Inspectors “shared” new tax evasion schemes. Tax optimization - basic methods (schemes, methods) Tax evasion schemes using individual entrepreneurs

A set of measures aimed at reducing tax liabilities by using one of the available methods (schemes, methods) by the taxpayer. All actions related to optimization of the tax burden must not contradict the law.

Goals and types

The main goals of existing methods of tax optimization are:

• Reducing the amount of taxation.
• Reducing penalties to a minimum.
• Elimination of tax risks in the process of activity.
• Maximum deferment of tax payments and their transfer to a later date.

The main schemes for optimizing the tax burden include::

• Take action based on tax types.
• Optimization by categories of tax payers (LLC, individual entrepreneur).
• Tax treatment taking into account the type of organization - insurers, banks and others.

The most popular method of tax optimization is the use of preferential tax reduction systems. But this scheme is far from the only one. With the right approach, any company can resort to a number of other methods, including splitting the business, obtaining the services of an individual entrepreneur, applying tax benefits, and others.

Popular methods (schemes, methods) of tax optimization

Applying the correct tax regimes

The simplest way to optimize the tax burden is to apply the correct tax regimes.

This option works in the case when the company has buyers without the need for VAT (individual entrepreneurs on the “average” market). To implement this scheme, you can do the following:

• Create a company on UTII or simplified tax system.
• Separate implementation flows.
• Involve IP in the work on PSN.

In this case, all agreements with clients who do not require VAT are transferred to another entrepreneur or legal entity. As for the main company, it retains contracts with buyers and wholesale clients requiring VAT. When implementing this method, it is worth remembering that every year the constituent entities of the Russian Federation adopt new laws or make changes to existing norms regarding the reduction of rates for certain work.

Tolling

An equally popular tax optimization scheme is tolling. The peculiarity of the method is that it is based on the use of customer-supplied materials. The gist of it is the following. The processing organization receives materials from the other party (customer). With their help, production of products is organized. The main feature is that there is no need to pay for the goods immediately after receipt. Payments are made in finished products or by returning materials in the same volume.

The tax rate depends on the region in which the company operates. In some areas, the percentage is almost halved. At the same time, the right to reduce tax payments due to the payment of insurance premiums remains unchanged. For example, in the Tula region the tax rate can be reduced in this way to 1.5%.

This scheme can be implemented in another way - through the transfer of assets of a production nature to a company operating on an average basis. This is done through the division or separation of an LLC. If you have decent income, you can go the other way - write an application to the Federal Tax Service and switch to the simplified tax system.

What about using this tax optimization method for clients who need VAT? In such a situation, a company is opened on a general form of taxation, which undertakes the purchase of raw materials. It is to this that transportation costs, as well as other costs, including VAT, are transferred. As soon as the “intermediate” company buys the raw material, it is transferred for processing. The finished product is transferred to the company at the OCH, which is sold to the end consumer. It turns out that VAT is “tied” to an organization operating on a common form.

Tax optimization through business division

Another way of tax optimization is business division (fragmentation). Despite its effectiveness, such a scheme is very risky and requires a careful approach from the performer. The method has gained popularity due to tax savings, the use of the simplified tax system or UTII, a reduction in insurance payments and the volume of personal income tax.

Annotation: Anyone who uses factoring in their daily business activities needs to be especially vigilant, since factoring is also used by unscrupulous taxpayers for their illegal interests.

...Soviet people laugh

Above everything that is mediocre and stupid.

S.Ya. Marshak, “Secret Humor.”

Factoring as a tax avoidance scheme?

Medvedev A.N.,

Member of the Chamber of Tax Consultants, Ph.D.

It is well known that almost any tool has several areas of application. At the same time, responsibility for what exactly a specific tool is used for is borne not by the tool itself, but by the person using this tool for illegal purposes. So, for example, what a person uses it for does not depend in any way on an inanimate ax:

- for the construction of a log bathhouse;

— or to kill another person.

Likewise, the factoring operation itself is not guilty of anything if “ Some people here and there sometimes don’t want to live honestly"and uses this transaction for illegal purposes, in particular, for the purpose of tax evasion.

However, all taxpayers who use factoring operations in their daily business activities need to be on their guard to avoid accusations of using tax evasion schemes, which will be illustrated in this article using examples from arbitration practice.

1. What is factoring?

In the legal systems of foreign countries, “factoring” is a combination of a trade and commission operation with lending to the client’s working capital.

In Russian civil law, “factoring” is defined in Art. 824 of the Civil Code of the Russian Federation as follows: “ Under a financing agreement for the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer to the other party (client) funds to offset the client’s (creditor) monetary claim against a third party (debtor), arising from the client’s provision of goods, performance of work or provision of services to a third party, and the client cedes or undertakes to cede this monetary requirement».

So, if you follow the logic of the Civil Code of the Russian Federation, then financing for the assignment of a monetary claim is a separate type of transaction and its regulation is contained in the corresponding forty-third chapter of the Civil Code of the Russian Federation.

It is curious that tax authorities are trying to see two separate transactions in this indivisible transaction:

— lending;

- and assignment (assignment of the right to claim).

Considering a factoring agreement to be a mixed agreement (that is, with elements of different transactions - a loan agreement and an assignment agreement), the tax authorities limit the amount of factoring remuneration for the purposes of calculating income tax to the maximum values ​​established by Art. 269 ​​of the Tax Code of the Russian Federation, and the loss from the assignment is brought under the restrictions of Art. 279 Tax Code of the Russian Federation.

Taking out onto the field:

A factoring agreement is a separate independent type of transaction,

And not a mixed agreement with elements of credit and assignment!

So, for example, in the letter of the Ministry of Finance of Russia dated June 20, 2006 No. 03-03-04/1/529 it directly says: “ expenses associated with the factoring agreement, such as a commission for factoring services (interest on the amount - for the administrative management of debt) and a commission for providing funds to the client by a factor within the framework of factoring services for each day from the moment of payment of financing until the day the corresponding funds are received for factor accounts (interest on the amount of financing), for tax purposes, profits are equal to expenses in the form of interest on debt obligations taking into account the provisions of Article 269 of the Tax Code» .

However, arbitration courts did not agree that factoring remuneration is equal to interest on debt obligations and is limited by Art. 269 ​​of the Tax Code of the Russian Federation.

For example, in the resolution of the Federal Antimonopoly Service of the Ural District dated November 2, 2005 in case No. F09-4898/05-S7, a similar tax dispute was considered and the courts of all three instances came to an unambiguous conclusion: the provisions of Article 269 of the Tax Code of the Russian Federation are not applicable to factoring legal relations, since remuneration under a factoring agreement is not interest on a debt obligation. Despite the fact that factoring is financing for the assignment of the right of claim, this operation does not apply exclusively to banking, therefore the remuneration under the factoring agreement in the Tax Code of the Russian Federation is not limited in any way, but if a loss arises during the assignment, then it is limited. But not Article 269 of the Tax Code of the Russian Federation, but Article 279 of the Tax Code of the Russian Federation!

Similar conclusions are also contained in the decisions of the FAS North-Western District dated September 1, 2004 in case No. A56-11266/04, the FAS Moscow District dated August 2, 2005 in case No. KA-A40/7021-05, etc.

Thus, if you follow the “letter of the law”, factoring is not a loan, therefore the amount of factoring remuneration for tax purposes is not limited in any way.

Well, if you assign the claim at book value, then there will be no loss, which for the purposes of calculating income tax is regulated in Art. 279 Tax Code of the Russian Federation.

2. The essence of the scheme.

So, factoring is not a loan, so the amount of factoring remuneration for tax purposes is not limited in any way. And if you assign the claim at book value, then no loss will arise, which for the purposes of calculating income tax is regulated in Art. 279 Tax Code of the Russian Federation.

It is from the above assumptions that a tax evasion scheme was created, the essence of which is as follows:

The bank enters into an agency agreement with the front company LLC “O”, according to which LLC “O”, as the principal, instructs the bank as an agent to conclude financing agreements with third parties under the assignment of the right of claim. These third parties are organizations that have receivables, which the bank acquires as if on its own behalf, but in fact acting in the interests of O LLC. The bank, acting in relation to its clients as a financial agent under a factoring agreement, pays acquired debts at the rate of 80 rubles per 100 rubles of debt.

In this case, clients receive a full package of documents sufficient to confirm the right to reduce the tax base for income tax by the amount of factoring remuneration in the amount of 20 rubles and to deduct the corresponding amount of input VAT.

The bank pays only 80 rubles to its clients for these debts, but for the supervisory authorities it pretends that it is only an intermediary, receiving only remuneration for its actions from LLC “O”, which is its income and the tax base for calculating VAT.

LLC "O", receiving these debts with a nominal value of 100 rubles, subsequently reclaims them from the debtors, receiving 100 rubles, but does not pay any taxes at all!

3. Arbitration practice.

* Firstly, it should be borne in mind that all costs in accordance with the requirements of Art. 252 of the Tax Code of the Russian Federation must be economically justified. This requirement also applies to factoring agreements.

In this regard, the taxpayer should answer the question: why did he need to enter into a factoring agreement at all?

Why can’t a taxpayer wait a week to receive one hundred rubles, but instead cedes the debt and ends up receiving eighty rubles today instead of one hundred rubles in a week?

Maybe the assigned debt is problematic and it is better today to get at least eighty “real” rubles for a hundred rubles of debt than not to get anything at all?

In A.N. Ostrovsky’s textbook play “Our People – We’ll Be Numbered”, creditors offer the almost hopeless debtor-merchant the following conditions: “give me something clean, and God be with you” - at the same time “clean” (that is, “alive” real money) creditors want to receive twenty-five kopecks per ruble of debt. So the assignment of bad debts for at least some, but real, receivable sum of money is a long-standing tradition of Russian merchants, one might even say that this is an established centuries-old custom of business turnover!

Or maybe the debt needs to be ceded today because the money is urgently needed?

Suppose an organization needs to receive eighty-five rubles today instead of one hundred the day after tomorrow, since tomorrow the payment deadline under the contract with the supplier expires. Thus, having lost fifteen percent on a factoring operation when paying off accounts receivable, the organization still saves thirty percent of the amount of the payment made on time to pay off accounts payable! Consequently, concluding a factoring agreement in this case is economically justified, since it leads to smaller losses - compared to those that could arise as a result of untimely repayment of accounts payable to the supplier.

It was a similar tax dispute about the validity of factoring expenses that was considered in the resolution of the Federal Antimonopoly Service of the North-Western District dated September 1, 2005 in case No. A56-11266/04:

According to the terms of the supply agreement, if there is a delay in payment for the delivered goods, the buyer pays the seller a penalty in the amount of 30% of the transaction amount. Due to the lack of funds from LLC "K", which arose as a result of non-receipt of payment from the buyer - LLC "BI" under the purchase and sale agreement, LLC "K" entered into a factoring agreement, paying the financial agent a fee of 15% from the transaction amount. Consequently, the conclusion of a factoring agreement is economically justified, since it led to smaller losses than those that could have arisen as a result of the taxpayer’s untimely payment of goods to the supplier - VIV LLC.

An interesting tax dispute was considered in the resolution of the Federal Antimonopoly Service of the Volga District dated September 21, 2006 in case No. A57-10849/05-16:

— the courts of first and appellate instances did not find illegal acts in the actions of the taxpayer, recognizing their legality, citing the fact that the factoring service has a monetary value, the conclusion of the agreement is associated with the taxpayer being subject to tax restructuring, economic feasibility is associated with the receipt of funds for 80 days earlier. The measures taken, according to the courts, allowed the taxpayer to complete its production program on time;

- however, the cassation court returned the case for re-examination, pointing out that the circumstances of the case regarding payment for factoring services were not examined by the courts, and they were not given a proper assessment. The documents on payment of factoring fees, the validity of such payment for production purposes, and economic feasibility were not examined, since the taxpayer changed the form of payment for the supplied products.

So justify, justify and justify again!

Taking out onto the field:

Every transaction must have a business purpose – tax benefit cannot be the purpose of the transaction.

* Secondly, it is still necessary to find out whether the factoring operation is a tax evasion scheme?

Let us consider the circumstances of three very remarkable tax disputes from the practice of the FAS of the Moscow District.

From the resolution of the Federal Antimonopoly Service of the Moscow District dated January 25, 2006 in case No. KA-A40/13949-05.

During the tax audit carried out at JSCB "F", it was established that a scheme was used, which was based on a financing agreement under the assignment of a monetary obligation. Based on the essence of the factoring agreement, the funds in payment for financing services were the funds of the financial agent, which was the Bank. An organization that does not have a special license to finance the assignment of a monetary claim could not receive remuneration for services related to the execution of a factoring service agreement. Under the factoring agreement, the financial agent acquired the right to all amounts received from the client and his debtor, incl. remuneration for services rendered, and had to pay VAT to the budget on the income received, and not transfer it in the form of offset to an organization that did not intend to reflect the revenue received under the agency agreement as part of taxable turnover for VAT. According to the tax authority, the scheme consisted in the fact that the Bank, within the framework of its legal capacity, acted under an agency agreement, but on its own behalf. Formally acting on behalf of and in the interests of a third party, the Bank considered itself not to have the right to take into account the remuneration due under the factoring agreement for tax purposes. The formal guarantor and owner of the funds, initially intending not to fulfill his obligations to pay taxes to the budget, drew up legal and financial documents in such a way that responsibility for the committed offenses was assigned to dummies. Moreover, as a result of the factoring operation, the client had a package of documents sufficient to confirm the right to reduce the tax base for income tax and for tax deductions for VAT.

The tax authority established that income in the amount of 261,516,000 rubles received by the Bank under a financing agreement under the assignment of a monetary claim is subject to accounting as part of the base for calculating income tax for 2002. An understatement of the tax base for this tax for 2002 by the specified amount led to incomplete payment of tax in the amount of 6,276,384 rubles. The amount of uncalculated and unpaid VAT for October 2002 amounted to 5,230,320 rubles.

Considering the dispute, the courts of first and appellate instances established the following.

On September 13, 2002, an agency agreement was concluded between LLC “R” (principal) and AKB “F” (agent), according to which the principal instructed the agent to carry out actions to find clients and provide them with financing against the assignment by clients of monetary claims to third parties (debtors) arising from from the provision of goods by clients, the performance of work or the provision of services to debtors. A separate clause of this agreement stipulated that the principal and agent sign an agreement indicating the amount of remuneration for financing sent from the client through the agent to the principal.

07.10.02 between the Bank (financial agent) and OJSC "T" (client) a financing agreement was concluded for the assignment of a monetary claim, the subject of which was factoring servicing of the client's receivables of LLC "X" in the interests of a third party (LLC "R") in in accordance with the agency agreement dated September 13, 2002. As part of the factoring agreement, the client agreed to assign this debt to the financial agent, and the latter agreed to transfer funds to the client against the assigned claims. According to the addendum to the agency agreement, the financial agent undertook to transfer to the client 174,344,000 rubles, including VAT in the amount of 29,057,333 rubles. 33 kopecks (for factoring services for the sale of receivables of the debtor - LLC "X" - under supply agreement No. 128).

Under supply agreement No. 128, LLC "X" purchased semiconductor diodes from LLC "E" in the amount of 174,344,000 rubles, incl. VAT in the amount of RUB 29,057,333. 33 kopecks

Subsequently, LLC “E” assigned the rights and obligations under this agreement to OJSC “T” on the basis of an assignment agreement dated 04.10.02 N 11-4/1 with payment to the assignor of compensation in the amount of 174,344,000 rubles, incl. NSD in the amount of 29,057,333 rubles. 33 kopecks

To pay under the assignment agreement, OJSC “T” (client) on 10/07/02 entered into the above factoring agreement with AKB “F” (financial agent) under the assignment of the right of claim to LLC “X” under supply agreement No. 128.

In the additional agreement to the contract signed on 10/08/02, the parties stipulated the amount of remuneration due to the principal for services related to the execution of the factoring service agreement - 31,381,920 rubles, including VAT in the amount of 5,230,320 rubles, which was subject to withholding by the principal from the amount of the first early payment to the client carried out through an agent (clause 3). Clause 4 of this additional agreement establishes the agent's remuneration in the amount of 30,000 rubles, including VAT of 5,000 rubles.

By payment order dated October 15, 2002, R LLC transferred RUB 1,42,962,080 to JSCB F. on account of the agency agreement dated September 13, 2002 minus commission (18%) in the amount of RUB 31,381,920.

On the same day, the Bank transferred 142,962,080 rubles to OJSC “T” by payment order. according to the agreement dated 10/07/02.

Having assessed this circumstance, the court noted that the principal (R LLC) withheld remuneration for services related to the execution of the factoring service agreement even before the Bank provided the financing itself and transferred to the Bank an amount less than that specified in the additional agreement to the agency agreement. LLC “R” issued an invoice dated 10.15.02 to AKB “F” for the retained remuneration.

At the request of the court, the Bank provided statements of accounts of the named Companies. When analyzing them, the court found that until October 15, 2002 there was no cash flow in the accounts of these two Companies. The funds paid by JSCB "F" according to the payment order dated October 15, 2002 were credited to the account of LLC "R" on the same day. There were no other funds in the account of this Company in JSCB “F” until October 15, 2002. The bank statement for the personal account of OJSC “T”, to which the Bank transferred 142,962,080 rubles, also begins on October 15, 2002. No settlements were made through this account either before or after this date.

In a notification sent on October 15, 2002, LLC "R" informed AKB "F" that it had made settlements with the debtor to repay the debt in full, having accepted the debtor's bill of exchange - LLC "X" as payment, and had no claims against the financial agent for the return of financing under an agency agreement and a factoring agreement concluded within its framework.

Based on an assessment of the evidence presented in the case, the court concluded that financing under the factoring agreement, as well as the return of funds, took place within one business day through intrabank transactions. Cash flows were structured in such a way that funds received by the Bank's clients were returned to them on the same day in the form of cash from the sale of third party bills or other income.

The court recognized that LLC "R" could not act as a beneficiary in the transaction of assignment by the client (OJSC "T") to the financial agent (AKB "F") of the rights of claim against the debtor (LLC "X") and be a party to the factoring transaction, since in force of Art. 825 of the Civil Code of the Russian Federation, his special legal capacity to carry out such transactions has not been proven.

I also considered it legitimate that the tax inspectorate stated that, based on the provisions of Art. 831 of the Civil Code of the Russian Federation, the remuneration provided for by the factoring agreement dated 07.10.02 sent from the client through the agent to the principal cannot be considered as remuneration for factoring services, but should be considered as a transfer of funds for the purpose of executing the agency agreement. Therefore, the Bank, as a financial agent, had to reflect the remuneration received for factoring services in tax accounting.

Having assessed the totality of the evidence available in the case, the courts of the first and appellate instances gave the correct legal qualification of the legal relations of the parties and made the correct conclusion about the evidence of the Bank’s actions aimed at tax evasion.

Taking out onto the field:

Income hidden from taxation by the principal

Was charged to an agent.

From the resolution of the Federal Antimonopoly Service of the Moscow District dated October 25, 2006 in case No. KA-A40/9338-06

During the audit, the tax authority revealed that two legal entities - PF LLC and R LLC - instructed the bank CB EB LLC to enter into financing agreements for the assignment of monetary claims (factoring) with third parties on their own behalf and at their own expense in accordance with agency agreement.

LLC CB "EB" did not fulfill this order, but attracted a subagent of OJSC JSCB "SOB" by concluding an agency agreement, according to which CB "EB" (principal) instructed JSCB "SOB" (agent) to conclude on its own behalf, but at the expense principal financing agreements for the assignment of monetary claims (factoring) with various clients at the direction of the guarantor.

For factoring services, clients were charged a fee that ranged from 500 to 6,500 percent per annum.

Then the subagent, JSCB SOB, transferred the remuneration received for factoring services to the agent, and the agent, in turn, transferred it to the principal (in particular, PF LLC). According to data obtained during counter inspections, PF LLC does not submit reports; the organization’s leaders are wanted by the Ministry of Internal Affairs.

The amount of remuneration received by PF LLC for operations under the factoring agreement with SS LLC amounted to 109,538,712.60 rubles, including VAT - 2,293,315.62 rubles, which PF LLC did not pay to the budget.

Thus, 99% of the income received from factoring services was received by an organization that did not pay income tax on this income and was not initially intended to perform the functions of a bona fide taxpayer.

Initially, the client purchased a product from a supplier, and the product, according to the terms of the contract, could be paid for after delivery within 5 - 9 days. At the same time or the next day, the client entered into an agreement for the sale of the same product. Payment terms are usually within five days from the date of sale. Consequently, the client (seller) had a monetary claim to pay for the shipped goods; the client assigned this claim under a factoring agreement to JSCB SOB Bank.

The purchase of the claim by the subagent (JSCB "SOB") was carried out either at the actual price of the claim or with a minimum income.

Additionally, the bank set a commission in excess of the income received from the sale of the right of claim, in the amount of 20 - 25% of the claim amount, i.e. extremely unfavorable terms of the transaction were established for the client - a clearly disproportionately high bank commission.

Such a mechanism for paying for bank services ultimately led to losses (or minimization of profits) on completed sales transactions. The client’s income (profit) from the acquisition and further sale of goods was always less than the amount of the factoring commission paid by the client to JSCB SOB.

As a result of factoring operations, the bank's clients had a package of documents sufficient to confirm the rights to reduce the tax base for income tax and for tax deductions for VAT.

Signs of this scheme were identified during the inspection of SS LLC, which in the audited period entered into financing agreements for the assignment of monetary claims (factoring) with OJSC CB "NA" and with LLC AKB "SOB". The fee for financing services averaged 15% of the total financing.

When comparing the interest paid under the factoring agreement and the refinancing rate of the Central Bank of the Russian Federation, the tax authority found that SS LLC for 2 days of using bank funds paid remuneration to financial agents in the amount of an average of 4302%, which is 2,445,378 rubles. At the same time, the refinancing rate of the Central Bank of the Russian Federation is 19.5% per annum. Those. The amount of remuneration paid by SS LLC for the use of funds within two days is 221 times the refinancing rate of the Central Bank of the Russian Federation. Consequently, paying remuneration to financial agents in such an amount is clearly economically unjustified.

When recalculating funds paid by the organization OJSC CB "NA" and JSCB "SOB", taking into account the Central Bank refinancing rate, increased by 1.1 times, in accordance with Art. 269 ​​of the Tax Code of the Russian Federation, for the period of actual financing, that is, until the bank receives funds from buyers, it is established that the actual costs of the audited organization for tax purposes amounted to 16,155 rubles, incl. VAT 2692 rub.

Thus, LLC “SS” for 6 days of using the bank’s funds paid remuneration to the bank in the amount of up to 973.3% per annum, with the Central Bank refinancing rate of 17% per annum, which is clearly economically unjustified and violates clause 1 of Art. 252 of the Tax Code of the Russian Federation. The paid amount of remuneration for using funds within seven days is 42 times the Central Bank refinancing rate.

Based on the foregoing, the tax authority came to the conclusion that the applicant underestimated the tax base for income tax and overestimated the VAT deductions paid to banks for factoring services.

The court agreed with the opinion of the tax authority.

The taxpayer, knowing about the obvious lack of economic benefit in such financing relationships, when when converted into annual interest, this financing cost him 973% per annum, nevertheless entered into new agreements and annexes to the agreements. The court of first instance assessed the applicant's actions as dishonest, aimed at minimizing income taxation (inflating costs by amounts of economically unfeasible payments to banks under factoring agreements).

According to the cassation instance, the court of first instance came to the correct conclusion, based on a study of evidence, that, regardless of the application or non-application of the provisions of Art. 269 ​​of the Tax Code of the Russian Federation, the taxpayer’s expenses for paying for bank services in the amount in which they were incurred did not meet the criterion of economic feasibility, taking into account the specific terms of factoring agreements, incl. the condition that the client (SS LLC) is responsible to the financial agent (CB NA OJSC, AKB SOB LLC) for the performance by the debtor (S-1 CJSC, S-3 CJSC, etc.) claims that are the subject of the assignment, to the same extent as the debtor, that the actual legal relations, being complex and consisting of a number of obligations of the parties, in the relevant part, by their legal nature, did not have significant differences from borrowed legal relations.

Thus, the use by the tax authority in assessing the applicant’s tax liabilities of the provisions of Art. 269 ​​of the Tax Code of the Russian Federation, expressed in partial acceptance of costs by the tax authority (in terms of the refinancing rate increased by 1.1 times), was rightly recognized by the court as not violating the rights of the taxpayer.

The taxpayer’s argument that, net of taxes, the economic costs of paying the remuneration to the bank amounted to 10% of the assigned amount of the claim was analyzed and found not to influence the general conclusions about the unlawful overestimation of costs. The court rightfully pointed out that even if this indicator is accepted, when recalculating expenses into interest for the year, they will amount to about 500% per annum, which is clearly economically inappropriate for the recipient of factoring services (taxpayer).

Regarding the deductions of input VAT on factoring remuneration, the cassation court explained:

A tax benefit cannot be considered as an independent business purpose. The taxpayer, by paying banks increased remuneration for a short period of use of funds, including VAT, reduced his obligations to pay this tax by amounts incommensurate with the benefits received from the use of bank funds. In itself, obtaining a profit from the sale of goods does not indicate the economic feasibility of the costs of paying for factoring services undertaken to obtain it.

Taking out onto the field:

Unreasonable expenses deprive

taxpayer's right to reduce taxable profit and

to deduct input VAT.

From the resolution of the Federal Antimonopoly Service of the Moscow District dated December 6, 2006 in case No. KA-A40/11969-06-P

The basis for the decision to bring the taxpayer to tax liability was, in the opinion of the tax authority, the fact that the amount of payment made by the company to the bank for factoring services was unreasonably included in expenses when forming taxable profit. The tax inspectorate considered that these expenses cannot be considered economically justified; the services were not purchased to carry out operations recognized as subject to VAT taxation.

The courts have found that the costs of paying for the services of a financial agent to carry out factoring operations cannot be taken into account as expenses, since they are not economically justified and are not aimed at carrying out activities related to generating income. The taxpayer's actions were solely aimed at concluding an agreement on the assignment of the right of claim with the bank, which led to an unreasonable overestimation of the company's expenses for 2002 in the amount of 7,500,000 rubles. and understatement of the tax base for income tax in this amount and non-payment of income tax in the amount of 1,800,000 rubles.

In refusing the taxpayer, the courts proceeded from the fact that the actions of the seller, the applicant, the buyer-debtor and the bank were seen as interdependent; the counterparties had no real intention to fulfill obligations under the purchase and sale transactions that preceded the conclusion of the financing agreement for the assignment of the right of claim, between the actions of the organizations and the bank there is a cause-and-effect relationship, and therefore the payments made by the applicant are not economically justified, aimed at carrying out activities related to generating income and therefore they should not be taken into account when determining the taxable base for income tax.

The appellate court, having assessed the evidence presented in the case, found that the buyer’s letter about the impossibility of paying for the goods was of a formal nature, and the applicant had the opportunity to take reasonable measures to collect the debt without involving a credit institution. The conclusion of a factoring agreement in no way diminished the risk of the bank not receiving funds from the debtor. Settlements between organizations were carried out on accounts opened with JSCB "SOB" on one day, which in the period from December 1, 2002 to December 31, 2003, the said bank carried out financing operations under the assignment of a monetary claim with signs of a scheme aimed at evading taxation with income tax as a bank , and bank clients for factoring operations. At the same time, the clients' counterparties in purchase and sale transactions were the same organizations.

At the same time, the taxpayer’s profit on transactions concluded with buyers should have amounted to 40,239 rubles. 84 kopecks, while under the financing agreement for the assignment of a monetary claim, the taxpayer transferred remuneration in the amount of 9,000,000 rubles to JSCB "SOB". The loss from the factoring agreement amounted to RUB 8,959,760. 16 kopecks

Based on these circumstances, the court came to the conclusion that the taxpayer concluded a factoring agreement with JSCB “SOB” and paid RUB 9,000,000 under it. cannot be recognized as either economically justified or produced for the purpose of carrying out activities aimed at generating income. Consequently, the disputed costs do not meet the criteria to be considered expenses that reduce taxable income.

Taking out onto the field:

Justified expenses are expenses

aimed at generating income!

Conclusions:

If an organization enters into a factoring agreement, this decision should be carefully justified.

Such a justification could be:

— the need to urgently attract working capital to pay off accounts payable (in this case, penalties to the supplier exceed possible sanctions to the buyer for late payment);

- the difficult financial situation of the debtor and the qualification of the existing debt as a debt that is unlikely to be receivable in full (insolvency of the buyer, presence of overdue debt, etc.).

If tax “schemes” propose a factoring scheme to evade taxation, then it is better to learn from other people’s mistakes (described in this article) than to repeat “ step on the same rake»!

). In other words, inspectors now have detailed instructions on how to identify and prove tax evasion schemes.

The appearance of the document did not come as a surprise. Moreover, it was eagerly awaited by tax inspectors, who needed a “cheat sheet” for working under the new law No. 163-FZ. It began to act just the other day, on August 19, and, in fact, banned even legal tax optimization schemes (see the publication “The Tax Code has established a presumption of taxpayer guilt: how to work within the framework of Law 163-FZ?”).

Thus, if an inspector identifies one of the “declassified” schemes during an inspection, the company will not only have to pay additional taxes, but also pay a fine imposed by the inspectors in the amount of 40% of the amount of arrears(i.e. the amount that, based on the results of the audit, was additionally accrued by the Federal Tax Service).

What is establishing the taxpayer’s intent and why prove it?

The intentionality of committing a tax offense is a set of actions aimed at building distorted, artificial contractual relations, simulating the real economic activities of front persons (fly-by-night companies). A tax offense is considered committed intentionally if the person who committed it was aware of the illegal nature of his actions, wanted or consciously allowed the harmful consequences of such actions (inaction).

Direct evidence of intent includes:

witness statements;

the presence of seized documents revealing the actual intentions of the person and their implementation (records, documents or files of “black accounting”);

video and audio recordings;

results of listening to telephone and other conversations.

Proving intent without direct evidence is quite difficult.

Intentional failure to pay or underpayment of tax entails a fine of 40% of the unpaid tax amount, and not 20% of the unpaid amounts, as in the situation with an offense committed by negligence. So, for example, an arithmetic (technical) error when calculating tax does not have a sign of guilt, which means that the fine for underpayment due to an accountant’s error will be only 20% of the additional amounts assessed.

So, what tax evasion schemes have already been identified by inspectors in practice and described in the manual for identifying tax schemes.

It’s worth mentioning right away that the following are dangerous tax schemes. However, they can be practiced, but with caution. Not “head-on”, but by combining different types and thinking through it in advance.

1. Fictitious transactions (tax optimization schemes through fly-by-night schemes)

Identifying tax evasion schemes:

The tax authorities prove the fictitiousness of the transaction as follows:

interview managers, persons responsible for execution and receiving goods (work, services), as well as accountants of the taxpayer organization and its counterparties about the circumstances of the conclusion and execution of a dubious contract;

require primary documents confirming questionable financial and economic transactions, including optional ones (correspondence, applications, minutes of meetings, warehouse books, entry and exit logs, pass issuance logs, etc.);

analyze documents and compare data in order to search for inconsistencies, for example: in a contract (or annexes to it), the quantity of goods can be indicated in pieces, while in invoices and delivery notes - in tons. The identity of primary accounting documents is also verified; if necessary, a handwriting examination can be assigned and carried out;

in the event that organizations belonging to a risk group are identified among the taxpayer's counterparties (fly-by-night companies, affiliated organizations), they carry out a set of measures aimed at connecting these organizations (persons involved in their activities) with officials of the taxpayer organization;

in the case of evidence of affiliation of foreign partners, information about individuals representing the interests of foreign companies in Russia is checked, often these are nominee directors who have not even crossed the border of the Russian Federation. Tax officials request information about the operations of foreign partners from the Central Bank of the Russian Federation and Rosfinmonitoring. This whole scheme is aimed at identifying the ultimate beneficiary and the real purpose of the transactions;

conduct searches of premises in order to search for stamps of a shell company, forms of affiliated organizations, flash drives, servers, tokens, root tokens, etc.);

they identify facts that the counterparty could not independently complete the transaction (deliver goods) and identify the manufacturer of the goods, the real supplier or contractor of services, whether there was a warehouse, and the movement of goods, both actual and in accounting, is analyzed;

For product manufacturers, supply volumes and actual production capacity are analyzed.

2. Fragmentation of business for the purpose of applying a special regime

Although the law does not prohibit companies from dividing their business in order to achieve better financial results, tax authorities will look for signs of a scheme in the “fragmentation” and prove intent.

separated organizations carry out one type of activity, are located at the same legal address, use the same premises, personnel, have a single material and technical base, the same customers, represent a single complex involved in a single production process;

maintaining tax and accounting records by one person, providing services to one customer;

employees of organizations perform the same work in accordance with their job responsibilities; employees may have clothes with a single logo;

organizations jointly store accounting documents and documents on conducting financial and economic activities, use a single IP address;

current accounts of companies are opened by the same persons in the same banks;

one supply manager is responsible for supplying goods and materials;

If the income received in one of the organizations of a group of interdependent persons approaches the limit under the “simplified tax system,” contracts with customers are either terminated or additional contracts are concluded with another interdependent organization on the same terms.

To identify such a tax evasion scheme, tax officials only need to come to the company for an inspection. When companies have one warehouse, identically dressed employees, who cannot really say which one they work in, the deliberate fragmentation of the business is obvious.

How to protect yourself:

Make sure that in the process of dividing a business into several legal entities, each company has its own employees, premises, different clients, etc.

Read in a separate publication on our blog about legal tax optimization schemes by splitting up a business.

3. Application of preferential tax rates

To hide income from the tax authorities, buildings and equipment are transferred to a company resident in a special economic zone (SEZ), which pays income tax at a rate of 0%. At the same time, the taxpayer leases the same assets from a SEZ resident. As a result, the company generates an expense that reduces income tax, and the resident-beneficiary receives income on which he does not pay tax.

Identifying a tax evasion scheme:

If tax officials see an inflated rental price, the deal will likely attract their attention. All that remains is to prove the interdependence of the companies and the coordination of actions.

How to protect yourself:

Providing a building for rent can be justified if part of the building is provided, for example, and a SEZ resident can document that the entire area is excessive for him, and he needs to rent out part of the building. It is also necessary to lease the building not to the company from which the building was purchased, but to another company and, preferably, not interdependent.

4. Substitution of contracts

In practice, most often there is a substitution of a purchase and sale agreement, which, depending on the circumstances, is presented as a commission agreement, as a leasing agreement, or as an agreement for the sale of shares in the authorized capital. In order to avoid VAT on advance payments, companies enter into a loan agreement, and after the goods are shipped, the borrowed funds are counted towards its payment. Or they enter into commission agreements with the counterparty, although they actually carry out transactions for the purchase and sale of goods.

Signs of a tax evasion scheme:

Commission agreement. The principal does not pay VAT and income tax until the final sale of the goods by the commission agent. In this situation, tax officials analyze the primary documents and terms of the transaction: the report of the commission agent (agent), the date of transfer of funds, the change in price under the terms of the contract, the condition of paying for the goods no later than a certain period, the condition of transferring payment for the goods in installments, regardless of its sale. In case of intermediary agreements, a report of the commission agent (or agent - in the case of an agency agreement) must be drawn up.

The commission agreement must be executed at the expense of the principal. If, during the analysis of cash flows in current accounts, tax authorities discover the transfer of funds before the sale of goods, they will come to the conclusion that the contract is executed at the expense of the commission agent, which contradicts the legal nature of intermediary relations. The presence in the contract of a condition on payment for goods no later than a certain period also contradicts the concept of an intermediary transaction.

How to protect yourself:

Companies must comply with all essential terms of the commission agreement and avoid double interpretation of the facts of economic activity.

Leasing agreement. Under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the lessee from a seller specified by him and to provide the lessee with this property for a fee for temporary possession and use. In cases where purchase and sale agreements are replaced by leasing agreements, payment is actually made in installments and is designated as leasing payments.

The main benefit of a leasing agreement is that its use allows the taxpayer to use accelerated depreciation, which means that the cost of the fixed asset will be written off as income tax expenses three times faster.

What tax authorities will pay attention to:

the leasing agreement was concluded for a period significantly shorter than the period of full depreciation of the property;

The agreement does not contain conditions specific to a leasing agreement. All components and conditions (subject, seller, term, payment, conditions) must be reflected in the leasing agreement. In addition, the contract must indicate on whose balance sheet the property will be accounted for.

If such circumstances exist, the leasing agreement can be re-qualified as a purchase and sale agreement on installment payment terms.

How to protect yourself:

The lease agreement must be valid for more than two calendar years, and all essential conditions for the leasing agreement must be met. The ideal option is to conclude a leasing agreement with a specialized organization.

Agreement for the sale of shares in the authorized capital. The transaction for the sale of shares in the authorized capital is not subject to VAT. Therefore, in order to avoid paying VAT, taxpayers sometimes register the sale of real estate or equipment as the sale of a share in the authorized capital. For example, a “seller” negotiates with a buyer to sell a property. To do this, he creates an LLC with a minimum authorized capital (10,000 rubles), and then, through a loan agreement, contributes 65 million rubles to its authorized capital. With this borrowed money, a controlled, newly created LLC purchases a real estate property from the taxpayer-“seller”. After which the buyer acquires a share in this LLC. In this case, the transaction for the acquisition of a share covers the transaction for the purchase and sale of real estate.

How to protect yourself:

Real estate sales transactions are best carried out in consultation with tax consultants in order to avoid serious tax risks.

Tax evasion schemes already proven by tax authorities

How tax authorities identify tax evasion schemes

Tax authorities, as part of inspections, determine guilt in committing a tax offense. To do this, they investigate which specific officials could have committed this offense. This can be not only the manager, but also the chief accountant, ordinary accountant or other persons whose responsibilities include signing reports and ensuring full and timely payment of taxes. Such a person may also be a manager if he influenced the results of the transaction and the payment of taxes.

When identifying a tax evasion scheme, tax authorities examine the following documents:

information from the Unified State Register of Legal Entities and open external sources (for example: availability of a court verdict);

Bank statements;

staffing schedule;

orders on the appointment of persons responsible for the financial and economic activities of the organization in the period under review, and materials on bringing them to administrative responsibility (if involved);

agreement with the management organization or manager (if any);

powers of attorney to perform certain actions;

job descriptions of persons responsible for the financial and economic activities of the organization;

explanations from officials of the organization on the facts of tax offenses identified during the audit (in the absence of written objections to the tax audit report).

To prove intent, tax authorities use the following tax control methods:

obtaining explanations from the taxpayer;

cross-examinations of taxpayers to compare the testimony of various persons and repeated interviews and interrogations taking into account information already received;

requesting documents (information);

• sending requests to banks.

The entire algorithm of actions is aimed at collecting information describing exactly what actions of the organization’s officials led to the commission of a tax offense.

Justifications for fictitious transactions that inspectors no longer believe

At the same time, the tax authorities are aware of the most common versions of committing an offense “from the taxpayer”:

1) “The company has extenuating circumstances”

Mitigating circumstances reduce company fines for tax offenses (clause 1 of Article 112 of the Tax Code of the Russian Federation). For example, judges can reduce the fine several times if its payment will lead to a difficult financial situation for the company. But if the tax authorities prove a deliberate understatement of taxes (i.e. gray tax schemes), they will not reduce the fine. And even the judges will not support the company.

2) The director did not know about the fictitious documents

The signature on the documents means that the employee confirms the actions of the company. For example, if the head of a company signs a work completion certificate, he confirms that the contractor has fulfilled the terms of the contract. Therefore, even judges do not take into account the argument that the manager did not know that the documents and the transaction were fictitious. If the director did not know the details of the transaction, then he may be suspected of being a nominee.

3) Endless trust in the chief accountant

In the event of a dispute, employees want to shift blame and responsibility onto each other. For example, the director claims that he trusted the chief accountant and literally, without looking, signed the tax reports that his subordinate compiled.

4) “I was just following the manager’s order...”

The law does not exempt from liability an employee who carried out an illegal order from a manager. According to the position, the employee must follow the instructions of his superiors. Typically, such conditions are written down in the employment contract or job description. But if the director’s orders are contrary to the law, you must refuse to carry them out. And if the director starts persuading, threatening and insisting on performance, find another job. Only refusal to execute an illegal order will exclude criminal liability for the violation.

Circumstances directly indicating intent in the actions of the taxpayer

coordination of actions of a group of persons (including legal entities), aimed at minimizing tax liabilities and cashing out funds, proven fictitiousness of specific business transactions of the company);

proven facts of control of a fly-by-night company, including the performance of a number of functions, operations, actions allegedly by the forces and means of a fly-by-night company using equipment, facilities, labor, property of the taxpayer being inspected, including the use of material and technical means, accounting staff, funds communications, agreements with providers, IP addresses, etc.;

facts of imitation by taxpayers of checking counterparties and the economic ties themselves with shell companies;

carrying out complex, intricate operations that are not characteristic of the traditional “style” of doing business;

direct evidence of illegal activity:

presence of “black accounting”,

seals and documentation of shell companies on the territory of the taxpayer’s company being audited,

facts of cashing out funds along with established facts of their expenditure for certain needs of the company being inspected, its officials and founders.

The main and most effective way to protect your business from tax claims is tax planning, which provides legal tax optimization schemes. Often, this is the only way to protect against multimillion-dollar additional charges. And, of course, the help of a tax optimization specialist will be required if the company is planning a major transaction.

Our company specializes in tax optimization. We carefully consider options for legal methods and tax reduction schemes, taking into account the specifics of the client’s business. All the options we offer are legal tax minimization schemes; the client just has to weigh the pros and cons and make a choice in favor of the one that is most attractive to him.

• The Tax Code establishes a presumption of taxpayer guilt: how to work within the framework of Law 163-FZ?
• “Transparent business”: in 2018, tax officials will have a new weapon against companies during audits

14 typical tax evasion schemes
"for official use of the Federal Tax Service"
Alexey Spirikhin, Auditor,
Alinga Consulting Group

The Federal Tax Service has distributed methodological instructions to all its divisions describing 14 standard tax evasion schemes. The manual will become a guide to action in finding unscrupulous taxpayers. Judging by this document, inspectors are most concerned about evasion of VAT and income tax.

These guidelines were issued “for official use only,” but Alinga specialists managed to obtain information about all 14 schemes.

Scheme No. 1. Fictitious activity through a group of interdependent persons.
Claims from tax authorities will be directed to organizations that conduct financial transactions exclusively through a group of interdependent persons.

Scheme No. 2. Closed chains of movement of goods and money.
In this case, inspectors will trace the supply chain to the fourth level, while “identifying” unscrupulous contractors.

Scheme No. 3. Cashing out money through a so-called shell company, a “gray” company.
The Federal Tax Service calls for refusing to refund export VAT if the chain of suppliers includes a shell company that transferred the money received from the buyer to its foreign partner and did not pay VAT to the budget. Also, excessive interest will be caused by the transfer of money under some kind of agreement with a “gray” company with its subsequent return through an individual entrepreneur.

Scheme No. 4. Using a cash register for wholesale sales for the purpose of applying UTII.
Tax authorities will actively suppress attempts to use preferential tax treatment (UTII) for wholesale sales.

Scheme No. 5. Reorganizations followed by liquidation.

Scheme No. 6. Fictitious increase in the price of goods.
Tax authorities will be suspicious of an export operation that involves too many intermediaries, which causes the price of the product to rise, and with it the amount of VAT subject to refund. For example, the cost of export goods was significantly increased as a result of processing raw materials and paying commissions to processors.

Scheme No. 7. Intra-holding settlements using contributions to the authorized capital.
Tax authorities will refuse to deduct “internal” VAT between interdependent companies. In the described scheme, the company paid suppliers with money received from the parent company in the form of a contribution to the authorized capital. But the tax authorities discovered that the parent company itself received this money from its founders, who turned out to be the same suppliers. The company paid suppliers with their own funds, the Federal Tax Service believes, and calls for refusing to deduct VAT on such transactions.

Scheme No. 8. Illegal use of benefits for disabled people.
Here inspectors will check the conditions for the application of the scheme using the VAT relief.

Scheme No. 9. Purchase of goods at inflated prices using borrowed funds.
The manual describes a story when a forestry company purchased equipment with a loan received from an offshore company. Having collected information on the Internet, tax officials decided that the transaction price was six times the market value of the equipment. In addition, the loan was not repaid.

Scheme No. 10. Replacement of salary with health insurance.
For example, the manual presents a story when a company entered into voluntary health insurance contracts with subsequent payments of insurance premiums and annuities to insured employees.

Scheme No. 11. Artificial accrual of penalties under contracts.
Intentional evasion of income tax will be recognized as the creation of obviously impossible conditions for the execution of an agreement in order to reduce the tax by the amount of financial sanctions.

Scheme No. 12. Outsourcing (staff leasing).
Registration of employees through preferential organizations is considered by tax authorities as deliberate tax evasion.

Scheme No. 13. Dividing a business into two companies for the purpose of applying UTII.
If two companies have almost identical names, they are located at the same address, etc., then, according to the Federal Tax Service, this is evidence of a deliberate business division in order to save taxes.

Scheme No. 14. A credit institution receives a loss from transactions with a “problem” bank.

So, the opinion of many experts is clear - companies will face numerous lawsuits and additional tax assessments if inspectors begin to refuse VAT refunds or reduce taxable profits for expenses using this method. Many companies use in business most of the schemes described by tax authorities, and most of them do not contradict the Tax Code of the Russian Federation.

The Federal Tax Service, in its manual, calls for automatically punishing companies for certain transactions, even if the tax itself ultimately went to the budget. For example, enterprises periodically buy products from their founders using funds received from them, but at the same time the founders themselves pay tax on the money received. And it is possible to refuse a VAT refund on a purchase paid for with borrowed funds only if the tax authorities prove that the company did not intend to repay the loan at all - this decision was made by the Constitutional Court.

True, the letter does not contain evidence of the taxpayers’ guilt, and it will be somewhat problematic to substantiate their intent. After all, the Federal Tax Service refers to those circumstances that, in the opinion of the Supreme Arbitration Court, cannot in themselves indicate that the company has received an unjustified tax benefit and entail any sanctions for the companies.

The editors have at their disposal a document with schemes discovered by some capital tax officials at the end of 2008. Now the material has been transferred to all Moscow inspectorates, and it is not difficult to assume that it is precisely such schemes that the attention of tax officials will be focused on in the coming months.

In addition, we turned to specialists from several law firms and asked them to rate the tax authorities’ chances of proving each of the schemes in court on a five-point scale.

Scheme 1. Intermediary

The essence of the scheme. Within a group of interdependent companies, a vehicle purchased for rental, as well as funds received from a bank, are “passed” through an intermediary before reaching the final recipient.

In detail (example 1). Capital LLC buys a tanker truck and then sells it to Leasing LLC, which leases this tanker truck to Resurs LLC. The latter is a 50 percent subsidiary of Capital LLC. LLC "Leasing" acquires a tank truck using borrowed funds that it receives from the parent company - LLC "Finance". The Deputy Director of Finance LLC is one of the founders of Capital LLC, other employees are also related to the entire group of interdependent companies. At the same time, Leasing LLC actually operates at a loss.

In detail (example 2). LLC "Capital" takes out a loan from JSCB "Svet" and on the same day refinances its counterparties with this money - LLC "Finance" and LLC "Trustgaz", while receiving a very small profit - 0.2 percent of the loan amount. However, the interest costs of the end borrowers in any case become higher than when receiving a loan directly from the bank.

It is not economically feasible to act through a third company when it is possible to work directly. Intermediary companies most likely exist only on paper. This is confirmed by a number of facts:
— intermediary companies live almost entirely on borrowed funds;
— the staff of intermediary companies includes only the manager and chief accountant, who are also employees of other organizations;
— the activities of intermediaries lead to a decrease in the tax base for other participants in transactions;
— all accounts of transaction participants are opened in the same bank;
- all companies are located at the same legal address.

Editor's comment

In our opinion, tax officials have a chance to prove this scheme in court. Yes, the mere participation of intermediaries, as well as the opening of accounts in the same bank and the interdependence of the parties to the transaction, is not a reason to accuse the company of unjustified tax benefits. This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53. However, the totality of signs, especially together with other “evidence,” already gives the tax authorities some trump cards. Important evidence for judges may be the fact that the company that bought and sold vehicles, as well as the company that received large loans, has only two people on staff. A reasonable question arises: can the two of them physically carry out such large-scale operations?

In one of the latest internal documents, the Moscow Federal Tax Service calls on inspectors to build chains, not limiting themselves to individual evidence, in order to create a complete picture of the offense for judges. This is exactly what the tax authorities did this time.

The chances of tax officials proving the scheme in court are 3.2.

Scheme 2. Patent-offshore

The essence of the scheme. The organization uses scientific developments (technologies) in its activities, for which it transfers sublicense payments to the offshore company. These payments reduce the income tax base. At the same time, the organization’s management is the direct developer of these technologies.

In detail. In 2000, a group of scientists registered patents for two inventions with the Russian Agency for Patents and Trademarks. Later they were assigned to the Swiss company Alps, which transferred these inventions under a non-exclusive license agreement to the Cyprus company Kronos. Then Kronos entered into a non-exclusive sublicense agreement with the Russian OJSC ATA. As part of this transaction, the Russian company paid more than 80 million rubles in 2006. sublicense payments. The Chairman of the Board of Directors of OJSC ATA, as well as a scientific consultant to the company's management and a shareholder (0.11 percent of the authorized capital) are among the authors of these inventions.

Claims and arguments of inspectors. All operations - assignment of a patent and further transfers under a non-exclusive license agreement - are formal in nature. Their only goal is to confuse their tracks and minimize the profits of the Russian OJSC ATA. As follows from the testimony of the scientific consultant, during the same period he registered a number of other patents, which he transferred to OJSC ATA directly, without involving offshore intermediaries. The cost of each patent was 30,000 (!) rubles. At the same time, the amount of sublicense payments for two technologies provided by the Cypriot company to the Russians exceeded 80 million rubles. in year. That is, the direct cost of patents (according to tax authorities, they have the right to compare Russian patents with those transferred by a Cypriot company) was disproportionately less than the expenses that ATA OJSC had to bear. Also, during the on-site inspection, it was established that the chairman of the board of directors of OJSC ATA signed licensing agreements with the Swiss Alps on behalf of Kronos, that is, in fact, he was one of the leaders of the Cyprus company.

Editor's comment

We are talking about a classic tax evasion scheme, which involves zones with preferential taxation. Recently, the use of offshore companies almost 100 percent guarantees increased attention from tax authorities. As a rule, inspectors quickly learn that the actual managers of offshore companies are the same people who manage the Russian organization. In this case, in our opinion, the tax authorities can stumble on only one thing - to prove: inventions, patents for which the scientist transferred to the company directly and for 30,000 rubles, can really be compared with inventions bought from Cypriots for more than 80 million rubles in year. The taxpayer has a chance to prove that the huge price gap is due to incomparability of technologies.

The chances of tax officials proving the scheme in court are 3.8.

Scheme 3. Premium

The essence of the scheme. The company pays incentive bonuses to employees on a monthly basis. These payments do not reduce the income tax base; therefore, unified social tax and pension contributions are not paid from them.

In detail. The collective agreement of employees of ZAO Biscuit provides for work on weekends and holidays, as well as overtime. For this, as well as for additional and especially important tasks, they receive allowances and bonuses. The feasibility of payments and their size are determined by the director based on the financial result of the enterprise. CJSC Biscuit does not include these payments as a reduction in taxable income and, in accordance with paragraph 3 of Article 236 of the Tax Code of the Russian Federation, does not charge unified social tax on them.

Claims and arguments of inspectors. From the contents of the order on bonuses and the memos to it it follows that payments in favor of employees of JSC Biscuit, be it compensation for work at night, for harmful conditions, additional duties (washing cars and forklifts, mentoring), a bonus for performing special tasks important production task, for the intensity of work, an allowance for high qualifications, are, in fact, incentives directly related to work activity. That is, these are labor costs. In accordance with Article 255 of the Tax Code of the Russian Federation, they must be included in expenses that reduce the income tax base. This means that they will be subject to unified social tax.

As follows from paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 14, 2006 No. 106, a company cannot decide on its own whether it should reduce the unified social tax or the income tax. If the code provides for the right of a taxpayer to attribute any expense to profit expenses, then he is obliged to do so. In this case, the company mistakenly did not include payments in income tax expenses, but is obliged to accrue the Unified Tax in any case.

Editor's comment

Such disputes have recently arisen frequently in arbitration practice. Many companies use the norm of paragraph 3 of Article 236 of the Tax Code of the Russian Federation in order to minimize the unified social tax. This is especially true for those who work at a loss. Unfortunately, they forget that almost any payments provided for by law, labor or collective agreements are labor costs (Article 255 of the Tax Code of the Russian Federation). And they do not take into account the position of YOU, who declares: the right to reduce taxable profit is at the same time an obligation. But the courts of the Moscow District take this into account. An example is the FAS resolution of July 5, 2007 No. KA-A40/6138-07.

However, there is a fundamental point here. It is important what is the source of the premiums. If a company generates special-purpose funds from the profits of previous years and makes payments from there, then, according to paragraph 22 of Article 270 of the Tax Code of the Russian Federation, these amounts cannot be taken into account in expenses. Accordingly, UST premiums are not assessed. The judges came to this conclusion in the resolution of the Federal Antimonopoly Service of the Moscow District dated June 18, 2007 No. KA-A40/5117-07.

The chances of tax officials proving the scheme in court are 3.3.

Scheme 4. Outsourcing

The essence of the scheme. The company is laying off workers en masse, but only on paper. In fact, they remain at their jobs and perform the same duties, but now under an outsourcing agreement (personnel rental).

In detail. Sosna OJSC dismisses workers and at the same time subleases leased equipment and cash register equipment to the newly created BenzinTorg LLC, which intends to engage in similar activities. All laid-off workers are hired by several newly registered individual entrepreneurs using a simplified taxation system. All entrepreneurs are former employees of Sosna OJSC. They currently provide labor recruitment and staffing services. BenzinTorg LLC attracts personnel employed by individual entrepreneurs under an outsourcing agreement. During all these changes, workers, as before, continue to work in their places.

Claims and arguments of inspectors. Obviously, the only purpose of these actions is to transfer personnel to “simplified workers” and thereby save on unified social tax. The following facts support this:
— BenzinTorg LLC does not have the material, human or financial resources to independently conduct its activities; Sosna OJSC supplies it with everything necessary;
— individual entrepreneurs do not have any other counterparties other than BenzinTorg LLC, that is, virtually all of their activities come down to two actions: hire dismissed employees of Sosna OJSC and provide them under an outsourcing agreement with BenzinTorg LLC;
— some individual entrepreneurs, having ceased their activities, returned to work at Sosna OJSC.

Editor's comment

We are talking about a primitive and easily provable scheme - the taxpayer has practically no chance in court. It is known that disputes when company employees quit, are employed by the employer on a simplified basis, and then do the same work again, but within the framework of an outsourcing agreement, often end in victories for the tax authorities. If, on top of everything else, the “simplifier” also works exclusively with the taxpayer being inspected, that is, it was created exclusively for this scheme, the fraud, both from the point of view of inspectors and from the point of view of judges, is, as they say, sewn with white threads.

The only case when a company has a chance to prove its innocence is to outsource specialists who are not included in the company’s staffing schedule, and to hire them temporarily and for a specific project.

The tax authorities’ chances of proving the scheme in court are 5.

Scheme 5. Rental

The essence of the scheme. The company that manages the shopping complex leases retail space to the tenant, who, in turn, provides them to subtenants - individual entrepreneurs. The cost of sublease is many times higher than the cost of rent. The profit received by the tenant is diluted through many front organizations.

In detail. Prazhka LLC leases retail space in the shopping complex to two tenants - Union LLC and Estet LLC. They sublease them to individual entrepreneurs at a price 22-26 times higher than the rental price. In this case, all expenses - land rent, utility bills, cleaning, repairs, security, etc. - are borne by Prazhka LLC. The total profit of the two tenant companies is more than 1 billion rubles. in year. Union LLC transfers its profits to the public organization of disabled people (NOI) “Tranquility” as a contribution for the purpose of social protection of disabled people. And she purchases bills of exchange from third parties with this money.

Estet LLC transfers profits to PJ North LLC to pay off its own bills. Previously, Estet LLC issued promissory notes and transferred them to repay the debt that arose in connection with its acquisition of the right to purchase an option from third parties (Cypriot companies) (the right to lease retail space in this complex).

By the time the tax audit was carried out, many companies participating in these transactions had been deregistered from taxation in Moscow and “migrated” to other regions.

Claims and arguments of inspectors. The landlord organization, with the help of intermediary tenants, repeatedly underestimates the income tax. The money transferred by tenants to the public organization of disabled people and other companies was ultimately not paid into the budget. In fact, all transactions carried out by companies are fictitious. The following facts support this:
—it is inappropriate to attract intermediary tenants, since they do not carry out any activities, but only accumulate profits;
— the tenant companies have only five to seven people on their staff; these organizations do not have fixed assets or other material assets on their balance sheets;
- the chairman of the board of the NGO “Tranquility” during interrogation could not remember what his organization was, where it was located and for what purpose it acquired bills of exchange from third parties;
— he is also the general director of PJ North LLC;
— the accounts of all participants in the scheme are opened in the same commercial bank, payments are made as soon as possible (for example, Union LLC transferred its contribution on the same day when it received the sublease payment);
— legal support for all transactions is provided by the Tiber Bar Association and the Tiber-Audit audit company: at the same time, the founders and employees of these organizations act as representatives of Cypriot companies and other participants in the scheme.