In order to create a unified system for planning on-site tax audits, increasing tax discipline and taxpayer literacy, as well as improving the organization of work of tax authorities in the exercise of powers in relations regulated by the legislation on taxes and fees provided by the Tax Code of the Russian Federation, I order:
1. Approve the Concept of the planning system for on-site tax audits in accordance with Appendix No. 1 to this Order.
2. Approve the publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits (hereinafter referred to as the Criteria), in accordance with Appendix No. 2 to this Order.
3. Approve the values of Criterion 1 in accordance with Appendix No. 3 to this Order.
4. Approve the values of Criterion 11 in accordance with Appendix No. 4 to this Order.
5. Approve the recommended form of the Explanatory Note to the updated tax return(s) submitted in connection with the identification of facts of conducting financial and economic activities with a high tax risk, in accordance with Appendix No. 5 to this Order.
6. The head (acting head) of the Analytical Department annually, before May 5, determines industry average indicators characterizing the financial and economic activities of taxpayers to clarify the meaning of Criteria No. 1 and 11 and post them on the official website of the Federal Tax Service of Russia.
7. The head (acting head) of the Control Department, together with the heads (acting heads) of the Taxation Department, the Legal Department and the Pre-trial Audit Department, based on the results of control work, taking into account the pre-trial settlement of disputes with taxpayers and the emerging arbitration practice, conduct a regular analysis of the identified methods of conducting financial economic activities with high tax risk used by taxpayers.
8. The head (acting head) of the Informatization Department should place this Order and its annexes on the official Internet site of the Federal Tax Service of Russia in the “Tax Control” section, subsection “Tax Audits”.
9. The head (acting head) of the Control Department ensures that information on methods of conducting financial and economic activities with a high tax risk is updated on the official website of the Federal Tax Service of Russia.
10. The departments of the Federal Tax Service for the constituent entities of the Russian Federation will bring this Order to lower tax authorities and organize work to familiarize taxpayers with the provisions of this Order and its annexes.
11. Control over the implementation of this Order shall be entrusted to the deputy head of the Federal Tax Service, who oversees the activities of the Control Department.
Head of the Federal
tax service
M.P. Mokretsov
Russian Federation
ORDER of the Federal Tax Service of the Russian Federation dated May 30, 2007 N MM-3-06/333@ (as amended on April 8, 2011) "ON APPROVAL OF THE CONCEPT OF THE PLANNING SYSTEM FOR FIELD TAX INSPECTIONS"
In order to create a unified system for planning on-site tax audits, increasing tax discipline and taxpayer literacy, as well as improving the organization of work of tax authorities in the exercise of powers in relations regulated by the legislation on taxes and fees provided by the Tax Code of the Russian Federation, I order:
1. Approve the Concept of the planning system for on-site tax audits in accordance with Appendix No. 1 to this Order.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
2. Approve the publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits (hereinafter referred to as the Criteria), in accordance with Appendix No. 2 to this Order.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
3. Approve the values of Criterion 1 in accordance with Appendix No. 3 to this Order.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
4. Approve the values of Criterion 11 in accordance with Appendix No. 4 to this Order.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
5. Approve the recommended form of the Explanatory Note to the updated tax return(s) submitted in connection with the identification of facts of conducting financial and economic activities with a high tax risk, in accordance with Appendix No. 5 to this Order.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
6. The Analytical Department (V.N. Zasko) annually, before May 5, determine industry average indicators characterizing the financial and economic activities of taxpayers to clarify the meaning of the Criteria and post them on the official website of the Federal Tax Service of Russia.
7. To the Control Department (L.A. Arshintseva) together with the Taxation Department (N.S. Chamkina), the Legal Department (O.V. Ovchar) and the Pre-trial Audit Department (D.V. Egorov) based on the results of control work taking into account pre-trial settlement of disputes with taxpayers and the emerging arbitration practice, conduct regular analysis of identified methods of conducting financial and economic activities with a high tax risk, used by taxpayers.
8. The Informatization Department (V.G. Kolesnikov) place this Order and its annexes on the official website of the Federal Tax Service of Russia in the “Tax Control” section, subsection “Tax Audits”.
9. The Control Department (L.A. Arshintseva) ensures that information is updated on the methods of conducting financial and economic activities with a high tax risk on the official website of the Federal Tax Service of Russia.
10. The departments of the Federal Tax Service for the constituent entities of the Russian Federation will bring this Order to lower tax authorities and organize work to familiarize taxpayers with the provisions of this Order and its annexes.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
11. Control over the implementation of this Order shall be entrusted to the Deputy Head of the Federal Tax Service T.V. Shevtsov.
(as amended by the Order of the Federal Tax Service of the Russian Federation dated 10/14/2008 N MM-3-2/467@)
Supervisor
Federal Tax Service
M.P.MOKRETSOV
ANNEX 1
to the Order of the Federal Tax Service of Russia
dated 05/30/2007 N MM-3-06/333@
1. General issues of obtaining unjustified tax benefits using shell companies.
The use of fly-by-night companies in business activities is one of the most common ways of obtaining unjustified tax benefits. Conceptually, the essence of the scheme comes down to the inclusion in the chain of economic relations of persons who do not fulfill their tax obligations. There are two main directions for obtaining unjustified tax benefits using shell companies:
1.1. The use of fly-by-night companies to create fictitious expenses and obtain deductions for indirect taxes without the corresponding movement of goods (works, services). In this case, an organization (wishing to receive an unjustified tax benefit) enters into business agreements with a person who does not fulfill its tax obligations, and the activities of a fly-by-night company, as a rule, are directly or indirectly controlled by the recipient of an unjustified tax benefit, transfers to him the amount specified in the agreement (in including the amount of indirect taxes). On the part of the counterparty, the terms of the contract are not actually fulfilled; only the necessary primary documents confirming the completion of transactions are presented. That is, the formal requirements for documentary evidence of expenses incurred and the deduction of indirect taxes are met.
1.2. The use of fly-by-night companies to increase the added value of goods and reduce the tax burden on production units. This scheme for building economic relations is typical for the sale of goods that have a low cost. The manufacturer (importer) sells products at a price close to cost to a person who does not fulfill his tax obligations. Next, the fly-by-night company sells the same product at a significant markup to the person who sells it to end consumers. In the situation under consideration, the main tax burden falls on the fly-by-night company, while the manufacturer and the final seller have a minimal tax burden.
In the described case, the recipient of an unjustified tax benefit can be, depending on the actual economic conditions, both the manufacturer and the final seller.
A typical method of tax evasion using shell companies
Used by both sellers and buyers of goods
| RF | |||||||||||||
| Manufacturer of raw materials | < | 50 rub. | Shell company | < | 490 rub. | Intermediary company | < | 500 rub. | Company with a trade or production brand | ||||
| / | / | ||||||||||||
| Cash | |||||||||||||
| 400 rub. | |||||||||||||
| 400 rub. | / | Product | |||||||||||
A typical method of organizing financial and economic activities for the purpose of tax evasion when selling goods
| 118 rub. | 120 rub. | 125 rub. | ||||||||||||||
| > | Shell company | VAT 21.2 rub. | > | Intermediary company | VAT 21.6 rub. | > | Branded company | VAT 22.5 rub. | > | Retail sales | ||||||
| > | ||||||||||||||||
| 100 rub. | ||||||||||||||||
| 18 rub. | < | |||||||||||||||
| Manufacturer | ||||||||||||||||
| VAT payable: | ||||||||||||||||
| / | 0.9 rub. | |||||||||||||||
| Tax evasion, withdrawal of part of funds offshore and cashing out the rest | ||||||||||||||||
2. Application of schemes for obtaining unjustified tax benefits when selling real estate.
Attention real estate agencies and investors, insurance companies.
The use of schemes for obtaining unjustified tax benefits has a negative effect both on the volume of budget revenues and has a number of other socially negative consequences. The established practice of selling real estate and the schemes used to transfer ownership are aimed, on the one hand, at obtaining unjustified tax benefits, and on the other, at infringing the rights of consumers - individuals, buyers of real estate.
Group - a set of persons operating in the real estate market, which includes a real estate agency, as well as interdependent organizations, a number of which are fly-by-night companies;
The real estate agency is one of the main production divisions of the group; it can act as an investor, issuer of securities used for settlements when purchasing real estate;
Dependent organizations are persons who are formally investors in construction or issuers of bills of exchange, who, as a rule, do not fulfill their tax obligations.
One of the most common schemes for selling real estate is as follows: persons wishing to purchase an apartment contact a real estate agency and enter into an investment agreement for the construction of housing. Settlements under the agreement are carried out with bills of exchange purchased from organizations dependent on the real estate agency, or investment agreements are concluded with companies dependent on the real estate agency, and payment is made with bills of exchange from the real estate agency. Bill payments, in this case, are not determined by a reasonable economic sense; apartment buyers, turning to a real estate agency, initially have no intention of purchasing any securities, their acquisition is associated exclusively with payments for apartments and is imposed by the real estate agency. The fact that the tax obligations of persons interdependent in relation to the real estate agency are not fulfilled in full (most often these organizations are fly-by-night companies) allows the group as a whole to illegally minimize its tax obligations.
Using the above scheme sharply increases the risk of not receiving property.
The above scheme for obtaining tax benefits in real estate transactions is not the only one that is associated with increased tax risks. A very common scheme is mandatory insurance of investment risks. In this case, the cost of the apartment is divided into two parts, the first is the cost of the investment contribution, the second is the amount of the insurance premium. A person wishing to purchase an apartment is forced to insure investment risks. At the same time, the risk of third parties is insured - the risk of the real estate agency. The occurrence of an insured event in such a situation is initially impossible. The investment component in contracts for the purchase of apartments, as a rule, is close to the cost of the apartment, and an economically unjustified insurance premium is not included in the income tax base of a real estate agency, that is, the real estate agency underestimates the cost of apartments for tax purposes by the amount of the insurance premium. Organizations providing insurance have a number of signs of dishonesty, which in a systematic relationship with the procedure for selling apartments allows us to conclude that the activities of the insurance organization are carried out in the interests of the real estate agency. For consumers, the negative effect of using such a scheme appears when the investment contract is terminated, in which case it is practically impossible to reimburse the amount of the insurance premium.
Schemes for obtaining unjustified tax benefits with the involvement of unscrupulous insurance organizations are actively used not only in the sale of real estate (rent, leasing).
A typical method of obtaining an unjustified tax benefit when selling real estate using an insurance company
3. Scheme for obtaining unjustified tax benefits in the production of alcohol and alcohol-containing products.
Attention manufacturers of alcoholic and alcohol-containing products.
Schemes for obtaining unjustified tax benefits by organizations engaged in licensed activities, in particular the production of alcohol and alcohol-containing products, have certain specifics.
Persons participating in the scheme are:
Taxpayer is an organization that has the necessary licenses and technological equipment, engaged in the production of ethyl alcohol, alcoholic and alcohol-containing products;
Supplier - an organization that supplies alcohol-containing products to the taxpayer.
The specificity of these schemes is associated with a number of technological features of the production of alcoholic beverages (vodka). According to the current provisions of regulatory legal acts, both ethyl alcohol and alcohol-containing products - brew distillates, alcoholized infusions, etc. can be involved in its production. In the case of the production of alcoholic products (vodka) from ethyl alcohol, the excise tax burden is significantly higher than in the production of the same products from beer distillates, alcoholized infusions or other alcohol-containing products. This fact is associated with the difference in the amount of excise tax subject to deduction by the manufacturer on purchased products (for alcohol-containing raw materials, a deduction is applied at the excise tax rate of 173.5 rubles, for alcohol - 25.15 rubles).
When applying the scheme, one or a number of organizations located in the supply chain of alcohol-containing products do not fulfill their tax obligations.
An essential feature of the application of a scheme for illegal reimbursement of excise tax amounts from the budget is the absence of real business transactions for the taxpayer to purchase alcohol-containing products used, according to the documents submitted by the organization, as the basic raw material in the production of alcoholic products.
At the same time, supplies of alcohol-containing products are reflected only in formally executed shipping documents.
Evidence of the application of the scheme is also the lack of the supplier (manufacturer) of alcohol-containing products with the technical base for the production of the volume of sales reflected in the accounting (there is no necessary technological equipment, communications, qualified personnel, raw materials for the production of products). Cash flows in such cases, as a rule, do not correspond to the business transactions stipulated by the contracts (in particular, payments are made to the accounts of third parties not related to the supply or production of alcohol-containing products). The reporting indicators of the scheme participants do not correspond to the real indicators of financial and economic activity.
Thus, the identification of these signs in their systemic relationship indicates the use of a scheme, the purpose of which is to obtain an unjustified tax benefit.
A typical method for minimizing excise taxes by alcohol producers
Excise tax rate:
Ethyl alcohol - 25.15 rubles, Alcohol and alcohol-containing products - 173.5 rubles.
When producing vodka from ethyl alcohol, the excise tax on a 0.5 liter bottle will be 34.7 rubles, the deduction for alcohol should be 5.03 rubles. But in the production of vodka from alcoholized infusions, where the share of ethyl alcohol is only 2.7%, and the share of alcoholized infusions is 37.3% of the volume of production, deductions for alcohol-containing raw materials will amount to 0.34 rubles for alcohol and 32.36 rubles for alcoholized infusions infusion Revenues to the budget system from a unit of these products will amount to only 2.00 rubles.
Thus, the budget loss for each bottle produced is 27.67 rubles.
The unjustified tax benefit corresponds to the amount of unpaid excise tax to the budget by organizations supplying alcoholic infusions to vodka producers.
4. Scheme for obtaining unjustified tax benefits using disabled people.
For the attention of organizations applying the benefit under subclause 2 of clause 3 of Article 149 of the Tax Code of the Russian Federation.
Persons participating in the scheme are:
Taxpayer is an organization in which the number of disabled people is at least 50%, and their share in the wage fund is at least 25%;
An outsourcing company is an organization that provides qualified personnel.
An organization that formally meets the requirements for VAT exemption, as an organization that includes disabled people, is engaged in the production of products using personnel attracted under outsourcing agreements. The employees on staff are not able (due to health status and (or) qualifications) to ensure the production of products sold. In this case, the VAT benefit applies to the entire volume of products produced by the taxpayer.
The taxpayer artificially creates conditions for the application of the above benefits for products produced with the involvement of third party personnel, since the involved personnel are not taken into account when determining the average number of employees of the enterprise and the wage fund.
Thus, the taxpayer abuses the right to use the benefit provided for in subparagraph 2 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation.
Typical method of unlawful application of VAT benefits
On-site tax audits cause a lot of trouble for accountants and heads of organizations. The criteria published by the Federal Tax Service of Russia for self-assessment of risks entailing an audit will help you somewhat protect yourself from the attention of tax authorities. Experts assess the very appearance of the concept as a generally positive step. How applicable it is in practice, taking into account additional clarifications from the Federal Tax Service of Russia, is assessed by M.S. Mukhin, head of department and A.R. Nazarov, Deputy Head of the Federal Drug Control Service of Russia.
On-site tax audits have been and remain one of the most unpleasant tax control tools for taxpayers. For this reason, the issue of their organization and planning directly affects the interests of those whose activities are subject to verification. For a long time, this area of activity of the tax authorities was hidden from prying eyes.
In such a situation, the approval by Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@ of the Concept of a planning system for on-site tax audits (hereinafter referred to as the Concept) undoubtedly became a step forward. For the first time, the principle of openness was proclaimed when planning inspections, and taxpayers were provided with a fairly compact list of criteria for independently assessing the risks entailed by its implementation.
At the same time, the Concept does not solve all problems, remaining a methodologically weak document, which wins only against the background of the caricature “109 signs of unreliability” that appeared in the media at the beginning of 2007.
Eleven criteria for self-assessment of taxpayer risks (section 4 of the Concept) deserve a more detailed analysis.
This criterion seems quite reasonable from the point of view of planning on-site tax audits. At the same time, its inadequacy is obvious. In particular, the Concept does not take into account that the tax burden of a newly created organization may be lower than the industry average for completely objective reasons.
Questions also remain regarding the procedure for determining the taxpayer’s tax burden. According to the explanations of the Federal Tax Service of Russia, data on the official website of the department *, the industry average tax burden is determined as a percentage and is calculated as the ratio of the amount of taxes paid according to the reporting of tax authorities and the turnover (revenue) of organizations** according to the Federal State Statistics Service (hereinafter - Rosstat ). Apparently, the Federal Tax Service of Russia believes that the taxpayer should determine his own tax burden in a similar way, replacing “tax authorities’ reporting” with his own tax returns (for an unknown period), and “turnover (revenue)” with proceeds from the sale of goods (work, services). This tacit appeal by the tax department to the resourcefulness of taxpayers has nothing to do with an objective assessment of risks.
The phrase simply does not have a semantic conclusion - it is unclear what the performance indicators do not correspond to. Moreover, the notice itself does not require any explanation.
Explanations from the official website of the Federal Tax Service of Russia only aggravate the problem. According to their authors, we are talking about the situations described in paragraph 3 of Article 88 of the Tax Code of the Russian Federation. According to this paragraph, the tax authority in certain cases has the right to require the taxpayer to provide explanations or make corrections to documents.
Firstly, such a situation as “inconsistency of performance indicators” is not provided for at all in Article 88 of the Tax Code of the Russian Federation.
Secondly, the criterion given in paragraph 9 of section 4 of the Concept can be compared not with all situations described in paragraph 3 of Article 88 of the Tax Code of the Russian Federation, but only with one - identifying a discrepancy between the information provided by the taxpayer and the information contained in the documents available to tax authority, and received by it during tax control. Other situations - identification of errors in a tax return (calculation) and (or) contradictions between the information contained in the submitted documents - are not even indirectly mentioned in the Concept. Meanwhile, they are named in the explanations.
Thirdly, paragraph 3 of Article 88 of the Tax Code of the Russian Federation gives the taxpayer a choice: provide explanations to the tax authority or make corrections to the documents. According to the Concept, the taxpayer is obliged to provide explanations, that is, making corrections to documents is still considered as a risk of committing a tax offense.
Such obvious contradictions between the Concept, its explanations and the norms of the Tax Code of the Russian Federation cannot but worry, because, according to a long tradition, the taxpayer will undoubtedly be the extreme one.
If we analyze this criterion without taking into account the explanations of the official website of the Federal Tax Service of Russia, then its groundlessness appears obvious. Changing the location of a legal entity due to the requirements of Federal Law No. 129-FZ dated 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs” entails the need to make changes to the constituent documents. Therefore, it is difficult to understand why the authors of the Concept consider law-abiding actions of a taxpayer as a risk of tax violation.
The clarifications somewhat smooth out the situation, indicating that we are talking about the taxpayer making changes to the constituent documents at least twice during an on-site tax audit. With this approach, the criterion under consideration will not cause major problems for taxpayers. We would like to add that the authors of the clarifications comment on the criteria for selecting candidates for an on-site tax audit and recommend analyzing the behavior of the taxpayer during an on-site tax audit.
And in this case, we have to admit that the criterion is vague and incomplete - it is not known what deviation should be considered significant, and it is not clear what “statistical data” means. In addition, literal adherence to this criterion leads to the absurd conclusion that a taxpayer’s significant excess of the industry average profitability indicator should also be considered a risk of tax violation. Questions also remain regarding the period for which the indicator is being studied.
Explanations from the official website of the Federal Tax Service of Russia partially answer these questions. Significant deviation means “deviation (downward) of profitability according to the taxpayer’s accounting data from the industry average profitability indicator for a similar type of activity according to statistics by 10% or more.”
The explanations do not contain any references to Rosstat indicators. And it is not at all clear what statistical indicators taxpayers - individual entrepreneurs should be guided by, since they are not mentioned in the explanations.
Summarizing the above, we can conclude that both the Concept itself and its explanations contradict each other and partially contradict the current legislation. The criteria given in the Concept are vague and leave room for arbitrary interpretation. The concept does not contain a mechanism for internal control over the validity of the appointment of on-site tax audits. In other words, the tax authority is free to order an on-site tax audit in relation to a taxpayer who does not meet any of the criteria. Under such circumstances, one should not delude oneself about the prospects for applying the Concept.
At the same time, the adoption of the Concept should be welcomed as the first step towards streamlining the procedure for appointing on-site tax audits. In addition, the Concept is the first noticeable document of the Federal Tax Service of Russia, which contains a direct instruction to the tax authorities, when assessing tax benefits, to be guided by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53. The latter circumstance can bring practical benefits to taxpayers, since the tax authorities have not yet specified the document was often ignored.
THE FEDERAL TAX SERVICE
ORDER
ABOUT CONCEPT APPROVAL
(as amended by Orders of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@,
dated 09/22/2010 N ММВ-7-2/461@)
In order to create a unified system for planning on-site tax audits, increasing tax discipline and taxpayer literacy, as well as improving the organization of work of tax authorities in the exercise of powers in relations regulated by the legislation on taxes and fees provided by the Tax Code of the Russian Federation, I order:
1. Approve the Concept of the planning system for on-site tax audits in accordance with Appendix No. 1 to this Order.
(Clause 1 as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
2. Approve the publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits (hereinafter referred to as the Criteria), in accordance with Appendix No. 2 to this Order.
(clause 2 as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
3. Approve the values of Criterion 1 in accordance with Appendix No. 3 to this Order.
(clause 3 as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
4. Approve the values of Criterion 11 in accordance with Appendix No. 4 to this Order.
(clause 4 as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
5. Approve the recommended form of the Explanatory Note to the updated tax return(s) submitted in connection with the identification of facts of conducting financial and economic activities with a high tax risk, in accordance with Appendix No. 5 to this Order.
(Clause 5 as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
6. The Analytical Department (N.S. Zavilova) annually, before May 5, determine industry average indicators characterizing the financial and economic activities of taxpayers to clarify the meaning of the Criteria and post them on the official website of the Federal Tax Service of Russia.
(Clause 6 as amended by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
7. The Control Department (L.A. Arshintseva) together with the Taxation Department (N.S. Chamkina), the Legal Department (S.V. Bobkov) and the Pre-trial Audit Department (M.A. Ivanov) based on the results of control work taking into account the pre-trial settlement of disputes with taxpayers and the emerging arbitration practice, conduct regular analysis of identified methods of conducting financial and economic activities with a high tax risk, used by taxpayers.
(Clause 7 as amended by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
8. The Informatization Department (V.G. Kolesnikov) place this Order and its annexes on the official website of the Federal Tax Service of Russia in the “Tax Control” section, subsection “Tax Audits”.
(clause 8 as amended by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
9. The Control Department (L.A. Arshintseva) ensures that information is updated on the methods of conducting financial and economic activities with a high tax risk on the official website of the Federal Tax Service of Russia.
(clause 9 as amended by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
10. The departments of the Federal Tax Service for the constituent entities of the Russian Federation will bring this Order to lower tax authorities and organize work to familiarize taxpayers with the provisions of this Order and its annexes.
(Clause 10 was introduced by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
11. Control over the implementation of this Order shall be entrusted to the Deputy Head of the Federal Tax Service T.V. Shevtsov.
(Clause 11 was introduced by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
Head of the Federal
tax service
M.P.MOKRETSOV
Appendix No. 1
to the Order of the Federal Tax Service of Russia
dated 05/30/2007 N MM-3-06/333@
CONCEPT
SYSTEMS FOR PLANNING FIELD TAX INSPECTIONS
(as amended by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@)
Introduction
The President of the Russian Federation determined that state tax policy should be formed based on the need to stimulate positive structural changes in the economy, consistently reduce the total tax burden, and qualitatively improve tax administration.
The relief of the tax burden carried out by the state in recent years by reducing tax rates, abolishing certain taxes and removing unjustified restrictions creates optimal conditions for doing business and fulfilling tax obligations.
High-quality tax administration is one of the conditions for the effective functioning of the tax system and the state economy.
The positive development of the main components of the state’s tax policy, which are reducing the total tax burden and improving tax administration, is inextricably linked with tax control, the purpose of which is to ensure timely and complete receipt of taxes and other obligatory payments to the budget, including by achieving a high level of tax discipline and literacy of taxpayers.
The main and most effective form of tax control is on-site tax audits. As a result of conducting on-site tax audits, tax authorities must simultaneously solve several problems, the most important of which are:
identification and suppression of violations of legislation on taxes and fees;
prevention of tax violations.
At the same time, on-site tax audits must meet the requirements of unconditionally ensuring the legitimate interests of the state and the rights of taxpayers, increasing their protection from unlawful demands of tax authorities and creating the most comfortable conditions for the taxpayer for calculating and paying taxes.
In order to effectively solve all these problems, this Concept for the planning system for on-site tax audits (hereinafter referred to as the Concept) has been prepared, which provides a new approach to building a system for selecting objects for conducting on-site tax audits.
According to the Concept, planning on-site tax audits is an open process built on the selection of taxpayers to conduct on-site tax audits based on the criteria for the risk of committing a tax offense, including publicly available ones. Previously, planning on-site tax audits was a purely internal confidential procedure of the tax authorities.
In order to ensure a systematic approach to the selection of objects for conducting on-site tax audits, the Concept defines an algorithm for such selection. The selection is based on a qualitative and comprehensive analysis of all information available to the tax authorities (including from external sources), and the determination on its basis of “risk zones” for tax offenses.
Thus, in this Concept, the planning of on-site tax audits is interconnected with the formation and development among taxpayers of a correct understanding of the legislation on taxes and fees, the conviction that its violation is inadmissible and the need for strict compliance with the laws.
1. Objectives of the Concept development
This Concept has been developed for the purposes of:
1) creating a unified system for planning on-site tax audits;
2) increasing tax discipline and taxpayer literacy;
3) ensuring the growth of state revenues by increasing the number of taxpayers who voluntarily and fully fulfill their tax obligations;
4) reducing the number of taxpayers operating in the “shadow” sector of the economy;
5) informing taxpayers about the main selection criteria for conducting on-site tax audits.
2. Basic principles of planning
The construction of a unified, open and understandable system for planning on-site tax audits for taxpayers and tax authorities is based on certain principles. These include:
1. Most favored nation treatment for conscientious taxpayers.
2. Timely response to signs of possible tax violations.
3. The inevitability of punishment for taxpayers in the event of violations of the legislation on taxes and fees.
4. Validity of the choice of objects of inspection.
In accordance with the new approach to organizing the planning system, the selection of objects for conducting on-site tax audits has been changed. The basis of this system is a comprehensive analysis of all information available to the tax authority at each stage of planning and preparation of an on-site tax audit.
At the same time, the taxpayer can use his right to independently assess risks and evaluate the advantage of independently identifying and correcting errors made when calculating taxes.
Each taxpayer must understand that the possibility of not including on-site tax audits in the plan depends on the transparency of its activities, the completeness of calculation and payment of taxes to the budget.
Thus, in accordance with this Concept, planning of on-site tax audits is carried out on the basis of the principle of bilateral responsibility of taxpayers and tax authorities, in compliance with which the former strive to fulfill their tax obligations, and the latter - to a reasonable selection of taxpayers for conducting on-site tax audits.
3. Structure of selection of taxpayers for
on-site tax audits
A justified selection of objects for conducting on-site tax audits is impossible without a comprehensive analysis of all information received by the tax authorities from internal and external sources.
Information from internal sources includes information about taxpayers obtained by tax authorities independently in the process of performing their functions assigned to the tax service.
Information from external sources includes information about taxpayers received by tax authorities in accordance with current legislation or on the basis of information exchange agreements with regulatory and law enforcement agencies, state authorities and local governments, as well as other information, including publicly available information.
Conducted for the purpose of selecting taxpayers for on-site tax audits, the analysis of financial and economic indicators of their activities contains several levels, including:
analysis of the amounts of calculated tax payments and their dynamics, which makes it possible to identify taxpayers whose tax payment amounts are decreasing;
analysis of the amounts of paid tax payments and their dynamics, carried out for each type of tax (collection) in order to control the completeness and timeliness of the transfer of tax payments;
analysis of indicators of tax and (or) accounting statements of taxpayers, allowing to determine significant deviations in the indicators of financial and economic activity of the current period from similar indicators for previous periods or deviations from the average statistical indicators of reporting of similar business entities for a certain period of time, as well as to identify contradictions between information, contained in the submitted documents, and (or) discrepancy with the information available to the tax authority;
analysis of factors and reasons influencing the formation of the tax base.
If an object is selected for conducting an on-site tax audit, the tax authority determines the feasibility of conducting on-site tax audits of counterparties and (or) affiliates of the taxpayer being inspected.
In accordance with the main goals and principles of this Concept, the selection of objects for conducting on-site tax audits is based on targeted selection, a thorough and constantly carried out comprehensive analysis of all information available to the tax authorities about each object, regardless of its form of ownership and the amount of tax obligations. When planning, all significant aspects of both an individual transaction and the activities of the taxpayer as a whole are subject to analysis.
Priority for inclusion in the plan of on-site tax audits are those taxpayers in respect of whom the tax authority has information about their participation in tax evasion schemes or schemes to minimize tax liabilities, and (or) the results of the analysis of the financial and economic activities of the taxpayer indicate expected tax offenses.
4. Criteria for self-assessment of risks
for taxpayers
This Concept provides for the taxpayer to conduct an independent risk assessment based on the results of its financial and economic activities according to the criteria given below.
Publicly available criteria for self-assessment of risks for taxpayers, used by tax authorities in the process of selecting objects for conducting on-site tax audits, may be:
When assessing the above indicators, the tax authority must necessarily analyze the possibility of extracting or the presence of an unjustified tax benefit, including under the circumstances specified in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53.
Systematic self-assessment of risks based on the results of its financial and economic activities will allow the taxpayer to timely assess tax risks and clarify their tax obligations.
5. Results of the Concept implementation
This Concept defines the main priorities, principles and directions for implementing a unified approach to planning on-site tax audits.
The proposed planning system will allow:
1) for taxpayers - to minimize the likelihood that an on-site tax audit this year will affect a law-abiding taxpayer who has fully fulfilled his obligations to the budget;
2) for tax authorities - to identify the most likely “risk areas” (violations of legislation on taxes and fees), to respond in a timely manner to the possible commission of tax offenses and to determine the necessary tax control measures.
The principles laid down in this Concept will make it possible to implement:
1. Formation of a unified approach to planning on-site tax audits.
2. Stimulating taxpayers in terms of compliance with legislation on taxes and fees.
3. Increasing tax literacy and taxpayer discipline.
Appendix No. 2
to the Order of the Federal Tax Service of Russia
dated 05/30/2007 N MM-3-06/333@
PUBLICLY AVAILABLE CRITERIA
INDEPENDENT ASSESSMENT OF RISKS FOR TAXPAYERS,
USED BY TAX AUTHORITIES IN THE PROCESS OF SELECTION OF OBJECTS
FOR CONDUCTING ON-SITE TAX INSPECTIONS
(introduced by Order of the Federal Tax Service of the Russian Federation dated October 14, 2008 N MM-3-2/467@,
in ed. Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
1. The tax burden of a given taxpayer is below its average level for business entities in a specific industry (type of economic activity).
The calculation of the tax burden, starting from 2006, for the main types of economic activity is given in Appendix No. 3 to Order of the Federal Tax Service of Russia dated May 30, 2007 N MM-3-06/333@.
The tax burden is calculated as the ratio of the amount of taxes paid according to the reporting of tax authorities and the turnover (revenue) of organizations according to the Federal State Statistics Service (Rosstat).
2. Reflection in accounting or tax reporting of losses over several tax periods.
The organization carries out financial and economic activities at a loss for 2 or more calendar years.
If an organization receives a loss based on the results of financial and economic activities for 2008, the tax authority may not take into account this calendar year among the 2 years when the activity was carried out at a loss, provided that the taxpayer received losses for objective reasons, about which the tax authority there is relevant information and supporting documents provided by the taxpayer.
(paragraph introduced by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
3. Reflection in tax reporting of significant amounts of tax deductions for a certain period.
The share of deductions for value added tax from the amount of tax accrued from the tax base is equal to or exceeds 89% for a period of 12 months.
4. The growth rate of expenses exceeds the growth rate of income from the sale of goods (works, services).
For corporate income tax.
Discrepancy between the growth rate of expenses compared to the growth rate of income according to tax reporting and the growth rate of expenses compared to the growth rate of income reflected in the financial statements.
5. Payment of average monthly wages per employee below the average level for the type of economic activity in the constituent entity of the Russian Federation.
Information on statistical indicators of the average wage level by type of economic activity in a city, district or in a whole subject of the Russian Federation can be obtained from the following sources:
1) Official Internet sites of territorial bodies of the Federal State Statistics Service (Rosstat).
Information about the addresses of Internet sites of territorial bodies of the Federal State Statistics Service (Rosstat) is located on the official Internet site of the Federal State Statistics Service (Rosstat) www.gks.ru.;
2) Collections of economic and statistical materials published by territorial bodies of the Federal State Statistics Service (Rosstat) (statistical collection, bulletin, etc.);
3) Upon request to the territorial body of the Federal State Statistics Service (Rosstat) or the tax authority in the relevant constituent entity of the Russian Federation (inspectorate, department of the Federal Tax Service of Russia for the constituent entity of the Russian Federation);
4) Official Internet sites of the departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation after posting the relevant statistical indicators on them.
Information about the addresses of Internet sites of the departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation is located on the official Internet site of the Federal Tax Service of Russia www.nalog.ru.
6. Repeatedly approaching the maximum value of the indicators established by the Tax Code of the Russian Federation that grant taxpayers the right to apply special tax regimes.
In terms of special tax regimes, the approach (less than 5%) to the maximum value of the indicators established by the Tax Code of the Russian Federation that affect the calculation of tax for taxpayers applying special tax regimes (2 or more times during a calendar year) is taken into account.
Regarding the single agricultural tax.
Approximation to the limit value established by Article 346.3 of the Tax Code of the Russian Federation of the indicator necessary for applying the taxation system for agricultural producers:
The share of income from the sale of manufactured agricultural products, including primary processed products made from agricultural raw materials of own production, in the total income from the sale of goods (works, services), determined based on the results of the tax period, is at least 70 percent.
Regarding the simplified taxation system.
Repeatedly approaching the limit values established by Articles 346.12 and 346.13 of the Tax Code of the Russian Federation of indicators necessary for applying the simplified taxation system:
The share of participation of other organizations is no more than 25 percent;
The average number of employees for the tax (reporting) period, determined in the manner established by the federal executive body authorized in the field of statistics, is no more than 100 people;
The residual value of fixed assets and intangible assets, determined in accordance with the legislation of the Russian Federation on accounting, is no more than 100 million rubles;
The maximum amount of income determined based on the results of the reporting (tax) period in accordance with Article 346.15 and subparagraphs 1 and 3 of paragraph 1 of Article 346.25 of the Tax Code of the Russian Federation is no more than 60 million rubles.
(as amended by Order of the Federal Tax Service of the Russian Federation dated September 22, 2010 N ММВ-7-2/461@)
Regarding the single tax on imputed income.
Repeatedly approaching the limit values established by Article 346.26 of the Tax Code of the Russian Federation of indicators necessary for applying the taxation system in the form of a single tax on imputed income:
The area of the sales area of a store or pavilion for each retail trade facility is no more than 150 square meters. meters;
The area of the visitor service hall for each catering facility that has a visitor service hall is no more than 150 square meters. meters;
The number of vehicles available under the right of ownership or other right (use, possession and (or) disposal) intended for the provision of motor transport services is no more than 20 units;
The total area of sleeping quarters in each facility used to provide temporary accommodation and accommodation services is no more than 500 square meters. meters.
7. Reflection by an individual entrepreneur of the amount of expenses as close as possible to the amount of his income received for the calendar year.
For personal income tax.
The share of professional tax deductions provided for in Article 221 of the Tax Code of the Russian Federation, declared in the tax returns of individuals registered in the manner established by current legislation and carrying out entrepreneurial activities without forming a legal entity, in the total amount of their income exceeds 83 percent.
8. Construction of financial and economic activities on the basis of concluding agreements with counterparties-resellers or intermediaries ("chains of counterparties") without the presence of reasonable economic or other reasons (business purpose).
Circumstances indicating that the taxpayer has received an unjustified tax benefit, specified in Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53.
9. Failure by the taxpayer to provide explanations to the notification of the tax authority about the identification of discrepancies in performance indicators.
Absence, without objective reasons, of explanations from the taxpayer regarding errors identified during a desk tax audit in the tax return (calculation) and (or) contradictions between the information contained in the submitted documents, or identified inconsistencies between the information provided by the taxpayer and the information contained in the documents held by the tax authority authority, and received by it during tax control, if, for the purposes provided for in paragraph 3 of Article 88 of the Tax Code of the Russian Federation, the taxpayer is summoned to the tax authority on the basis of a written Notice of Summoning of the Taxpayer (Fee Payer, Tax Agent), provided for in paragraph . 4 clause 1 of Article 31 of the Tax Code of the Russian Federation, which contains the requirement to provide the necessary explanations within five days or make appropriate corrections within the prescribed period.
10. Repeated deregistration and registration with the tax authorities of the taxpayer in connection with a change in location (“migration” between tax authorities).
Two or more cases from the moment of state registration of a legal entity, submission during an on-site tax audit to the registering authority of an Application for state registration of changes made to the constituent documents of the legal entity in terms of changes to information about the address (location) of the legal entity, if these changes entail the need to change the place of registration at the location of the given taxpayer-organization.
11. Significant deviation of the level of profitability according to accounting data from the level of profitability for a given field of activity according to statistics.
Calculation of profitability of sales and assets, starting from 2006, for the main types of economic activity is given in Appendix No. 4 to Order of the Federal Tax Service of Russia dated May 30, 2007 N MM-3-06/333@.
Regarding corporate income tax:
Deviation (downwards) of profitability according to the taxpayer’s accounting data from the industry average profitability indicator for a similar type of activity according to statistics by 10% or more.
12. Conducting financial and economic activities with high tax risk.
The Federal Tax Service of Russia, based on the results of control work, taking into account the pre-trial settlement of disputes with taxpayers and established arbitration practice, determines the most common methods of conducting financial and economic activities with a high tax risk, aimed at obtaining unjustified tax benefits.
Information on methods of conducting financial and economic activities with a high tax risk is posted on the official website of the Federal Tax Service of Russia www.nalog.ru in the section “Publicly available criteria for independent risk assessment.”
When assessing tax risks that may be associated with the nature of relationships with certain counterparties, the taxpayer is recommended to examine the following signs:
Lack of personal contacts between the management (authorized officials) of the supplier company and the management (authorized officials) of the buyer company when discussing the terms of delivery, as well as when signing contracts;
Lack of documentary evidence of the authority of the head of the counterparty company, copies of his identity document;
Lack of documentary evidence of the authority of the counterparty's representative, copies of a document proving his identity;
Lack of information about the actual location of the counterparty, as well as the location of warehouse and/or production and/or retail space;
Lack of information about the state registration of the counterparty in the Unified State Register of Legal Entities (public access, official website of the Federal Tax Service of Russia www.nalog.ru).
The presence of such signs indicates a high degree of risk of classifying such a counterparty by the tax authorities as problematic (or “fly-by-night”), and transactions made with such a counterparty are questionable.
The simultaneous presence of the following circumstances further increases such risks:
A counterparty with the above characteristics acts as an intermediary;
The presence in contracts of conditions that differ from the existing rules (customs) of business transactions (for example, long deferred payments, delivery of large quantities of goods without advance payment or guarantee of payment, incommensurable with the consequences of violation of contracts by the parties with penalties, settlements through third parties, settlements with bills, etc.) P.);
Lack of obvious evidence (for example, copies of documents confirming that the counterparty has production facilities, necessary licenses, qualified personnel, property, etc.) of the possibility of the counterparty actually fulfilling the terms of the agreement, as well as the existence of reasonable doubts about the possibility of the counterparty actually fulfilling the terms of the agreement, taking into account the time required for delivery or production of goods, performance of work or provision of services;
Purchase through intermediaries of goods, the production and procurement of which are traditionally carried out by individuals who are not entrepreneurs (agricultural products, secondary raw materials (including scrap metal), craft products, etc.);
Lack of real actions by the payer (or his counterparty) to collect the debt. An increase in the debt of the payer (or its counterparty) against the backdrop of continued delivery of large quantities of goods or significant volumes of work (services) to the debtor;
Issue, purchase/sale by counterparties of bills of exchange, the liquidity of which is not obvious or not investigated, as well as issuance/receipt of loans without collateral. At the same time, the negativity of this attribute is aggravated by the absence of conditions on interest on debt obligations of any type, as well as the repayment terms of these debt obligations for more than three years;
A significant share of expenses for a transaction with “problem” counterparties in the total amount of expenses of the taxpayer, while there is no economic justification for the feasibility of such a transaction and at the same time there is no positive economic effect from its implementation, etc.
Accordingly, the more of the above signs are simultaneously present in the taxpayer’s relationships with counterparties, the higher the degree of his tax risks.
Taxpayers who, according to their own assessment, have high risks under this paragraph of the Criteria and who wish to reduce or completely eliminate these risks are recommended to:
Eliminate questionable transactions when calculating tax liabilities for the corresponding period;
Notify the tax authorities about the measures they have taken to reduce these risks (clarification of tax obligations), in order to be able to timely take into account the adjusted tax obligations of these taxpayers when selecting objects for on-site tax audits.
Notification is made by submitting to the tax authority at the location of the organization (or at the place of registration as the largest taxpayer) updated tax returns for taxes for those periods in which activities with a high tax risk were carried out.
To identify the purpose of filing this updated declaration (reduction/elimination of risks under clause 12 of the Criteria), taxpayers are invited to submit, simultaneously with the updated declaration, an Explanatory Note in the form recommended by the Federal Tax Service of Russia (Appendix No. 5 to Order No. MM-3-06/333 dated May 30, 2007 @) (hereinafter referred to as the Explanatory Note).
In a similar manner, the taxpayer can declare updated tax liabilities arising as a result of taking measures to reduce tax risks when carrying out financial and economic activities using methods aimed at obtaining unjustified tax benefits, but not presented on the website.
The tax authority, which has received the updated tax returns, as well as the Explanatory Note submitted with them, conducts a desk tax audit in accordance with Art. 88 of the Tax Code of the Russian Federation. When conducting desk tax audits of the specified updated declarations with the Explanatory Note submitted to them, additional documents are not required from the taxpayer.
The fact that the taxpayer has filed an updated declaration in order to reduce (eliminate) the risks under clause 12 of the Criteria is taken into account by the tax authorities in the process of selecting objects for conducting on-site tax audits (or adjusting already approved plans for on-site tax audits) in combination with other Criteria.
If the tax authority has information about the conduct of activities with signs of violations of tax legislation, in relation to the taxpayer who has declared the measures taken by him to reduce the risks under paragraph 12 of the Criteria, the decision to schedule an on-site tax audit is made only after preliminary agreement with the Federal Tax Service of Russia.
