FNS has told about how to avoid exit tax check
Federal tax service has developed for tax bearers new, twelfth criterion of an independent estimation of risks. The list of the bases for appointment of exit check has replenished with the list of schemes of business dealing with high tax risk.
Tatyana Shevtsov has told About new criterion and plans of tax service in legislation improvement deputy head FNS.
: the power initiative Recently has been sounded to give to the instalments companies on back taxes payment. Whom will it concern first of all?
Tatyana Shevtsov: Following the results of meeting at the president of the Russian Federation concerning tax policy perfection the decision on simplification of procedure of re-structuring of tax claims for last periods was accepted. Experience shows: Both for the budget, and this variant is more preferable to business, rather than bankruptcy by results of examination of tax departments. If this norm is legislatively fixed, the large companies in case of big tax donachisleny can avoid bankruptcy, and the budget will receive not paid sums of taxes, let and with instalments on time.
RG: And what for the tax service needed to enter the twelfth criterion of an independent estimation of risk? It is not enough of eleven?
Shevtsov: This publication FNS of Russia continues a policy of open dialogue with the tax bearers, directed on the prevention of tax infringement, instead of on application of fiscal measures. You know statistics: the service stage by stage reduces quantity of tax checks. The accent is displaced on informing of the tax bearer on possible risks, stimulation of voluntary refusal of use of illegal schemes. For this purpose also criteria have been created. The service purposefully and long enough went refusing total checks in favour of control in risk zones.
Quite often business undertakes risky decisions in hope to minimise taxes, however after a while in exchange receives large donachislenija, fines, penalties. And, if scheme application is proved, the penalty makes 40 percent from not paid sum of taxes and there is a criminal liability. We aspire to warn fulfilment of a tax offence, opening before the tax bearer main principles of examination and suggesting it to approach more meaningly to a choice business - decisions taking into account the information on risks of application of separate schemes.
Main aim - formation of a uniform legal and tax field, creation of equal conditions for all subjects of business, elimination of unreasonable competitive advantages which receive for the economy account on taxes the organisations applying illegal and “ Grey “ business dealing schemes.
RG: Tatyana Viktorovna, so in what an essence of new criterion?
Shevtsov: last year we have published 11 criteria of an independent estimation of risks which actually are criteria of selection of tax bearers for carrying out of exit checks. Thus, the tax bearer has had an opportunity for the first time independently to analyse results of economic activities from the point of view of tax control, to estimate tax risks and to take measures, to leave a zone of tax control.
In addition to already used criteria the Federal tax service creates the mechanism of open informing of tax bearers about risks of application of separate schemes of conducting financially - economic activities. The criterion and is called - “ Conducting financially - economic activities with high tax risk “. It and recommendations about its application are published on site FNS.
RG: On a basis of what information the new list is made?
Shevtsov: results of examination, experience of pre-judicial settlement of disputes with the tax bearers, the developed arbitration practice Are considered. And also signs of occurrence of the unreasonable tax benefit, designated in the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from 12. 10. 2006 N 53. Now the criterion included four schemes, but their quantity and the maintenance will be updated taking into account experience and arbitration practice.
RG: It is admissible, having familiarised with the list of schemes, the businessman has found similar to the business, what to it to do?
Shevtsov: we suggest to present to Such tax bearers the specified declarations, having put to them explanatories. They are necessary that the tax department has had an opportunity to consider the measures taken by the tax bearer on decrease in tax risks and, for example, to exclude it from the plan of checks.
it is necessary to understand that giving of the specified declaration is considered FNS as the tool of decrease or an exception of tax risks. That is such declaration will testify that the tax bearer, probably, has seen in the actions signs of occurrence of unreasonable tax benefit or any defects at documentary registration of the carried out operations. But presence of these signs does not carry system character or is not connected to receive unreasonable tax benefit intentionally. However, having arguments in favour of the conscientiousness, the tax bearer has preferred to exclude tax risks of such operations. Then it is quite logical to modify the doubtful sums and to carry out the specified calculation of tax obligations for the corresponding period.
RG: If the tax bearer will specify obligations, what it will give to it?
Shevtsov: tax departments consider the Fact of giving of such declaration in the course of selection of objects for carrying out of exit checks.
it is important that at carrying out kameralnyh with explanatories additional documents will not demand tax checks of the specified declarations from the payer. If kameralnaja check confirms that the specified declarations authentically reflect financially - economic activities, are not formal, it, as a rule, excludes probability of carrying out of exit tax check. And at observance of repayment terms the tax bearer is completely relieved from responsibility.
However, I will make a reservation, the fact of representation by the tax bearer of the specified declaration does not guarantee absolute refusal of actions of tax control in case of presence at tax department of the information on conducting activity with tax laws infringements. However in this case the decision on exit tax check is accepted only in coordination with FNS Russia.
By the way, for last year, it depends time has been published eleven criteria, tax bearers have presented 913 thousand specified declarations, and the sum of independently specified obligations has made 84 mlrd roubles. At the same time for all 2006 it has been presented 416 thousand declarations for the sum 18 mlrd roubles. The huge gain speaks about increase of tax discipline.
RG: And if the businessman has not dared to hand over the specified declaration?
Shevtsov: Certainly, the tax bearer has the right not to undertake any actions in connection with the publication 12 - go criterion. It can, but is not obliged to submit the specified declaration independently. However if during tax check there will be a fact in evidence of application any of the published schemes and signs of occurrence of unreasonable tax benefit are confirmed, tax departments will have an additional argument for qualification of actions of the tax bearer on minimisation of taxes as deliberate. After all FNS Russia has informed on tax risks of such actions. And it besides donachisleny taxes and a fine assumes penalty application in the double size and a possible criminal liability in connection with deliberate application of schemes of evasion from taxes.
RG: But it is possible to go on other way: a tax the specified declaration for the symbolical sum. Will work?
Shevtsov: Simple comparison of the data will show discrepancy. Information resources and software products which the service has, allow to compare the information from a large quantity of sources, to reveal both simple errors in calculations, and serious deliberate infringements of tax laws. Thus, the decision on giving of such declarations will do much harm more likely.
RG: Tatyana Viktorovna, you are not afraid that, publishing ready schemes, “ yield cards “ to unfair businessmen?
Shevtsov: We considered this argument and have come to a conclusion that are not present. The matter is that even not not informed about any “ schemes “ the tax bearer can at desire use services of advisers, auditors, to receive the information from accounting mass-media which regularly publish variants of minimisation of taxes. As they say, there would be a desire. The same who against application of doubtful schemes, will not use them.
RG: So what it, our Russian tax bearer? Malicious uklonist?
Shevtsov: tax laws Infringements are, them much. There is also the, “ Russian “ specificity of evasion from taxes: “ grey “ salaries, fictitious losses, firms - a something ephemeral. Physical persons frequently ignore the duty to declare incomes and etc. However with tax abusings tax administrations, perhaps, all states, irrespective of level of economy, tax and legal systems face.
Even in such countries as the USA, Germany, Great Britain, France where the tax laws are improved by decades, is openings for construction of schemes of minimisation of taxes. State structures of these countries apply a series of measures to struggle against aggressive tax planning of managing subjects both legislative, and administrative character. In Australia, Germany, Italy, Spain, Canada, the Netherlands, France, Sweden is accepted statutory acts about abusing the tax right. In Australia, Great Britain, Canada, the USA the norm demanding disclosing of the information under the certain list of transactions and schemes operates. It would be quite good to enter this norm and into Russia. In the Russian practice already there are the separate tools directed on struggle against inadmissible tax planning. But at the same time has ripened necessity to take the following step to struggle against abusings to sphere of the tax right.
Signs of occurrence of unreasonable tax benefit on 12 - mu to criterion:
- impossibility really to carry out the tax bearer of the specified operations taking into account time, the locations of property or volume of the material resources economically necessary for manufacture of the goods, performance of works or rendering of services;
- absence of necessary conditions for achievement of results of corresponding economic activities from - for absence administrative or technicians, the basic means, industrial actives, warehouse, vehicles;
- the account for the taxation only those economic operations which are directly connected with occurrence of tax benefit if for the given kind of activity fulfilment and the account of other economic operations also are required;
- fulfilment of operations with the goods which were not made or could not be made in the volume specified by the tax bearer in documents of accounting.
Details on site FNS - www. nalog. ru