What is due diligence when choosing a counterparty. Due diligence: what is it and how to exercise it? Is the counterparty a “one-day firm”? So I checked...

As practice shows, in addition to the claims made by the tax authorities during checks for the registration of the primary, there are also a number of more global claims, on the basis of which the taxpayer may be deprived of the VAT deduction and income tax expenses. Currently, these include:

• suspicions of dishonesty of the parties to the transaction;
• suspicions of obtaining unjustified tax benefits;
• suspicions of cooperation with one-day firms;
• suspicions of creating a group of affiliated persons in order to optimize tax payments;
• failure to exercise due diligence and caution in choosing a counterparty;
• lack of evidence of the reality of the transaction;
• lack of a business purpose in the transaction.

The tax authority is trying to find out all these points as part of an in-house audit, including an in-depth one, as well as as part of a pre-audit analysis of the taxpayer's activities and to obtain evidence as part of the GNP.

Since the first four of the points listed above, in fact, come down to one thing - checking the activities of the counterparty by the taxpayer, let's talk in more detail about how to competently fulfill the requirement of regulatory authorities to exercise due diligence and caution in choosing a counterparty today.

I note right away that, taking into account modern trends in this direction, it makes sense for each organization, as an internal local act, to develop a provision regulating the procedure for the actions of its employees to form a dossier on a counterparty.

I refer to this document as the Due Diligence Policy. To make this work easier for you, I propose to look at the most important extracts from it, which I will comment on.

Below in italics is a sample Regulation. The points I will comment on are in bold below.

The sample of the Due Diligence Regulation itself in Word format can be downloaded.

Let's start with Section I.

COMPLIANCE REGULATION LLC "Company"

THE PRINCIPLE OF "DUE DILIGENCE"

I. GENERAL PROVISIONS

1.1. The regulation was drawn up to prevent the risks associated with the choice of Company LLC (hereinafter referred to as the Company) of its counterparties for financial and economic activities.

1.2. Under the risks this Regulation refers to the likely losses of the Company (fines, penalties, payment of arrears) as a result of claims against it by regulatory authorities due to the failure of the Company to exercise due diligence.

1.3. The Regulations provide for the Company to conduct an independent assessment of such risks according to the criteria given in these Regulations, as well as justify the choice of counterparties before entering into Contracts.

1.4. Regulations defines a unified approach to reduce the likelihood of the Company building financial and economic relations without observing the principle of due diligence.

1.5. The regulation is fixed by the internal order of the Company. Compliance by the parties to the transaction with these Regulations, before concluding contracts and in the course of economic relations, is mandatory, unless otherwise provided in the Regulations themselves.

1.6. The principles laid down in the Regulations make it possible to increase the level of the Company's ICS, reduce the likelihood of the Company conducting its financial and economic activities with high tax risks.

Comments on Section I

So, two paragraphs (1.2. and 1.3.) are highlighted in bold. The first says that the company understands the risks associated with the improper choice of business partners, and the second says that the company independently conducts procedures for assessing the above risks and standardizes them in this document.

The document is an element of the internal control system (I remind you that all organizations, in accordance with the provisions of Article 19 of the Federal Law of 06.12.2011 No. 402-FZ “On Accounting”, were required to organize an internal control system), which is expressly stated in clause 1.6 . the document in question.

Pay attention to the content of clause 1.5., where it is said that the parties to the transaction must comply with the provisions of this document both before the conclusion of the contract and after. This means that a potential counterparty must be notified in advance of the terms of cooperation with the company, and this procedure must be specified in the Regulations.

How to do it? The easiest way is to post the specified terms of cooperation on your official website, for example, in the tab "Information for potential customers", or "Terms of cooperation, binding".

Also, from the point of view of protecting the interests of the company, the presence of Section II is very important.

II. THE CONCEPT OF "TAX BENEFIT".

MAIN PROVISIONS

COMPLIANCE WITH THE PRINCIPLE OF "DUE DILIGENCE"

2.1. The tax benefit of the Company is understood as a reduction in the amount of tax liabilities due to a reduction in the tax base, obtaining a tax deduction, tax relief, applying a lower tax rate, as well as obtaining the right to a refund (offset) or refund of tax from the budget.

The actions of the Company in the process of financial and economic activities, resulting in the receipt of tax benefits, are economically justified.

2.2. The provision by the Company to the tax authority of all duly executed documents stipulated by the legislation on taxes and fees in order to obtain a tax benefit is the basis for obtaining it, unless the tax authority proves that the information contained in these documents is incomplete, unreliable and (or) contradictory. The obligation to control the fulfillment of tax obligations in accordance with the established procedure is assigned to the tax authorities. The company is not obliged to choose the way of managing providing the maximum tax payments. The duty to prove the circumstances that testify to the fact of a tax offense and the person's guilt in committing it lies with the tax authorities (clause 6, article 108 of the Tax Code of the Russian Federation). Unremovable doubts about the guilt of the taxpayer who is held liable shall be interpreted in favor of the taxpayer - the Company.

2.3. The company in the course of its financial and economic activities does not consider the tax benefit as an independent business purpose of the transaction. business purpose the transaction corresponds to the subject matter of the agreement concluded by the Company and should answer the question - why is this agreement needed in a given period of time. The contract is considered concluded if between the parties, in the form required in appropriate cases, an agreement is reached on all the essential terms of the contract. Essential are the conditions on the subject of the contract, the conditions that are named in laws or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached (Article 432 of the Civil Code of the Russian Federation) . In the text of the agreements concluded by the Company, the business purpose of the transaction should be formulated, indicating that the business purpose of the transaction corresponds to the subject of the agreement, for example, “acquisition of goods (works, services) for the purposes of the Company’s business activities specified in the constituent documents” - (Appendix 1 of the Regulations).

2.4. The financial result of the transaction- profit or loss (negative financial result of the transaction) - is not the business purpose of the transaction. Obtaining a financial result under a transaction is based on the risk of entrepreneurial activity, which is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered as such in the manner prescribed by law ( article 2 of the Civil Code of the Russian Federation).

2.5. The primary documents that formalize the business operations of the Company and on the basis of which accounting is maintained comply with the provisions of Federal Law No. 402-FZ dated 06.11.2011 “On Accounting” and are approved in the appendix to the accounting policy of the organization for accounting purposes. In particular, primary accounting documents are accepted for accounting if they contain the following mandatory details:

• Title of the document;
• date of preparation of the document;
• the name of the organization on behalf of which the document is drawn up;
• the content of the business transaction;
• business transaction meters in physical and monetary terms;
• the names of the positions of the persons responsible for the performance of the business transaction and the correctness of its registration; personal signatures of the said persons. The list of persons entitled to sign primary accounting documents is approved by the head of the Company in agreement with the chief accountant as part of the accounting policy.

Documents that formalize business transactions with cash are signed by the head of the organization and the chief accountant or persons authorized by them. Primary accounting documents are compiled at the time of the transaction, and if this is not possible - immediately after its completion. Timely and high-quality execution of primary accounting documents, their transfer within the established time limits for reflection in accounting, as well as the reliability of the data contained in them, is ensured by the persons who compiled and signed these documents. Corrections to cash and bank documents are not allowed. Corrections can be made to other primary accounting documents only upon agreement with the participants in business transactions, which must be confirmed by the signatures of the same persons who signed the documents, indicating the date of the corrections.

In addition, on the basis of the provisions of the job description, the authorized person (indicate the specific position), on the basis of the provisions of the job description, is responsible for periodically checking the correctness of filling in incoming invoices from counterparties - VAT payers on the website of the Federal Tax Service of Russia at: npchk.nalog.ru. This check is carried out:

• in relation to invoices issued in the amount of 10.0 to 100.0 thousand rubles. - once a quarter before drawing up a VAT return for the current quarter;
• in relation to invoices issued in the amount of 100.0 to 500.0 thousand rubles. - monthly;
• in relation to invoices issued in excess of 500 thousand rubles. - each time immediately upon receipt of such an invoice.

2.6. When the Company concludes any contract, the text of the contract includes the section “Guarantees of good business practices of the parties to comply with the principle of due diligence”, in which the counterparty undertakes to provide the Company with complete and reliable information regarding risk assessment according to the criteria given in Appendix 2 of these Regulations. This section also states that compliance by the parties with these Regulations is an essential condition of the concluded agreement.

2.7. The accounting policy of the Company approved the rules for document flow and the procedure for monitoring business transactions (PBU 1/2008 "Accounting Policy of the Organization"). In terms of the document flow, the accounting policy states that the primary accounting document is accepted for accounting subject to the verification of the Company's counterparty in accordance with these Regulations (see Appendix 3 of the Regulations). Verification of the Company's counterparties is carried out (name of the department, full name of the official or list of specialists).

2.8. By this Regulation The criteria for the necessity and expediency of such a check have been established, namely:

(the Company establishes and prescribes the criteria independently, based on the costs of such control measures and the result obtained. For example, it is possible to control those contracts for which the costs amount to 15% or more of the total Company's costs, contracts concluded for a long period or other criteria It should be indicated in which cases a representative of the Company or personally the head of the Company visits the counterparty).

The problem of dishonesty of counterparties occupies one of the leading places in the ranking of aspects taken into account by the tax authorities when administering taxation. According to experts, this is due to the fact that cases have recently become more frequent when tax services hold entrepreneurs accountable, revealing contracts they have with so-called "one-day firms." In order not to face the claims of the tax authorities about the unreasonableness of obtaining a tax benefit, taxpayers should take into account a number of rules when choosing a counterparty. Head of tax practice at IPT Group spoke about some of them Dmitry Manuilov at a press conference yesterday.

So, first of all, it is necessary to collect a significant amount of information about the counterparty. The main way to obtain it is to request copies of documents confirming the legal capacity of the company's activities from the partner himself. In particular, these include a certificate of registration of a legal entity, registration with a tax authority, information from the Unified State Register of Legal Entities and constituent documents. "According to the results of a survey we conducted among 109 companies, 97% of them use information received directly from contractors," the expert noted.

At the same time, we recall that, in the opinion of the tax service, the presence of an extract from the Unified State Register of Legal Entities in relation to any counterparty confirms only the fact of its state registration in the prescribed manner and cannot automatically be sufficient or the only confirmation of due diligence and caution of the taxpayer when choosing a counterparty (letter Federal Tax Service dated March 16, 2015 No. ED-4-2 / ​​4124 "").

Quickly assess the reliability of the counterparty, analyze the prospects for cooperation and minimize financial, tax and reputational risks will help "Express check" as part of information and legal support GARANT

In addition, information confirming the good faith of the party to the transaction can also be obtained from open sources. For example, on the official website of the Federal Tax Service of Russia there are information resources that allow you to check a partner. This is the "Business Risks: Check Yourself and the Counterparty" service - with its help, the taxpayer can obtain information about whether the supplier is a "one-day company" registered at the mass registration address. Also, literally this week, the new service of the Federal Tax Service of Russia "Transparent business", on which it is planned to place, among other things, information about tax offenses of organizations and measures of responsibility for their commission (Order of the Federal Tax Service of Russia dated December 29, 2016 No. ММВ-7-14 / [email protected] " ").

However, as court practice shows, when concluding a transaction, the taxpayer must not only request the constituent documents of the counterparty and make sure that he has the status of a legal entity, but also verify the identity of the person acting on behalf of this legal entity, as well as that he has the appropriate powers (decision of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated June 7, 2017 in case No. A75-15497 / 2016,).

In this connection, the next mandatory action aimed at qualitative verification of the partner's integrity is the organization of personal meetings with the management of the counterparty company before signing the contract. At the same time, as the expert noted, negotiations with a partner also need to be recorded. Thus, documents confirming the due diligence and caution of the taxpayer when choosing a counterparty may be copies of the passports of company representatives, minutes of meetings, a photograph with partners, a company visit log.

According to the materials at the disposal of the GARANT.RU portal, 33% of respondents evaluate the collected information about the partner in the future in accordance with the company's approved model for making a decision on choosing a counterparty. “Many large companies have approved regulations, memorandums, instructions and other local acts that detail the actions to check the integrity, including the list of documents required to request from counterparties,” said Dmitry Manuilov. “So, after collecting the documents, they evaluate them according to their own point system and decide for themselves whether it is possible to enter into civil legal relations with this counterparty, conclude a deal.

We add that in order to qualitatively check the counterparty, it is necessary to monitor the financial condition of the counterparty, its reputational risks and the market for relevant goods (works, services) not only at the conclusion of the contract, but also throughout its validity.

One of the most common reasons for refusing VAT deductions and withdrawing expenses is an unscrupulous counterparty. You are to blame for not showing due diligence in choosing it. Of course, you should always check counterparties, especially if you work with small firms. First of all, in order to protect yourself from scammers, make sure that your partner is trustworthy. And each organization checks counterparties in its own way. But what does due diligence mean for tax officials? How to check the counterparty in order to prove that you were extremely careful in case of their claims?

The article will discuss the verification of the counterparty-organization. However, many of these recommendations apply even if your counterparty is an entrepreneur.

The Ministry of Finance and the Federal Tax Service believe that measures indicating due diligence and caution when choosing a counterparty are Letters of the Ministry of Finance dated 10.04.2009 No. 03-02-07 / 1-177, dated 06.07.2009 No. 03-02-07 / 1-340, dated 31.12.2008 No. 03-02-07 / 2-231; Federal Tax Service No. 3-7-07/84 dated February 11, 2010:

• obtaining a copy of the certificate of registration of the counterparty with the tax authority;
• verification of the fact of entering information about the counterparty in the Unified State Register of Legal Entities;
• obtaining a power of attorney or other document authorizing a particular person to sign documents on behalf of the counterparty;
• use of official sources of information characterizing the activities of the counterparty.

However, in reality, it often turns out that the reason for filing a complaint with you is not your indiscretion, but the dishonesty of your counterparty. That is, if, for example, your counterparty does not submit reports and does not pay taxes, then claims will be presented to you regardless of how carefully you checked it and what documents you have regarding it. If there are no claims against the counterparty, then the tax authorities will not study whether you have shown due diligence.

Courts, considering such disputes, make decisions both in favor of organizations and in favor of tax authorities. And they do not have any single approach to assessing due diligence.

FROM AUTHENTIC SOURCES

Head of the Tax Security Department of CJSC AF "Audit-Classic"

“For some reason, it is believed that it is guaranteed to win in court in the case of receiving goods from a one-day shop, only by proving that the controversial operation actually took place. Allegedly, such a conclusion follows from the Resolutions of the Supreme Arbitration Court Resolutions of the Presidium of the Supreme Arbitration Court No. 15574/09 dated March 9, 2010, No. 18162/09 dated April 20, 2010. As a result, many have seriously weakened control over counterparties when concluding contracts. However, this is wrong. If the inspection proves that the taxpayer acted without due diligence, knew or should have known about the “problematic” status of the counterparty, VAT deductions and cost recognition may be denied. And numerous judicial practice confirms this. Resolutions of the Presidium of the Supreme Arbitration Court No. 18162/09 dated April 20, 2010, No. 15658/09 dated May 25, 2010. Therefore, checking counterparties at the time of concluding contracts is an absolutely necessary thing for any taxpayer working on the general taxation system and the simplified taxation system with the object “income minus expenses””.

After analyzing the opinion of regulatory authorities and judicial practice, we offer you the main directions for checking the counterparty and how to conduct it.

The main directions of checking the counterparty

Most often, partners are asked for constituent documents, that is, a charter, to confirm the reliability. According to it, you can verify the name of the organization, its location, check the authority of the head. And there are even courts that believe that obtaining only copies of constituent documents indicates due diligence and Decrees of the FAS ZSO dated 05.03.2010 No. A45-11237 / 2009; FAS MO dated 03/02/2011 No. KA-A41 / 555-11; FAS PO of December 14, 2010 No. А65-8579/2010. However, it is better to take into account the opinion of the regulatory authorities and not create problems for yourself, because the courts are not always on the side of organizations. So there are two main things to check.

Checking if your counterparty is a current taxpayer

OPTION 1. We look at information from the Unified State Register of Legal Entities from the website of the Federal Tax Service.

You simply enter the TIN indicated by the counterparty on the website of the Federal Tax Service, make sure that his TIN is real and at the time of the conclusion of the contract there is no information about the exclusion of the company from the Unified State Register of Legal Entities. In one of its decisions, the Supreme Arbitration Court of the Russian Federation considered that such a form of verification testifies to the exercise of due diligence and Resolution of the Presidium of the Supreme Arbitration Court dated 09.03.2010 No. 15574/09. Some courts also decided Decrees of the FAS PO dated November 1, 2011 No. A65-2843 / 2011; FAS UO dated 11.08.2011 No. F09-4478 / 11; FAS CO dated July 25, 2011 No. А54-4250 / 2010С21; FAS MO dated 08.02.2011 No. КА-А40/17851-10. Although, for example, the FAS VSO believes that this is not enough Decrees of the FAS VSO dated 08.18.2010 No. A33-19963 / 2009, dated 08.24.2010 No. A10-5604 / 2009.

You can check the TIN of the counterparty: website of the Federal Tax Service→ section "Electronic services" → section "Check yourself and the counterparty"

By the way, the Federal Tax Service also recommends using its official website to check:

• whether the counterparty is among the inactive legal entities in respect of which the tax authorities have decided on the forthcoming exclusion from the Unified State Register of Legal Entities;
• whether the director of the counterparty is a disqualified person.

Such information will also help you confirm your discretion. Decrees of the FAS PO dated July 28, 2011 No. A57-13884 / 2010; FAS MO dated 09.09.2010 No. КА-А40/10126-10.

The results of checking a counterparty via the Internet are best presented in the form of a screenshot (screenshot) with the information received. To do this, press the Ctrl and PrintScreen keys on your keyboard at the same time. Then open the Paint program in standard Windows programs and paste the image into the open sheet by pressing the right mouse button and selecting the "Paste" command. The resulting file should be saved in *.jpeg format using the "Save as ..." command located in the "File" tab.

OPTION 2. We receive an extract from the Unified State Register of Legal Entities.

Given that the provision of an extract is a paid service, it is better if the counterparty provides it to you. Many courts consider the presence of an extract to be a sufficient exercise of due diligence and Decrees of the FAS PO dated 10.10.2011 No. A65-28269 / 2010; FAS DVO dated 03.10.2011 No. F03-4402 / 2011; FAS MO dated March 14, 2011 No. KA-A40 / 690-11; FAS SZO dated 06/21/2011 No. A05-11486 / 2010; FAS UO dated 06/18/2010 No. Ф09-4486 / 10-С2. Although, again, there are those for whom this is not enough, since the fact that the counterparty is registered in the Unified State Register of Legal Entities does not mean that he conducts real activities Decrees of the FAS MO dated 06/22/2011 No. KA-A40 / 6036-11, dated 02.22.2011 No. KA-A40 / 18297-10; FAS UO dated November 28, 2011 No. F09-6952 / 11; FAS VSO dated 10/19/2010 No. А19-3822/10.

To learn how to get an extract from the Unified State Register of Legal Entities and what it contains, read:

OPTION 3. We request a copy of the certificate of registration and certificate of registration with the tax authority.

Certified copies of these documents can be provided to you by the counterparty, and without any effort on his part. And this will also be considered due diligence by you and Decrees of the FAS PO dated 07/20/2010 No. A12-23566 / 2009; FAS MO dated November 30, 2010 No. KA-A40 / 15207-10, dated October 24, 2011 No. A40-138664 / 10-127-789; FAS SZO dated 15.08.2011 No. А56-36565/2010.

FROM AUTHENTIC SOURCES

“It would not be superfluous to check the compliance of the information in the submitted documents with the actual information in the Unified State Register of Legal Entities, available on the website of the Federal Tax Service. This is necessary in order to make sure that the certificate is not outdated at the time of the conclusion of the contract and is true. It happens that the contract is concluded with an already liquidated person. Moreover, it is not uncommon for unscrupulous contractors to simply forge copies of submitted documents. In addition, on website of OOO "Kommersant KARTOTEKA" you can make sure in real time that liquidation or bankruptcy proceedings have not been initiated against the counterparty company a” .

CJSC AF "Audit-Classic"

We check the authority of persons signing documents on behalf of your counterparty

The Ministry of Finance says that, in addition to checking the counterparty organization itself, it is also necessary to verify the identity of the one who acts on its behalf, as well as whether he has the appropriate authority. For many organizations, such verification has long become a habit. There are examples of court decisions when the court did not take the side of the taxpayer, because, among other things, he did not check the authority of the person representing the interests of the partner and Decrees of the FAS PO dated 04.20.2011 No. A55-16131 / 2010, dated 08.25.2011 No. A55-1144 / 2011, dated 07.07.2011 No. A55-37642 / 2009; FAS ZSO dated 07/20/2011 No. A27-13785 / 2010; FAS MO dated July 12, 2011 No. KA-A40 / 6776-11; FAS VSO dated 09.02.2011 No. А19-12564/2010.

To verify the authority, you can use an extract from the Unified State Register of Legal Entities, which contains information about the head of the organization Decree of the FAS MO dated 06.09.2011 No. КА-А40/9465-11-2. But it is better to ask the counterparty copies of decisions and orders on the appointment of the head and chief accountant Decrees of the FAS Central Organ of October 6, 2011 No. A62-6220 / 2010; FAS PO dated December 27, 2011 No. A55-3941 / 2011; FAS UO dated 10/18/2010 No. Ф09-8555 / 10-С3; FAS SZO dated 03/01/2011 No. A13-6636 / 2009; FAS SKO dated November 10, 2011 No. A32-30018 / 2010; FAS MO dated 10/13/2011 No. A40-102956 / 10-4-530. If the documents are signed on behalf of the counterparty by an authorized representative, then ask him power of attorney Decree of the FAS PO dated July 29, 2010 No. A65-23705 / 2009.

By the way, do not forget to check the data of the representative indicated in the submitted documents with his passport. Even better, if the counterparty agrees to provide you with a photocopy of it (you cannot demand such a copy - it contains personal data that can only be used with the consent of the owner articles 3, 6 of the Law of July 27, 2006 No. 152-FZ). This may serve as additional evidence of your discretion and ; Decrees of the FAS SZO dated November 22, 2010 No. A56-91778 / 2009; FAS PO dated May 13, 2011 No. A55-16741 / 2010; FAS MO dated 09/28/2011 No. А40-1550/11-20-8, dated 10/10/2011 No. А40-124553/10-4-722, dated 09/06/2011 No. КА-А40/9465-11-2.

CONCLUSION

Taking into account the conflicting jurisprudence and the opinion of regulatory authorities, it is safest if you have all of the above documents: copies of constituent documents, certificates of registration and state registration, documents confirming the authority of persons signing the primary, extract from the Unified State Register of Legal Entities, online printout - pages of the Federal Tax Service website with data about the counterparty.

Some firms, in addition to the above documents, request other information. Let's see if this makes sense.

Licenses

If the works (services) that the counterparty provides you are licensed or you purchase any goods that cannot be sold without a license, then it would be useful to take a copy of the license from the counterparty. You must make sure that the counterparty is really able to fulfill the terms of the contract. In some cases, the lack of a license from a counterparty may turn out to be the drop that will tip the scales of justice not in your favor. Decrees of the FAS VSO dated 03.25.2010 No. A19-15776 / 09, dated 10.08.2009 No. A33-17712 / 08; FAS ZSO dated November 24, 2008 No. F04-7182 / 2008 (16313-A27-14); FAS UO dated November 11, 2010 No. Ф09-9004 / 10-С2. In addition, the Federal Tax Service also recommends that you have a copy of the counterparty's license. Letter of the Federal Tax Service No. 3-7-07/84 dated February 11, 2010.

FROM AUTHENTIC SOURCES

“ The presence of a license can be checked via the Internet - on the website of the relevant licensing authority. If, in order to fulfill the contract, your counterparty must be a member of a self-regulatory organization (SRO), you can also check the counterparty's membership in the SRO via the Internet - on the SRO website.

CJSC AF "Audit-Classic"

Copies of tax returns and financial statements

These declarations are a tax secret, and you have no right to demand them from your counterparty. sub. 13 p. 1 art. 21, paragraph 1 of Art. 102 Tax Code of the Russian Federation. But even if he provides them to you, the information reflected in the declaration cannot indicate the reliability of the counterparty. The same goes for financial statements. It is better to make a request to the tax office, in which you need to specify:

• the purpose of the request is to obtain information about violations of tax laws committed by the counterparty;
• the basis of the request - paragraph 1 of Art. 102 of the Tax Code of the Russian Federation, art. 8 of the Federal Law of July 27, 2006 No. 149-FZ.

To find out whether the tax authorities are obliged to inform you about tax violations of your counterparties, read:

If the tax authorities answer you, this will be additional evidence of your prudence and Decree of the FAS MO dated August 17, 2009 No. KA-A40 / 7659-09.

If there is no answer, the very fact of the appeal already proves that you have been prudent. Decree 9 AAS dated 08.12.2009 No. 09AP-23342/2009-AK.

Information about the current account of the counterparty

The fact that your counterparty has a current account and non-cash settlements testifies to the passage of both primary and periodic internal bank checks for the legitimacy and legal capacity of the client. Therefore, according to some courts, the very existence of a counterparty’s current account and Decrees of the Federal Antimonopoly Service of the Moscow Region dated February 7, 2011 No. KA-A40 / 17658-10, dated April 19, 2011 No. KA-A40 / 2826-11; FAS SZO dated July 29, 2010 No. А66-12520/2009 or carrying out settlements by him in a non-cash way Decrees of the Federal Antimonopoly Service of the Central Organ of October 21, 2010 No. A23-6231 / 09A-13-280-21-11-DSP, of December 13, 2010 No. A68-9235 / 09 talk about your discretion when choosing a counterparty.

Information on whether the head was brought to tax or administrative liability

They are recommended to be requested from your counterparty by the Federal Tax Service Letter of the Federal Tax Service No. 3-7-07/84 dated February 11, 2010. Although in practice, such a request may cause at least bewilderment in the counterparty. It is not known what the FTS was guided by when giving such recommendations, but if the head was not held accountable, this is not at all a guarantee that the company will be in good faith. And vice versa, if he was involved, this does not mean that it is impossible to cooperate with the organization. ; FAS SKO dated September 16, 2011 No. A32-51445 / 2009. And some still indicate that in addition, you need to check the location of the organization and Decrees of the FAS VSO dated 06/16/2011 No. A19-19805 / 10; FAS SZO dated 15.08.2011 No. А05-12704/2010.

WARNING THE MANAGER

For small and little-known suppliers, at the pre-contractual stage, you need to collect a small dossier, consisting of copies of the charter, registration certificates, licenses, extracts from the Unified State Register of Legal Entities. This will help avoid tax problems if the supplier turns out to be an unscrupulous taxpayer.

By the way, the Ministry of Finance recently recommended, among other things, to investigate information Letter of the Ministry of Finance of December 13, 2011 No. 03-02-07/1-430:

• about the actual location of the counterparty;
• on its production (trade) areas;
• about obvious evidence of the possibility of actual fulfillment by the counterparty of the terms of the contract, taking into account the time required for the delivery or production of goods, performance of work or provision of services.

Although how this can be verified, neither the courts nor the financiers explained.

FROM AUTHENTIC SOURCES

“ You can also check if the counterparty did not appear as a shell company in litigation. This can be done in any legal reference system that has a database of decisions of arbitration courts (for example, ConsultantPlus). More recently, such information began to be published on the websites of some regional Federal Tax Service (in particular, the Federal Tax Service of the Krasnoyarsk Territory) ” .

CJSC AF "Audit-Classic"

Of course, the list is impressive. But you should not despair. If you cooperate with large and well-known organizations, then you are unlikely to have problems. And when working with small or unfamiliar firms, especially if the amount of the transaction is high, it is better to get as many documents as possible.

FROM AUTHENTIC SOURCES

“ It is advisable to divide for yourself all counterparties, depending on certain parameters (financial indicators, stability, etc.) into risk groups and, depending on the degree of risk, collect the most complete set of documents or the minimum. It is better to fix the procedure for checking counterparties and the criteria for their division into groups by internal regulations.

The ideal option - in addition to the listed procedures - is to select suppliers through a tender. Tender selection can be envisaged in regulation e” .

CJSC AF "Audit-Classic"

And remember: in the field of tax relations there is a presumption of good faith and Definition of the Constitutional Court of July 25, 2001 No. 138-O. That is, the tax authorities are not entitled to interpret the concept of “conscientious taxpayers” as imposing additional obligations on you that are not provided for by law and Decrees of the FAS Central Organ of September 29, 2011 No. A48-4435 / 2010; FAS MO dated 06/21/2011 No. КА-А40/5741-11. The tax authorities must prove that you were negligent in choosing a partner or deliberately cooperated with an unscrupulous counterparty. Clause 10 of the Resolution of the Plenum of the Supreme Arbitration Court of October 12, 2006 No. 53.

Exercising due diligence when choosing a counterparty is an often used phrase, the roots of which grow more from judicial practice than from legislation. Let's figure out what it means, to whom prudence is a duty, and what threatens frivolity when choosing a partner.

Caution and discretion in business

Due diligence when choosing a counterparty is not, as a general rule, required by law to be an obligation in the conduct of commercial or economic activities. However, we recall that according to Art. 2 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), entrepreneurial activity is understood as an activity carried out at one's own risk, the purpose of which is to make a profit. That is, without being careful, the entrepreneur risks his money.

Caution in choosing a counterparty is essential for an economic entity in the following situations:

1. When purchasing goods or works/services by VAT payers. The buyer (customer), transferring funds to the counterparty, simultaneously transfers to him the amount of value added tax, which he is obliged to transfer to the budget in the future. If the seller (executor) fails to fulfill this obligation, the buyer (customer), reducing the taxable base (making a tax offset), actually has an unreasonable tax benefit.
2. Sale of goods or provision of services / performance of work. The seller (executor) has the risk of non-payment or incomplete payment if the contract provides for full or partial payment by installments or payment after the transfer of the goods or acceptance of the work/service.
3. Conclusion of a transaction in pursuance of a commission agreement. Art. 993 of the Civil Code of the Russian Federation imposes liability on the commission agent who has not shown the necessary diligence for failure to fulfill obligations by a third party.
4. Acting in someone else's interest. In this case, Art. 980 of the Civil Code of the Russian Federation expressly prescribes the exercise of diligence and prudence.

Risk and tax implications

Lack of prudence and caution when choosing a counterparty causes the greatest problems precisely from the point of view of tax legislation. This is due to the following:

1. Even after conducting a full check of the partner, the organization cannot have accurate information about whether its counterparty transferred tax to the budget or not.
2. If the partner that did not pay the tax was a controlled legal entity, such an operation can be recognized as a distortion of the facts of economic life (Article 54 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia “On recommendations for the application of the provisions of Article 54.1 of the Tax Code of the Russian Federation” dated October 31, 2017 No. ED- 4-9/22123). In this case, the tax reduction will be considered incorrect even if there is evidence of a full verification of the counterparty.
3. The fact of non-payment of tax by a partner may emerge during a tax audit conducted after a significant period of time. The result of this will be not only the restoration of the amount of tax previously accepted by the organization for offset, but also the requirement to pay a fine of 20% (Article 122 of the Tax Code of the Russian Federation), as well as penalties for the entire period from the moment the unjustified benefit was received (Article 75 of the Tax Code of the Russian Federation ).

Appealing the requirement of the fiscal authority, the organization will have to prove that:

• in concluding the transaction, she did not pursue the goal of not paying tax;
• the obligation was fulfilled by the counterparty (that is, the transaction was not imaginary).

Signs indicating unjustified benefits are listed in paragraphs. 4-5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On the assessment by arbitration courts of the validity of the receipt of tax benefits by a taxpayer” dated 12.10.2006 No. 53.

Collection of information about the counterparty (sources)

In order to reduce the risk, verification of counterparties should be carried out as carefully as possible, using various sources. The main official resources for obtaining information can be the websites of state bodies:

• file of arbitration cases;
• portal of the fiscal authority;
• database of bailiffs.

Data on court cases and enforcement proceedings may indicate the presence of problems with the solvency of the counterparty. And from the point of view of preventing tax risks, the most important is the information obtained using electronic services on the website of the tax authority:

• extract from the Unified State Register of Legal Entities;
• information about the existence of tax debts or non-submission of tax returns;
• verification of the forthcoming deletion from the register of enterprises;
• information about possible liquidation or reorganization;
• information from the register of disqualified persons;
• information about mass registration addresses;
• lists of firms registered as nominees;
• lists of persons who are heads of several organizations.

As confirmation of the audit, you can prepare screenshots of pages with data on a potential counterparty and draw up a certificate signed by the specialist responsible for the verification (see, for example, the use of screenshots when proving discretion in the decision of the 18th Arbitration Court of Appeal dated August 18, 2015 in case No. A76-4061/2015).

Evaluation of the collected information

After all the information available regarding the counterparty has been collected, it is necessary to analyze it. The counterparty risk assessment should be carried out on the basis of a reasonable and comprehensive approach, since even the presence of individual negative signs cannot fully serve as a reason for refusing to cooperate with this partner.

Let's analyze which signs are an unconditional reason for ending a relationship, and which ones you can turn a blind eye to.

Invalid signs:

• the information provided by the person being checked does not correspond to the information from the Unified State Register of Legal Entities (for example, another executive body, another TIN, address, etc.);
• the forthcoming exclusion from the register, both due to recognition as an inactive legal entity, and as a result of liquidation, is a sufficient reason for refusing further cooperation;
• a person acting as an executive body of the counterparty is included in the list of disqualified persons or is a figurehead.

Signs that should be assessed in combination with other data:

• the presence of tax arrears can be both short-term and permanent;
• the upcoming reorganization does not always mean the impossibility of concluding transactions, since there is always an assignee in this procedure;
• the address of mass registration is also not an unequivocal reason for refusing contractual relations, since it may well take place when the organization is located in a business center;
• situations in which the head of the executive body occupies similar positions in several firms are also not uncommon, but they are not critical either.

Identity verification. Inappropriate use of information

When concluding a transaction, it is necessary to make sure that the person who acts as a representative of the organization is indeed its authorized person. These include:

1. Sole executive body or one of the members of the collegial executive body (Articles 40, 41 of the Law "On Limited Liability Companies" dated February 8, 1998 No. 14-FZ, Articles 69, 70 of the Law "On Joint Stock Companies" dated December 26, 1995 No. 208 -FZ). Such persons have powers by virtue of the provisions of the charter and the decision of the participants (shareholders) on their election.
2. Representatives who have the right to conclude transactions on the basis of a power of attorney issued by the executive body.

In addition to checking credentials, it is advisable to check the passport of the signatory. Firstly, to make sure that the person is exactly who he claims to be, and secondly, to check if the passport is on the invalid list. You can do this on the official website of the Ministry of Internal Affairs.

Specific signs of unreliability of the counterparty based on the materials of judicial practice

Let's consider some examples from the judicial practice of recent years on our topic. Of greatest interest is, first of all, the practice associated with additional taxes on transactions concluded with unverified and unreliable counterparties. Here are some of these judgments.

Signs of the unjustified benefit in paying taxes on transactions with unverified counterparties can be (decisions of the Arbitration Court of the Moscow District dated April 17, 2018 in case No. A41-56434 / 2017, the Arbitration Court of the West Siberian District dated June 20, 2018 in case No. A45-8345 / 2017):

• the second party does not have its own or hired personnel, transport;
• non-location of the organization at the address of registration and the absence of an office as such;
• transit nature of cash flow;
• fake signatures of participants and managers of the enterprise;
• cash flow only between related parties.

IMPORTANT! The reality of the transaction can be proved if all supporting documents are submitted: acts, invoices, powers of attorney (decree of the Arbitration Court of the Far Eastern District of 07/04/2018 in case No. A37-861 / 2015).

When challenging the actions of the fiscal authority on additional tax assessment, evidence can be used as evidence of the testimony of the counterparty's managers, as well as bank statements confirming the reality of their business activities, information on membership in the SRO (resolution of the Arbitration Court of the Volga-Vyatka District of 03.07.2018 in case No. A43-3318/2017).

The commission agent who, in pursuance of the commission agreement, concluded a deal with an unverified and unreliable counterparty, will be liable for the latter's failure to fulfill its obligations to the committent in full. Verification of the counterparty is imputed to the commission agent in the obligation of Art. 993 of the Civil Code of the Russian Federation and, along with the provision of a guarantee (delcredere) for the fulfillment by a third party of obligations, is the basis for holding the commission agent liable.

IMPORTANT! The committent will have to prove the guilt of the commission agent in improper verification of a third party who concluded, but did not execute the transaction (clause 17 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation “Overview of the practice of resolving disputes under a commission agreement” dated November 17, 2004 No. 85).

If the transaction is concluded with a person who is known to the committent, and the latter does not object to such a person (including in the form of tacit approval of such a transaction), the commission agent cannot be held liable for an unfulfilled transaction. The exception is situations where the commission agent knew about additional circumstances that should have prompted him to abandon the dubious transaction.

When considering the case in court (decision of the 11th AAC dated 05/03/2018 in case No. A55-30033 / 2017), the committent could not prove the guilt of the commission agent in imprudence, since the latter submitted the documents requested by him when concluding the transaction:

• about registration of the counterparty;
• their accounting;
• the absence of information about him in the file of arbitration courts and the bailiff service.

Exercise caution when acting in someone else's interest should not only the commission agent, but also a person who acts without special instructions, instructions or consent of the person concerned. Such actions can be committed by a person:

• to prevent harm to both person and property;
• fulfillment of his own obligations;
• for other legitimate interests.

The exercise of discretion in this case is prescribed by Art. 980 of the Civil Code of the Russian Federation.

Failure to exercise due diligence does not allow a person to further acquire rights arising from acting in someone else's interest, such as compensation for damages, payment of remuneration, etc. See, for example, the appeal ruling of the Supreme Court of the Komi Republic dated 06/18/2015 in case No. 33-2844 / 2015, in which the plaintiff, who transferred money for a third party, did not show the necessary diligence, as a result of which he did not acquire the rights of a creditor.

Summing up, we recall that the exercise of discretion does not always openly follow from the requirements of the law. Nevertheless, imprudence in choosing a counterparty can lead to the formation of fiscal arrears, as well as the accrual of fines and penalties. To assess the risk and conduct a partner check, available official sources of reliable information on the tax, judicial and executive affairs of enterprises can be used.

Everyone talks about due diligence, its importance and necessity. The tax authorities strongly recommend and even oblige it to be shown when choosing a counterparty. The so-called selfie with future contractors has even come into “fashion”. But, as court practice shows, due diligence is not a guarantee of security.

Having stumbled upon one of the court decisions, I asked myself: what should a business do? When the entire dossier on the counterparty has been collected, and he seems to be a conscientious taxpayer and does not have the signs of a “one-day firm” ... What if the tax office does not think so, and a whole bunch of evidence and properly executed documents are not enough? When the “unreal real deal” situation arises…

The company presented VAT for reimbursement, which was refused by the tax authorities. Long legal proceedings began, and the matter reached the Supreme Court ... Everything was in order with the documentation, neither the court nor the tax authorities found a single “blunder”: invoices are reflected in the purchase book, transactions are credited to accounting accounts, to accounts - bills of lading, bills of lading, acts of services rendered. Plus, the company has done due diligence.

Company evidence of due diligence:

1. The counterparty was created and registered in 2007, i.е. long before the conclusion of the contract with the applicant;
2. Prior to the conclusion of the contract and during the period of work, the counterparty represented the company:
   . Lease and sublease agreements for non-residential premises;
   . Copies of passports of general directors;
   . Accounting (financial) reporting;
   . Order on taking office of the General Director;
   . Minutes of the founding meeting on the establishment of the Company and on the appointment of the General Director;
   . Certificate of tax registration;
   . Charter;
   . Extracts from the Unified State Register of Legal Entities;
3. Photos of the office;
4. Business correspondence with a counterparty, which displays the circumstances of the acquaintance and the beginning of work, purchases, loading and unloading of goods, i.e. the reality of business transactions.

The choice of the counterparty was also due to the fact that cooperation with him was beneficial, first of all, by the possibility of deferred payment. Other potential suppliers demanded an advance payment of 30-50%.

Is the counterparty a “one-day firm”? So I checked...

However, the tax authority saw signs of a “cash-out” office in the counterparty:

• The counterparty is absent at the place of registration and at the address indicated in the bill of lading;
• Does not have a warehouse;
• It does not have a staff of storekeepers, managers, loaders, which allows carrying out activities in wholesale trade.

But the facts outweighed the documentary evidence of the financial and economic activities of this “one-day firm” ... And this is an explanatory note, an agreement, invoices, waybills, books of purchases and sales, account cards, payment orders, waybills, powers of attorney for drivers engaged in transportation, a tax return for the disputed period containing information on the sale of goods.

The trial court concluded that the company had exercised due diligence in selecting a counterparty and the transaction had a reasonable economic purpose. And the arguments of the tax authorities were rejected. The tax officials were not satisfied with this turn of events, and proceedings began that reached the Supreme Court.

The Supreme Court upheld the tax authorities. This Determination of the Armed Forces of the Russian Federation No. 305-KG16-4155 of 07/20/2016. And he decided that the purpose of the company's interaction with the counterparty was to obtain unreasonable tax benefits. A fictitious workflow was created using nominal suppliers of goods and services that did not take a real part in transactions, but were used to increase the cost and, accordingly, increase the size of the tax benefit. What guided the Sun:

• Based Clauses 3, 4, 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 12.10.2006 No. 53 the court determined that “there was a compilation of a set of documents that did not correspond to real business transactions”; the company “at the time of drawing up the documents had all the information regarding the goods, which it received from other sources not related to the disputed counterparties; documents are deliberately drawn up, do not correspond to real transactions and are aimed at obtaining unjustified tax benefits”;
• The counterparty did not have employees, warehouses, vehicles necessary for the actual execution of the operation;
• The counterparty did not bear the costs typical for real business activities (payment for fuel, rent of garages, wages for drivers, loaders). The bill of lading shows a warehouse address that is actually missing.

It turns out that the exercise of due diligence has absolutely no value? Or you need to examine your counterparty even more carefully to identify the sign of a cash-out office ... The Tax Code of the Russian Federation does not spell out the concept of “due diligence”. Apart from Decrees of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 53, there are a number of letters and orders from the Federal Tax Service and the Ministry of Finance relating to this topic, which contain recommendations for identifying cash-out offices and exercising due diligence. Only after all, businessmen are not tax specialists - they have neither the knack that is characteristic of the employees of the fiscal service in the methods of detecting cashiers, nor the technology ...

Letters from the Ministry of Finance and the Federal Tax Service regarding the exercise of due diligence and the identification of unscrupulous counterparties:

1. Letter of the Ministry of Finance of Russia dated December 17, 2014 No. 03-02-07/1/65228.“... the presence of a “mass” founder (participant), a “mass” leader, the absence of an organization at the registration address, the absence of personnel, the absence of tax reporting or its submission with minimal indicators, the presence of an organization consisting of 1 person, the absence of own or leased fixed assets, vehicles indicates the presence of a "one-day company";
2. Order of the Federal Tax Service of Russia dated May 30, 2007 No. ММ-3-06/ [email protected](as amended by the orders of the Federal Tax Service of Russia dated 10/14/2008 No. ММ-3-2/467, dated 09/22/2010 No. ММВ-7-2/ [email protected], dated 08.04.2011 No. ММВ-7-2/ [email protected], dated 10.05.2012 No. ММВ-7-2/ [email protected]). Approved publicly available criteria for self-assessment of risks for taxpayers, used by the tax authorities in the process of selecting objects for on-site tax audits;
3. Letter of the Federal Tax Service of Russia dated February 11, 2010 No. 3-7-07 / 84. On the exercise of due diligence and caution when choosing counterparties. So the counterparty can be checked through:

• information contained in the constituent documents of a legal entity, and documents confirming the entry in state registers;
• information contained in documents giving the right to carry out entrepreneurial activities;
• information about violations of the legislation of the Russian Federation and the facts of prosecution for these violations, etc.

Letter of the Federal Tax Service of Russia dated 10/17/12 No. AC-4-2 / ​​17710. The FTS recommends checking:

• Documents confirming the powers of the head of the counterparty company (his representative), copies of his identity document;
• Information about the actual location of the counterparty, production and (or) retail space, etc.;

Letter of the Federal Tax Service of Russia dated March 16, 2015 No. ED-4-2/4124.“The presence of an extract from the Unified State Register of Legal Entities in relation to any counterparty confirms only the fact of its state registration in the prescribed manner and cannot automatically be sufficient or the only confirmation of due diligence and caution of the taxpayer when choosing a counterparty.” And further "... even if tax reporting is submitted by counterparties, its reliability, as well as the reality of their financial and economic activities, can be confirmed only after an on-site tax audit."

What do the lawyers say?

I turned to the tax specialists of the company "Tours and Partners" with the question: "How can companies be? How to prove, for example, the reality of services that were provided a year ago and were of a one-time nature? How else to exercise this “due diligence”?…

Maria Morozova

The concept of "due diligence" is not spelled out in the law. It is not clear what this concept implies, and the tax authorities take advantage of this, raking everything in there. If you don't do your due diligence at all, then it's unlikely to prove the reality of the deal. If you still show it, then you can win the court. But, again, not a fact - it all depends on the qualifications of a lawyer ... The more documents you present in favor of the reality of the transaction, the higher your chance of winning the court. To prove the reality of the transaction, you need to collect evidence to the maximum: store audio recordings, correspondence, video recordings, photographs, testimonies (of both your company and the counterparty).

Natalia Bryleva

Lawyer and tax consultant "Turov and Partners":

Exercising due diligence includes not just obtaining an extract from the Unified State Register of Legal Entities or EGRIP and that’s it ... For example, you can additionally ask counterparties for a lease agreement (for example, a warehouse lease) to make sure that the counterparty can store the goods. Collecting a "dossier" on a counterparty is the basis. There is no need to hope that because of this collection of information, all claims will be removed from you. Of course, the reality of the transaction is obligatory. And this is the testimony of witnesses, the involvement of experts.

As for this court case: we never know how the court will evaluate all the evidence, and what position it will take ... The presence of several signs of unjustified tax benefits - and the court ruled in favor of the tax authorities.

In fact, the "due diligence" list, for example, in one company I worked with, includes 18 items. Moreover, half of these items may not be provided, because. they constitute a trade secret. In general, as practice shows, companies now have a normal attitude to the fact that they ask each other for documents and other data for due diligence. The main thing is to conduct real activities, correctly draw up all documents, keep competent accounting and that employees work on an ongoing basis and can confirm the fact of any transaction, even 2 years ago.