of the taxpayer when desk audit it turned out that the subcontractor did not pay VAT to the budget. As it turned out, the company is sitting on a simplified taxation system. During the interrogation, the director confirmed the completion of the work, but did not recognize his signature on the invoice. And on this basis, the companies refused to deduct VAT.

And the court supported the tax authorities. Even the handwriting examination initiated by the company, which showed that the signature on the invoice belongs to the director, did not convince the court. By the way, as soon as we prepared a complaint against the director to law enforcement agencies and sent its draft to a negligent contractor, the next day the amount of VAT was returned to the company's account.

CONCLUSION 2. IN THE REALITY OF SUPPLY, ADDITIONAL CHARGES ARE ILLEGAL

This approach is formulated on the basis of an analysis of recent cases considered by Supreme Court RF.

Case "Centrregionugol". In 2011-2012, the company purchased scarce SSPK coal from the reseller Terminal, which had no personnel, production assets, storage facilities and transport. At the same time, Kuzbassrazrezugol, the only coal producer, denied that it shipped fuel to Terminal or related companies.

In favor of the reality of the delivery, the testimony of a representative of the "Terminal" by proxy and an employee of the coal carrier company spoke. In addition, the purchase price of SSPK brand coal from the Terminal company corresponded to the market level.

The Supreme Court of the Russian Federation supported the company, pointing out the reality of the operations and the absence of signs of a formal document flow.

The Moscow City case. Management Company of the business center "Moscow City" hired special companies to clean the territory and apply markings in the parking lot. The tax authorities doubted the reality of the operations. According to the Federal Tax Service, the companies did not have fixed assets, 2-NDFL certificates for employees were not submitted, and funds were cashed out through one-day firms. Examination of the signatures showed that source documents signed by unidentified persons.

Courts of two instances supported the company. The reality of the work was confirmed by the testimony of the heads of contractors and tenants of the business center, who confirmed the performance of the controversial work; as well as photographic materials indicating the presence of the old parking markings, the work on its demarcation and the application of new parking markings. The conclusion of the contract for the cleaning of the territory was coordinated by the prefecture of the district of the city of Moscow.

Both companies were active - their staff consisted of employees who were paid according to the current account wage, companies performed similar work for a number of other large organizations, including under government contracts.

It is noteworthy that when the taxpayer was held administratively liable, the amounts of fines paid were recovered from the disputed counterparty. He was also sent to execute the submissions of the relevant authorities on the elimination of violations committed during the maintenance (cleaning) of the territory of the business center.

Despite such weighty arguments in favor of the reality of transactions, the cassation supported the tax authority. But the Supreme Court of the Russian Federation canceled the decision of cassation.

What can be done conclusion- more needs to be paid O Greater attention to the collection and storage of evidence of the reality of operations. No, we are not talking about contracts, invoices, waybills and other primary documents - the existence and reliability of these documents is assumed.

When it comes to the supply of goods (materials, equipment), the reality of the operation will be supported by evidence of transportation ( waybills, waybills, railway waybills, etc.), registration, storage and further use.

When performing work - evidence that the counterparty has qualified specialists, equipment for the performance of work; coordinating the candidacy of the subcontractor with the customer of the work; fixing the entry of equipment, specialists of the subcontractor to the construction site.

When providing services - detailed reports, the results of services (models, drawings, presentations, photographs), evidence of the use of the results of services in the company's activities.

CONCLUSION 3. CHARTER ONE WILL NOT SAVE

The department did not bypass the issue of checking counterparties. So, new criteria for checking counterparties were announced, which, without a shadow of a doubt, taxpayers need to adopt.

In addition to the standard package of documents (Charter, decision on creation, extract from the Unified State Register of Legal Entities, etc.), it is necessary to support the dossier on the counterparty with the following papers:

documents fixing the results of the search, monitoring and selection of a counterparty;
source of information about the counterparty (website, promotional materials, offer for cooperation, information about the previously performed work of the counterparty);
the results of monitoring the market for relevant goods (works, services), studying and evaluating potential counterparties;
documented justification for the choice of a particular counterparty (fixed procedure for monitoring the selection and risk assessment, the procedure for conducting a tender, etc.);
business correspondence.

Circumstances such as:

lack of documentary confirmation of the powers of the head of the company - counterparty, copies of a document proving his identity;
lack of information about the actual location of the counterparty's office, warehouse, production, retail space;
lack of personal contacts with the management of the counterparty when discussing the terms of supply, as well as when signing contracts;
lack of information about the method of obtaining information about the counterparty (there is no advertising in the media, recommendations of partners or other persons, the counterparty's website, etc.). The situation is aggravated if there is available information about other market participants of identical goods (including those offering goods at more than low prices);
lack of a license, SRO certificate of admission to a certain type of work (when required).

As you can see, the work of the taxpayers will increase. Even now, at large enterprises, where the number of counterparties is in the thousands, entire departments are engaged in checking the reliability of counterparties.

What are the consequences of such arrangements? Those who can afford it simply refuse to work with young, small companies: it is too expensive to support a small and medium business in the country.

A little positive is added by the following conclusion of the Federal Tax Service.

CONCLUSION 4. ONLY THE FIRST LINK IN THE CHAIN OF CONTRACTORS SHOULD BE CHECKED

With a caveat - that it is it that provides the service / performs the work (and does not subcontract).

In this case, the dishonesty of the counterparties of the second and subsequent links in the transfer chain Money can not be an independent basis for additional charges.

What we are seeing now is that companies receive "letters of happiness" from the tax authorities, from which they learn that "supplier of the supplier who delivers the goods to your supplier(you can continue indefinitely) didn't pay taxes". With advice "specify tax liabilities» , otherwise wait for an on-site tax audit.

And such threats are being implemented.

Case from our practice. The tax authority held "oncoming meetings", interrogated the head of the supplier. The counterparty presented the documents, the director confirmed: they worked. But the inspector asks for statements from the settlement accounts of counterparties up to the seventh generation and draws beautiful diagrams with arrows in the act, concluding that the money was actually cashed out.

The indignation and question of entrepreneurs is quite reasonable - how can a company check to whom its supplier transfers money there? If even during a tax audit and in court, the tax authorities are not willing to show bank statements of counterparties (citing only excerpts, referring to tax secrecy) ...

One has only to recall that very soon (more precisely, by 07/25/2017) on the website of the Federal Tax Service, information on the average number of employees, on the amount of taxes paid, on the amount of income and expenses according to financial statements, as well as on the amount of additional taxes, penalties, fines. All these data are derived from the concept of "tax secrecy".

How this will affect the business community - time will tell.

I would like to believe that the approaches of the Federal Tax Service will be accepted tax authorities and local courts, and the number of formal, far-fetched nit-picking and illegal additional charges will decrease. What definitely should not be expected is a weakening of control by the tax authorities.

This means that it is necessary to assess tax risks, check the reliability of counterparties and collect evidence of reality at the stage of planning and implementing transactions. Well, if the matter has gone to court, take an active position, not hoping that the court will figure everything out on its own.

Guzel Valeeva, Julia Zazdravnaya

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Deputy Team Leader internal audit, control and methodology

In the face of tightening tax control you can not approach the verification of counterparties formally. If you request only an extract from the register, the charter and an order for the head, the risks remain. You need to collect a whole dossier on the counterparty. That is, the approach to checking partners should change dramatically.

The main reason is the sensational amendments to the Tax Code, introduced by Law No. 163-FZ. Since August 19, Article 54.1 has been in force, which prohibited tax schemes. The tax authorities now pay all attention to the reality of the transaction, and not to shortcomings in the "primary". To protect against tax claims, it is now important to prove that the counterparty was able to fulfill its obligations, and the company was convinced of the counterparty's reliability, that is, it showed due diligence - the counterparty was checked from and to, after a thorough investigation. In fact, now you need to collect a complete dossier on the supplier or contractor.

There is no special and universal procedure for checking the counterparty for good faith in nature. Therefore, we have prepared step by step instructions, with which you can check the counterparty before concluding an agreement. The more sources - external and internal - will be involved, the better the result of the verification of the contractor (supplier) will be and the higher the chances of protecting the company from additional taxes.

Why the chief accountant should not check counterparties

Until recently, many companies did not bother to check the counterparty. And in those who tried to protect themselves from dubious connections, most often the check was assigned to the chief accountant. For obvious reasons, such a check does not stand up to criticism, since accountants regard the new obligation as an additional burden, most often they check the counterparty formally, “for show”.

Counterparty verification algorithm

Step number 1. Check the counterparty on official websites on the Internet

You can start checking the reliability of a counterparty with public resources on the Internet. Thanks to them, you can find out very interesting details about a potential partner for free and quickly.

Download the extract, check the address and the director for "mass character", find out about the disqualification of the director of the counterparty, check the availability tax debts you can on the website of the Federal Tax Service egrul.nalog.ru. Alarm bells:
- in the Unified State Register of Legal Entities there is a note about the disqualification and unreliability of information about the head;
- the company often moves from one address to another or is registered at a bulk address.
Check Availability lawsuits for a counterparty, participation in litigation- on the site kad.arbitr.ru. It is especially dangerous if the future counterparty abandons the case after the first instance, files a lawsuit and does not come to court, this is suspicious. This is how one-day people who want to create evidence of real activity can act. It’s bad if a potential partner went through tax disputes, and the judges recognized him as unreliable.
Check the presence of debts that are already being collected in court, the site allows Federal Service bailiffs: fssprus.ru .
"Punch" the counterparty in the register of unscrupulous suppliers on the site unified system procurement rnp.fas.gov.ru .
Checking the validity of the director's passport, work permits and patents for foreigners - information services of the Main Directorate for Migration of the Ministry of Internal Affairs of Russia services.guvm.mvd.rf.

Regulations on the verification of counterparties

In order to unify the procedures and methods for checking counterparties, it is advisable to develop and approve a single internal normative act- Regulations on the verification of counterparties (rather than issuing orders to verify each time a new potential partner appears). In particular, it contains a list of documents that responsible persons must request from potential partners before concluding a particular transaction. The regulation discloses the information to be collected and analyzed, the procedure for obtaining it and the method of processing. The document is approved by the director and brought to the attention of the responsible employees against signature.

Step number 2. Study the counterparty's website, advertising and reviews on the Internet

In addition to official resources, you should definitely look at the website of the future counterparty. But you should not trust all the information on it. Therefore, check customer reviews about the supplier on thematic sites, in the media. Good to know opinions former employees who know the company from the inside (see employer reviews on the Internet).

What should be of concern? The company does not have a website, a broken page on the Internet, outdated information. Also a worrying sign is the lack of advertising and feedback from customers and employees.

Step number 3. Pay a visit to the counterparty

Ideally, of course, one should try to inspect not only the office, but also production facilities, as well as warehouses future counterparty. Even better - if you manage to take pictures of the office inside and outside, production, goods in the warehouse, car park, etc. It is important to keep all passes to the office and warehouse (including car passage) - he will prove that the management or representative companies met with the counterparty prior to the conclusion of the transaction.

What should be of concern? The counterparty refuses to show office space and warehouses. It is also suspicious if the company does not have its own warehouses and vehicles for transporting goods, although the counterparty positions itself as a direct supplier.

Step number 4. Meet in person with the management of the counterparty

Before concluding a deal, it is imperative to personally meet with the CEO of the company or an authorized representative of the counterparty - in the office or on a neutral territory (restaurant, conference, business breakfast, etc.).

First, ask to show your passport and power of attorney (if the business is handled by a representative of the company). Secondly, it would be useful to take a joint photo with the director of the future partner.

What should be of concern? The counterparty works only through a representative, and all documents are signed by an employee with a power of attorney. The CEO himself does not communicate with anyone.

Step number 5. Request documents from the counterparty

Before the transaction, the following documents (certified copies) must be requested from the supplier:

charter;
an order appointing a director;
powers of attorney for representatives;
passport of the head and representatives (additionally - written consent to the processing of personal data);
tax returns, balance sheet;
licenses and certificates (if the activity is subject to licensing or a special permit must be obtained for it).

It is also worth asking for a certificate of the actual address and information about property and personnel.

Important!

On the one hand, you need to check the reporting of the counterparty. On the other hand, the counterparty is not obliged to provide information. If he does not agree, it makes sense to ask for a written waiver. Accounting statements you can get it yourself - order it on the statistics website gks.ru > "Provision of data for annual accounting (financial) statements ...".

What should be of concern? Future counterparties are reluctant to provide information about themselves. In most cases, they refer to trade secrets or personal data of employees. But many of the information that is needed for verification is not considered a secret. For example, information about the composition of employees, about those who have the right to act on behalf of the company without a power of attorney, about permission for a specific type of activity, etc. “Secret” information can be provided under a non-disclosure obligation. Even if they refuse to provide documents under such conditions, it is risky to conclude a deal. If the supplier or buyer completely closes and refuses to transfer any information about themselves, it is better not to work with such dubious counterparties.

What to look for in counterparty reporting

Just getting documents from the counterparty is only half the battle. For a full check, it is necessary to evaluate the information contained in them. In particular, go over the appointment criteria on-site inspections. They are given in the order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06 / 333@. Among them, for example, an increase in the share of expenses, wages below the industry average, a decrease in profitability and low the tax burden, share tax deductions exceeds the allowed values.

Step number 6. Check through the IFTS

Checking the counterparty in the tax office will help to make sure that the future partner is trustworthy. In the IFTS, you can check the counterparty for the payment of taxes, request data on the amount of debts, the number of staff of the counterparty. This data is not a tax secret. Also, the tax authorities can report whether the counterparty reports and pays taxes on time. On your own, on the website https://service.nalog.ru/zd.do you can get information about the presence of tax debts over 1000 rubles. and information about outstanding reporting for more than 1 year.

Important!

IFTS may refuse to provide information. But the company will have a request and a negative response from the inspection in its hands. Correspondence with the tax authorities also serves as a confirmation of prudence.

You can appoint an employee who will be responsible for checking counterparties. He will produce a report on the results of the supplier reliability analysis. This invaluable document will serve as indisputable evidence that the company has complied with all the requirements of the due diligence law.

***

Checking the integrity of counterparties is the standard of our work in the provision of accounting outsourcing services. Our verification methodology reduces the risk of tax liability for contractors.

In addition, our company has a wealth of experience in handling complex transactions. Therefore, we will be happy to help document the reasons for choosing a counterparty.

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