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Disclosure of counterparties and tax reconstruction: how a new letter from the Federal Tax Service will change business

Раскрытие контрагентов и налоговая реконструкция: как новое письмо от ФНС изменит бизнес

In March 2021, the Federal Tax Service of Russia published a letter “On the Practice of Applying Article 54.1 of the Tax Code of the Russian Federation”, which explains in detail the effect of the article itself, recalls the tax benefit and obliges entrepreneurs to disclose counterparties. The letter was supposed to bring clarity, but it raises more questions, and the business doesn't know how to take it.

The “Yurproekt” Bar Association held a seminar “New Challenges for Business after the Letter from the Federal Tax Service”, where Denis Smotrin, tax consultant and head of the practice “Taxes, Bankruptcy, Corporate Law”, explained in detail what opportunities appear under the new letter and how it can change the business.

The Federal Tax Service has finally recognized the right of business to tax reconstruction

According to lawyers, this letter radically changes approaches to verifying the validity of tax benefits - in particular, VAT deductions and income tax expenses - and, in general, creates both risks and opportunities.

– The main risk is the need to disclose the real supplier. We are talking about a situation where the tax authority recognizes documents as unreliable and containing distorted data. In this case, it can be problematic to reveal the supplier, because the goods go “along the chain” and can reach the entrepreneur through several companies. Therefore, it is difficult to find out and document who the real supplier is, Denis Smotrin notes. – On the other hand, the letter makes it possible in certain situations to apply deductions and compensate for income tax expenses.

We are talking about tax reconstruction. For example, when an entrepreneur is accused of having entered into an agreement with a “technical” company that exists only on paper and is unable to fulfill the required obligations. It may reveal the real supplier who actually performed the contract. And thereby minimize losses - otherwise, the company will have to pay to the budget all the taxes underpaid as a result of such a transaction.

“Our company has already found itself in a similar situation regarding the verification of counterparties, in the future we would like to know how to avoid them,” says Yana Ivashechkina, a lawyer from Corvette, who came to the seminar. - We were sent requests to disclose the entire chain of beneficiaries and give a description of the company with which we directly worked. And we realized that we would like to know more about it. There were also reverse situations: when a company was recommended to us, but it turned out to be unreliable. Of course, I am wary of the changes - it is not yet clear how this will work, but tax control is being tightened, in my opinion.

The letter of the Federal Tax Service is advisory in nature, but it is too early to draw conclusions about its application.

However, most of the seminar participants came to understand what to expect from tax audits in the future. According to Denis Smotrin, too little time has passed and it is too early to draw specific conclusions, and no one has yet tested the recommendations for using the letter.

Entrepreneur Vladimir Iglov says that he personally does not have any concerns about the changes, but it is better to know what to prepare for. Aware means armed.

- I was interested in this letter, because I have experience of communication with the tax office - both sad and positive. Therefore, it is better to blow on the cold than to burn yourself on the hot. The seminar gives me some confidence that I know something and can apply it in dealing with the tax office.

There are those who changed their mind during the speaker's speech. For example, the chief accountant of Alatau Agro, Elena Paklina.

– The letter raised a lot of questions, so I wanted to hear the positions of lawyers and tax consultants, which are different from mine. Initially, I perceived the letter as a threat, but now I see opportunities. Simply put, if you do everything right, then there is nothing to be afraid of - for example, bona fide companies are now freed from responsibility for choosing a "technical" counterparty, provided that they exercise due diligence.

Due diligence is important again when checking a business

This, incidentally, is another of the main pillars of the letter. Since the appearance of article 54.1 of the Tax Code of the Russian Federation, the tax service has only now again recognized due diligence as an important criterion. Now, if the entrepreneur has shown it, he can count on saving VAT deductions and expenses. But you will also have to prove good faith by the absence of intentionality of your actions.

In general, the changes are intended to clarify the effect of the article and correct the situation in which businesses can only defend their rights in one out of five cases.

- We do not sound the alarm, but simply say that a new stage in tax disputes and tax control is beginning. The standards that are imposed on the taxpayer are changing, - explains Denis Smotrin. – And our goal is to help entrepreneurs save money and teach how to work in the new realities. Now we are watching, watching, warning, preparing recommendations.

The main thing is not to forget that the federal tax service applies the article only in cases of tax abuse and damage to the budget. And now it is directly stated in the same March letter of the Federal Tax Service of the Russian Federation.

The main conclusions and recommendations that a business should make.

1. Be attentive to the collection of documents confirming the reality of the transaction. Now, if there is any doubt, it is the company that must prove that the transaction with the counterparty really took place.

2. Set in advance the final supplier in the chain of counterparties. And at the same time take care of the availability of documents confirming this.

3. Carefully choose contractors. And, most importantly, to check their resource capabilities.

Denis Vasilievich Smotrin
Head of Bankruptcy, Taxes, Corporate Law Practice

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