from courts and overpayments

Dear colleagues. Today I want to touch on a very important topic that experienced companies know about but beginners are not always familiar with. This is due diligence.

About Mr. X, Cerberus and Company A

But first, let me tell you a fictional story based on real events (all coincidences are accidental).

Company “A” lived quietly, developed in the market and confidently grew in income. And everything was fine with her until she wanted to conquer new heights and expand her presence on the Internet.

She wanted to create a new website for herself and actively promote it through SEO and other tools. The marketers searched for a contractor and chose company “B”, which had one of the lowest price tags for the work. We made a deal and went.

And at this time, the tax inspector "Mr. X" was on the trail of the company "Sharashkina's office", which had all the signs of being considered a one-day company.

And the valiant Cerberus, the ASK VAT-2 system, clearly demonstrated the relationship between “Sharashkina’s office” and company “B”, thereby suspecting illegal cash withdrawal.

Our “Mr. X”, realizing that in any scheme there is an intermediary and mistaking company “B” itself for such, began to look for a potential customer for cashing out and got on the trail of company “A”.

An on-site inspection of this company was immediately scheduled, during which company “A” could not clearly explain why it chose company “B” for cooperation. The answer “it’s cheaper there” did not suit the tax inspector.

As a result, company “A” was suspected of deliberately increasing expenses for subsequent tax savings and received a bill for 7 million rubles in additional tax charges, which it was obliged to pay to the Federal Tax Service of the Russian Federation.

Of course, company “B” also suffered, but the point of this story is to convey to you all the pain of company “A”, which conscientiously tried to work in the market.

Do you think this story is not real? I will disappoint you, dear reader, and suggest you read arbitration practice. Such cases are now becoming more and more common.

How to protect yourself from such a situation? How should you conduct your business so that the nightmare in the form of additional tax charges from cooperation with careless contractors does not take you by surprise? This is where we come to the topic of this article – due diligence.

What kind of term is this? The definition of due diligence was introduced by the Plenum of the Supreme Arbitration Court of the Russian Federation No. 53 dated October 12, 2006, but the exact concept was not given.

Its only mention is contained in the following paragraph: “a tax benefit may be recognized as unjustified if the tax authority proves that the taxpayer acted without due diligence and caution and he should have been aware of violations committed by the counterparty...”. However, tax authorities actively use this concept.

Before starting work, each new counterparty must be checked for the following points (and if existing ones have not been checked, then each of them must be checked):

The company is on the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs and has no problems identified during registration (the current version can be requested on the website of the Federal Tax Service of the Russian Federation or from the counterparty itself).

The company is located at its actual address indicated in the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs and this address is not a mass address.

Documents are signed by an authorized person, for whom all necessary documents are duly executed.

The passport details of the authorized person are correct.

The company does not have open tax debts or was not held liable for non-payment of taxes at the time of the transaction (such information is not a tax secret, so it is easy to obtain on the website of the Federal Tax Service of the Russian Federation).

A copy of the charter and constituent agreement (these documents are not secret and can be requested by you).

Copies of certificates of assignment of TIN, OGRN.

Extract from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs.

Copies of licenses.

Protocol on the appointment of the General Director to the position and powers of attorney for other persons who have the right to sign the agreement and invoices.

Copies of passport data of the manager and chief accountant.

Moreover, you can get some data from your online bank (Sberbank, Alfa-Bank, Tinkoff Bank exactly provide similar data), SPARK, SBIS, and so on. They can also be printed.

It will also be helpful if you can get your marketers to put together a short document outlining their thoughts on why this particular contractor was selected. What are the reasons, besides “cheap”, why it is worth working with this particular counterparty? After all, if the choice is only “cheap”, then for the tax authorities this is a signal that the contractor can reduce the tax base due to manipulations with taxes.

What if there is a trial?

As you can see, the list is quite impressive. But I assure you, it's worth it. What to do with all this goodness? If everything is in order, then you need to put the date of the inspection and the organization’s seal on these documents, collect them in one folder and put them in a safe place.

And if you have suspicions, then you should refuse to work with such a counterparty.

I would like to say right away that exercising due diligence cannot always save you from dealing with the tax authorities in court. There is no need to be afraid, since the courts now have a presumption of the company’s innocence and the Federal Tax Service needs to make a lot of effort to prove the opposite.

And if you exercise due diligence, this will reduce all the efforts of the tax inspector to zero. Therefore, always collect data about your counterparties!

That's all I have. If you have any questions, write. I'll try to answer everyone.

Stanislav Panin,financial director

Today we will consider the topic: “exercising due diligence when choosing a counterparty” and will analyze it based on examples. You can ask all questions in the comments to the article.

Exercising due diligence when choosing a counterparty is a category that is primarily of interest to tax authorities, who identify situations that entail the taxpayer receiving an unjustified tax benefit. These points have acquired particular significance in connection with monitoring the reality of transactions taken into account when calculating 2 main taxes: profit and VAT.

No video.

Of lesser (but also growing) interest in due diligence are:

• banks that are not only obliged to control certain transactions of their clients (Law “On Combating the Legalization (Laundering) of Income..." dated August 7, 2001 No. 115-FZ), but also interested in at least a stable financial position of persons who received a loan from the bank;
• business owners who want to run it with minimal losses (risks of buying and selling low-quality goods, late deliveries, non-receipt of payments, impossibility of recovering damages).

Why is due diligence one of the key issues directly for the taxpayer himself? Because entrepreneurial activity is carried out at your own peril and risk. That is, the negative consequences arising from the wrong choice of counterparty also become a taxpayer’s risk. And if the tax authority proves that the transactions were not real (that is, the transaction was fictitious), then additional tax charges will be inevitable.

The concept of due diligence is not legally defined anywhere. However, there are criteria developed by the Federal Tax Service of Russia (order dated May 30, 2007 No. MM-3-06/333), according to which the most likely candidates for an on-site tax audit are selected from among taxpayers. Among these criteria there is also such as conducting activities with a high level of tax risk, the description of which (clause 12 of Appendix 2 to the Federal Tax Service order No. MM-3-06/333) contains a list of characteristics that form the basis for assessing counterparties in terms of possible risks working with them.

For a complete list of criteria for selecting taxpayers for audit, see here .

Additional information about the signs of dubious counterparties can be found in the letters:

• Ministry of Finance of Russia dated December 17, 2014 No. 03-02-07/1/65228 - regarding the characteristics of shell companies;
• Federal Tax Service of Russia dated February 11, 2010 No. 3-7-07/84 - on information that a taxpayer can request from its counterparties, and measures taken by the tax service to inform about persons unreliable for interacting with them;
• Federal Tax Service of Russia dated October 17, 2012 No. AS-4-2/17710 and dated March 16, 2015 No. ED-4-2/4124 - on available official sources of data on legal entities and individual entrepreneurs, as well as on the qualitative assessment of information reflected in the Unified State Register of Legal Entities;
• Federal Tax Service of Russia dated May 12, 2017 No. AS-4-2/8872 - on the study of certain characteristics of a counterparty when assessing tax risks.

No video.

However, formal adherence to the provisions of these documents does not always guarantee the taxpayer the absence of claims from the tax authorities. They are increasingly successfully proving the unreality of dubious business transactions reflected in the accounting, including using arguments that complement the criteria developed by the Federal Tax Service of Russia. And increasingly, the point of view of the Federal Tax Service is supported by judges.

Among the arguments on which the court recognizes the counterparty as not meeting the criteria of a person actually conducting business, the following can be noted:

• Lack of the resources necessary for this (assets, personnel), payment of taxes in the minimum possible amount or in incomplete amount (resolutions of the Arbitration Courts of the Moscow District dated 05.30.2017 No. F05-7043/2017 in case No. A40-181608/2016, dated 30.05 .2017 No. F05-6970/2017 in case No. A40-208019/2016, dated 05.15.2017 No. F05-5962/2017 in case No. A40-74889/2016, Far Eastern District dated 08.14.2017 No. F03-2718/2017 in case No. A51-27634/2016).

For information on how the volume of the tax burden is determined and what its values ​​are considered to be underestimated, read the article“Calculation of the tax burden in 2018-2019 (formula)” .

The arguments taken into account by the courts indicate that the justification for exercising due diligence should not be limited to asking the counterparty for constituent documents, a copy of the latest statements and an extract from the Unified State Register of Legal Entities. It is also necessary to collect other information about him. For example, check what his business reputation and solvency are, assess the presence of a risk of non-fulfillment of obligations, make sure that he has real resources to actually carry out the activities agreed upon in the relationship and has the right to conduct them.

A taxpayer entering into a relationship with another counterparty should check it:

• for legitimacy (presence in the Unified State Register of Legal Entities (USRIP), absence of a mass registration address and a disqualified manager, availability of permits necessary to conduct the relevant activities);
• the reality of the activity being carried out (actual location at the place of registration, the presence of a manager with the necessary powers, physically existing offices and warehouses at the specified addresses, necessary equipment and transport, personnel, a valid current account, the presence of information in the media and the Internet);
• reliability (absence of non-filers, tax evaders, bankrupts, persons involved in legal proceedings in connection with their non-payments or work with fly-by-nights, availability of recommendations from business partners, duration of activity and maintaining relationships with the same partners ).

The Federal Tax Service of Russia has a series of letters explaining the application of Art. 54.1 of the Tax Code of the Russian Federation indicated to tax authorities and taxpayers that.

The company is not liable in the form of fines for cooperation with an unreliable counterparty. However, negative aspects from this action may still be present in the organization’s activities. They are connected with the fact that government agencies use in practice the concept of due diligence, the failure of which may threaten the company with some unpleasant consequences.

The content of the article:

The legislation of the Russian Federation does not establish a clear concept " due diligence". It was put into practice by tax authorities and courts on the basis of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53. According to this document, government agencies began to actively use the concept of due diligence when working with legal entities and individual entrepreneurs.

The essence of due diligence is that a business entity is obliged to take certain measures or actions to verify information about the reliability (or unreliability) of a potential counterparty. Due diligence is mandatory both before directly concluding a cooperation agreement and in the process of further interaction with a partner.

Most often, the concept of due diligence is used when challenging the validity of applying a VAT deduction. It is also taken into account when determining the legality of using expense amounts when calculating income tax.

The exercise of due diligence is reviewed and analyzed to determine that the taxpayer did not experience an unjustified tax benefit in carrying out the transactions. If he did not exercise due diligence in vetting his partner, he could receive undue benefit. Therefore, we recommend obtaining a certificate with due diligence indices, which can be printed from a service such as 1C: SPARK Risks.

When considering the issue of unjustified tax benefits, the following points are highlighted:

• the transaction was not actually carried out;
• the company and its partner are interdependent;
• the counterparty was aware that its actions could lead to unjustified tax benefits.

Example:

The organization LLC "Vector" entered into an agreement for the supply of goods. The cost of material assets was charged to tax expenses, which reduced the tax base for income tax. Subsequently, it turned out that the counterparty was a shell company.

The tax office proved that the transaction was carried out formally, as a result of which there was an underestimation of the amount of income tax. This is the receipt of an unjustified tax benefit, which is why the tax authorities completely removed the accepted expenses for this counterparty and assessed additional income tax.

Special Moments

When considering the concept of due diligence, you need to pay attention to the following points:

• if the taxpayer has not shown it, this may become reason for cooperation with an unscrupulous partner;
• if the Federal Tax Service proves that the taxpayer did not exercise due diligence, then it will additionally charge income tax and VAT accepted for reimbursement from the budget;
• Due diligence should be considered as one of the methods of checking a potential counterparty, used together with other methods of assessing the activities of business entities;
• failure to exercise due diligence may result in an unjustified tax benefit, since these concepts are closely related to each other;
• when conducting proceedings, judicial authorities do not take into account the fact that the concept of due diligence is not regulated by the legislation of the Russian Federation, although they actively use it in their practice;
• The legislation of the Russian Federation does not contain any criteria for assessing failure to exercise due diligence when analyzing counterparties.

Signs of bad faith of the counterparty

When exercising due diligence, a check and analysis of the integrity of the counterparty is carried out. There are a number of signs that indicate the unreliability of a potential partner. These include the following points:

• registration of a legal entity or individual entrepreneur was carried out with violations or is missing altogether;
• the legal address of the subject has signs of mass distribution or there is simply no information about it;
• there is no documentary evidence of the authority of the manager or representative signing documents on behalf of the counterparty;
• the presence of only financial flows through accounts or cash register and the absence of commodity flows, that is, there is no information about the production (purchase) and sale of products or goods;
• the potential partner lacks the resources to fulfill the terms of the agreement, for example, production or retail space, owned or leased real estate, employees, transport, equipment, etc.;
• there is a serious debt to the budget for taxes, fees and insurance premiums;
• presence of cases in the arbitration file.

If a company does not exercise due diligence to check a potential partner, that is, it enters into a deal with an unscrupulous counterparty, then all responsibility will fall on its shoulders.

Responsibility is financial in nature, since it is directly related to the additional assessment of VAT and income tax. The fact is that during cooperation, documents are drawn up, according to which expenses reduce the taxable base for income tax or provide the opportunity to reimburse VAT.

In the case where the counterparty is found to be dishonest and the company did not exercise due diligence, it illegally paid less taxes. In this case, the tax office will add additional payments to the budget.

The law does not provide for any specific penalties for concluding an agreement with an unscrupulous counterparty. Financial risks are associated only with the fact that the company does not have the right to legally reduce taxes, and therefore will incur more expenses due to an increase in the tax burden.

It should also be noted that the tax inspectorate can sue an organization demanding to pay taxes associated with an unjustified tax benefit. In this case, the company will be involved in legal proceedings, which may well cause a decrease in its business reputation.

1. GENERAL PROVISIONS
1.1. The Personal Data Processing Policy (hereinafter referred to as the Policy) was developed in
in accordance with the Federal Law of July 27, 2006. No. 152-FZ “On Personal Data” (hereinafter referred to as FZ-152).
1.2. This Policy determines the procedure for processing personal data and measures to ensure the security of personal data at the Lawyer's College "Tax Lawyers" LLC (hereinafter referred to as the Operator) in order to protect the rights and freedoms of a person and citizen when processing his personal data, including the protection of rights to privacy life, personal and family secrets.
1.3. The Policy uses the following basic concepts:
- automated processing of personal data - processing of personal data using computer technology;
- blocking of personal data - temporary cessation of processing of personal data (except for cases where processing is necessary to clarify personal data);
- personal data information system - a set of personal data contained in databases and information technologies and technical means that ensure their processing;
- depersonalization of personal data - actions as a result of which it is impossible to determine without the use of additional information the ownership of personal data to a specific subject of personal data;
- processing of personal data - any action (operation) or set of actions (operations) performed using automation tools or without the use of such means with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction , use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data;
- operator - a state body, municipal body, legal or natural person, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations), performed with personal data;
- personal data – any information relating to a directly or indirectly identified or identifiable individual (subject of personal data);
- provision of personal data – actions aimed at disclosing personal data to a certain person or a certain circle of persons;
- dissemination of personal data - actions aimed at disclosing personal data to an indefinite number of persons (transfer of personal data) or familiarizing with personal data to an unlimited number of persons, including the publication of personal data in the media, posting in information and telecommunication networks or providing access to personal data in any other way;
- cross-border transfer of personal data - transfer of personal data to the territory of a foreign state to an authority of a foreign state, a foreign individual or a foreign legal entity.
- destruction of personal data - actions as a result of which it is impossible to restore the content of personal data in the personal data information system and (or) as a result of which the material media of personal data are destroyed;
1.4. The company is obliged to publish or otherwise provide unrestricted access to this Personal Data Processing Policy in accordance with Part 2 of Art. 18.1. Federal Law 152.
2. PRINCIPLES AND CONDITIONS FOR PROCESSING PERSONAL DATA
2.1. Principles for processing personal data
2.1.1. The processing of personal data by the Operator is carried out on the basis of the following principles:
- legality and fairness;
- limiting the processing of personal data to the achievement of specific, predetermined and legitimate purposes;
- preventing the processing of personal data incompatible with the purposes of collecting personal data;
- preventing the merging of databases containing personal data, the processing of which is carried out for purposes that are incompatible with each other;
- processing only those personal data that meet the purposes of their processing;
- compliance of the content and volume of processed personal data with the stated purposes of processing;
- inadmissibility of processing personal data that is excessive in relation to the stated purposes of their processing;
- ensuring the accuracy, sufficiency and relevance of personal data in relation to the purposes of processing personal data;
- destruction or depersonalization of personal data upon achieving the goals of their processing or in the event of loss of the need to achieve these goals, if it is impossible for the Operator to eliminate violations of personal data, unless otherwise provided by federal law.
2.2. Conditions for processing personal data
2.2.1. The operator processes personal data if at least one of the following conditions exists:
- processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;
- processing of personal data is necessary for the administration of justice, execution of a judicial act, act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings;
- processing of personal data is necessary for the execution of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor;
- processing of personal data is necessary to exercise the rights and legitimate interests of the operator or third parties or to achieve socially significant goals, provided that the rights and freedoms of the subject of personal data are not violated;
- processing of personal data is carried out, access to which is provided by an unlimited number of persons by the subject of personal data or at his request (hereinafter referred to as publicly available personal data);
- processing of personal data subject to publication or mandatory disclosure in accordance with federal law is carried out.
2.3. Confidentiality of personal data
2.3.1. The operator and other persons who have access to personal data are obliged not to disclose to third parties or distribute personal data without the consent of the subject of personal data, unless otherwise provided by federal law.
2.4. Public sources of personal data
2.4.1. For the purpose of information support, the Operator may create publicly available sources of personal data of personal data subjects, including directories and address books. Public sources of personal data, with the written consent of the subject of personal data, may include his last name, first name, patronymic, date and place of birth, position, contact telephone numbers, email address and other personal data reported by the subject of personal data.
2.4.2. Information about the subject of personal data must be excluded at any time from publicly available sources of personal data at the request of the subject of personal data, the authorized body for the protection of the rights of personal data subjects, or by court decision.
2.5. Special categories of personal data
2.5.1. Processing by the Operator of special categories of personal data relating to race, nationality, political views, religious or philosophical beliefs, health status, intimate life is permitted in cases where:
- the subject of personal data has given consent in writing to the processing of his personal data;
- personal data is made publicly available by the subject of personal data;
- processing of personal data is carried out in accordance with the legislation on state social assistance, labor legislation, the legislation of the Russian Federation on state pensions, and labor pensions;
- the processing of personal data is necessary to protect the life, health or other vital interests of the subject of personal data or the life, health or other vital interests of other persons and obtaining the consent of the subject of personal data is impossible;
- the processing of personal data is carried out for medical and preventive purposes, in order to establish a medical diagnosis, provide medical and medical and social services, provided that the processing of personal data is carried out by a person professionally engaged in medical activities and obliged in accordance with the legislation of the Russian Federation to maintain medical confidentiality;
- processing of personal data is necessary to establish or exercise the rights of the subject of personal data or third parties, as well as in connection with the administration of justice;
- processing of personal data is carried out in accordance with the legislation on compulsory types of insurance, with insurance legislation.
2.5.2. The processing of special categories of personal data carried out in the cases provided for in paragraph 4 of Article 10 of Federal Law No. 152 must be immediately terminated if the reasons for which their processing was carried out are eliminated, unless otherwise provided by federal law.
2.5.3. The processing of personal data on criminal records may be carried out by the Operator only in cases and in the manner determined in accordance with federal laws.
2.6. Biometric personal data
2.6.1. Information that characterizes the physiological and biological characteristics of a person, on the basis of which his identity can be established - biometric personal data - can be processed by the Operator only with the consent of the subject of personal data in writing.
2.7. Entrusting the processing of personal data to another person
2.7.1. The operator has the right to entrust the processing of personal data to another person with the consent of the subject of personal data, unless otherwise provided by federal law, on the basis of an agreement concluded with this person. The person processing personal data on behalf of the Operator is obliged to comply with the principles and rules for processing personal data provided for by Federal Law No. 152 and this Policy.
2.8. Processing of personal data of citizens of the Russian Federation
2.8.1. In accordance with Article 2 of the Federal Law of July 21, 2014 N 242-FZ “On amendments to certain legislative acts of the Russian Federation regarding clarification of the procedure for processing personal data in information and telecommunication networks” when collecting personal data, including through information telecommunication network "Internet", the operator is obliged to ensure recording, systematization, accumulation, storage, clarification (updating, changing), retrieving personal data of citizens of the Russian Federation using databases located on the territory of the Russian Federation, except for the following cases:
- processing of personal data is necessary to achieve the goals provided for by an international treaty of the Russian Federation or law, to implement and fulfill the functions, powers and responsibilities assigned by the legislation of the Russian Federation to the operator;
- the processing of personal data is necessary for the administration of justice, the execution of a judicial act, the act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings (hereinafter referred to as the execution of a judicial act);
- processing of personal data is necessary for the execution of the powers of federal executive authorities, bodies of state extra-budgetary funds, executive authorities of state authorities of the constituent entities of the Russian Federation, local government bodies and the functions of organizations involved in the provision of state and municipal services, respectively, provided for by the Federal Law of July 27, 2010 N 210-FZ “On the organization of the provision of state and municipal services”, including registration of the subject of personal data on a single portal of state and municipal services and (or) regional portals of state and municipal services;
- the processing of personal data is necessary for the professional activities of a journalist and (or) the legitimate activities of a mass media outlet or scientific, literary or other creative activity, provided that the rights and legitimate interests of the subject of personal data are not violated.
2.9. Cross-border transfer of personal data
2.9.1. The operator is obliged to make sure that the foreign state to whose territory it is intended to transfer personal data provides adequate protection of the rights of the subjects of personal data before such transfer begins.
2.9.2. Cross-border transfer of personal data to the territory of foreign states that do not provide adequate protection of the rights of personal data subjects may be carried out in the following cases:
- the presence of written consent of the subject of personal data to the cross-border transfer of his personal data;
- execution of a contract to which the subject of personal data is a party.
3. RIGHTS OF THE SUBJECT OF PERSONAL DATA
3.1. Consent of the subject of personal data to the processing of his personal
3.1.1. The subject of personal data decides to provide his personal data and consents to their processing freely, of his own free will and in his own interest. Consent to the processing of personal data can be given by the subject of personal data or his representative in any form that allows confirmation of the fact of its receipt, unless otherwise provided by federal law.
3.2. Rights of the subject of personal data
3.2.1. The subject of personal data has the right to receive from the Operator information regarding the processing of his personal data, unless such right is limited in accordance with federal laws. The subject of personal data has the right to demand from the Operator clarification of his personal data, blocking or destruction of it if the personal data is incomplete, outdated, inaccurate, illegally obtained or is not necessary for the stated purpose of processing, as well as take measures provided by law to protect his rights .
3.2.2. Processing of personal data for the purpose of promoting goods, works, services on the market by making direct contacts with the subject of personal data (potential consumer) using communication means, as well as for the purposes of political propaganda, is permitted only with the prior consent of the subject of personal data.
3.2.3. The operator is obliged to immediately stop, at the request of the personal data subject, the processing of his personal data for the above purposes.
3.2.4. It is prohibited to make decisions based solely on automated processing of personal data that give rise to legal consequences in relation to the subject of personal data or otherwise affect his rights and legitimate interests, except in cases provided for by federal laws, or with the written consent of the subject of personal data.
3.2.5. If the subject of personal data believes that the Operator is processing his personal data in violation of the requirements of Federal Law-152 or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal the actions or inaction of the Operator to the Authorized Body for the Protection of the Rights of Personal Data Subjects or in court .
3.2.6. The subject of personal data has the right to protection of his rights and legitimate interests, including compensation for losses and (or) compensation for moral damage.
4. ENSURING THE SECURITY OF PERSONAL DATA
4.1. The security of personal data processed by the Operator is ensured by the implementation of legal, organizational and technical measures necessary to ensure the requirements of federal legislation in the field of personal data protection.
4.2. To prevent unauthorized access to personal data, the Operator applies the following organizational and technical measures:
- appointment of officials responsible for organizing the processing and protection of personal data;
- limiting the number of persons allowed to process personal data;
- familiarization of subjects with the requirements of federal legislation and regulatory documents of the Operator for the processing and protection of personal data;
- organization of accounting, storage and circulation of media containing information with personal data;
- identification of threats to the security of personal data during their processing, formation of threat models based on them;
- development of a personal data protection system based on a threat model;
- use of information security tools that have passed the procedure for assessing compliance with the requirements of the legislation of the Russian Federation in the field of information security, in cases where the use of such means is necessary to neutralize current threats;
- checking the readiness and effectiveness of using information security tools;
- differentiation of user access to information resources and software and hardware for information processing;
- registration and accounting of actions of users of personal data information systems;
- use of anti-virus tools and recovery tools for the personal data protection system;
- application, where necessary, of firewall screening tools, intrusion detection, security analysis and cryptographic information protection tools;
- organization of access control to the Operator’s territory, security of premises with technical means for processing personal data.
5. FINAL PROVISIONS
5.1. Other rights and obligations of the Operator in connection with the processing of personal data are determined by the legislation of the Russian Federation in the field of personal data.
5.2. Employees of the Operator who are guilty of violating the rules governing the processing and protection of personal data bear material, disciplinary, administrative, civil or criminal liability in the manner prescribed by federal laws.

One of the most common reasons for denial of VAT deductions and deductions of expenses is an unscrupulous counterparty. It's your fault for not doing your due diligence in choosing it. Of course, you should always check your counterparties, especially if you work with small companies. First of all, in order to protect yourself from scammers, make sure your partner is trustworthy. And each organization checks counterparties in its own way. But what does due diligence mean for tax professionals? How to check your counterparty so that in case of their claims you can prove that you were extremely careful?

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

The Ministry of Finance and the Federal Tax Service believe that measures indicating due diligence and caution when choosing a counterparty are Letters of the Ministry of Finance dated 04/10/2009 No. 03-02-07/1-177, dated 07/06/2009 No. 03-02-07/1-340, dated 12/31/2008 No. 03-02-07/2-231; Federal Tax Service dated 02/11/2010 No. 3-7-07/84:

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

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

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

FROM AUTHENTIC SOURCES

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

“ For some reason, it is believed that one can be guaranteed to win in court in a case of receiving goods from a fly-by-night company only by proving that the controversial operation actually took place. Allegedly, this conclusion follows from the Resolutions of the Supreme Arbitration Court Resolutions of the Presidium of the Supreme Arbitration Court dated 03/09/2010 No. 15574/09, dated 04/20/2010 No. 18162/09. As a result, many have seriously weakened control over counterparties when concluding contracts. However, this is wrong. If the inspection proves that the taxpayer acted without due diligence, knew or should have known about the “problematic” status of the counterparty, VAT deductions and recognition of expenses may be denied. And numerous judicial practices confirm this. Resolutions of the Presidium of the Supreme Arbitration Court dated April 20, 2010 No. 18162/09, dated May 25, 2010 No. 15658/09. Therefore, checking counterparties at the time of concluding contracts is an absolutely necessary thing for any taxpayer working on the general taxation system and the simplified tax system with the object “income minus expenses.”

Having analyzed the opinion of regulatory authorities and judicial practice, we offer you the main areas of inspection of a counterparty and methods for conducting it.

Main directions of verification of the counterparty

Most often, partners are asked to confirm their trustworthiness with constituent documents, that is, the charter. Using it you can check the name of the organization, its location, and check the authority of the manager. And there are even courts that believe that receiving only copies of the constituent documents indicates due diligence and Resolution of the Federal Antimonopoly Service ZSO dated 03/05/2010 No. A45-11237/2009; FAS MO dated 03/02/2011 No. KA-A41/555-11; FAS PO dated December 14, 2010 No. A65-8579/2010. However, it is better to take into account the opinion of regulatory authorities and not create problems for yourself, because the courts are not always on the side of organizations. So there are two main things to check.

We check whether your counterparty is a current taxpayer

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

You simply enter the TIN indicated by the counterparty on the Federal Tax Service website, make sure that its TIN is real and at the time of concluding the agreement there is no information about the exclusion of the company from the Unified State Register of Legal Entities. In one of its decisions, the Supreme Arbitration Court of the Russian Federation considered that this form of verification indicates the exercise of due diligence and Resolution of the Presidium of the Supreme Arbitration Court of 03/09/2010 No. 15574/09. Some courts also decided the same Resolution of the Federal Antimonopoly Service dated November 1, 2011 No. A65-2843/2011; FAS UO dated August 11, 2011 No. F09-4478/11; FAS CO dated July 25, 2011 No. A54-4250/2010С21; FAS MO dated 02/08/2011 No. KA-A40/17851-10. Although, for example, FAS VSO believes that this is not enough Resolutions of the FAS VSO dated August 18, 2010 No. A33-19963/2009, dated August 24, 2010 No. A10-5604/2009.

You can check the counterparty's TIN: Federal Tax Service website→ section “Electronic services” → section “Check yourself and your counterparty”

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

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

This information will also help you demonstrate your diligence. Resolution of the Federal Antimonopoly Service dated July 28, 2011 No. A57-13884/2010; FAS MO dated 09.09.2010 No. KA-A40/10126-10.

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

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

Considering that providing an extract is a paid service, it is better if the counterparty provides it to you. Many courts consider the presence of an extract to be a sufficient exercise of due diligence and Resolution of the Federal Antimonopoly Service of October 10, 2011 No. A65-28269/2010; FAS DVO dated October 3, 2011 No. F03-4402/2011; FAS MO dated March 14, 2011 No. KA-A40/690-11; FAS NWO dated June 21, 2011 No. A05-11486/2010; FAS UO dated June 18, 2010 No. Ф09-4486/10-С2. Although, again, there are those for whom this is not enough, since the fact that the counterparty is registered in the Unified State Register of Legal Entities does not mean that he is conducting real business Resolutions of the Federal Antimonopoly Service of the Moscow Region dated June 22, 2011 No. KA-A40/6036-11, dated February 22, 2011 No. KA-A40/18297-10; FAS UO dated November 28, 2011 No. F09-6952/11; FAS VSO dated October 19, 2010 No. A19-3822/10.

For information on how to obtain an extract from the Unified State Register of Legal Entities and what it contains, read:

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

The counterparty can provide you with certified copies of these documents, and without any effort on his part. This will also be considered your due diligence. Resolution of the Federal Antimonopoly Service dated July 20, 2010 No. A12-23566/2009; FAS MO dated November 30, 2010 No. KA-A40/15207-10, dated October 24, 2011 No. A40-138664/10-127-789; FAS NWO dated August 15, 2011 No. A56-36565/2010.

FROM AUTHENTIC SOURCES

“ It would not be superfluous to check the compliance of the information in the submitted documents with the actual information in the Unified State Register of Legal Entities, available on the Federal Tax Service website. This is necessary to ensure that the certificate is not outdated at the time of conclusion of the contract and is true. It happens that an agreement is concluded with a person who has already been liquidated. Moreover, there are often cases when unscrupulous counterparties simply falsify copies of submitted documents. In addition, on website of Kommersant KARTOTEKA LLC you can make sure in real time that liquidation or bankruptcy proceedings have not been initiated against the counterparty company.”

CJSC AF "Audit-Classic"

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

The Ministry of Finance says that, in addition to checking the counterparty organization itself, it is also necessary to verify the identity of the one who acts on its behalf, as well as whether he has the appropriate powers. For many organizations, such verification has long become a habit. There are examples of court decisions when the court did not side with the taxpayer because, among other things, it did not check the powers of the person representing the interests of the partner. Resolutions of the Federal Antimonopoly Service dated April 20, 2011 No. A55-16131/2010, dated August 25, 2011 No. A55-1144/2011, dated July 7, 2011 No. A55-37642/2009; FAS ZSO dated July 20, 2011 No. A27-13785/2010; FAS MO dated July 12, 2011 No. KA-A40/6776-11; FAS VSO dated 02/09/2011 No. A19-12564/2010.

To check your authority, you can use an extract from the Unified State Register of Legal Entities, which contains information about the head of the organization and Resolution of the Federal Antimonopoly Service of the Moscow Region dated September 6, 2011 No. KA-A40/9465-11-2. But it’s better to ask the counterparty copies of decisions and orders on the appointment of a manager and chief accountant Resolution of the Federal Antimonopoly Service of the Central Election Commission dated October 6, 2011 No. A62-6220/2010; FAS PO dated December 27, 2011 No. A55-3941/2011; FAS UO dated October 18, 2010 No. Ф09-8555/10-С3; FAS NWO dated 01.03.2011 No. A13-6636/2009; FAS North Caucasus Region dated November 10, 2011 No. A32-30018/2010; FAS MO dated October 13, 2011 No. A40-102956/10-4-530. If documents are signed on behalf of the counterparty by an authorized representative, then ask him power of attorney Resolution of the Federal Antimonopoly Service dated July 29, 2010 No. A65-23705/2009.

By the way, do not forget to check the representative’s data indicated in the submitted documents with his passport. And it’s even better if the counterparty agrees to provide you with a photocopy of it (you cannot demand such a copy - it contains personal data that can only be used with the consent of the owner Articles 3, 6 of the Law of July 27, 2006 No. 152-FZ). This may serve as additional evidence of your diligence and ; Resolution of the Federal Antimonopoly Service of the North-West District dated November 22, 2010 No. A56-91778/2009; FAS PO dated May 13, 2011 No. A55-16741/2010; FAS MO dated September 28, 2011 No. A40-1550/11-20-8, dated October 10, 2011 No. A40-124553/10-4-722, dated September 6, 2011 No. KA-A40/9465-11-2.

CONCLUSION

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

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

Licenses

If the work (services) provided to you by the counterparty is licensed or you purchase any goods the sale of which is impossible without a license, then it would be useful to take a copy of the license from the counterparty. You must verify the real ability of the counterparty to fulfill the terms of the agreement. In some cases, the lack of a license from a counterparty may be the straw that tips the scales of justice against you Resolutions of the FAS VSO dated March 25, 2010 No. A19-15776/09, dated October 8, 2009 No. A33-17712/08; FAS ZSO dated November 24, 2008 No. F04-7182/2008(16313-A27-14); FAS UO dated November 11, 2010 No. Ф09-9004/10-С2. In addition, the Federal Tax Service also recommends having a copy of the counterparty’s license Letter of the Federal Tax Service dated February 11, 2010 No. 3-7-07/84.

FROM AUTHENTIC SOURCES

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

CJSC AF "Audit-Classic"

Copies of tax returns and financial statements

Declaration data is a tax secret, and you do not have the right to demand it from your counterparty. subp. 13 clause 1 art. 21, paragraph 1, art. 102 Tax Code of the Russian Federation. But even if he provides them to you, the information reflected in the declaration cannot indicate the reliability of the counterparty. The same, by the way, as the accounting data. It is better to make a request to the tax office, in which you need to indicate:

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

To find out whether tax authorities are required to inform you about tax violations by your counterparties, read:

If the tax authorities answer you, this will be additional evidence of your diligence and Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 17, 2009 No. KA-A40/7659-09.

If there is no response, the very fact of the request already proves that you were careful Resolution 9 AAS dated 08.12.2009 No. 09AP-23342/2009-AK.

Information about the counterparty's current account

The presence of a current account with your counterparty and non-cash payments indicate the passage of both initial and periodic internal banking checks on the legitimacy and legal capacity of the client. Therefore, as some courts believe, the very presence of a counterparty’s current account is Resolutions of the Federal Antimonopoly Service of the Moscow Region dated 02/07/2011 No. KA-A40/17658-10, dated 04/19/2011 No. KA-A40/2826-11; FAS NWO dated July 29, 2010 No. A66-12520/2009 or making non-cash payments Resolutions of the Federal Antimonopoly Service of the Central Election Commission dated October 21, 2010 No. A23-6231/09A-13-280-21-11-DSP, dated December 13, 2010 No. A68-9235/09 speak about your prudence when choosing a counterparty.

Information about whether the manager was brought to tax or administrative liability

The Federal Tax Service recommends requesting them from your counterparty. Letter of the Federal Tax Service dated February 11, 2010 No. 3-7-07/84. Although in practice such a request may cause at least bewilderment among the counterparty. It is not known what the Federal Tax Service was guided by when making such recommendations, but if the manager was not held accountable, this is not at all a guarantee that the company will be in good faith. And vice versa, if he was involved, this does not mean that one cannot cooperate with the organization. ; FAS North Caucasus Region dated September 16, 2011 No. A32-51445/2009. And some also indicate that it is necessary, in addition, to check the location of the organization and Resolution of the FAS VSO dated June 16, 2011 No. A19-19805/10; FAS NWO dated August 15, 2011 No. A05-12704/2010.

WE WARN THE MANAGER

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

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

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

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

FROM AUTHENTIC SOURCES

“You can also check whether the counterparty has appeared as a shell company in legal disputes. This can be done in any legal reference system that has a database of arbitration court decisions (for example, ConsultantPlus). More recently, such information began to be published on the websites of some regional Federal Tax Service (in particular, the Federal Tax Service of the Krasnoyarsk Territory).”

CJSC AF "Audit-Classic"

Of course, the list was impressive. But there is no need to be discouraged. If you cooperate with large and well-known organizations, then you are unlikely to have problems. And when working with small or unfamiliar companies, especially if the transaction amount is high, it is better to acquire as large a list of documents as possible.

FROM AUTHENTIC SOURCES

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

The ideal option, in addition to the listed procedures, is to select suppliers through a tender. Tender selection can be provided for in regulations e.”

CJSC AF "Audit-Classic"

And remember: in the field of tax relations there is a presumption of good faith and Definition of the Constitutional Court dated July 25, 2001 No. 138-O. That is, tax authorities do not have the right to interpret the concept of “bona fide taxpayers” as imposing on you additional responsibilities not provided for by law. Resolution of the Federal Antimonopoly Service of the Central Election Commission dated September 29, 2011 No. A48-4435/2010; FAS MO dated June 21, 2011 No. KA-A40/5741-11. Tax authorities must prove that you were negligent in choosing a partner or intentionally collaborated with an unscrupulous counterparty clause 10 of the Resolution of the Plenum of the Supreme Arbitration Court of October 12, 2006 No. 53.