Dossier of the counterparty. Due diligence or How to avoid getting screwed on taxes
Deputy Head of the Internal Audit, Control and Methodology Group
In the context of tightening tax control, it is impossible to approach the inspection of counterparties formally. If you only request an extract from the register, the charter and an order for the manager, the risks remain. It is necessary to collect a whole dossier on the counterparty. That is, the approach to checking partners must change radically.
The main reason is the sensational amendments to the Tax Code introduced by Law No. 163-FZ. Since August 19, Article 54.1 has been in force, which prohibited tax schemes. Tax authorities now pay all their attention to the reality of the transaction, and not to shortcomings in the “primary” process. To protect against tax claims, it is now important to prove that the counterparty was able to fulfill its obligations, and the company was convinced of the reliability of the counterparty, that is, it showed due diligence - the counterparty was checked inside and out, conducting a thorough investigation. In fact, now you need to collect a complete dossier on the supplier or contractor.
There are no special and universal regulations for checking a counterparty for good faith in nature. Therefore, we have prepared step-by-step instructions with which you can check the counterparty before concluding an agreement. The more sources – external and internal – are involved, the better the result of the inspection of the contractor (supplier) and the higher the chances of protecting the company from additional taxes.
Why the chief accountant should not check counterparties
Until recently, many companies did not bother checking the counterparty. And in those who tried to protect themselves from dubious connections, most often the check was entrusted to the chief accountant. For obvious reasons, such a check does not stand up to criticism, since accountants regard the new responsibility as an additional burden, and most often carry out a check of the counterparty formally, “for show.”
Counterparty verification algorithm
Step No. 1. Check the counterparty on official websites on the Internet
You can start checking the reliability of a counterparty with publicly available resources on the Internet. Thanks to them, you can quickly and freely find out very interesting details about a potential partner.
- You can download the extract, check the address and director for “massiveness”, find out about the disqualification of the director of the counterparty, and check the presence of tax debts on the Federal Tax Service website egrul.nalog.ru. Alarm bells:
- in the Unified State Register of Legal Entities there is a note about disqualification and unreliability of information about the manager;
- the company often moves from one address to another or is registered at a mass address.
- Check the availability of lawsuits against the counterparty, participation in legal proceedings - on the website kad.arbitr.ru. It is especially dangerous if the future counterparty abandons the case after the first instance, files a lawsuit and does not come to court, this is suspicious. This can be the case for fly-by-nights who want to create evidence of real activity. It is bad if a potential partner was involved in tax disputes, and the judges recognized him as unreliable.
- The website of the Federal Bailiff Service allows you to check the presence of debts that are already being collected in court: fssprus.ru.
- “Break through” the counterparty in the register of unscrupulous suppliers on the website of the unified procurement system rnp.fas.gov.ru.
- Checking the validity of the director’s passport, work permits and patents for foreigners - information services of the Main Directorate for Migration Issues of the Ministry of Internal Affairs of Russia services.guvm.mvd.rf.
Regulations on verification of counterparties
In order to unify the procedures and methods for checking counterparties, it is advisable to develop and approve a single internal regulatory act in the company - the Regulations on the verification of counterparties (rather than issuing orders for verification every time a new potential partner appears). In particular, it contains a list of documents that responsible persons should request from potential partners before concluding a particular transaction. The regulations disclose the information to be collected and analyzed, the procedure for obtaining it and the processing methodology. The document is approved by the director and submitted for review to the responsible employees against signature.
Step No. 2. Study the counterparty’s website, advertising and reviews on the Internet
In addition to official resources, you should definitely look at the website of the future counterparty. But you shouldn’t trust all the information on it. Therefore, check customer reviews about the supplier on thematic websites and in the media. It is useful to study the opinions of former employees who know the company from the inside (see reviews of employers on the Internet).
What should you be wary of? The company does not have a website, a non-functional Internet page, outdated information. Also an alarming sign is the lack of advertising and reviews from clients and employees.
Step No. 3. Visit the counterparty
Ideally, of course, you should try to inspect not only the office, but also the production and warehouse premises of the future counterparty. Even better - if you can photograph the office inside and outside, production, goods in the warehouse, vehicle fleet, etc. It is important to keep all passes to the office and warehouse (including for the passage of a car) - it will prove that the management or representative companies met with the counterparty before the transaction was concluded.
What should you be wary of? The counterparty refuses to show office premises and warehouses. It is also suspicious if the company does not have its own warehouses and vehicles for transporting goods, although the counterparty positions itself as a direct supplier.
Step No. 4. Personally meet with the management of the counterparty
Before concluding a transaction, it is imperative to personally meet with the general director of the company or an authorized representative of the counterparty - in the office or on neutral territory (restaurant, conference, business breakfast, etc.).
First, ask to see your passport and power of attorney (if the business is handled by a company representative). Secondly, it would be useful to take a joint photo with the director of your future partner.
What should you be wary of? The counterparty works only through a representative, and all documents are signed by an employee with a power of attorney. The CEO himself does not communicate with anyone.
Step No. 5. Request documents from the counterparty
Before the transaction, you must request the following documents (certified copies) from the supplier:
- charter;
- order on the appointment of a director;
- powers of attorney for representatives;
- passport of the manager and representatives (additionally, written consent to the processing of personal data);
- tax returns, balance sheet;
- licenses and certificates (if the activity is subject to licensing or requires special permission).
It is also worth requesting a certificate of actual address and information about property and personnel.
Important!
On the one hand, you need to check the counterparty's reporting. On the other hand, the counterparty is not obliged to provide information. If he does not agree, it makes sense to ask for a written refusal. You can get the financial statements yourself - order them on the statistics website gks.ru > “Providing data on annual accounting (financial) statements...”.
What should you be wary of? Future counterparties are reluctant to provide information about themselves. In most cases, they refer to trade secrets or personal data of employees. But many of the information needed for verification are not considered secret. For example, information about the composition of employees, about those who have the right to act on behalf of the company without a power of attorney, about permission for a specific type of activity, etc. “Secret” information can be provided under a non-disclosure obligation. If they refuse to provide documents even under such conditions, then concluding a deal is risky. If the supplier or buyer completely closes down and refuses to hand over any information about themselves, it is better not to work with such dubious counterparties.
What to look for in a counterparty's reporting
Simply obtaining documents from the counterparty is only half the battle. For a full verification, it is necessary to evaluate the information contained in them. In particular, go over the criteria for assigning on-site inspections. They are given in the order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06/333@. Among them, for example, an increase in the share of expenses, wages below the industry average, a decrease in profitability and a low tax burden, the share of tax deductions exceeds acceptable values.
Step No. 6. Conduct an inspection through the Federal Tax Service
A tax audit of the counterparty will help you verify the reliability of your future partner. The Federal Tax Service can check the counterparty for payment of taxes, request data on the amount of debts, and the number of staff of the counterparty. This data is not a tax secret. Tax authorities can also report whether the counterparty reports and pays taxes on time. You can independently obtain information on the presence of tax debts over 1000 rubles on the website https://service.nalog.ru/zd.do. and information about unsubmitted reports for more than 1 year.Important!
The Federal Tax Service may refuse to provide information. But the company will still have a request and a refusal response from the inspectorate. Correspondence with tax authorities also serves as evidence of diligence.
You can appoint an employee who will be responsible for checking counterparties. He will draw up a report on the results of the supplier's reliability analysis. This invaluable document will serve as conclusive evidence that the company has complied with all legal due diligence requirements.
***Verification of the integrity of counterparties is the standard of our work when providing accounting outsourcing services. Our verification methodology allows us to reduce the risk of tax liability for counterparties.
In addition, our company has extensive experience in supporting complex transactions. Therefore, we will be happy to help you document the reasons for choosing a counterparty.
Contact an expert
Counterparties began to deliberately request piles of papers under the guise of due diligence. Information from documents is used to use company secrets or to lure valuable employees. The editors of the UNP, together with lawyers, have compiled a list of documents that should not be distributed.
Still in the main topic
An ideal refusal in case the counterparty requires unnecessary documents
Do not comply with dangerous requests from contractors
Real Stories: How Excessive Openness Has Damaged Companies
The counterparties issue an ultimatum: refuse the deal or reveal all the company’s secrets. But you shouldn't fall for tricks. If you give away some documents, the company will face fines or losses. Find out which documents are dangerous to give to partners upon request.
Copy of the director's passport
Counterparties request a copy of the director's passport - usually a double-page spread with a photo and a page with registration. Partners want to make sure that the leader is real.
Giving out copies of your passport is dangerous. If a copy falls into the hands of fraudsters, they can, for example, issue a loan to an executive. Therefore, managers do not agree to provide a copy of the passport. A document can only be transferred with the personal consent of the director ( clause 1 art. 6 of the Federal Law of July 27, 2006 No. 152-FZ). Otherwise, Roskomnadzor will fine the company up to 75 thousand rubles. ( Part 2 Art. 13.11 Code of Administrative Offenses).
In order not to argue with the counterparty, explain to him that he can check the director using other documents. And the company is ready to provide them (see table). For example, the authority of the manager will be confirmed by the decision on appointment to the position and an extract from the company’s charter. Also, a future partner can use the company’s TIN to receive a free extract from the Unified State Register of Legal Entities and see information about the director in it.
What to offer the counterparty in exchange for the papers he wants to receive
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Dangerous document |
Replacement documents |
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Copy of the director's passport |
Extract from the Unified State Register of Legal Entities |
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Employment contracts, diplomas, employee certificates |
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SZV-M, certificate 2-NDFL |
Certificate of average number of employees |
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Bank card with sample signatures and seal imprint |
Decision on the appointment of a director |
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Partner dossier |
Letter of guarantee from the counterparty |
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Lease contract |
Landlord's letter of guarantee |
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Declarations (reporting) |
Copy of the title page of the declarations |
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Extract from the Unified State Register of Real Estate |
SZV-M and 2-NDFL
Contractors are interested in the company's labor resources. After all, if there are none or not enough, then concluding an agreement is risky - inspectors recognize the deal as fictitious. This means that the counterparty will be charged expenses and VAT deductions.
To protect themselves, future customers are asked to provide SZV-M or employee income certificates. So counterparties want to make sure that the company has the required number of employees, the organization pays them, transfers contributions and personal income tax for them. This means that the employees are really working. But do not rush to fulfill the request of the counterparty.
The reports contain personal data of employees - full name, SNILS and Taxpayer Identification Number, as well as information on salary amounts. By law, in order to transfer this information to a partner, the company must obtain the consent of each employee (Art. 6 , 7 Law No. 152-FZ). Otherwise, Roskomnadzor will fine the company - 75 thousand rubles, and the director or chief accountant - 20 thousand rubles. ( Part 2 Art. 13.11 Code of Administrative Offenses).
Explain to the counterparty that obtaining written consent from each employee to provide their data to a specific company is a labor-intensive task. Especially if there will be many employees involved in the execution of the contract. Offer the counterparty a replacement document instead of SZV-M. For example, a certificate of average payroll or 6-NDFL.
Using these documents, he will check the number of employees and their salaries, but the data will be for the company as a whole, and not for individual employees. 6-NDFL - reporting is quarterly, so you can provide up-to-date information.
Employment contracts
To verify the counterparty, future customers request information about its employees. For example, their employment contracts, diplomas, certificates, personal and contact information. Customers want to make sure that the company will carry out the work professionally. But usually they are not interested in ordinary specialists, but in highly qualified ones. It is dangerous to transmit information about them.
Employers know such a technique as “ hunting" Competitors poach valuable employees from each other. It is possible that the real purpose of the negotiations is not a transaction, but the dishonest acquisition of experienced specialists.
The imaginary customer will scout out the conditions under which your employee is employed and offer him a better salary, benefits package, or convenient schedule. Therefore, you should not provide the counterparty with contact information of employees.
You cannot prohibit your specialists from working for a competitor even after they leave the company ( letter of the Ministry of Labor dated October 19, 2017 No. 14-2/B-942). If you write such a prohibition in the employment contract, you will violate the constitutional rights of employees. And for this a fine of 50 thousand rubles is possible. ( Part 1 Art. 5.27 Code of Administrative Offenses).
In order not to comply with the request of the counterparty, refer to the confidentiality of personal data, due to which you cannot provide documents ( Art. 7 of Law No. 152-FZ). But if your partner is persistent, then sign an agreement with him prohibiting poaching employees from each other - “ non-solicitation agreement».
Reflect the compensation clause in the document. If the future counterparty violates the contract, then the company will at least have money for the expensive selection of a replacement for a key employee.
Dossier on partners
Tax authorities check transactions involving interdependent third- and fourth-level partners. If inspectors discover a connection with a one-day event, they will remove expenses and VAT deductions. Companies do not want to take risks and request papers from counterparties of their direct supplier. For example, letters of recommendation or a dossier on a partner.
The counterparty may turn out to be a dishonest competitor. It is possible that he will bypass the company and conclude deals with its suppliers directly. It is impossible to prohibit a counterparty from doing this. And the company will lose profit. Therefore, it is safer not to disclose unnecessary information about yourself and your partners.
Provide the counterparty with a letter of guarantee stating that the company and your partners are real organizations (see. UNP No. 7, 2018). Promise in the contract to compensate for property losses if, through your fault, the counterparty loses VAT deductions. With such a document, your future partner should have no doubt about your integrity.
Lease contract
Inspectors recognize the transaction as fictitious if they do not find the company at its legal address. In this case, both partners are at risk. It is logical if the counterparty asks for a lease agreement. But you shouldn’t make concessions; it’s dangerous to give information about the landlord.
A contract is an agreement between partners, each of whom assumes obligations ( Art. 420 GK). In this case, the parties have the right to set prices, terms and other conditions. Disclosing this information to outsiders, including other contractors, is risky. After all, the company reveals not only its own, but also other people’s trade secrets ( subp. 4 p. 2 tbsp. 6.1 of the Federal Law of July 29, 2004 No. 98-FZ). Because of this, the landlord may suffer losses and go to court to recover them from the culprit.
There are also tax risks. During the inspection, the counterparty may hand over your agreement with the landlord to the inspectors as evidence of their own diligence. If rental payments are below market, then tax authorities may be interested in your transaction. Then both the company and the landlord will be included in the list of candidates for verification. Tax officials will start looking for schemes from you.
Instead of a lease agreement, provide the counterparty with a letter. Request it from your landlord in advance. Let him confirm that he is the owner and rents out the office to you for a long time. This will convince the counterparty that the company is real and will fulfill its obligations under the transaction.
For your partner, you can make an extract from the lease agreement on some points. Write down the address information and the prohibition on disclosing the terms of the transaction to other organizations. Certify the statement not only with your signature, but also with the landlord’s signature. This should convince the counterparty of the accuracy of the address.
VAT declaration
The company transfers information from the book of purchases and sales to the VAT return. Therefore, the reporting shows all information about the sale of goods, works or services, as well as the company’s expenses for its own consumption. That is why the VAT return should not be disclosed even to trusted counterparties.
From section 8, the partner can find out about suppliers, amounts and dates of their deliveries, and from section 9 - information about buyers. He can use this information for personal gain. For example, to lure away regular customers.
In order not to disclose all statements, give the counterparty only the title page and section 1, which reflects the total amount of VAT for the period. If he demands a declaration in full, give reasons for your refusal.
The arguments are as follows. Firstly, the reporting contains information that is classified as a trade secret. Secondly, the declaration includes data on transactions of past periods when there were no transactions with the counterparty yet. Therefore, old declarations cannot be a guarantee of VAT deduction from the counterparty.
Instead of a declaration, you can send the counterparty a receipt confirming its acceptance by the inspectorate. This will confirm that you submit your tax returns on time.
Balance sheet for account 01
Counterparties want to be sure that the company has sufficient material resources to execute the transaction. Therefore, future partners demand to show how much machine tools, equipment, real estate, etc. the organization has.
Information about the company's assets is reflected in the registers under account 01 “Fixed Assets”. But a company can lease property and take it off the balance sheet. Leased assets are also reflected in the same way if they are listed on the lessor’s balance sheet before redemption. In addition, the accounting department does not want to present balance sheets to the counterparty. Accounting registers are not excluded from commercial secrets (Art. 4 , 5 Law No. 98-FZ).
Provide the counterparty with a certificate confirming the availability of only those fixed assets that will be needed to complete the work on the transaction. Otherwise, your partner will not appreciate your capabilities. There is a risk that he will choose a competitor.
What documents can be given to a counterparty without risk?Extract from the charter (memorandum of association) Extract from the Unified State Register of Legal Entities Extract from the Unified State Register of Real Estate Copy of state registration certificate (OGRN) A copy of the certificate of registration with the Federal Tax Service Notification of registration with the Pension Fund of Russia Powers of attorney for responsible employees who sign documents Certificate from the Federal Tax Service regarding the absence of a director in the register of disqualified persons Decision on the appointment of the General Director Certificate of absence of debt to the budget Copies of licenses to conduct activities Balance sheet as of the latest reporting date Financial results report for the last year Copies of permits to SRO Copies of receipts for electronic submission of reports Information on the average number of employees Letter of guarantee regarding the availability of resources to execute the transaction Information about the presence/absence of the site |
An ideal refusal in case the counterparty requires unnecessary documents
What is the problem: counterparties show excessive caution when choosing a partner and ask for documents containing company secrets. You can refuse to give papers, but not break off relations with the counterparty.
Counterparties began to check their partners more thoroughly before a transaction in order to protect themselves from claims from the inspectorate. That's why buyers ask for piles of papers. Moreover, they are even interested in those documents that contain commercial, banking and tax secrets. Companies are faced with a choice: give information to the counterparty or refuse secret information.
A refusal can ruin the deal, especially if the order is large and the company has many competitors. Therefore, it is worth responding tactfully to the counterparty’s request in order to preserve your reputation and not disclose information about yourself. Lawyers offer different methods.
One option is to compromise based on reciprocity. That is, the company gives the counterparty exactly as many documents as he submitted himself.
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It is dangerous to distribute papers that contain company secrets to partners. |
Another option is to create a dossier on yourself in advance. Explain to your counterparties that you provide everyone with the same information and do not create special conditions for anyone. That is, you act on the principle of pure competition. This will give the company credibility and convince the counterparty of your integrity.
If the counterparty insists, write him a reasoned refusal. Explain the reason why you are not giving the paper. In the text, refer to laws that prohibit revealing secrets. For example, if a counterparty asks for a copy of the director’s passport or SZV-M, then refer to the requirements for the protection of personal data ( Art. 6 of the Federal Law of July 27, 2006 No. 152-FZ). From the letter, the counterparty must understand that it is impossible to disclose SZV-M without the consent of the company’s employees, and obtaining it is a labor-intensive task.
If a counterparty requests a lease agreement, information about the landlords of offices, buildings, warehouses or other premises, then this is a trade secret ( clause 2 art. 3 of the Federal Law of July 29, 2004 No. 98-FZ). Therefore, you can provide this information only with the consent of your partners. We showed how to compose an answer in the example.
Reasons for refusal Justify the refusal with references to laws. This will convince the counterparty that the company is not deliberately hiding anything, but is only complying with mandatory requirements. Documents upon request It is safer to present documents that do not contain secret data to the counterparty. Otherwise, he will consider that the company is not interested in the deal and will turn to competitors
Do not comply with dangerous requests from contractors
What is the danger: counterparties deliberately ask to deviate from the terms of the transaction in order to receive benefits. The editors of the UNP found out which requests it is better to refuse to a partner.
All terms of the transaction are specified in the contract. Fulfilling the other wishes of the counterparty is not necessary, and sometimes even dangerous.
Pay off a debt to someone else's creditor
The company takes a risk if it pays for the goods by extinguishing the supplier’s debt to its creditors. Especially when such a condition is not in the contract.
If a deal with a counterparty falls through, it will be difficult to recover money from someone else’s creditor even through court. The companies' claims are denied. The judges decide that the creditor is not obliged to check the intentions of the one who pays off the debt for his supplier ( determination of VAS dated June 23, 2014 No. VAS-7103/14).
: Explain that the company is not obliged to transfer money to an unknown creditor if there are no terms in the agreement. But if you are afraid of losing your partner, compromise.
Request an official letter from the counterparty, where he personally asks to transfer money for your delivery to creditors. The letter must contain the amount of payment, details of your agreement, act, invoice for the supply of goods. The information is necessary to prove that the supplier asked you to transfer exactly the payment for the goods, but not to him, but directly to the creditor.
Break one delivery into several small ones
Counterparties ask to carry out one large transaction according to documents as several small ones. For example, stretch the supply over two, three, or even four quarters, but only on paper. But in reality they want to receive all the goods at once. Most often, budget organizations make such requests. They have the right to purchase from a single supplier if the contract price does not exceed 100 thousand rubles. ( clause 4, part 1, art. 93 Federal Law dated 04/05/2013 No. 44-FZ). Therefore, they ask to split the deal, but the goods are taken away immediately, and the documents are signed only for part.
If there is a dispute over payment, it will not be possible to recover the cost of the entire delivery in court ( Resolution of the Arbitration Court of the Moscow District dated December 13, 2017 No. F05-18005/2017).
There are also tax risks. If inspectors conduct an inventory and do not find goods, they may accuse the company of concealing revenue. This means there is a risk of additional income tax and VAT charges.
How to refuse a request from a counterparty: Explain to him - FAS can prove that the transaction is over 100 thousand rubles. Then the director of the counterparty will be fined for violating the rules of contract procurement ( FAS letter dated April 25, 2017 No. RP/27902/17, Part 2.1 Art. 7.29 Code of Administrative Offenses).
Correct the dates in the document to earlier dates
For example, the counterparty asked to change the date from April to March. If you use a simplification, there are no risks. The company determines income using the cash method, and the date in the act does not affect income ( clause 2 art. 346.17 NK). In the general mode, the company will need to adjust the amounts of VAT and income tax. And this is extra work for the chief accountant.
changing dates to a different reporting period may raise suspicion of falsification of documents. Tax authorities may deprive the counterparty of expenses and deductions.
Transfer old debts to a new organization
If the counterparty closes the LLC every three years and asks to transfer the debts to the legal successor, then there is a risk that the debts will not be repaid. This is what organizations do that hide from audits. This means that the counterparty is not respectable.
In case of an audit, the tax authorities will also have claims against you. For example, if you wrote off debts as bad. The inspectors will ask why you lost the right to collect the debt, and will check the counterparty himself. If the arguments are unconvincing, the inspectors will assess additional taxes ( Resolution of the Arbitration Court of the Volga District dated December 1, 2017 No. F06-27193/2017).
How to refuse a request from a counterparty: send a claim to the counterparty demanding payment. If he doesn't answer, go to court.
Issue a corrected invoice instead of an adjustment one
Changing an adjustment invoice to a corrected one is dangerous. Even if it is a request from a trusted counterparty.
Both counterparties on adjustment invoices have the right to claim a deduction, but only in different cases: the supplier - when the price decreases, and the buyer - when the price increases. Since the wrong invoice was drawn up, the tax authorities may decide that there is no basis for a deduction. In addition, inspectors will impose a fine for gross accounting errors.
How to refuse a request from a counterparty: send a letter to the counterparty explaining the risks for both parties. If prices change, please issue an adjustment invoice. But if the counterparty is not satisfied with this document, then accompany each corrected invoice with a letter stating that there was an error in the original document. In this case, do not draw up an agreement to change the delivery price.
Real Stories: How Excessive Openness Has Damaged Companies
What is the danger: counterparties use company secrets to benefit themselves.
Competitors and scammers obtain information about companies to use for their own gain. We learned real stories of how organizations suffered because they gave unnecessary information about themselves.
UNP Council: It is dangerous to give away personal contact information of employees; they may be lured away by competitors. Therefore, place only corporate details on business cards and flyers. And agree with your leading competitors that you will not poach each other’s employees.
UNP Council: Keep your customer transactions secret or you will lose them. Counterparties engage in unfair competition. They use information from contracts and account statements. For example, to send out your commercial offer.
UNP Council: Make sure that your dossier for your own company does not contain personal information of employees. Fraudsters use the data, for example, to apply for loans or open one-day accounts.
UNP Council: account information is a banking secret that is dangerous to disclose to partners ( Art. 26 Federal Law of December 2, 1990 No. 395-1). If the counterparty asks to confirm that the company will be able to complete the transaction, give him a replacement document. For example, a balance sheet or a guarantee.
Recently, the so-called “due diligence in choosing a counterparty” has become a very pressing issue from the tax authorities. After the loud Resolution of the Supreme Arbitration Court (http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=63894), this phrase is now known to almost every taxpayer. Although the concept itself is not defined anywhere - you will not find it either in tax legislation or in civil law.
What needs to be done, what documents to request from the counterparty and how to create such a dossier in order to prove such diligence in the event of claims from the tax authority or court proceedings.
- Valid extract from the Unified State Register of Legal Entities (30 days)
- Tax registration certificate (TIN)
- Certificate of State Registration (OGRN)
- Licenses or special permissions
Documents are requested in copies certified by the signature of the head of the counterparty and seal. They are filed in a folder (keep a standard folder “Counterparties”, with a breakdown for each) and stored for 4-5 years (as are accounting and tax documents).
If the agreement (contract) is not signed by the head (an executive body that has the right to act without a power of attorney), then the authority will be confirmed by the original or a certified copy of the power of attorney. The power of attorney must indicate the validity period and powers of the signatory - check whether he has the right to enter into such a transaction.
Also, orders for the appointment of authorized persons or powers of attorney for the right to sign should be requested if the primary accounting documents (especially invoices) are signed by someone other than the general director or chief accountant. The specific type of documents must be specified in the power of attorney. Filed in the same folder for the corresponding counterparty.
If the counterparty does not provide documents upon an oral request, we advise you to request them in an official letter with acknowledgment of receipt. Even if the counterparty does not respond (and he does not have such an obligation), then the dossier will contain a supporting document. You can independently check the registration and tax registration of your counterparty using the services on the Federal Tax Service website.
In some cases, they try to request accounting and even tax reports, as well as copies of passports of managers and chief accountants. However, your partner has every right to refuse to provide you with such information. Which is what happens most often. At the same time, if you yourself are working with some large government customer, such a refusal on your part may negatively affect the outcome of the negotiations and derail the planned deal.
We advise you not to collect all the information on everyone, but to cross out, for example, one-time suppliers or contractors. Establish (by order for the company, for example) some minimum transaction amount for which you will collect a dossier on the counterparty, and so on. For example, you probably shouldn’t insist on providing all of the above documents from Gazprom. But the more documents there are from dubious suppliers, the better it will be. If you see that the supplier is dubious, request a copy of the passport of the manager, chief accountant, financial statements for the last couple of reporting periods (with a tax stamp on acceptance). For such suppliers, you can attach additional supporting documents - an extract from the visitor register, a copy of the vehicle pass, i.e. additional evidence that representatives of the counterparty were present at the negotiations.
All of the above cannot give you a 100% guarantee that no claims will be brought against you from the tax authorities, but it will provide additional arguments in disputes with them, including in the courts.
You can also use the service of the Federal Tax Service of the Russian Federation "Check yourself and your counterparty" http://egrul.nalog.ru/
Online you can find out whether information about the counterparty is included in the Unified State Register of Legal Entities, mass addresses and other useful information.
The Federal Tax Service accused its subordinates of being unable to prove schemes and imaginary transactions because they formally collect evidence (letter dated March 23, 2017 No. ED-5-9-547/@). Therefore, the service required to request information from companies about what criteria they used to select partners and why they chose these particular suppliers.
We have put together a visual guide to what inspectors may ask for during inspections (see below).
From this article you will learn:
- What documents will inspectors require to identify imaginary transactions?
- Can tax authorities request business correspondence?
- Do photographs and passes confirm the reality of the transaction?
Now the company must not only check each counterparty, but also choose it among other potential partners and justify why it is the best. A new function in the "" service will prepare evidence for tax authorities in 2 clicks - the service will find 30 companies from which you supposedly chose. A complete dossier on any supplier can be generated in a minute. Grant access to the service and print the monitoring results in Excel format.
Memo for the director. What information and documents to collect before the transaction?
Show the memo to the director so that he also knows what information to collect before concluding a deal.
Extract from the Unified State Register of Legal Entities
For any transaction, request an extract from the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs from the supplier. The extract will confirm that the company is officially registered and operating on the date of the contract.
Even if the tax inspectors remove the costs of the transaction, in combination with other documents, an extract from the state register will allow them to be protected (Resolution of the Arbitration Court of the Ural District dated January 18, 2016 No. F09-10478/15).
If the counterparty does not want to provide an extract from the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs, order it yourself from the tax office - on paper or on egrul.nalog.ru. A paper statement costs 200 rubles, but it is more reliable. There is no section in the electronic statement where the tax inspectorate notes fictitious data about an organization or individual entrepreneur - fake addresses, imaginary directors (letter of the Federal Tax Service of Russia dated September 2, 2016 No. ED-3-14/4045@).
Documents on the powers of the representative
Take a copy of the charter, power of attorney and passport from the representative. If the contract is concluded by the director himself, ask for a protocol on the election or a decision on appointment to the position. The documents will confirm that the representative has the right to act on behalf of the company.
We also advise you to check whether the director has been removed from office. You can request an official certificate from the Federal Tax Service. Or look at the information yourself on nalog.ru in the register of disqualified persons. Take a screenshot of the screen and certify it as a regular copy (letter of the Federal Tax Service of Russia dated March 31, 2016 No. SA-4-7/5589).
If you sign an agreement with a disqualified manager, the tax authorities will deny the company expenses, and the judges will support the inspectors (resolution of the Federal Arbitration Court of the Central District dated June 3, 2014 No. A64-5102/2013).
Partner resource information
Find out where the counterparty actually operates. Ask him for a letter with the real addresses of offices, warehouses, retail or industrial premises. Visit the areas and photograph them. Attach photographs to the transaction documents. If it is not possible to make a personal visit to your partner, request photographs by email. This way you will prove to the tax inspectors that the counterparty is real, produces products, sells goods, provides services that you buy. This means that the deal cannot be imaginary. With such evidence, the courts side with the companies (resolution of the Arbitration Court of the Central District dated April 5, 2017 No. F10-207/2017).
From judicial practice
In several disputes with tax authorities, thanks to photographs, companies were able to prove that the transactions were real and they were not working with fly-by-night companies.
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From the text of the decision |
Case number |
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... To confirm the delivery of goods, the applicant presented in the case materials ... letters from buyers with photographs ... ...In confirmation of the reality of the design of the exhibition place... the company presented... photographs of the exhibition place with the taxpayer’s logo |
Resolution of the Federal Antimonopoly Service of the Moscow District dated January 27, 2014 No. F05-7033/2013 |
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...the courts have established the reality of the taxpayer’s business transactions with the specified counterparties, which are confirmed by photographs presented in the case materials... |
Resolution of the Federal Antimonopoly Service of the Moscow District dated October 18, 2012 in case No. A40-32902/11-90-138 |
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...to confirm the reality of business transactions, the applicant presented photographs of the rented warehouse premises to the court of first instance... |
Resolution of the Federal Antimonopoly Service of the Volga District dated December 4, 2012 in case No. A72-9528/2011 |
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...enclosed in the case materials are certificates of state registration of ownership of real estate located at the specified address, and photographs indicating the possibility of storing a large volume of building materials and processing them... |
Resolution of the Federal Antimonopoly Service of the North Caucasus District dated March 29, 2012 in case No. A32-11138/2011 |
Business correspondence
Tax officials are sure that companies always discuss the terms of a contract in writing. Therefore, collect all the letters in which you discussed a future transaction with the counterparty, requested documents from him, etc. Print out the letters or take screenshots. It is better to create a separate file or folder for each supplier and include all important information.
If you do not submit business correspondence with your counterparty to the tax office, inspectors will consider the transactions unrealistic. And the judges will support them (resolution of the Moscow District Arbitration Court dated 02/08/2017 No. F05-22343/2016).
Five ready-made arguments to defend expenses in court
If the tax authorities do not have enough information about the counterparty and they consider the transaction invalid, these are arguments for the courts.
- The tax authorities themselves purchased the goods from the counterparty. The supplier had a mass address and did not report to the Federal Tax Service. But together with the company, tax inspectorates bought stationery from the supplier. This helped the organization prove the reality of the transaction (resolution of the Arbitration Court of the North Caucasus District dated May 31, 2016 No. F08-1131/2016).
- The partner started working long before the deal. The counterparty had a small staff, little equipment, and paid minimal taxes. However, the client registered 19 years before the transaction. Therefore, it cannot be considered one-day (resolution of the Arbitration Court of the Volga District dated September 29, 2016 No. F06-13160/2016).
- The director received a salary. Supplier managers did not admit to working for their companies. But according to bank statements, the general directors received salaries from these companies. That means they were part of them. Therefore, the transaction is real (resolution of the Ninth Arbitration Court of Appeal dated September 12, 2016 No. 09AP-38905/2016).
- The inspectors had no previous complaints against suppliers. The company had been working with the supplier for a long time, and there were no questions from the tax authorities. Therefore, the transaction is valid (resolution of the Ninth Arbitration Court of Appeal dated August 24, 2016 No. 09AP-35341/2016).
- The court has already recognized the counterparties as bona fide. This means that there should be no claims against them (Resolution of the Supreme Court of the Russian Federation dated July 8, 2016 No. 306-KG16-8099).
Personal contacts and meetings
Collect all documents that will confirm your personal meetings with the counterparty. For example, passes to the counterparty’s office, joint photographs, minutes of negotiations, employee reports, as well as travel documents. They indicate that workers went to the site. This means they interacted with a partner. Therefore, the transaction cannot be imaginary. And the reality of the transaction is confirmed by the fact that the counterparty paid taxes, paid salaries to employees, worked with a profit, its assets grew (resolution of the Moscow District Arbitration Court dated 03/09/2016 No. F05-1148/2016).
Before you start working with an individual entrepreneur, use our tips in the article
- Collect documents that will confirm that you have found a profitable supplier and checked it before the transaction.
- Provide the inspectors upon request with all documents for the counterparty - copies of powers of attorney, business correspondence, photographs. Otherwise, controllers will doubt the reality of the deal.
- Focus on judicial practice to prove the reliability of the supplier. Arbitrators take into account the decisions of other courts.
Carelessness in choosing a partner can lead to additional taxes and litigation. The unreliability of the other party to the transaction calls into question the integrity of the taxpayer himself. And although the Tax Code of the Russian Federation enshrines the presumption of good faith, it still needs to be proven in court. Article 65 of the Arbitration Procedure Code of the Russian Federation obliges the parties to confirm the circumstances to which they refer as the basis for their claims and objections. That is, the taxpayer’s bad faith is proven by the tax authorities, and his good faith is proven by himself
29.09.2009"Economy and Life"
During a tax audit, it may turn out that information about the counterparty is not in the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs, it is not at its registered address, it does not conduct business activities, etc.
In this case, the tax authorities will demand that the taxpayer exclude the costs incurred under the transaction (as not meeting the criteria of Article 252 of the Tax Code of the Russian Federation) from the tax base. In addition, you will have to pay additional taxes, penalties and sanctions provided for in Art. 122 of the Tax Code of the Russian Federation.
But if you follow one simple rule and check your future partner before entering into an agreement with him, negative consequences can be avoided. This rule is dictated by life, there is no clear indication of it in the legislation, although the FAS of the North Caucasus District saw it in the Civil Code of the Russian Federation, noting that when conducting business activities, the taxpayer, by virtue of this article, must exercise sufficient caution and check the legal capacity of the counterparty, as well as the presence he has the necessary registration (resolution dated April 11, 2005 No. F08-1187/2005-507A).
Exercising Due Diligence
In relation to the new counterparty, it is necessary to exercise, as tax authorities say, due diligence. There is no definition of this concept in tax legislation. The financial department does not explain it either. At the same time, it is actively used in law enforcement practice.
In paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of a tax benefit received by a taxpayer,” due diligence is mentioned in connection with the issue of determining the validity of a tax benefit received by a taxpayer.
FAS Povolzhsky District, considering a dispute between the tax authority and the taxpayer, noted that due diligence and caution for tax purposes imply the determination by the taxpayer of accessible and not prohibited by law methods of checking its counterparty and the fact of its fulfillment of tax obligations (resolution dated 06/03/2008 in case No. A65 -27419/07).
How to check a counterparty
First, you need to request registration and constituent documents from the counterparty, then obtain an extract from the relevant register (Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs). Then you need to check whether the persons acting on behalf of the counterparty have the proper authority, and also request licenses, if the types of activities that are the subject of the contract being concluded are licensed, or documents confirming membership in self-regulatory organizations, when the implementation of activities is impossible without this. In some cases, you need to make sure whether the counterparty has sufficient resources to independently perform the work under the contract. Having collected such a dossier, the taxpayer will subsequently be able to prove his good faith in court.
Registration and constituent documents
Registration documents include a state registration certificate. The type of constituent documents depends on the legal form of the counterparty. For joint-stock companies, limited and additional liability companies, production cooperatives and unitary enterprises, the constituent document is the charter, for general partnerships and limited partnerships - the constituent agreement.
Requesting the named documents from the counterparty, in the opinion of judges of a number of districts, is sufficient evidence that the taxpayer took all measures of forethought and caution (resolution of the Federal Antimonopoly Service of the West Siberian District dated November 24, 2008 No. F04-7152/2008(16246-A03-41), Povolzhsky District dated March 24, 2009 in case No. A12-13127/2008 (the legality of the verdict was confirmed by the Ruling of the Supreme Arbitration Court of the Russian Federation dated July 13, 2009 No. VAS-8421/09), Moscow District dated July 21, 2008 No. KA-A40/6517-08 in case No. A40 -3034/08-127-13, Northwestern District dated 05/08/2008 in case No. A56-18079/2007 (the legality of the verdict was confirmed by the Ruling of the Supreme Arbitration Court of the Russian Federation dated 09/17/2008 No. 11149/08) and the Ural District dated 06/25/2009 No. F09-4344 /08-C3 in case No. A47-744/2008AK-22).
Extract from the Unified State Register of Legal Entities
This is a document confirming, firstly, the existence of the organization, and secondly, its legal capacity.
Let us remind you that the legal capacity of a legal entity arises at the moment of its creation and ends with its liquidation. A legal entity is considered liquidated from the moment an entry is made about its exclusion from the Unified State Register of Legal Entities (clause 3 of article 49 and clause 8 of the Civil Code of the Russian Federation). Therefore, it makes sense to request an extract from the Unified State Register of Legal Entities from the future counterparty or obtain it yourself. It will be very useful if a dispute arises.
Thus, the court recognized the good faith of the taxpayer, who presented an extract from the Unified State Register of Legal Entities about the counterparty, received several days before the conclusion of the agreement. Together with copies of constituent documents and a registration certificate, she removed all suspicions of bad faith from the taxpayer (resolution of the Federal Antimonopoly Service of the Volga Region dated June 25, 2009 in case No. A55-17520/2008), despite the fact that the counterparty did not fulfill its tax obligations (did not submit reports to the tax authority).
Authorization check
Persons acting both under a power of attorney issued by the organization and without it can represent the interests of an organization.
As a rule, sole executive bodies can act without a power of attorney. Such rights should be spelled out in the founding document, which should be looked into.
Having identified a position with the authority to represent the interests of the organization with the right to make transactions, it is necessary to request documents confirming the election or appointment to the position. In JSCs and LLCs, this may be the protocol (or decision) of the general meeting of shareholders or participants on the election of the sole executive body of the company (director, president).
We also recommend that you have an order appointing a person acting on behalf of the counterparty if an employment relationship has developed between him and the represented organization. If the relationship is of a civil nature (without an employment contract), such a document will not be required.
Other persons can also represent the interests of an organization with the right to conclude contracts if they have a power of attorney issued to them on behalf of the organization. For example, heads of representative offices and branches who are appointed by a legal entity and act on the basis of its power of attorney (Part 3 of the Civil Code of the Russian Federation).
When checking their powers, it is necessary to pay attention to the principal (the person on whose behalf the power of attorney was issued) and check his powers to issue a power of attorney, which can be found out from the constituent documents.
Having received all the above documents, the taxpayer will fully exercise due diligence and caution (resolutions of the Federal Antimonopoly Service of the West Siberian District dated November 24, 2008 No. F04-7152/2008(16246-A03-41), Moscow District dated June 8, 2009 No. KA-A40/ 5013-09-P, dated 04/28/2009 No. KA-A40/2372-09, dated 01/15/2009 No. KA-A40/12805-08, dated 10/24/2008 No. KA-A40/9227-08 and the Ural District dated 09/24. 2008 No. Ф09-6322/08-С3).
Some courts believe that due diligence implies requiring, along with constituent documents, an extract from the Unified State Register of Legal Entities and documents confirming the authority to carry out transactions, and establishing the identity of the person acting on behalf of the counterparty, in particular the identity of the head of the counterparty (resolution of the Federal Antimonopoly Service of the West Siberian District dated March 30, 2009 No. F04-1904/2009(3556-A67-40). The absence of attempts to establish the identity and verify the powers of the counterparty’s representative can be assessed by the court as a lack of due diligence (resolutions of the Federal Antimonopoly Service of the Moscow District dated June 30, 2009 No. KA-A40/5794-09 and the Ural District dated June 25, 2009 No. Ф09-7444/08-С3).
Sometimes courts impose very strict requirements on taxpayers in terms of verifying the counterparty and identifying the person authorized to sign contracts. Thus, the FAS Moscow District, in resolution dated January 19, 2009 No. KA-A40/12412-08, assessed the taxpayer’s actions as not consistent with due diligence, since the certificate drawn up by the public security service contained information from the Internet, a visit to the location of the counterparty was not carried out, documents The applicant's employees did not see the suppliers' directors.
Licenses and Confirmation of membership in SRO
Types of activities, the implementation of which is permitted only with a license, are listed in Art. 17 Federal Law dated 08.08.2001 No. 128-FZ.
The courts evaluate the demand for a license from a counterparty as a manifestation of due diligence (resolutions of the Federal Antimonopoly Service of the Volga District dated October 21, 2008 in case No. A55-4446/08, West Siberian District dated April 29, 2009 No. F04-2494/2009 (5380-A45-26), Moscow District dated 06/08/2009 No. KA-A40/3473-09-P and Volga District dated 04/25/2008 in case No. A57-10434/06, dated 07/17/2008 in case No. A55-16398/2007 (verdict confirmed by the Determination of the Supreme Arbitration Court of the Russian Federation dated October 13, 2008 No. 12680/08)).
In relation to those types of activities in which licensing is replaced by self-regulation, the license ceases to be a document confirming the legality of conducting the relevant activity. It is being replaced by documents confirming membership in a self-regulatory organization, as well as documents confirming the competence to conduct a particular activity. For example, for participants in construction SROs, such a document will be a certificate of access to work.
What can the counterparty
It is necessary to assess the ability of the counterparty to fulfill contractual obligations on its own, if such a condition is included in the contract. In particular, does he have the material and human resources to perform work (provide services), are there enough current and non-current assets to ensure the fulfillment of contractual obligations. Such behavior, assessed as conscientious, is indicated in the decisions of the Federal Antimonopoly Service of the Moscow District dated December 1, 2008 No. KA-A40/9505-08-P and dated August 7, 2008 No. KA-A40/6770-08.
It makes sense to check whether the counterparty has sufficient resources if the contract provides for personal fulfillment of obligations without the involvement of third parties.
For your information
Currently, federal legislation provides for the creation of self-regulatory organizations in various fields of activity: self-regulatory organizations of arbitration managers (Federal Law dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”), self-regulatory organizations of management companies (Federal Law dated November 29, 2001 No. 156-FZ “On Investment Funds”), a professional association of insurers (Federal Law dated April 25, 2002 No. 40-FZ “On compulsory civil liability insurance of vehicle owners”), self-regulatory organizations of professional participants in the securities market (Federal Law dated April 22, 1996 No. 39-FZ “On the Securities Market”, Federal Law dated 03/05/99 No. 46-FZ “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market”), self-regulatory organizations of appraisers (Federal Law dated 07/29/98 No. 135-FZ “On appraisal activities in the Russian Federation”), self-regulatory organizations of non-state pension funds (Federal Law dated 05/07/98 No. 75-FZ “On non-state pension funds”), etc.