President of Belarus Alexander Lukashenko supported the proposals of entrepreneurs to decriminalize business. In particular, a draft amendment to the most odious decree No. 488 on certain measures to prevent illegal minimization of tax liabilities has been published.

“If we call everything by its proper name, in essence the draft changes are aimed at eliminating “excesses”, “distortions” in the relations of business with regulatory authorities. But problems do happen, and they happen outside the court system,” commented the managing partner of the Arzinger Law Office. Alexander Korsak.

The issue was extremely painful for business. “Firstly, in such cases, companies were assessed additional taxes, penalties and fines, and it was necessary to make changes to accounting. Secondly, it is almost impossible to challenge the opposite (that you are not guilty) in court. Conscientious companies also suffered. Those who, following numerous recommendations, checked the counterparty in high-risk registers, checked invoices, and the powers of the counterparty’s representatives. And it didn’t help. For example, the next day the counterparty could appear in the register indicating that it has been showing signs of false entrepreneurial activity for several years. This means that all transactions with him over the past period are “under attack,” said Korsak.

The new draft, the expert notes, provides that primary accounting documents can be recognized as having no legal force only for transactions executed after inclusion in the register of commercial organizations and individual entrepreneurs with an increased risk of committing offenses in the economic sphere (register) and only with such entities . The only exception to the rules is when a transaction is declared invalid by a court decision, but no more than five years prior to the inclusion of a business entity in the register.

The draft also directly stipulates that if a business transaction actually took place, then such facts as:

• the business entity is not located at the location indicated in the constituent documents of the commercial organization (place of residence indicated in the certificate of state registration of the individual entrepreneur);
• carrying out activities in premises that do not legally belong to a business entity and some others.

In addition, the draft provides for the liability of officials for the groundless inclusion of an enterprise in the register and the provision of false information regarding such grounds. Specific sanctions are not specified, but it is noted that such facts are considered as improper performance of official duties and entail disciplinary liability up to and including dismissal from the position held. “We believe that this will allow us to avoid excessive formalism in the actions of government bodies,” the lawyer believes.

The draft document instructs the Council of Ministers to consider the possibility of:

• exemption from criminal liability of persons who have committed crimes for the first time under Articles 231 and 243 of the Criminal Code of the Republic of Belarus, if they have fully compensated for the damage caused or paid the proceeds of crime;
• improving measures of criminal liability for illegal business activities and false entrepreneurship.

DECREE OF THE PRESIDENT OF THE REPUBLIC OF BELARUS October 2012 No. 488 On some measures to prevent illegal minimization of tax liabilities

In order to ensure the protection of the interests of the state from harm caused as a result of illegal minimization of tax liabilities:

1. Establish that:

1.1. commercial organizations and individual entrepreneurs (hereinafter, unless otherwise stated, business entities) are subject to inclusion in the register of commercial organizations and individual entrepreneurs with an increased risk of committing offenses in the economic sphere (hereinafter, the register) if one or more of the following grounds exist:

In the activities of a business entity, according to a court verdict that has entered into legal force, signs of false entrepreneurship have been established or strict reporting forms of the business entity and (or) its current accounts in banks, non-banking financial institutions were used in the commission of crimes provided for in Article 233 of the Criminal Code of the Republic of Belarus;

The accounts of the business entity in banks, non-banking financial organizations received proceeds from the sale of goods (works, services), property rights, and at the same time, if there were appropriate objects of taxation, tax returns (calculations) on taxes and fees paid from revenues (gross revenues), the data of which indicate the absence of these objects of taxation, or such tax returns (calculations) have not been submitted for two reporting periods in a row;

The amount of funds received into the accounts of a business entity in banks, non-banking financial institutions for the month exceeded 5,000 basic units, and at the same time its manager, individual entrepreneur or other person duly authorized to act on behalf of the business entity does not have information about the actual circumstances of the business activity as a result of which the specified funds were received;

In fact, a person or seals not authorized in the established manner are acting on behalf of a business entity, document forms with a certain degree of protection and payment instruments of a business entity were transferred to a person not authorized to store and (or) use them, or to a person to whom the transfer of these seals, forms and payment instruments are not allowed in accordance with the law;

The business entity is not located at the location specified in the constituent documents of the commercial organization (place of residence indicated in the certificate of state registration of an individual entrepreneur), and did not notify the registering authority in the manner and within the time limits established by legislative acts about the change of location (did not contact the registering authority). body for making changes to the certificate of state registration in case of change of place of residence), while the head of a commercial organization, an individual entrepreneur or another person authorized in the established manner to act on behalf of a business entity does not, without good reason, submit documents requested by the authorities specified in part the first subclause 1.3 of this clause, or do not respond to calls (invitations) of these bodies;

1.2. The register is created by the Ministry of Taxes and Duties and includes the following information:

Name of the commercial organization, surname, first name and patronymic (if any) of the individual entrepreneur;

Payer account number;

The basis(s) and date of inclusion of the business entity in the register.

The information contained in the register is open, publicly available and is posted on the official website of the Ministry of Taxes and Duties on the global computer network Internet;

1.3. business entities are included in the register by the Ministry of Taxes and Duties on the basis of information and documents confirming the presence of one or more grounds provided for in subparagraph 1.1 of this paragraph, submitted by the inspectorates of the Ministry of Taxes and Duties, the State Control Committee, the Ministry of Finance and their territorial bodies, law enforcement agencies and courts.

When the Ministry of Taxes and Duties receives information about the presence in relation to a business entity of one or more grounds provided for in subclause 1.1 of this paragraph, this Ministry, within three working days from the date of receipt of such information, sends a notification of intention to include to the business entity by registered mail it to the register.

A business entity, within ten working days from the date of sending the specified notification, may submit a reasoned objection to the Ministry of Taxes and Duties regarding its intention to include it in the register.

The decision on inclusion (non-inclusion) of a business entity in the register is made by the Ministry of Taxes and Duties within fifteen working days from the date of sending a notice of intention to include it in the register, and if there is an objection from the business entity - within twenty working days from the date his receipts.

The decision to include (or not include) a business entity in the register is sent to the business entity by registered mail no later than one business day following the day such a decision was made.

A business entity is included in the register by the Ministry of Taxes and Duties no later than one business day following the day of making the decision specified in part four of this subparagraph;

1.4. a business entity may be excluded from the register by the Ministry of Taxes and Duties:

If the fact of its erroneous inclusion in the register is revealed, including on the basis of a message from the body that provided the information and documents that served as the basis for its inclusion in the register. This body is obliged to inform the Ministry of Taxes and Duties about the fact that it has identified the erroneous inclusion of a business entity in the register no later than one business day following the day it was identified. The Ministry of Taxes and Duties is obliged to exclude a business entity from the register no later than one business day following the day it discovered (including on the basis of a message from the specified body) the fact of erroneous inclusion in the register;

At the request of a business entity submitted in connection with the elimination of violations that served as the basis for its inclusion in the register, or in connection with its erroneous inclusion in the register;

1.5. the petition specified in paragraph three of subclause 1.4 of this clause is submitted to the tax authority at the place of registration of the business entity. Along with the application, the business entity submits an application to conduct an audit on issues within the competence of the tax authorities, and documents confirming the elimination of violations that served as the basis for its inclusion in the register, and when submitting an application in connection with an erroneous inclusion in the register, documents confirming this circumstance (if any). The tax authority, on issues within its competence, on the basis of the submitted application, conducts an inspection of the business entity and, no later than five working days from the date of its completion, sends it, unless otherwise provided in part two of this subparagraph, to the body that provided the information and documents that served as the basis for inclusion of a business entity to the register, the application and documents submitted by the business entity with the attachment of an act (certificate) of its inspection.

If the application is submitted to the tax authority that provided the information and documents that served as the basis for including the business entity in the register, or if the business entity is included in the register on the basis of information and documents presented by the courts, the tax authority no later than five working days from the date of completion of the inspection sends the petition together with its conclusion, as well as the documents submitted with the petition and the inspection report (certificate) to the Ministry of Taxes and Duties;

1.6. Based on the results of the consideration of documents received in accordance with part one of subclause 1.5 of this clause, the authorities that provided information and documents that served as the basis for including a business entity in the register, no later than five working days from the date of their receipt, draw up a conclusion, which is no later than one working day the day following the day of its preparation, is sent to the Ministry of Taxes and Duties;

1.7. The Ministry of Taxes and Duties, no later than three working days from the date of receipt of the documents specified in part two of subclause 1.5 and subclause 1.6 of this clause, makes a decision to exclude a business entity from the register or a reasoned decision to refuse to exclude it from the register, which is sent by registered mail. by letter to a business entity no later than one business day following the day of its acceptance.

The grounds for refusal to make a decision to exclude a business entity from the register are:

Failure by a business entity to eliminate the violations that served as the basis for its inclusion in the register, and in the case of filing a petition in connection with its erroneous inclusion in the register - failure to confirm this circumstance;

Establishment during the inspection carried out in accordance with part one of subclause 1.5 of this clause, other circumstances that are the basis for including a business entity in the register.

The decision to exclude a business entity from the register or a reasoned decision to refuse to exclude it from the register must be made no later than one month from the date of filing the petition specified in paragraph three of subclause 1.4 of this clause.

A business entity is excluded from the register no later than one working day following the day the Ministry of Taxes and Duties makes a decision to exclude it from the register;

1.8. the decision of the Ministry of Taxes and Duties to include a business entity in the register or to refuse to exclude it from the register can be appealed in a commercial court in the manner established by legislative acts;

1.9. organizations and individual entrepreneurs are obliged to ensure that primary accounting documents are checked for compliance with the requirements of the law, and if they are issued on behalf of an organization or individual entrepreneur of the Republic of Belarus - also for their ownership by the sender of the goods and the validity of the form of such a document, information about which is posted in the electronic a data bank of document forms and documents with a certain degree of protection and printed materials;

1.10. for tax purposes, the fact of a business transaction is confirmed by a primary accounting document that has legal force. At the same time, the primary accounting document has legal force only if the business transaction reflected in it is valid.

The primary accounting document may be recognized by the regulatory authority based on the results of an audit carried out within its competence, as having no legal force if the regulatory authority and (or) law enforcement agencies present evidence refuting the fact of the commission of the business transaction reflected in it;

1.11. taxation of business transactions documented with primary accounting documents that do not have legal force is carried out in the following order:

1.11.1. for business transactions for the acquisition of goods (works, services), property rights:

The cost of purchasing goods (work, services), property rights is not included in the costs of production and sale of goods (work, services), property rights taken into account for taxation;

The submitted amounts of value added tax are not subject to deduction and are not included in the costs of production and sale of goods (work, services), property rights taken into account for taxation, and non-operating expenses;

1.11.2. for business transactions for the sale of goods (works, services), property rights:

Non-operating income is recognized as actually received cash and (or) other property based on the value of such property indicated in the primary accounting documents on its receipt;

The cost of goods (work, services), property rights is included in the tax base for value added tax, as well as in the proceeds from the sale of goods (work, services), property rights (gross revenue);

1.11.3. the cost of goods (work, services), property rights, registered as acquired by a commission agent, attorney or other similar person (hereinafter referred to as the commission agent) for transfer to the principal, principal or other similar person (hereinafter referred to as the principal), is included by the commission agent in the tax base for the tax on added value, as well as in revenue from the sale of goods (work, services), property rights (gross revenue);

1.11.4. the cost of goods (work, services), property rights registered as received by the principal from the commission agent is recognized by the principal as non-operating income, and the amount of expenses to reimburse the commission agent for the cost of purchased goods (work, services), property rights is not taken into account when taxing the principal;

1.11.5. the cost of goods (work, services), property rights, registered as transferred by the principal to the commission agent for their further sale, is included by the commission agent in the tax base for value added tax, as well as in the proceeds from the sale of goods (work, services), property rights (gross revenue ) when transferring them to third parties and is determined in accordance with the primary accounting documents on the basis of which the commission agent transferred goods (work, services), property rights to third parties;

1.11.6. the cost of work registered as performed for the contractor by a subcontractor from the contractor:

It is non-operating income, and the amount of funds transferred (to be transferred) to the subcontractor in payment for these works is not taken into account when taxing the contractor;

Included in the tax base for value added tax, as well as in revenue from the sale of goods (work, services), property rights (gross revenue), if this cost is included by the contractor in the price of the work or is reimbursed separately by the customer;

1.12. the tax base and the moment of actual sale (reflection of revenue) for goods shipped (work performed, services provided), transferred property rights when taxing business transactions in accordance with subclause 1.11 of this clause in accordance with tax legislation are determined based on information about these elements of taxation specified in the primary accounting documents that document business transactions. This provision does not apply if other factual circumstances of such business transactions are established.

Taxation of business transactions in accordance with subclause 1.11 of this clause can be carried out by legal entities and individual entrepreneurs independently before the start of the audit;

1.13. If, during inspections, circumstances are revealed indicating that the inspected business entities included in the register did not actually carry out business transactions for which they received payment, the entire amount of money received and (or) the value of other property is recognized as non-operating income, in including if the audited entity does not have accounting documents and (or) other documents related to taxation.

2. Entrust control over the implementation of this Decree to the State Control Committee.

3. The Council of Ministers of the Republic of Belarus, within two months, ensures that legislative acts are brought into compliance with this Decree and takes other measures for its implementation.

President of the Republic of Belarus A. Lukashenko

Each company has many partners and clients. They cooperate with some on an ongoing basis, with others - within the framework of one specific transaction. At the same time, you can never be sure that your counterparty is not one of the pseudo-entrepreneurial structures. How to avoid being included in the list of such companies and what to do if your partners or clients turn out to be false entrepreneurs, says Victoria Vysotenko, director of the A-Kvadratum Legal Bureau.

— Sometimes, when concluding an agreement or issuing an invoice, you may not even suspect that your counterparty is a so-called “Finnish woman.” In this material we will consider the pressing issue of cooperation (accidental or intentional) with such structures.

Director of the Legal Bureau "A-Kvadratum"

Belarusian legislation began to regulate this problem quite strictly, in particular with the adoption of Decree No. 488 dated October 23, 2012 “On certain measures to prevent illegal minimization of tax liabilities,” which came into force on January 1, 2013 (hereinafter referred to as Decree No. 488).

False entrepreneurship from the point of view of the law

First, let’s figure out what a pseudo-entrepreneurial structure is and what criteria can be used to get into the register of commercial organizations and individual entrepreneurs with an increased risk of committing offenses in the economic sphere (hereinafter referred to as the register).

False entrepreneurial activity is an activity in which there is no intention to actually carry out entrepreneurial activities or activities provided for by the charter, in which the founders (participants) and directors, as a rule, are dummy persons. The main goal of such activity is to generate income and, as a rule, in rather large amounts.

So, in order to to get on the register, It is sufficient to have one of the conditions (based on subclause 1.1 of clause 1 of Decree No. 488):

1. If signs of false entrepreneurship are established, in accordance with a court verdict that has entered into legal force. Criminal legislation defines the concept of false entrepreneurship as follows: according to Art. 234 of the Criminal Code of the Republic of Belarus, this is “state registration as an individual entrepreneur or the creation or acquisition of a legal entity (share in the authorized capital of a legal entity) in the name of a dummy person (persons) or without the intention to carry out entrepreneurial or statutory activities, if the activity of such an individual entrepreneur or legal entity entailed causing damage on a large scale or was associated with the receipt of income from illegal business activities or other illegal property benefits on a large scale.”

2. If revenue was received into bank accounts in the absence of taxable items in the submitted tax returns (calculations) or the tax reporting itself for two months in a row.

3. The manager (individual entrepreneur) does not have information about the actual circumstances of the business activity, the revenue from which exceeds 5,000 basic units per month (that is, he cannot explain where the money in the amount of more than 115 thousand rubles came from).

4. Actual activity on behalf of a business entity is carried out by an unauthorized person, or seals, document forms with a certain degree of protection and payment instruments of a business entity have been transferred to a person not authorized to store them.

5. The business entity is not located at the location indicated in the relevant documents, and did not notify the registration authority of the change of location within the established time frame. In this case, the manager or other authorized person does not submit documents requested by authorized state bodies without good reason, or does not appear when called (invited) by these bodies.

How to get on the register

If it turns out that any of the listed conditions occurs, then the relevant information is submitted to the Ministry of Taxes and Duties (hereinafter referred to as the Ministry of Taxes), tax inspectorates, the State Control Committee, the Ministry of Finance, law enforcement agencies and the courts. After receiving such information, the Ministry of Taxes and Taxes, within three working days, sends by registered mail a notice of intention to include the company in the register.

Next, a business entity has the opportunity, within 10 working days from the date of sending (and not actual receipt) of the notification, to submit to the Ministry of Taxation a reasoned objection to the intention to include it in the register. If there are no objections, then the Ministry of Taxes within 15 working days from the date of sending the notification, and if there are objections - within 20 working days from the date of its receipt - will include this business entity in the register.

How to be excluded from the register

After eliminating violations, at the request of a business entity, it can be excluded from the register. The decision to include in the register (refusal to exclude from it) can be appealed to the Ministry of Taxes and Taxes, and then in court.

The register of commercial organizations and individual entrepreneurs with an increased risk of committing offenses in the economic sphere currently includes more than 7,000 entities. But are they all really fake entrepreneurs?

The vast majority are included in the Register on the basis of paragraph 6 of part 1, sub. 1.1 of Decree No. 488 (5th condition from our list), namely, non-location at the location specified in the constituent documents. Is it possible to unequivocally say that such a business entity is a pseudo-entrepreneurial structure? We believe not.

There is administrative liability for failure to submit information about a change of location within the prescribed period in accordance with Art. 23.16 of the Code of Administrative Offences.

However, in our opinion, it is not entirely justified to believe that if an organization has changed its location and for some reason has not submitted information to the registration authority, then it is a pseudo-entrepreneurial structure.

If your counterparty is a pseudo-entrepreneurial structure

Even if, when concluding a contract with a new company or entrepreneur, this entity is not in the Register, there is no guarantee that this counterparty will not appear there in the future. For example, if the fact of his (the counterparty’s) cooperation with a company from the Register is revealed.

According to Decree No. 488, the Department of Financial Investigations of the State Control Committee draws up a conclusion regarding a business entity included in the Register if there is information and documents confirming that it has committed an offense in the economic sphere.

What is considered an offense

Offenses in the economic sphere should be understood as administrative offenses in the field of the securities market, finance, against taxation procedures, banking and business activities (for example, violation of the procedure for carrying out currency transactions (Article 11.2 of the Administrative Code), violation of the procedure for conducting cash transactions (Article 11.7 of the Administrative Code ), etc. For details, see Chapter 11 of the Administrative Code).

So, the DFR drew up the above-mentioned conclusion and handed it to the false structure. If this entity does not attempt to be removed from the Register, then after the expiration of the period for appeal, orders are issued to all entities that entered into transactions with the false entrepreneur.

What should be specified in the order

Based on clause 1.122 of Decree No. 488, the order must contain:

• Indication of the corresponding conclusion
• Links to primary accounting documents reflecting business transactions with a business entity completed during the period specified in the conclusion

And also the following requirements:

• Calculate in the manner prescribed by Decree No. 488 and pay in full taxes (fees, duties) on relevant business transactions with a business entity
• Submit a tax return (calculation) with the amendments and (or) additions to the tax authority at the place of registration
• Within 20 working days from the date of receipt of the order, inform the financial investigation authority about the measures taken to implement it, attaching supporting documents.

The order is drawn up in two copies, signed by the head of the financial investigation body or his deputy and sealed. It is handed over against signature (sent by registered mail with acknowledgment of delivery) to a legal entity or individual entrepreneur or his representative (Part 3, Clause 1.122 of Decree No. 488).

The procedure for taxation of transactions with a false structure

All documents drawn up as part of transactions with a pseudo-entrepreneurial structure are recognized as having no legal force.

And therefore, according to clause 1.11 of Decree No. 488:

1. The cost of purchasing goods and services is not included in the costs taken into account for taxation, and the presented VAT amounts are not subject to deduction and are not included in the costs of production and sales.

2. Money received from sales to a false structure is recognized as non-operating income, and the cost of goods and services is included in the VAT tax base, as well as in proceeds from sales.

3. The same will happen in the case of acquisition/sale under commission agreements and contract agreements.

So, the tax base and the moment of actual sale (reflection of revenue) when taxing business transactions, clause 1.11 of Decree No. 488, in accordance with tax legislation, are determined based on information about these elements of taxation specified in the primary accounting documents that document business transactions. This provision does not apply if other factual circumstances of such business transactions are established (part 1, clause 1.12 of Decree No. 488).

After receiving the order and recalculating the relevant taxes, you must submit updated calculations to your tax office.

If you don't agree

Organizations or entrepreneurs that have received the relevant order have the right to file objections within 20 working days from the date of receipt. This possibility has existed since April 23, 2016 due to amendments to Decree No. 488.

Once objections are received, the order becomes invalid. But this also means that in relation to the objector, the DFR has the right to appoint and conduct an audit on its own or send its conclusion to the tax office - and the audit will be appointed and carried out by tax inspectors. Which is most likely what will happen.

It makes sense to object if:

• Transactions were actually completed (that is, there was actually a product and it was shipped, or a service was provided)
• If there are documents and witnesses (this could be your employees) who can confirm this

When appealing such an order, it is not enough to simply claim that you did not know anything; you must provide evidence.

The fact of a business transaction must be confirmed by a legally binding primary accounting document drawn up by the responsible executor together with other participants in the transaction at the time of its completion. Moreover, each business transaction must be registered in special accounting registers (documentary records in accounting are recognized as initially reliable if they fully reflect the essence of the business transaction and comply with current legislation).

If the primary accounting documents do not comply with the regulatory requirements, then the inspector has the right to conclude that such entries in the accounting registers are unfounded and, therefore, the need to recalculate taxes. However, as established judicial practice shows, it is necessary to prepare a sufficient evidence base on the issues raised, since the economic court proceeds from the presumption of innocence of a bona fide business entity in carrying out the transactions in question. Thus, when conducting an audit by tax authorities, it is necessary to present documents that actually reflect the fact of acquisition or sale of goods (work, services), which must be properly documented.

How to minimize risks

Considering everything discussed above, a logical question arises. How to protect yourself from such risks? Of course, it is unlikely that you will be able to protect yourself 100%, but we will still give some recommendations. So, the following will help you minimize your risk:

Of course, these recommendations do not provide 100% guarantees of protection from sanctions. However, these precautions should not be neglected.

RESOLUTION

Presidium of the Supreme Court of the Republic of Belarus

The Presidium of the Supreme Court of the Republic of Belarus, consisting of ……….., considered the protest in the manner of supervision of the Deputy Prosecutor General of the Republic of Belarus against the decision of the economic court of the city of Minsk dated 05/06/2016, the decision of the appellate instance of the economic court of the city of Minsk dated 07/28/2016, the decision of the judicial panel on economic cases of the Supreme Court of the Republic of Belarus dated October 25, 2016 in case No. 108-2/2016 on the claim of the private trade unitary enterprise “L.” to Kh. for the recovery of 495,703,902 non-denominated rubles in order to bring him to subsidiary liability for the obligations of ChTUP “L.”; the third party, who does not make independent claims regarding the subject of the dispute, on the plaintiff’s side is the inspection of the Ministry of Taxes and Duties of the Republic of Belarus for the Sovetsky district of the city of Minsk.

The reason for filing a protest was a complaint in the order of supervision by X.

Deputy Prosecutor General of the Republic of Belarus L. took part in the court hearing of the Presidium.

Having heard the report of Judge K., the speech of the prosecutor who supported the protest, based on the materials available in case No. 108-2/2016 and in the case of the economic court of the city of Minsk No. 702-2B/2015 on the bankruptcy of ChTUP “L.”, the Presidium of the Supreme Court of the Republic Belarus

INSTALLED:

In case No. 108-2/2016, by the decision of the court of first instance, left unchanged by the decisions of the courts of appeal and cassation, the requirements of ChTUP “L.” satisfied.

The protest contains a request to cancel court decisions of the courts of the first, appellate, and cassation instances and to issue a new court decision to refuse to satisfy the claim, without remitting the case for a new trial.

In support of the protest, it is stated that all the circumstances of the case have been established fully and correctly and are supported by the necessary evidence, but an error was made in the application of substantive law - part two of paragraph 3 of Article 52 of the Civil Code of the Republic of Belarus (hereinafter referred to as the Civil Code), subparagraph 1.13 of paragraph 1 of the Decree of the President of the Republic Belarus dated October 23, 2012 No. 488 “On some measures to prevent illegal minimization of tax liabilities” (hereinafter referred to as Decree No. 488). The incorrect application of the rules of law and the lack of grounds for satisfying the claim are justified by the fact that the defendant was the formal founder and director of ChTUP “L.”, in fact on behalf of ChTUP “L.” a person not duly authorized acted.

In accordance with Article 314 of the Economic Procedural Code of the Republic of Belarus (hereinafter referred to as the CPC), judicial decisions of courts considering economic cases that have entered into legal force are subject to amendment or cancellation if it is established that they significantly violate the norms of substantive and (or) procedural law.

When considering the protest, the following was established.

ChTUP "L." registered in the Unified State Register of Legal Entities and Individual Entrepreneurs on 10/03/2011.

According to the charter of ChTUP "L." (clause 1.2) the founder and owner of the property of ChTUP “L.” was X.

ChTUP "L." registered with the tax authority on 10/05/2011. According to payer records, from 10/03/2011 Kh. was the director and chief accountant of ChTUP “L.”.

By the decision of the inspection of the Ministry of Taxes and Duties of the Republic of Belarus for the Sovetsky district of the city of Minsk No. 3-3/345 dated 06/11/2015 (hereinafter referred to as the decision of the tax authority dated 06/11/2015) ChTUP "L." income tax was charged - 140,698,776 non-denominated rubles (hereinafter - rubles), value added tax - 117,248,980 rubles and penalties.

The decision of the tax authority dated June 11, 2015 was made based on the unscheduled inspection report dated May 13, 2015. ChTUP "L." verified for the period from 10/03/2011 to 04/28/2015, since the correctness of calculation, completeness and timely payment of taxes were not previously checked.

Due to the absence and non-submission of ChTUP "L." accounting documents, tax accounting and other documents related to taxation, the tax authority determined the amount of taxes due for payment in the manner prescribed by paragraph 2 of Article 81 of the Tax Code of the Republic of Belarus (hereinafter - TC). Namely, based on information about cash flows in the accounts of ChTUP “L.” in the servicing bank and information from the customs authority about export-import operations with the participation of Private Unitary Enterprise "L."

The tax authority transferred the audit materials to the criminal prosecution body. By the resolution of the inspector of the city interdistrict No. 4 of the Department of Financial Investigations of the State Control Committee of the Republic of Belarus for the Minsk region and the city of Minsk dated June 25, 2015, to initiate a criminal case on the grounds of a crime under Article 243 of the Criminal Code of the Republic of Belarus (hereinafter referred to as the Criminal Code), in relation to Director of ChTUP "L." X. was denied due to the lack of corpus delicti in the act. This resolution is motivated by the lack of objective data necessary for criminal legal qualification, in particular, the audit did not reliably establish the amount of damage caused to the state by an official of ChTUP "L."

The decision of the tax authority dated June 11, 2015 was not canceled by a higher tax authority or official, and was not appealed in accordance with economic procedural legislation.

At the request of the tax authority dated 07/07/2015, the economic court of the city of Minsk, by a ruling dated 08/11/2015, initiated proceedings in case No. 702-2B/2015 on the bankruptcy of ChTUP “L.”, opened bankruptcy proceedings; By decision dated October 22, 2015, ChTUP “L.” was recognized bankrupt, opened liquidation proceedings. Bankruptcy creditor ChTUP "L." — tax authority (100%) for the requirements of the third (income tax, value added tax) and fifth (penalties) stages.

Due to insufficient property, ChTUP "L." to satisfy the creditor's claims, 02/16/2016 by the bankruptcy manager of ChTUP "L." a claim was filed in case No. 108-2/2016 to attract the head (director) of ChTUP “L.” X. to subsidiary liability for the tax obligations of private enterprise "L.", declared bankrupt. Namely, the collection of 495,703,902 rubles (taxes, penalties, state duty in the bankruptcy case).

The legal basis for the claim is Article 49, part two of paragraph 3 of Article 52 of the Civil Code; Article 11 of the Law of the Republic of Belarus of July 13, 2012 “On Economic Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law); subclause 1.3 of clause 1 of Article 22 of the Tax Code; Articles 7 and 8 of the Law of the Republic of Belarus dated July 12, 2013 “On Accounting and Reporting”, which came into force on January 1, 2014 (hereinafter referred to as the Accounting Law of 2013); paragraph 9 of the resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus dated October 27, 2006 No. 11 “On some issues of application of subsidiary liability” as amended on September 26, 2008 (hereinafter referred to as the resolution of the Plenum).

The obligations of a legal entity - a payer of taxes, fees (duties) are established by Article 22 of the Tax Code. Subparagraphs 1.1 and 1.3 of paragraph 1 of Article 22 of the Tax Code stipulate that the payer is obliged to: pay taxes and fees (duties) established by tax legislation; keep records of income (expenses) and other taxable items in accordance with the established procedure, if such an obligation is provided for by acts of tax legislation.

The subsidiary liability of the head of a legal entity declared bankrupt is provided for by the second part of paragraph 3 of Article 52 of the Civil Code and the second part of Article 11 of the Bankruptcy Law. According to these rules, if the bankruptcy of a debtor - a legal entity is caused by the owner of its property, founders or other persons, including the head of the debtor, who have the right to give instructions mandatory for the debtor or who have the opportunity to otherwise determine his actions, then such persons, if the debtor’s property is insufficient for settlements with creditors jointly and severally bear subsidiary liability for the obligations of the debtor.
From the case materials it follows that Kh. was the director of ChTUP “L.” from the moment of its state registration as a legal entity on October 3, 2011 (order No. 1-k dated October 3, 2011).

When considering the case, at the request of Kh., criminal case No. 1-99/2013 was requested from the Frunzensky District Court of Minsk. The court verdict in this case dated December 09, 2013 (hereinafter referred to as the verdict) entered into legal force:

V., N., P., T. were found guilty of aiding and abetting the evasion of taxes and fees by concealing, deliberately understating the tax base, and entering knowingly false information into tax returns (calculations), resulting in damage on an especially large scale ( part 6 of article 16, part 2 of article 243 of the Criminal Code); under Part 3 of Article 235 of the Criminal Code, they were found not guilty and acquitted due to the absence of corpus delicti in the actions of each of them;

P. - under Part 4 of Article 16, Part 2 of Article 234 of the Criminal Code, T. - under Part 2 of Article 234 of the Criminal Code were found innocent and acquitted for lack of proof of participation in the commission of a crime.

The descriptive and motivational part of the verdict states that Kh. was not held criminally liable for creating an enterprise without the intention to carry out entrepreneurial activities on the basis of Article 234 of the Criminal Code. From the testimony of witness Kh., given by him during pre-trial proceedings and read out at the court hearing, it is clear that in October 2011, for a cash reward, he acted as the formal founder and director of Private Unitary Enterprise “L.” at the suggestion of a previously unknown man; upon registration of ChTUP "L." carried out his instructions, as well as the woman who provided legal assistance, and handed over to her all the documents relating to the registered private unitary enterprise “L.”.

When considering the protest, it was established that on February 15, 2013, ChTUP “L.” was included in the register of commercial organizations and individual entrepreneurs with an increased risk of committing offenses in the economic sphere (hereinafter referred to as the register) on the grounds established by paragraph five of subclause 1.1 of clause 1 of Decree No. 488.

This norm contains the following grounds: in fact, a person or seal not authorized in the established manner acts on behalf of a business entity; document forms with a certain degree of protection and payment instruments of a business entity were transferred to a person not authorized for their storage and (or) use, or to a person , the transfer of these seals, forms and payment instruments is not permitted in accordance with the law.

According to subclause 1.13 of clause 1 of Decree No. 488, when circumstances are identified during inspections indicating that the inspected business entities included in the register did not actually carry out business transactions for which they received payment, the entire amount of funds received and (or) the cost of other property is recognized as non-operating income, including if the audited entity does not have accounting documents and (or) other documents related to taxation.

In accordance with paragraphs 1 and 2 of Article 126, paragraph 1 of Article 141 of the Tax Code, the amount of profit from non-operating income reduced by the amount of non-operating expenses is taken into account when determining gross profit subject to income tax.

It is not clear from the verdict that the persons brought to criminal liability were charged with complicity in evading taxes from ChTUP "L." At the time of sentencing on December 9, 2013, taxes of ChTUP “L.” were not accrued by the authorized body. The decision of the tax authority on the accrual of ChTUP "L." taxes were adopted on 06/11/2015 based on the results of its audit for the period from 10/03/2011 (the moment of state registration as a legal entity) to 04/28/2015, previously similar audits of ChTUP “L.” were not carried out.

The verdict does not contain information about any business transactions in which the details and current account of ChTUP “L.” were used, as well as about the persons who had the accounting documentation of ChTUP “L.” at one time or another.

Under such circumstances, bringing to criminal liability for complicity in evading the payment of taxes and fees of the above-mentioned persons (acquitted under Articles 234, 235 of the Criminal Code) does not exclude the liability of other persons for their actions (inaction) which caused the bankruptcy of ChTUP "L."

When considering the case and determining the circumstances relevant for the correct resolution of the dispute under part two of paragraph 3 of Article 52 of the Civil Code, the courts took into account that, according to paragraph 9 of the resolution of the Plenum, bringing persons to subsidiary liability is due to the need to establish, in particular:
commission by the relevant person of actions (or his inaction) indicating the use of his right to give instructions that are binding on a legal entity or the use of his capabilities to otherwise determine his actions;

the presence of a cause-and-effect relationship between the use by the relevant person of his rights and (or) opportunities in relation to the legal entity and the consequences in the form of declaring the debtor bankrupt.

Assessment of the powers of the head (director) of ChTUP “L.” given by the courts taking into account the provisions of the charter of ChTUP "L."

According to clauses 1.2, 6.1, 6.3, 6.4, 6.5 of the charter of ChTUP “L.” the founder manages the enterprise and may be its director; the director is the executive body of the enterprise; carries out direct management and management of the enterprise; resolves all issues of the enterprise’s activities independently; organizes and ensures the activities of the enterprise; acts on his behalf without a power of attorney, represents his interests in relations with government agencies, legal entities and individuals; manages funds in accounts opened in banks; bears personal responsibility for the safety of the enterprise’s property and its effective use; carries out other functions related to the financial and economic activities of the enterprise; bears responsibility for the results of the enterprise’s activities, compliance with the law, the charter of the enterprise; The director has the right to keep accounting records and prepare financial statements personally.

The right of the head of a private unitary enterprise to keep accounting records and prepare financial statements personally, if this is provided for by the charter of the enterprise, is provided for in part four of Article 7 of the Law of the Republic of Belarus of October 18, 1994 “On Accounting and Reporting,” which became invalid on January 1, 2014 (hereinafter - Accounting Act 1994).

When assessing the powers of the head of ChTUP "L." the courts applied the applicable rules of law. Thus, part one of Article 6, part four of Article 16 of the Accounting Law of 1994, paragraph 3 of Article 7, paragraph 3 of Article 18 of the Accounting Law of 2013, determine that the head of the organization: is obliged to organize accounting and reporting, and create the necessary conditions for this; is responsible for organizing the storage of primary accounting documents, accounting registers, reporting, and other documents related to accounting and reporting.

The fact that the defendant, for monetary compensation, formally legally established Private Unitary Enterprise “L.” does not exempt him from the need to exercise due care for the interests of this legal entity and prudence.

By virtue of an act of legislation and the constituent document, Kh. had the authority to act on behalf of the private unitary enterprise “L.”, therefore, in accordance with paragraph 3 of Article 49 of the Civil Code, he had to act in the interests of the legal entity he represented in good faith and reasonably.

When satisfying the claim, the courts reasonably considered that, given the above-mentioned powers of Kh., after the state registration of Private Unitary Enterprise “L.” had the right to give obligatory for ChTUP "L." instructions and the ability to otherwise determine his actions, but did not act. The defendant’s failure to use his rights and opportunities in relation to ChTUP “L.” entailed consequences in the form of occurrence at ChTUP "L." tax obligations; failure to fulfill emerging tax obligations; inability to satisfy the requirements of the tax authority; insolvency of ChTUP "L.", which is of a stable nature, recognized by a court decision on bankruptcy with the liquidation of ChTUP "L." Thus, the bankruptcy of ChTUP “L.” was a consequence of the defendant’s inaction after the state registration of ChTUP “L.”

Since the bankruptcy of ChTUP "L." caused by the inaction of its director (who was at the same time the founder, owner of the property and chief accountant) - Kh., and the property of ChTUP "L." for settlement with the creditor is not enough, the courts came to the correct conclusion that there are grounds provided for in part two of paragraph 3 of Article 52 of the Civil Code and in part two of Article 11 of the Bankruptcy Law for bringing Kh. to subsidiary liability for the obligations of ChTUP “L.”.

As a result of consideration of the protest within the limits determined by Article 313 of the Code of Criminal Procedure, it was established that the courts, when considering the case, proceeded from the grounds of the plaintiff’s claim, the defendant’s objections, circumstances relevant for the correct consideration of the claim, assessed the evidence according to the rules of Article 108 of the Code of Criminal Procedure, and correctly applied the applicable rules of law, gave a proper assessment of controversial legal relations.

The courts did not commit significant violations in the application and interpretation of the rules of substantive or procedural law, which could serve as a basis for the cancellation (change) of the protested court decisions; the arguments of the protest do not affect their legality.
Taking into account the above, there are no grounds, provided for in Article 314 of the Code of Criminal Procedure, to satisfy the protest of the Deputy Prosecutor General of the Republic of Belarus to cancel the court decisions of the courts of the first, appellate and cassation instances and to issue a new court decision to refuse to satisfy the claim, without remitting the case for a new trial.

Based on the above, guided by Articles 313 - 318 of the Economic Procedural Code of the Republic of Belarus, the Presidium of the Supreme Court of the Republic of Belarus,

DECIDED:

The protest of the Deputy Prosecutor General of the Republic of Belarus is left unsatisfied.

The decision of the economic court of the city of Minsk dated 05/06/2016, the decision of the appellate court of the economic court of the city of Minsk dated 07/28/2016, the decision of the judicial panel for economic cases of the Supreme Court of the Republic of Belarus dated 10/25/2016 in case No. 108-2/2016 is left unchanged.

Throughout 2017–2018, numerous attempts were made to rewrite the norms of the famous Decree of the President of the Republic of Belarus dated October 23, 2012 N 488 “On some measures to prevent the minimization of tax liabilities” (hereinafter referred to as Decree N 488). However, on New Year’s Eve 2019, the news about the complete repeal of Decree No. 488 spread across the media. Let’s consider what is really happening with Decree No. 488 and what standards should now be followed.

On January 1, 2019, Law No. 159-Z came into force, which introduced changes and additions, including to the Tax Code, and information immediately appeared that the provisions of Decree No. 488 were transferred to the Tax Code, is this true?

Decree No. 488 is currently a valid regulatory legal act, and the new edition of the Tax Code, which has entered into force, contains norms that, taking into account the entire situation around Decree No. 488, can be perceived as a “reincarnation” of Decree No. 488. However, upon careful reading of the provisions of the Tax Code, in in particular Art. 21, 22, 33 of the Tax Code, it becomes obvious that a new course has been taken in solving problems associated with the illegal minimization of tax liabilities.

From January 1, 2019, the Register of entities with an increased risk of committing economic offenses ceased to be updated. How can bona fide entities now check their counterparty without an updated register?

Today a very interesting situation has arisen. As soon as it became known that the Register would not be updated, indignant statements appeared that now there would be nowhere to look for unscrupulous contractors, but they had to be checked. But just recently, the Register caused outrage precisely because the information it contains does not allow checking the counterparty at the time of the transaction. The practice of applying the norms of Decree No. 488 has shown that for the purposes of verifying a counterparty, the Register was not an up-to-date resource even before January 1, 2019. Among the main complaints of the business was the remark about the uselessness of the Register in terms of the relevance of the information that could be found in it at the time when a transaction with a new counterparty was just being planned. The Register contained information on already, so to speak, established organizations and individual entrepreneurs. That is, the Register worked retrospectively. A conscientious entity had the opportunity only after some time to find out that at the time of concluding the transaction, its counterparty was prone to committing economic offenses. Accordingly, it was possible to implement three scenarios for the development of the situation from the moment it became known about the inclusion of the counterparty in the Register:

— independently adjust your tax obligations under such a transaction and pay additional taxes on penalties to the budget;

- wait for the inspection and try to prove your integrity to the inspectors;

— receive an order from the OFR and comply with it or appeal.

However, let's admit that the presence of the Register did not help the business in any way at the stage of deciding to enter into a transaction.

That is, the conclusion suggests itself: the Register is not needed by businesses at all to check counterparties?

The issue of the need for the Register was repeatedly discussed when work was underway to amend Decree No. 488, and it must be admitted that both business representatives and government representatives agreed on the “need” of the Register. However, business does not want to see a retrospective Register, which only allows one to “sprinkle ashes on one’s head,” but a full-fledged information resource that allows one to obtain information that makes it possible to analyze the counterparty in order to make a decision on concluding a transaction.

Well, if the Register is still needed, then what should it be? After all, the Register that exists today, although it provides minimal information, everyone receives this information for free.

Yes, that's right. Information from the current Register can be obtained for free, but this information is almost impossible to use, so to speak, in the moment. Therefore, businesses today want to be able to receive the most up-to-date information that will allow them to get an idea of ​​the counterparty. To create such a resource, it will be necessary to collect and constantly update the collected information, which, in my understanding, cannot be free. I believe that the state will eventually create, in place of the Register, another, truly information resource, which may contain information, for example: from the Unified State Register; about the presence or absence of debt to the budget; about bankruptcy, about the presence or absence of initiated writ/executive proceedings; from the trade register, the register of household services. For the sake of truth, it must be said that in fact, a business wants to have access to much more information about a potential counterparty, for example, information about the presence or absence of land plots or real estate, about the facts of late repayment of loans or, on the contrary, about a good credit history. However, when creating such an information resource, the state will inevitably face at least two serious problems: the cost of information (how much such information should cost in order to be accessed) and confidentiality, i.e. security of many components of information about the counterparty. Here I mean existing restrictions on the dissemination of certain information, for example tax and banking secrecy.

Do the norms that have been reflected in the Tax Code since 2019 also provide for adjustments to tax obligations for those entities that enter into a transaction with an unscrupulous counterparty, and the primary accounting document is declared invalid?

As I have already said, rules have appeared in the Tax Code that allow us to conclude that the state is changing course in its approaches to stopping illegal or aggressive minimization of tax obligations. If we carefully analyze the provisions of Art. 33 of the Tax Code, it will become obvious that work with the recognition of primary accounting documents as having no legal force goes into the background, so to speak.

Clause 4 art. 33 of the Tax Code gives the tax authorities the right, based on the results of an audit, to adjust the tax base or the amount of tax to be paid (offset/refund), if at least one of the following grounds is present:

distortion of information about the facts (set of facts) of business transactions;

distortion of information about objects of taxation that are subject to reflection by the payer in accounting and (or) tax accounting, tax returns (calculations), as well as in other documents and (or) information necessary for the calculation and payment of taxes (fees);

the main purpose of carrying out a business transaction is non-payment (incomplete payment) and (or) offset, refund of the amount of tax (fee);

lack of reality of a business transaction (including cases when goods (intangible assets) were not actually received, work was not performed, services were not provided, property rights were not transferred).

As amended by paragraph 4 of Art. 33 of the Tax Code provides that the tax base and (or) the amount of tax payable are subject to adjustment if: distortions of information about the facts of business transactions are established, or the main purpose of the business transaction is non-payment of taxes, or the business transaction was not actually carried out. In contrast to the wording of Part 2 Sub. 1.10 clause 1 of Decree No. 488, according to which the PUD can be recognized by the controlling body as having no legal force based on the results of an inspection if the controlling body and (or) law enforcement agencies present evidence refuting the fact of the commission of the business transaction reflected in it. Then follows sub. 1.11 clause 1 of Decree No. 488, which establishes the mechanism of action of regulatory authorities and the procedure for taxation of a business transaction when the PUD is recognized as having no legal force. It must be said that a significant drawback is the absence in the Tax Code of at least hints on the procedure for making adjustments to the payer’s tax obligations, which will guide the inspectors. This means that approaches to making adjustments will be developed by application practice, including judicial practice.

Previously, an organization could independently carry out taxation of business transactions in accordance with the norms of sub. 1.11 clause 1 of Decree No. 488, if its counterparty is included in the Register, but today an organization or individual entrepreneur can do this?

The rule on voluntary taxation of such transactions is implemented in paragraph 6 of Art. 33 NK. At the same time, Decree No. 488 continues to be in effect. I believe that today, if someone decides to adjust their tax obligations, this can be done, guided by the procedure defined in subparagraph. 1.11 clause 1 of Decree No. 488. From the moment Decree No. 488 loses force, entities will be faced with the question of the taxation procedure for such transactions, because it is absent from the Tax Code or any other regulatory legal act. At the same time, I believe that in fact the approaches to taxation will not change, if only because the procedure for taxing “vicious” business transactions, established by sub-clause. 1.11 clause 1 of Decree No. 488, taken from the law enforcement practice that had developed even before the adoption of Decree No. 488.

Since there are no rules regulating the procedure for adjusting tax obligations in the Tax Code, does this mean that when an entity independently carries out taxation of a “flawed” business transaction, for example, according to the rules of subsection. 1.11 clause 1 of Decree No. 488, then, based on the results of the audit, they can apply other approaches to taxation of the same business transaction?

In general, yes, it can be so. However, it must be taken into account that the general situation and approaches to control activities and taxation, in particular, are changing. Thus, today tax compliance audits are carried out no more than 5 years in advance.<*>. However, we must remember that filing an updated declaration is one of the indicators of the risk of inclusion in the inspection plan. However, when filing an amended return and paying additional taxes on a self-identified “vicious” business operation, the risk of receiving a “check” from the regulatory authority for an additional amount of taxes when checking the same operation is still not great.

Decree No. 488 is applied by tax authorities and financial investigation authorities. If it is cancelled, and the rules for adjusting tax obligations based on the results of audits are contained in the Tax Code, does this mean that OFRs will not be able to carry out taxation under clause 4 of Art. 33 NK?

They can. We must not forget that Decree No. 510, in particular, with the List of regulatory bodies and areas of their control, established that the sphere of control of the SGC and its bodies includes control (inspections), including the implementation of tax legislation, and financial investigation bodies are part of a single centralized system of KGC bodies<*> .

Is it possible to say that if Decree No. 488 is repealed, it will become easier for organizations and individual entrepreneurs to work with PUD, because will the incorrectness of the PUD no longer entail additional taxes?

It is too early to say with full confidence that errors made during the preparation of the PUD, either deliberately or through negligence, will not entail additional taxes on the basis of clause 4 of Art. 33 NK. Let's remember the fact that law enforcement practice under Decree No. 488 was heterogeneous in terms of the application of the same norms of Decree No. 488 by different regulatory authorities. For example, the tax authorities in their audits focused on collecting evidence that refutes the very fact of transfer of goods and materials or performance of work. Whereas the FID more often used the testimony of individuals obtained under various circumstances of operational-search activities in relation to other business entities. Subsequently, when checking a specific organization, the evidentiary base of the inspection report was based on precisely such explanations, taken earlier without re-interviewing this person during the inspection of a specific organization. Unfortunately, for a long time, the courts did not take into account and assessed critically if the person previously interviewed came to the court hearing and testified in court as a witness that he refused the explanations previously given by the FIR and confirmed the fact of a business transaction. Today, the situation has changed significantly and the court establishes the factual circumstances of the business transaction, the fact of the transfer of goods and materials, regardless of the “defects” of the PUD with which this operation is formalized. This approach of economic courts to considering cases of invalidating decisions on audit reports on additional tax assessments in connection with the recognition of PUD as invalid forces changes in approaches to assessing the validity of a business transaction and regulatory authorities. I believe that over time, approaches to taxation of business transactions based on the incorrectness of the PUD, which are used to formalize such transactions, will disappear from the practice of regulatory authorities.

That is, we can say that the PUD will not affect taxation during audits?

Such a conclusion cannot be drawn. The DMP is the main document of accounting and tax accounting, which directly follows from the provisions of the Law on Accounting and Tax Code. In addition, sub. 1.16 art. 22 of the Tax Code, the payer’s responsibilities include the obligation to ensure the verification of DMPs for their compliance with legal requirements. Therefore, it is incorrect to say that the PUD will lose its status during inspections. At the same time, the general rhetoric of clause 4 of Art. 33 of the Tax Code is aimed at moving away from the principle of the predominance of form over content, which was used until recently. I believe that law enforcers today have the opportunity to change the current situation and develop an approach to the taxation of business transactions that can be considered as aimed at minimizing tax liabilities, based on one of the basic principles of accounting - the principle of predominance of the economic content of a business transaction. Considering the fact that tax accounting is based on accounting data, the wording of clause 4 of Art. 33 of the Tax Code allows a flexible and, importantly, economically feasible approach to taxation issues and solving the problem of illegal minimization of tax obligations that arose by reflecting distorted information about a business transaction in accounting and tax accounting.

We can say that you consider it correct and necessary for the Tax Code to have such norms as the norms of Art. 33 NK?

Such norms are contained in the tax legislation of many countries and, first of all, our neighbor in the common market - Russia. Today, countries of the Organization for Economic Co-operation and Development (OECD) actively resist manifestations of aggressive tax planning, and not just the facts of minimizing tax liabilities. The BEPS Plan (Action Plan to Combat Base Erosion and Profit Shifting) was adopted back in 2013, the unified OECD standard “On the Automatic Exchange of Tax Information” (2014) was adopted as a development of the 1988 OECD Convention on Mutual Administrative Assistance for tax matters. Russia joined the unified information exchange standard in November 2014. To date, 90 countries have joined the Convention and, accordingly, the unified standard for information exchange; the Republic of Belarus is not yet one of them. Returning to the question of the correctness of including such norms in national legislation, taking into account international trends in suppressing illegal minimization of tax obligations, I believe that such norms should exist. At the same time, if we turn to the provisions of the Tax Code of the Russian Federation<*>, then attention is drawn to the fact that issues with the “defects” of the design of the PUD were removed by the editors of the article itself. So, for the purposes of Art. 54.1 of the Tax Code of the Russian Federation determines that the signing of a PUD by an unidentified or unauthorized person, violation by the taxpayer’s counterparty of the legislation on taxes and fees, the possibility of the taxpayer obtaining the same result of economic activity when performing other transactions (operations) not prohibited by law cannot be considered as an independent basis for recognition of a decrease by the taxpayer in the tax base and (or) the amount of tax payable illegal. I am convinced that our Tax Code also needs such a clause. Perhaps later it will appear in the Tax Code, but for now we can only hope that the formation of law enforcement practice under Art. 33 of the Tax Code will follow the path of establishing the economic content of business transactions reflected by payers in accounting and tax accounting.