Counterparty is a tax. Problem counterparties. Federal Tax Service: counterparty checking

The counterparty is one of the key participants in the transaction. He assumes obligations in accordance with the concluded contract. Each entity that signed the agreement will act as counterparty to the other party to the transaction.

Risk assessment

The correct choice of the counterparty affects the right of the payer to receive a tax deduction for VAT. In this regard, the manifestation of prudence is of particular importance in concluding a transaction.

The key tax and fee control body is the Federal Tax Service. The counterparty is verified in the automated system.

The scheme of its work is as follows. The system compares the tax deductions that the payer stated on his purchases, with information from the seller's invoices - the tax counterparty.

If the latter has not filed a declaration or has not reflected in the sales book the data on transactions or revealed other significant deficiencies, the control body lays claims to the buyer.

The control bodies of the Administration of the Federal Tax Service take into account a set of circumstances that may become evidence of the unreasonable benefit received by the payer.

Any entity that conducts an entrepreneurial activity must understand the risk. When choosing a business partner, great attention should be paid to the consequences that may arise after the conclusion of certain transactions.

Regulations

Tax counterparties "one-day" can cause significant damage to the payer and the state as a whole. The purpose of such dishonest partners is tax evasion. The payer, in turn, will have to prove the validity of the benefit when recording expenses or refunding VAT.

The control bodies of the Administration of the Federal Tax Service in their activities are guided by the provisions of the Resolution of the Plenum of the Supreme Arbitration Court No. 53 (October 12, 2006). This document fixes the key signs of bad faith of the tax counterparty.

As for the payers, they can take advantage of the generally available criteria for independent risk analysis used by the control bodies when selecting sites for on-site inspections.

General recommendations

How not to become a partner of a problematic counterparty? Tax has developed several recommendations for payers.

First of all, before making a deal, you must request a copy:

1. Sv-va about state registration.
2. Charter.
3. Sv-va on the registration with the IFTS.

It is also advisable to receive an extract from the Unified State Register of Legal Entities, as well as a certificate confirming that the tax counterparty has no debts to the budget.

In addition, you can request information about the number of partner staff, its financial position, cost and composition of the OS (fixed assets), reputation, work experience. All these actions are considered a manifestation of due diligence.

Arbitrage practice

It is worth saying that the courts do not have a common opinion on the need to confirm the actual activity of the tax counterparty.

Some authorities believe that to confirm the conscientiousness of the payer is not enough to confirm the status of the partner's legal entity.

Separate courts believe that it is necessary to make sure that the tax counterparty really has the opportunity to fulfill the terms of the transaction. In particular, the authorities explain, it is necessary to ensure the availability of qualified personnel, proper equipment, vehicles, other assets, permits necessary to fulfill obligations.

Some courts are sufficient to confirm the fact of state registration for the payer to fulfill the requirements for due diligence. For example, individual instances consider that the formalization of an employment contract is by no means the only way to attract employees. Employees can also work under agreements of a civil-law nature.

If the reality of the executed business transactions is confirmed, the courts often state the good faith of the payer for certain document defects.

Legal advice

If the extract from the USRLE provided a tax counterparty, it is advisable to independently verify the information in it with the data posted on the IFTS website. Some unscrupulous partners can forge a document.

Use of services of the Federal Tax Service

Search by TIN - the most common way to confirm the integrity of a partner. There is a special form on the official inspection portal. On the site of the Federal Tax Service, the TIN search is carried out online and takes a few minutes.

On the relevant page, choose "Legal Entity" or "Individual Entrepreneur" / "Peasant (Farm)" (PF). " Next, the TIN itself is entered.

You can check the counterparty in the tax by sending a written request. Courts consider such an act as a manifestation of due diligence.

On the tax site, checking the counterparty on the TIN, you can also get information:

• On the name of the legal entity;
• The legal address of the enterprise;
• The date of state registration;
• CAT;
• OGRN;
• Termination of activities (the fact itself and the date);
• Recognition of the invalidity of registration.

From the site you can download and print an extract from the registry. It contains the following data:

• On the amount of the authorized capital;
• Founders;
• Types of counterparty activity (according to OKVED);
• Persons authorized to act on behalf of a partner without a power of attorney.

The tax base for counterparties contains a complete list of information listed in the order of the Ministry of Finance No. 115n (December 5, 2013). The data is updated daily.

If the individual number of the payer is not known, you can conduct a tax audit of the counterparty on the site on the site.

Additional requests

As can be seen from the above information, it is not difficult to find a counterparty on the tax website. In addition, the portal provides the following information:

1. Did the counterparty provide documentation for registering changes to the charter or data of the Unified State Register of Legal Entities.
2. Was it decided to liquidate, reduce the size of the authorized capital, reorganize, acquire LLC 20% of the capital of another society and so on.
3. Was there a decision to exclude the counterparty from the register as inactive.
4. Are there any disqualified persons in the executive bodies of the partner enterprise?
5. Is the partner not registered with an invalid address, is the contact with him at the address specified in the register.
6. Does the counterparty pay tax returns. It is worth saying that the zero declaration does not indicate the reliability of the partner.
7. Are there any information about the manager / founder in the database of persons who refused to participate in the company.

It should be said that some courts adhere to the position that the discrepancy between the actual and legal addresses can not in itself be the basis for refusing the payer to provide deductions.

Information about partner's participation in litigation

In order to obtain this information, it is necessary to study the files file on the BAC website. The database contains information about all arbitration cases, including the content of disputes.

To get information, you need to use a special search form. In it there is a field "Participant of the case". You can enter the name, OGRN or TIN and click on the "Find" button. The system will issue a list of cases with procedural documents and information about the current stage of the process.

Information about the bankruptcy procedure

That there was no conflict with the tax inspection, the counterparty needs to learn as much as possible. Make sure that the partner is not at any stage of bankruptcy can be in the register of data on the facts of the activities of legal entities. Here you can find other information. For example, the register has data on the value of assets of JSCs at the reporting date.

Enforcement proceedings

Information on the fact that enforcement proceedings have not been brought against the partner can be obtained at the FSSP portal. The site has a search form for the database. You can get information about both a legal entity and an entrepreneur.

Checking for permissions

Some courts indicate the need to confirm the existence of licenses for counterparties. Of course, the permit should be given to those entities that conduct licensed activities.

You can get information on the website of the body that issues this document. It is worth saying that for each type of license, it will have its own. For example, on the site of Rospotrebnadzor you can find information about licenses issued for activities in the sphere of using radiation sources.

Partner's accounting reports

The main normative act that should be followed by the payer is the PBU, approved by the order of the Ministry of Finance No. 34. As indicated in the 89th paragraph of this Regulation, the annual reporting of the enterprise is an open document for all stakeholders. These include, in particular:

• Banks;
• Investors;
• Buyers;
• Creditors;
• Suppliers and so on.

These persons are entitled to legally not only read the annual accounts, but also make extracts from it or copies. In turn, the company is responsible for providing access to information to interested entities.

Information on annual accounts is provided by organizations free of charge to Rosstat.

Registry of suppliers

The potential counterparty, of course, may not participate in the procurement for municipal and state needs. However, the probability of this can not be ruled out.

Lawyers recommend checking the counterparty on the register of unscrupulous suppliers. This database is maintained and updated by the FAS.

Verification of the authority of the entity signing the contract

Many courts consider it an obligatory stage for the recognition of the payer in good faith. If it does not pass, you can lose the case.

So, if the subject has received all the information and documents, but has not ascertained the authority of the person signing the contract on behalf of the counterparty, this will serve as a basis for recognizing the payer as dishonest.

In some cases, in the course of the proceedings, counterparty representatives refuse their signature on the documents. In such situations, a graphological examination is assigned. Although the case may be resolved without it.

Nevertheless, many courts are of the opinion that a visual comparison of the paintings and the testimony of the payer's representative can not act as a sufficient basis for recognizing the fact that the papers were signed by improper persons.

An Important Moment

Some courts recognize the payer as dishonest, if the authorized representative of the partner has died or his powers ceased at the time of signing the agreement.

Other courts believe that the latter case can not indicate the receipt of unreasonable benefit, if before the registration of the transaction, its participants consisted in long-term economic relations.

Recommendations of experts

Before signing contracts and other important documents it is necessary to check:

1. Is not the transaction large for the counterparty.
2. Has the authority of the partner's representative ceased? Their term is determined in the power of attorney or the charter of the enterprise.
3. Are not the constituent documents limited by the powers of the head of the firm to enter into contracts whose value exceeds the value specified by the charter or by legislation.

Request for Tax

We have already said a few words about him. Let us dwell on the query a little more.

The request is sent to the IFTS at the partner's registration address.

District courts confirm the duty of the supervisory bodies to respond to the request and provide information within the framework of information not related to tax secrecy (Article 102 of the Tax Code). At the same time, some instances emphasize that the refusal of the tax inspectorate to provide data affects the rights of the payer associated with obtaining a deduction.

Some courts in the examination of cases indicate that the payer, having the opportunity to send a request to the inspection, does not do so. However, in practice, there are cases when the authorities come to the conclusion that the subject could not really apply to the inspection at the partner registration address because he does not have such authority (they have tax authorities).

As lawyers note, even if the payer is refused to provide the requested information, the very fact of the appeal will be a proof of the manifestation of prudence. Specialists note that it is more expedient to transfer the application personally to the Tax Inspection or send it by registered letter with notification. In the first case, there will be a copy of the request with a seal of the control body about the application, and in the second there will be a notification that the request was received.

Conclusion

As can be seen from the foregoing, the position of the courts regarding the scope of the activities necessary to verify the integrity of the partner is very different. In normative acts, there is no list of actions to be taken by the payer to confirm his due diligence.

It is worth saying that the presence of any one sign of bad faith of the partner usually does not act as an obstacle to the recognition of the tax benefit unjustified. The set of criteria, in turn, often makes the supervisory bodies prick up their ears, and the courts - make decisions in favor of payers.