Tax counterparty. Problem partners. Federal Tax Service: counterparty check

2024 Author: Howard Calhoun | [email protected]. Last modified: 2023-12-17 10:16

The counterparty is one of the key participants in the transaction. He assumes obligations in accordance with the concluded contract. Each entity that signed the agreement will act as a counterparty to the other party to the transaction.

Risk Assessment

The right choice of counterparty affects the right of the payer to receive a VAT tax deduction. In this regard, the exercise of discretion is of particular importance when concluding a transaction.

The key control body in the field of taxes and fees is the Federal Tax Service. Verification of the counterparty in the Federal Tax Service is carried out in an automated system.

The scheme of its work is as follows. The system compares the tax deductions that the payer claimed for his purchases with the information from the invoices of the seller - the tax counterparty.

If the latter did not file a declaration or did not reflect the transaction data in the Sales Book, or other significant shortcomings were revealed, the control authority makes claims against the buyer.

Controls of the Federal Tax Administrationwhen conducting inspections, the services take into account a set of circumstances that may become evidence of the payer receiving unjustified benefits.

Any business entity must understand the risk. When choosing a business partner, great attention should be paid to the consequences that may arise after the conclusion of certain transactions.

Regulations

Tax counterparties-"ephemeral" can cause significant damage to both the payer and the state as a whole. The purpose of such unscrupulous partners is tax evasion. The payer, in turn, will have to prove the validity of the benefit when accounting for expenses or refunding VAT.

The control bodies of the Federal Tax Service Administration in their activities are guided by the provisions of the Decree of the Plenum of the Supreme Arbitration Court No. 53 (dated October 12, 2006). This document contains key signs of bad faith of a tax counterparty.

For payers, they can use the publicly available self-assessment risk criteria used by the control authorities when selecting sites for on-site inspections.

General recommendations

How not to become a partner of a problem counterparty? The tax authorities have developed several recommendations for payers.

First of all, before the transaction, you must request copies:

1. State registration certificate.
2. Charter.
3. Certificate of registration with the Federal Tax Service.

It is also advisablereceive an extract from the Unified State Register of Legal Entities, as well as a certificate confirming that the tax counterparty has no debt to the budget.

In addition, you can request information about the size of the partner's staff, his financial situation, the cost and composition of fixed assets (fixed assets), reputation, work experience. All of these actions are considered due diligence.

Court practice

It should be said that the courts do not have a unanimous opinion on the need to confirm the actual activities of the tax counterparty.

Some authorities believe that confirmation of the status of the partner's legal entity is not enough to recognize the good faith of the payer.

Some courts believe that it is necessary to make sure that the tax counterparty actually has the ability to fulfill the terms of the transaction. In particular, the authorities explain, you need to make sure that you have qualified personnel, proper equipment, vehicles, other assets, and permits necessary to fulfill obligations.

Some courts need confirmation of the fact of state registration for the payer to fulfill the due diligence requirements. For example, some authorities believe that the execution of an employment contract is far from the only way to attract employees. Employees can also work under civil law agreements.

If the reality of the performed business transactions is confirmed, the courts often ascertain the good faith of the payer in case of individual defects in the documentation.

Legal Advice

If an extract from the Unified State Register of Legal Entities was provided by a tax counterparty, it is advisable to independently verify the information in it with the data posted on the IFTS website. Some unscrupulous partners may forge the document.

Using the services of the Federal Tax Service

Search by TIN is the most common way to confirm the good faith of a partner. There is a special form on the official inspection portal. On the website of the Federal Tax Service, the search for the TIN is carried out online and takes several minutes.

On the corresponding page, select "Legal entity" or "Individual entrepreneur" / "Peasant (farmer) economy (KFH)". Next, the TIN itself is entered.

You can check the counterparty in the tax office by sending a written request. The courts view such action as due diligence.

On the tax website, checking the counterparty by TIN, you can also get information:

• about the name of the legal entity;
• legal address of the enterprise;
• date of state registration;
• checkpoint;
• OGRN;
• termination of activities (about the fact and date);
• recognition of invalidity of registration.

You can download and print an extract from the register from the site. It contains data:

• about the size of the authorized capital;
• founders;
• types of activities of the counterparty (according to OKVED);
• persons authorized to act on behalf of a partner without a power of attorney.

Infobasetax by counterparties contains a complete list of information, the list of which is present in the order of the Ministry of Finance No. 115n (dated December 5, 2013). Data updated daily.

If the individual payer number is unknown, you can conduct a tax check of the counterparty on the website by name.

Additional requests

As can be seen from the above information, it will not be difficult to find a counterparty on the tax website. In addition, the following information can be obtained from the portal:

1. Did the counterparty provide documentation for registration of changes in the charter or data of the Unified State Register of Legal Entities.
2. Was it decided to liquidate, reduce the size of the authorized capital, reorganize, acquire LLC 20% of the capital of another company, etc.
3. Whether a decision was made to exclude the counterparty from the register as inactive.
4. Are there any disqualified persons in the executive bodies of the partner enterprise.
5. Whether the partner is registered at an invalid address, is communication with him at the address specified in the register.
6. Does the counterparty submit tax reports. It is worth saying that a zero declaration does not indicate the reliability of a partner.
7. Is there information about the leader/founder in the database of persons who have refused to lead/participate in the company.

It should be said that some courts take the position that the discrepancy between the actual and legal addresses cannot in itself be the basisto refuse the payer to provide deductions.

Information about the partner's participation in litigation

To obtain this information, you need to study the case file on the YOUR website. The database contains information about all arbitration cases, including the content of disputes.

To obtain information, you must use a special search form. It has a "Participant in the case" field. You can enter the name, PSRN or TIN and click on the "Find" button. The system will issue a list of cases with procedural documents and information about the current stage of the process.

Information about bankruptcy proceedings

To avoid a conflict with the tax office, you need to learn as much as possible about the counterparty. You can make sure that the partner is not at any stage of bankruptcy in the register of data on the facts of the activities of legal entities. You can also find other information here. For example, the registry contains data on the value of JSC assets at the reporting date.

Executive proceedings

Information that enforcement proceedings have not been initiated against a partner can be obtained on the FSSP portal. The site has a database search form. You can get information about both the legal entity and the entrepreneur.

Check for permissions

Some courts indicate the need to confirm the availability of licenses for counterparties. Of course, those entities that conduct licensed activities must have permission.

You can get information onwebsite of the authority issuing this document. It is worth saying that it will be different for each type of license. For example, on the website of Rospotrebnadzor you can find information about licenses issued for activities in the field of the use of radiation sources.

Partner Accounting

The main normative act that the payer should be guided by is PBU, approved by order of the Ministry of Finance No. 34. As indicated in paragraph 89 of this Regulation, the annual reporting of an enterprise is an open document for all interested parties. These include, among others:

• banks;
• investors;
• customers;
• lenders;
• suppliers and so on.

These persons have the right, on legal grounds, not only to familiarize themselves with the annual accounts, but also to make extracts from them or copies. In turn, the enterprise is obliged to provide access to information to interested parties.

Information on annual reporting is provided by organizations free of charge to Rosstat.

Supplier Register

A potential counterparty, of course, may not participate in the purchase for municipal and state needs. However, the possibility of this cannot be ruled out.

Lawyers recommend checking the counterparty in the register of unscrupulous suppliers. This database is maintained and updated by the FAS.

Checking the authority of the subject signing the contract

Many courts consider it a mandatory step for recognizing the payer in good faith. If you don't pass it, you can lose the case.

Thus, if the subject received all the information and documents, but did not verify the authority of the person signing the contract on behalf of the counterparty, this will be the basis for recognizing the payer as dishonest.

In some cases, during the proceedings, representatives of counterparties refuse to sign on documents. In such situations, a graphological examination is assigned. Although the case may be resolved without her.

However, many courts are of the opinion that the visual comparison of the signatures and the testimony of the payer's representative cannot serve as sufficient grounds for recognizing the fact that the papers were signed by improper persons.

Important moment

Some courts recognize the payer as dishonest if the authorized representative of the partner has died or terminated by the time the agreement was signed.

Other courts believe that the latter case cannot indicate the receipt of unreasonable benefits if the participants in the transaction were in a long-term economic relationship before the transaction.

Expert advice

Before signing contracts and other important documents, check:

1. Is the transaction large for the counterparty.
2. Whether the authority of the partner's representative has terminated. Their term is determined in the power of attorney or the charter of the enterprise.
3. Are the powers of the head of the company limited by the constituent documents to conclude contracts,the value of which exceeds the value established by the charter or legislation.

Request to the tax office

A few words about him have already been said above. Let's dwell on the request in a little more detail.

The request is sent to the IFTS at the partner's registration address.

District courts confirm the obligation of control authorities to respond to a request and provide information within the framework of information not related to tax secrets (Article 102 of the Tax Code). At the same time, some authorities emphasize that the refusal of the Federal Tax Service to provide data affects the payer's rights related to receiving a deduction.

Some courts, when considering cases, indicate that the payer, having the opportunity to send a request to the inspection, does not do this. However, in practice there are cases when the authorities come to the conclusion that the subject really could not apply to the inspectorate at the partner's registration address due to the lack of such authority (the tax authorities have it).

As noted by lawyers, even if the payer is refused to provide the requested information, the very fact of the appeal will be evidence of due diligence. Experts note that it is more expedient to transfer the application personally to the IFTS or send it by registered mail with a notice. In the first case, a copy of the request with the seal of the control body on acceptance of the application will remain in hand, and in the second, a notification will be received that the request has been received.

Conclusion

As can be seen from the above, the positions of the courts onabout the scope of activities required to verify the integrity of the partner, are very different. At the same time, the regulations do not contain a list of actions that the payer must take to confirm their due diligence.

It is worth saying that the presence of any one sign of a partner's dishonesty usually does not act as an obstacle to recognizing a tax benefit as unreasonable. The set of criteria, in turn, often makes the regulatory authorities alert, and the courts make decisions in favor of the payers.