Put a deal in question - a favorite receipt of tax inspectors. Taking this "good" at once for two reasons. First, it does not require a departure check - all documents on the transaction can be obtained without appointing such an inspection. Secondly, recognizing the transaction invalid, the inspectors of the time receive detachments on VAT and income tax. Of course, most of these complaints can be discarded through the court if in advance of the document on the counterparty. But the courts are the case of lawyers, and the collection "Dossier" is a security service. Caring for accountant - to issue primary documents. It is about these documents that may be useful to confirm the reality of the transaction, we will talk today.
The algorithm of tax authorities when checking the transaction is quite simple. First, the company itself is checked: a person who appears in the documents as the leader of the organization is really checked; Did this information correspond to this information from the register, etc. At the next stage, the actual circumstances of the transaction are checked: if the parties had the parties and means to fulfill their obligations (personnel, transport, premises, etc.).
Actually, pushing away from this algorithm, and it is necessary to build a strategy of documentary counteraction attempts to recognize the deal perfect only on paper.
Recall that in this article we are not talking about those documents that are specifically requested by the counterparties before or after making a transaction, but about those that are in accounting, or an accountant can be the initiator of their creation or receipt.
So, let's begin. It is clear that according to a real deal in accounting, payment documents must have confirming that funds were really translated. These documents can already be a significant proof that the transaction has passed not only on paper.
Also in accounting can be bank extracts for money on the accounts of suppliers and contractors. Such statements are usually provided when reconciling the calculations and closing of transactions. From these extracts you can learn a lot of information. The most important thing is to make sure that payment on the transaction was indeed received by the counterparty. Also, this document may indicate that there were other operations with other counterparties. This confirms that the firm is not a one-day and is not created for a single operation.
In addition, if the accommodation is deployed, then it can be seen from it that the counterpartier fulfills its obligations on similar transactions concluded with other organizations; Purchases goods, works or services necessary for the execution of contractual obligations, etc. And even that he pays taxes.
All these facts are indirect confirmation of the reality of the transaction. On their basis, it is possible to defend the costs of income tax and deductions on VAT, even if the head of the counterparty organization turned out to be a passing person, or the company was created on false or lost documents (paragraph 1 of Art. 252, paragraph 2 of Art . 169 of the Tax Code of the Russian Federation, the Resolution of the FAS of the Moscow District of 08/01/11 No. KA-A40 / 7974-11-2 and from 05.09.11 No. A41-10472 / 10).
Efficiency - Forbidden Reception
Having understood with a general list of documents that can confirm the reality of any transaction, we will focus on documents that are compiled when performing the main types of contracts concluded in economic activities. We are talking about sales contracts, contract and services. Let's start with the first.
Under contracts related to the acquisition of goods, the reality of the transaction can be confirmed by documents recording the further fate of the purchased material values. If these are products for resale, then agreements and invoices will be used to confirm the transaction, on which further shipment of goods has been made. If this is raw materials, it is desirable to have documents about vacation in production, etc.
Also to prove the reality of the transaction, you can use documents confirming that the product has indeed flowed to the organization. For example, it can be warehouse receipts and other reporting forms in a warehouse; Material passes by which the goods imported into the territory of the enterprise or exported from it; Overhead of the transfer of goods to those responsible persons, etc. The judges consider such documents with evidence of the reality of the transaction (Resolution of the FAS of the Moscow District from 05.09.11 No. A41-10472 / 10).
A somewhat different is the case with contracts. It all depends on what was the result of the work. If the physical object acts as such, which can be used as a product, raw material or for the company's own needs, then confirm the reality of the transaction is the easiest to the documents reflecting the further fate of the work.
If, under the contract, the work was acquired, the result of which cannot be separately materialized (for example, work on loading-unloading, installation, etc.), then the reality of such a contract is more difficult to confirm. It is clear that in any case you will need signed by the parties an act of acceptance of work. But, usually, this document is not enough. To confirm the transaction, it is desirable to have all sorts of calculations, intermediate acts, office notes, etc., from which it is clearly understood that it is necessary, why they were needed and how their result was used in the overall operating activities of the organization. Accordingly, an accountant, accepting documents for such a contract, may in advance, without waiting for the inspection, initiate the preparation and receipt of such papers, and thereby significantly increase the tax security of the operation.
The most difficult in terms of confirmation of reality is the contract for the provision of services. This is due to the fact that the results of the provision of services are intangible and in most cases exist in the literal sense only on paper (we are talking about all sorts of reports, acts, etc.). Therefore, these documents should be made as possible. So, if the service suggests at least some material result - database, report, presentation, etc., then this result must be transferred on the act. It is necessary to indicate that the database, the report, and so on. are the result of the fulfillment of obligations under the contract (indicating details).
Also, confirming the reality of the contract for the provision of services can the documents from which it follows that the results were actually used in the organization's production activities. Such documents, in particular, may be internal orders on the organization. For example, if the personnel consulting services were acquired, the reality of the transaction can be confirmed as a report of a consulting company and orders for the introduction of a system of motivation or changing the organizational structure of the enterprise in accordance with the recommendations given in the report. In this case, an accountant can not only initiate the publication of such orders, but also to trace the order to "header" the order it is directly indicated that it is published on the basis of the report of the consulting company. A copy of such an order will need to be attached to the contract.
The tax authorities are increasingly losing disputes on fictitious deals. But this does not prevent controllers to interpret the norms of the Tax Code of the Russian Federation in their own interests, depriving payers of the right to timely reimbursement of the tax from the budget. An example of one of these cases leads Igor Gusev, Senior Lawyer of the Vegas Lex law firm.
1. Case number A12-36891 / 2014:
Decision of the Arbitration Court of the Volgograd region of 02/13/2015 in case number A12-36891 / 2014;
Resolution of the Twelfth Arbitration Court of Appeal dated 08.06.2015 in case number A12-36891 / 2014;
Decision of the Arbitration Court of the Volga district dated 07.10.2015 in case number A12-36891 / 2014.
The essence of the dispute
The inspection found that the payer concluded imaginary transactions with unscrupulous counterparties - the supply of equipment and contracting work. The goods could be bought directly from the supplier at a significantly lower value in comparison with the one that contractors stated. In addition, counterparties in all signs were one-day firms: not disposed of addresses specified in the constituent documents, the property did not have property and vehicles, the reporting indicated the minimum amounts.
Conclusion - the company received unreasonable tax benefits. The payer was denied VAT deductions and accounting for income tax purposes.
Position of the taxpayer
Documents confirming the right to deduct and accounting costs for income taxation are presented in full. The inspection did not refute the reality of operations with counterparties. The controllers did not establish the level of market prices for similar goods, did not prove that the supplier could have concluded a transaction directly at a lower price.
Checking used ambiguous and contradictory testimony of witnesses. Moreover, the leaders of controversial counterparties during interrogations confirmed participation in the activities of firms. They have discovered accounts, the movement on which confirms that the activities of firms were real.
Position of the tax authority
The taxpayer acquired the goods and equipment from the manufacturer and his official representative, and the controversial counterparties did not participate in transactions. The only purpose of the conclusion of contracts is to get unreasonable tax benefits.
Judging by the statements about the movement of funds on the settlement accounts of counterparties, these accounts were used only for transit money with their subsequent cash. None of the companies participating in the chain of mutual settlements had a material and technical base for work.
An analysis of the current account allowed to establish that the equipment sold by the taxpayer had previously purchased from the manufacturer and overshadized with an election of 30-300% to the cost of goods.
Position of the court
The inspection did not prove that the operations on which VAT deductions are stated are fictitious. The costs and the right to deduct the payer confirmed the supply contracts of goods, invoice invoices, payment orders on the payment of equipment purchased under contracts with controversial counterparties. Organizations are registered with the register and consist of tax accounting. Their registration is not recognized as invalid, the legal capacity and the availability of the directories of authority is confirmed by the case materials.
Transactions for the acquisition of goods and the provision of services are not challenged and not recognized in the established law by invalid. The testimony of founders and directors of counterparties is contradictory, and therefore not adopted as evidence of the fictitiousness of operations.
If the payer did not conclude a contract with counterparties within the prescribed period, it could be included in the register of unscrupulous suppliers. This would be a blow to reputation and made it difficult to work. Therefore, the courts recognized the acquisition of equipment at a price greater than the manufacturer's price.
The payer translated funds to the calculated accounts of counterparties in non-cash form. The inspection did not prove that later suppliers returned these amounts, and their payer cassed. The absence of such evidence speaks of violation of Art. 100-101 of the Tax Code of the Russian Federation.
What to prove in disputes about fictitious transactions
In this case, the inspection managed to prove the legality of the decision in terms of relations with the same counterparties in contractual agreements. But with the results of checking transactions for the supply of materials and equipment, the failure was released. Although the IFTS pointed out that criminal cases were initiated against the leaders of counterparties: allegedly the goal of creating them - assistance in obtaining illegal reimbursment from the budget.
It is noteworthy that during the inspection, the inspection conducted many polls of individuals, but did not pay due attention to documentary evidence of violations. As used, the IFTS has introduced the results of investigative measures to the leaders of controversial counterparties. But to no avail: they did not have a direct connection with the payer's transactions.
As a result, the courts once again confirmed that the main proof of the legality of the payer's actions is primary documents confirming the reality of transactions.
The decision of the Arbitration Court will help in the tax dispute
When effectively attracting third-party expert
Further selling of goods will prove the reality of its purchase
The fictitiousness of the transaction and the unreality of expenses is one of the most frequent claims of inspectors. Usually, the controllers push it if the taxpayer has counterparties with dubious signs. They say, the transactions with them passed only on paper, so it is impossible for them to get VAT deductions, nor recognize expenses.
Most often, taxpayers are protected, presenting a properly decorated "primary" and proving that expenses were aimed at receiving income. But sometimes there are more original arguments. Analysis of fresh judicial practice allows you to allocate four new trends in proving the reality of costs.
The refusal decision of the Arbitration Court as an argument in favor of the company
Some societies are trying to prove the reality of the transaction from nasty. For this, the organization seems to agree that goods, work or services were not received, manufactured or rendered. And addresses the arbitration court with the requirement to recognize the transaction unforced for reasons specified by the tax authorities, as well as to recover from the counterparty everything obtained according to it.
If the defendant has properly decorated primary documents, then the court will most likely confirm the reality of the transaction. Especially since the plaintiff itself is interested in losing the dispute.
Why is the Arbitration Court, not the arbitration? The fact is that the Arbitration Court can be created independently to consider a specific dispute or can act on a permanent basis with any legal entity (Art. 3 of the Federal Law of 07.24.02 No. 102-FZ "On Arbitration Courts"). By agreement of the parties, such a structure may consider any dispute regarding civil legal relations (paragraph 1 of Article 1 of Law No. 102-FZ). As a result, the decision will be obtained much faster and its content can be predicted with a lot of probability.
To create an arbitrator, which will solve a specific dispute, the parties choose an odd number of members there. At least one of them should have a higher legal education - it becomes the Chairman (paragraph 2 of Art. 8 of Law No. 102-FZ). Plus, the parties in writing stipulate the procedure for the work of the court, making them decisions on the case and payment of remuneration to the judges.
Of course, the decisions of the Arbitration Court are valid only for the parties to the dispute (Article 31 of Law No. 102-FZ). The tax authority is not. In addition, the Arbitration Court in this situation will make conclusions only about the reality of the transaction, in no way touching the tax issues.
Therefore, despite the solution, the Arbitration Court will take a job. Moreover, in the course of its consideration, state judges are not at all obliged to unconditionally agree with colleagues (for example, the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of 03.04.07 No. 14715/06).
But, as practice shows, the presence of an arbitral solution is a very strong argument. The arbitral tribunal cannot simply ignore it. Therefore, the tax authorities will most likely have to first challenge the decision of the Arbitration Court, but only then continue the case in arbitration. And it is much more complicated than just to refer to the fact that the counterparty has signs of one-day, therefore, could not fulfill the deal.
So, in the case, considered by the Federal Arbitration Court of the Moscow District, one of the evidence of the real nature of the relationship was the decision of the Arbitration Court (a resolution of 12.03.10 No. Ka-A41 / 1727-10). The tax authorities accused the organization in the fact that the hopeless debt of the counterparty, which she included in the costs was created artificially. However, the taxpayer indicated that the reality of the debt was recognized by the decision of the Arbitration Court, and it became a decisive argument in the case.
Such a document helped in the case, which considered the Federal Arbitration Court of the West Siberian District in the decision of 04.08.08 No. F04-4634 / 2008 (8957-A46-40). The court took into account the presence of a decision of the Arbitration Court as evidence of the reality of legal relations with a one-day, the costs of which the tax authorities refused.
Despite the effectiveness of this argument, the tax authorities have another opportunity to challenge the transaction. Submit to the arbitration claim for the recognition of the transaction of the violating fundamental of law enforcement and morality. They say, it is aimed at evasion from paying taxes, therefore is an immoral (definition of the COP of the Russian Federation of 08.06.04 No. 226, the resolution of the Federal Arbitration Court of the Moscow District of 30.05.07 No. KG-A40 / 13293-06). In this case, the arbitral decision on the reality of the transaction argument in favor of the company can no longer be.
But the company can appeal to the arbitration court again with the requirement to recognize the transaction with the necessary informations of law enforcement and morality. And again lose the case. However, the outcome of this case in the Arbitration Court, by virtue of the vagueness of the concepts considered by him, is already harder to predict.
Subsequent operations with property will confirm the reality of its acquisition
If the tax authorities challenge the reality of the transaction with material objects or property rights, another approach to protection is possible. In particular, this applies to materials, goods, fixed assets, securities, intangible assets, etc. As an argument, the Court can provide information on the further fate of this property or rights. After all, if the taxpayer used them in production, sold or owning them so far, the transaction on their acquisition was clearly real.
The same argument can work both to proof the reality of expenses and when protecting the right to deduct VAT.
So, in the case, considered by the decision of the Federal Arbitration Court of the Moscow District of 11.03.10 No. KA-A40 / 1399-10, the tax authority refused the company in VAT deduction, considering the transaction with dubious counterparties unreal. However, judges indicated that for the further implementation of the goods received from one-day, the inspection accrued VAT. Consequently, it does not doubt that property was indeed some time owned by the Company's verifiable.
The Federal Arbitration Court of the Volga district in a similar situation also noted that the tax authority accrued during the subsequent resale, the tax authority was adopted and was not challenged (RESOLUTION of 07/01/10 No. A55-29852 / 2009).
In the decision of 09.03.10 No. 15574/09, the Presidium of the Russian Federation considered the case, where the tax authorities referred to the unreality of the acquisition of the leasing company of property. However, society provided a court of evidence that this object was obtained, paid and transmitted further into leasing. Moreover, the lessee regularly pays for money for the use of this asset, which would be strange if the object in reality did not exist. The court found such arguments are quite convincing.
The Federal Arbitration Court of the Volga District in the decision of 17.04.09 No. A06-149 / 2008 went even further. The judges indicated that with the exclusion of the cost of property due to the unreality of its acquisition, its further implementation becomes unrealistic. Consequently, the tax authorities were to exclude amounts received by the taxpayer as a result of such a sale. And since they did not do this, it means that they actually do not doubt the existence of objects.
Similar conclusions are contained in the resolutions of the federal arbitration courts of Moscow dated 02.06.10 No. KA-A40 / 5112-10, Volga region from 30.04.10 No. A57-3530 / 2008, North Caucasian dated September 17, 2009 No. A53-5607 / 2008-C5- 14 districts.
The fictitious fixed assessment cannot be taxed
The paradoxical situation is developing when the tax authorities refuse to recognize the depreciation on the main means, referring to the fictitiousness of its purchase. But at the same time agree with the accrual of property tax on the same object. It turns out that the inspectors are taxed by property, in the reality of the existence of which they doubt. This fact may be an argument in favor of the organization.
One of the companies asked the Ministry of Finance of Russia to give written explanations on a similar situation. In a letter from 07.21.10 No. 03-03-06 / 1/477, officials found it difficult to resolve the contradiction, in fact, without responding to the question, but leading only general references to the regulatory framework.
It seems that the counterproof the tax authorities have only one. Until proven the fictitiousness of the costs produced on or another property is considered to be really existing. They say, so they do not dispute property tax.
But after the inspection, as a result of which the controllers themselves excluded the cost of buying a fixed assessment, there is no reason to continue to assess the controversial object with the tax. After all, according to the tax authorities, he never was acquired by society. At least for the amount that is indicated as the initial value.
Moreover, the verifiers must identify all the distortions of the tax base, which have led not only to the formation of arrears, but also to overpay the tax to the budget.
In the current situation, the company has grounds to demand a refund of an overlated property tax. Or use the fact of its payment as an argument in court.
Third-party expert will prove the validity of expenses
In some cases, when the tax authorities are not disputed by the reality of expenses, but prove artificially overstaving their cost, an effective measure of protection can be the involvement of a third-party expert. That is, a specialist who has the relevant knowledge and evidence of the presence of such knowledge: diplomas, certificates and experience.
The court may invite experts to participate in the proceedings on the request of one of the parties (Art. 82 of the Arbitration Procedure Code). The examination can be carried out as an employee of the State Expert Institution and the non-state expert (paragraph and the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 20, 2006 No. 66). But the court refusal to designate the examination does not deprive the taxpayer of the right to contact a specialist independently.
In tax disputes, there are no references to expert opinions, since this procedure is usually expensive. Although in the case of winning costs can be recovered from the tax authority.
In order for the result of the examination to become an effective argument, such issues are set to the expert, the answers to which will be deliberately in favor of the company. For example, they will give an idea that the service was acquired and what economic benefit was obtained. Then inspectors are unlikely to answer the arguments of expertise.
For example, the Federal Arbitration Court of the North Caucasus District considered this case. The tax authorities challenged the size of the cost of repair, suspecting their overestimation using one-day. However, the organization submitted the court to the conclusion of an expert, according to which the real cost of completed repair was not only less, but even exceeded the amount of expenses related to the costs of costs. As a result, the court decided in favor of the Company (a resolution of 30.06.10 No. A32-21388 / 2009-5 / 183).
A similar situation was considered in the definition of you of the Russian Federation of 26.04.10 № You-5147/10. It concerned the cost of repair and reconstruction of rented property. The competently designed "primary" and the conclusion of the expert did not give grounds to convey the case for consideration of the Presidium of the Russian Federation. Winning remained for the taxpayer.
The Federal Arbitration Court of the Volga-Vyatka district in the decision of 06.09.10 No. A38-3439 / 2009 reviewed whether the work was carried out by the Company's work and the reconstruction of the fixed assessment. And here the company managed to defend the point of view favorable for themselves, having transferred the corresponding conclusion of an independent expert.
D. Lipatov
lawyer of the Law Company "Tax"
E. Timin
tax consultant, PNP expert
Metropolitan Legal Center
Telephone: (495) 64-911-65, 649-41-49
In the article, the author is comprehensively considering the possibility of confirming the transaction. The right to dispute the deal, from his point of view, may stop as a result of confirmation of the transaction - voluntary failure of the subject from challenging. In this case, the possibility of confirming the transaction is a consequence of the right of challenge. The person who has any right may and abandon its implementation (use).
Keywords: confirmation of the transaction, the charming of the transaction, recognition of the transaction is invalid.
It is necessary to consider the possibility of confirming the transaction. The right to dispute the deal may stop as a result of confirmation of the transaction - voluntary failure of the subject from challenging. In this case, the possibility of confirming the transaction is a consequence of the right of challenge. The person who has any right may and abandon its implementation (use).
As P. Sanfilippo pointed out, under the "reversibility" refers to the concept of a deal remaining in strength until the interested party will not reveal defects that disprove it. Therefore, the reversibility of the transaction may be subsequently fixed ("conquillance" of the transaction), so that it will be done by the future. It depends mainly from the behavior of the subject, which could refer to the reversibility of the transaction, but may consolidate the perfect transaction or explicitly, declaring that it recognizes its reality, or implicitly, showing it that he agrees with the consequences that she He entails.
The question of confirming the transaction is most carefully developed in the theory of French civil law. In accordance with the norms of the Civil Code of France, confirmation is a legal transaction, according to which a person entitled to claim for invalidation of the contract refuses to be the right.
To reality the confirmation itself, it is necessary to comply with certain requirements, which include:
1. Confirmation must be carried out by a person who could refer to invalidity, i.e. Refusal to challenging the right can proceed only from the subject of this right.
2. Confirmation must necessarily be free from the vice, which is the cause of the challengeness of the supported contract. Therefore, in the challengeness of the contract, on the basis of the Cobestament of the Agreement, confirmation is possible in the case when the corresponding vice disappeared.
3. Knowledge of the basis of the chalterness of the transaction (vice) and its intention to correct - a prerequisite for the confirmation party.
The main consequence of confirmation is the recognition of a confirmed transaction valid from the moment of its commission, that is, the confirmation of the conversational transaction acts with the inverse strength.
Confirmation in the form of an expression may be straight and silent<2>. Creation, direct words expressing the intention to confirm the transaction, is a direct confirmation. Full or partial voluntary execution of the debtor's transaction is recognized by French scientists with silent confirmation. In addition, the disposal of the thing acquired on the basis of the contract is the invalid that could require the orders. "This expresses his intention to confirm this agreement, for, disposal of the thing, this person creates for itself the inability to restore the former position"<3>.
In the Russian right, an example of direct confirmation is the written approval of the transaction committed by minors aged from fourteen to eighteen years, his parents, adoptive parents or trustee (paragraph 1 of Art. 26 of the Civil Code of the Russian Federation).
Russian judiciary testifies to the presence of cases of confirmation of transactions by action. Consider the following example from judicial practice.
OJSC Altaeenergo appealed to the Arbitration Court of the city of Moscow with a claim to OJSC All-Russian Development Bank of the Regions (hereinafter referred to as VBRR) on the invalidation of a guarantee agreement on the basis of Art. 174 of the Civil Code of the Russian Federation.
By the court decision of February 20, 2006, the guarantee agreement concluded between OJSC Altairenergo and JSC Brr was invalid. The court was guided by Art. 166, 167, 174, 183 of the Civil Code of the Russian Federation and proceeded from the fact that the Director-General of OJSC Altairenergo was not entitled to independently, without the decision of the Board of Directors to enter into a guarantee agreement; The respondent was aware of the presence of this limitation from the charter of the plaintiff and the content of the contested contract.
By the decision of the Ninth Arbitration Court of Appeal of May 12, 2006, the decision was canceled. Canceling the decision, the appellate court proceeded from the fact that the grounds for recognizing the contract of the guarantee are not unfulfilled; The court of first instance made an unreasonable conclusion about the lack of evidence of the existence of the contested agreement by the Board of Directors of OJSC Altaenergo. In addition, the appellate court indicated that the actions of the claimant for the execution of a guarantee agreement are confirmed by a set of evidence in the case, and therefore the subsequent approval of the transaction from the plaintiff is.
In the cassation appeal of Altairenergo OJSC asks for the decision of the Appeal Court to cancel, the decision of the court of first instance is to be left in force. After studying the case materials, discussed the arguments of the cassation complaint, the court of cassation does not find grounds for the abolition of the contested judicial act, indicating the following circumstances:
"From the materials of the case, and the appellate court found that OJSC Altaeenergo concluded a guarantee agreement with OJSC" VBRR ", under the terms of which the plaintiff pledged to respond to the defendant for execution by a third party - Intercontalt LLC obligations under the loan agreement and additional agreements to it. .
In the study of the circumstances of the case, the appellate court found that before the conclusion of the contract of the guarantee of OJSC "Altaenergo" appealed to the defendant with a letter of March 31, 2004 N GB / 03-01 / 881 on ensuring the financing of its contractor (LLC Interconsult) under the guarantee of JSC "Altaenergo", which indicates the reality of the plaintiff's intention to conclude a contract of guarantee.
The court also found that on the day of the conclusion of the agreement of the guarantee of OJSC "Altaenergo" and OJSC "VBRR" signed an additional agreement to the bank account agreement, providing the respondent to the right to the rapid write-off from the current account of the plaintiff of funds in the deposited agreement of the Deposit amount. In this connection, the appellate court came to the correct conclusion on the presence of the plaintiff aimed at fulfilling the contract of guarantee.
Evaluating the actions of the plaintiff for the approval of the contested transaction, the Court of Appeal established that OJSC Altaenergo in October 2004 made repayment of a penalty for Interconsult LLC on a loan agreement; In June 2005, LLC "Debt Center Altaenergo" on the basis of a prisoner with the plaintiff of the agency agreement made a partial repayment of the loan LLC Interconsult under the guarantee agreement, which is indicated in the "Appointment of payment". In this connection, the Court of Appeal made the right conclusion that OJSC Altaeenergo approved the transaction, since it produced a partial repayment of debt, including in June 2005, i.e. Already after the presentation in May 2005, this claim in the arbitration court. The reference of the court of first instance to the implementation of the above actions by unauthorized persons and the imputy of the plaintiff of the report of its agent does not refute the fact of transfer of funds to the plaintiff (its agent) under the guarantee agreement.
The presence of approval of the transaction was also confirmed by the exposed appeal court of the plaintiff as a issuer for the II quarter of 2005, approved by the Board of Directors of OJSC Altairenergo, which includes the arrears of the plaintiff before the defendant under the guarantee agreement.
In the presence of approval of the contract of guarantee of the ground for recognizing the transaction invalid under Art. 174 Civil Code of the Russian Federation are absent "<4>.
It should also be noted by paragraph 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 14, 1998 N 9 "On some issues of the application of Article 174 of the Civil Code of the Russian Federation in the implementation by the authorities of legal entities for transactions"<5>where it is indicated for the possibility of confirming the challenging transactions. This paragraph says the following: "... The person, in the interests of which the restrictions are established, has the right to subsequently approve the transaction, perfect with the vices mentioned in Article 174 of the Civil Code of the Russian Federation. Since this rule does not contain provisions on the approval of transactions, due to article 6 of the Civil Code of the Russian Federation, it is necessary to apply paragraph 2 of Art. 183 of the Civil Code, regulating similar relations (the analogy of the law). It should be borne in mind that the approval of the transaction can be recognized, in particular, the fact of acceptance by the plaintiff on the disputed transaction, including the authorized body of a legal entity. The grounds for recognizing the transaction invalid under Art. 174 of the Civil Code in this case are absent. "
In the practice of vessels, cases of eliminating violations of the law by confirming transactions are quite common. We give as an example another judicial matter. Thus, OJSC "Uralmetprom" concern appealed to the Arbitration Court of the Sverdlovsk Region with a claim for invalidation of the contract of sale of sales of July 30, 1998, concluded between OJSC "Ver-Iset Metallurgical Plant" and Visa-Steel LLC, and Application of the consequences of the invalidity of the transaction: Return OJSC "Verkhnevsky Metallurgical Plant" The building of the administrative and consumer complex, Visa-Steel LLC - cash in the amount of 5,691,500 rubles.
As follows from the materials of the case, under the sale contract of July 30, 1998, OJSC "Ver-Iset Metallurgical Plant" sold Visa-Steel LLC The building of the administrative and domestic complex of the plant management with a total area of \u200b\u200b16,271, 2 kV. m. The plaintiff, being a shareholder of OJSC "Verkhnestsky Metallurgical Plant", requested the recognition of the contract of sale by invalid under Art. 168 of the Civil Code of the Russian Federation, Art. 83 of the Federal Law "On Joint-Stock Companies" and applying the consequences of the invalidity of the transaction, since it believes that the defendants have been violated a procedure for making a transaction in which there is an interest.
Exploring and appreciating the procedure for concluding a controversial deal, the court of first and appeal instance concluded that the contract of July 30, 1998 was concluded by persons interested in his commitment (Art. 81 of the Federal Law "On Joint-Stock Companies").
The transaction in which there is an interest is subject to approval in the manner prescribed by Art. 83 of the Federal Law "On Joint-Stock Companies". The protocol of the Board of Directors is submitted to the proof of the transaction on August 5, 2002.
In fact, a controversial deal, in which there is an interest, approved by the Board of Directors on August 5, 2002. In connection with which it is necessary to recognize that by the decision of the Board of Directors on the approval of the transaction on the alienation of real estate under the Agreement of July 30, 1998, concluded from Visa LLC -Stal ", eliminated violation of Art. 83 of the Federal Law "On Joint-Stock Companies".
Thus, the claim is presented to recognizing an invalid already approved and executed transaction. The decision of the Board of Directors of August 5, 2002 on the approval of the contract of July 30, 1998 in accordance with the procedure established by law. In connection with the statutes in satisfaction, the claims denied legitimately<6>.
So, in the considered case at the time of the transaction, the approval of its board of directors was absent. However, the court concluded that the legislation does not contain a ban on the subsequent approval of the transaction, since there should be no obstacles to the application of legal norms that establish a method for eliminating relevant violations.
We believe that in view of the need for judicial practice in a clear rate, regulating the possibility of confirming the challenge transactions, the legislator should include the appropriate position in the Civil Code of the Russian Federation. Currently, if there is a general rule about the possibility of a subject, to challenge the transaction in order to recognize it invalid did not receive proper legislative consolidation the possibility of refusing a person from this right (that is, to officially confirm the transaction) and the necessary form of this refusal.
At the same time, the principle of dispositionability in civil law suggests that civil turnover participants are entitled to dispose of their subjective right as through its implementation and by refusing it. Accordingly, it should be issued in the Civil Code of the Russian Federation on the possibility of confirming the challenging transactions and provide for the article as follows: "A person who has the right to claim an invalid challenge of the transaction may refuse such a claim by confirming an accommodated transaction. A confirmed transaction is recognized as valid since its inception. Confirmation of an arbitrary transaction must be committed in writing. If the behavior of the person indicates its refusal to dispute the transaction (full or partial voluntary execution of the transaction, etc.), confirmation is also considered perfect. "
It should be noted that a similar norm is contained in Art. 4: 114 principles of European contractual law<7>:
"If the party, having the right to refuse the contract, directly or indirectly confirms the contract after she learned about the presence of grounds for such a refusal or was able to act at its discretion, the denial of the contract is excluded."
At the same time, in the Russian version of the principles of the European contractual law, to designate one of the remedies to be applied in the event of invalidation of the contract in accordance with the specified act, the term "refusal of the contract" is used (English term "Avoidance"). However, Black's Law Dictionary (one of the most authoritative and complete English sensible legal dictionaries) contains the following definition of the term "Avoidance" - "invalidation". Thus, the term "refusal of the contract" is nothing more than the announcement of the contract by invalid by one of the parties. Consequently, on the basis of Art. 4: 114 The principles of the European contractual right to the party with the right to announce an agreement invalid may directly or indirectly confirm the contract, and in this case the possibility of recognizing it invalid.
Danilov I. A., Candidate of Legal Sciences.
For all questionsabout disputes associated with the recognition of the transaction invalid and the use of the consequences of the invalidity of the transaction we recommend to make an appointment with lawyers and lawyers by phone:
(495) 64 - 911 - 65 or (495) 649 - 41 - 49 or (985) 763 - 90 - 66
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In the course of the activities of tax control (verification activities) in relation to the taxpayer, the tax authority may conclude on the execution of fictitious transactions or economic operations with a certain circle of counterparties. What is today under a fictitious deal understand the tax authorities? From the position of tax authorities fictive deal - This is a deal committed by the taxpayer without persecuting any economic goal. In other words, these are transactions or other economic operations, which are committed by the taxpayer and its counterparty solely in order to reduce the taxable base.
Such findings of tax authorities are quite fraught for taxpayers and can lead to very serious consequences - detaching taxes, penalties, accrual of fines, sometimes equivalent to the amount of taxpayer's annual revenue. The most unfavorable for the taxpayer the outcome can be served the transfer of tax audit materials into the investigating authorities to initiate a criminal case on the facts of intentional evasion of the taxpayer from taxes and fees. At the same time, if the taxpayer himself operates on absolutely legal conditions, this does not mean that it cannot be charged with the facts of violation of tax legislation, since the risk group can also get those companies whose counterparties are already on the so-called "checkmark »In tax authorities as counterparties noticed in fictitious transactions with other persons.
Thus, in the process of conducting test activities or desk tax audits, the tax authorities are inspected by the taxpayer's counterparties for signs "One-day firms" Or their appearing in another register of companies carrying out "suller" activities Responsibility for registration of "one-day firms" and for making false information to the register ", In which we revealed the concept of "one-day firms" and indicated what actions are taking tax authorities against "one-day firms"). If a tested taxpayer has identified such counterparties, the tax authorities launch a set of verification activities against such a taxpayer aimed at collecting an evidentiary base confirming fictitivity of transactionscommitted by the taxpayer with such counterparties. In such cases, tax authorities may be expressed as follows:
So, choosing the necessary evidentiary base, the tax authorities make a decision on the presence or absence of fictitious transactions in the company's economic operations of the taxpayer. If the tax will still see the fact of the taxpayer of a fictitious transaction, the recalculation of the tax base is not to avoid such a taxpayer. It should be borne in mind that on income tax for tax purposes is not taken into account the costs of fictitious transactions and operations, and the VAT follow fails to reimburse the amount of taxes listed as part of payments on such fictitious transactions (operations). As a result, the taxpayer, fictitious operations, will still run into the detachment of penalties and fines. The most negative consequence for the taxpayer who is fond of fictitious transactions and operations for several reporting periods is that with the amount of reduced taxes for three years in a row over two million rubles, the tax authorities do not think of such materials into law enforcement agencies to initiate a criminal case . Therefore, it is possible to solve such a problem, perhaps in two ways: the first one - voluntarily pay the amount of non-taxable taxes in full, the second is to seek the recognition of acts of tax authorities to be illegal. It should be immediately noted that when choosing a second way to solve problems with fiscal, the taxpayer should be ready to refute all tax authorities put forward to it.
Now consider the most common signs of the fictitiousness of transactions and economic operations,from the position of tax authorities:
The tax service of the Russian Federation has already written several official letters with recommendations, judicial practice, whose participants are unfair counterparties, or counterparties with obvious signs of unscrupiance, etc. It is from such letters of the Federal Tax Service of Russia in accordance with the presented recommendations, under what circumstances to the company the taxpayer, the tax inspectorate can reasonably make a claim, and at what no (see Letter of the Federal Tax Service of Russia dated 03.23.2017. No. EF-5-9 / [Email Protected], Letter of the Federal Tax Service of Russia of 12.05.2017. No. AC-4-2 / \u200b\u200b8872).
If on the subject of the fictitality of transactions today to appeal to judicial practice, then you can see that the courts have repeatedly paid the attention of the tax authorities on the fact that the incompleteness of counterparties of the second and subsequent links should not be responsible for the taxpayer. According to the courts, to the manifestation of due diligence of all the counterparties involved in the chain of operations, since the Company, in particular, a legal entity should be convinced only in the conscientiousness of his direct counterparty - a deal partner (see Definition of the Supreme Court of the Russian Federation from 29 November 2016 No. 305-kg16-10399, Resolution of the Arbitration Court of the Moscow District of July 18, 2017 in case No. 40-43799 / 2016, Resolution of the Arbitration Court of the Ural District No. F09-3675 / 17 dated June 28, 2017 in case No. A76 16418/2016).
According to the courts, if the fact of the reality of operations is confirmed, it is useless to refer to the most popular signs of "one-day firms", signs of the affiliation of the taxpayer and counterparty, references of the tax authorities that The head and founder of the counterparty refers to the category of "mass" in view of the fact that simultaneously is the leader and founder in many more companies, that the address of the location of the legal entity specified in the constituent documents is the address of the "mass" registration and the latter is actually not the specified address, the court legitimately recognized unreasonable, since all these facts as the address of the "mass registration", representing the counterparty of accounting and tax reporting with "zero" indicators, not submission of certificates in form 2-NDFL, documents in accordance witharticle 93.1 of the Tax Code of the Russian FederationBy themselves, in the absence of evidence, refuting the reality of economic operations and other transactions committed by the taxpayer, cannot be the basis for the conclusions about the absence of a counterparty opportunity to carry out activities. "
But in spite of this, the courts more than once occupied the side of the tax authorities, in tax disputes, when the company taxpayer as evidence of the manifestation of due diligence during the transaction only an extract from the Incorption and the constituent documents of the counterparty on the transaction were provided. And as they say, on mistakes learn, taxpayers began to personally inspect the premises and warehouses of their counterparties, to meet their employees, to maintain a working correspondence in email mailboxes, etc. And, by the way, with the participation of one of such a seamless taxpayer, there is even a fresh judicial practice, in the case, where the proof of the manifestation of due diligence and reality of the concluded agreement was a sheet of coordination to the Agreement, which contained information about the counterparty including Fm.o. Representative of the counterparty, its contact phone, email address and position. To get the "Green Light" to conclude a contract, in this document were to sign the signatures of the main mechanic, Deputy General Director for Finance, Legal Service, Chief Engineer and Chief Accountant (see Resolution of the Arbitration Court of the Ural District of May 26, 2017 No. F09-2274 / 17 in case number A50-16250 / 2016).
In addition to the above, there is another example, this is a resolution of the Volga district №F06-21881 / 2017 dated 03.07.2017. in case number 12-49524 / 2016, in which the court indicated that the arguments of the tax authority about the absence of counterparties in the property of any real estate, own transport and employees, about the fictitiousness of the transactions concluded by the taxpayer with dubious counterparties do not testify, since they do not exclude opportunities attracting vehicles, property, employees under lease agreements, outsourcing, civil legal agreements, etc.
Also, relative to the facts of the fictitiousness of the courts committed by the taxpayer, the courts are noted if the tax authorities have no other evidence of the unrealness of transactions, except as the indications of the taxpayer's counterparty, the arguments of tax authorities cannot be adopted. In one of these cases, the court pointed out the tax service that the facts about the fictitiousness of the transaction committed by the taxpayer should be investigated comprehensively. At the same time, the court legitimately pointed out the fact that the facts established during the control measures, including relative to the signing of controversial treaties by the counterparty, denying their signing, when establishing the court of execution of contracts, the provision of actual services to society, manifestation of due diligence They are an unconditional reason to believe that a taxpayer received an unreasonable tax profit (see Resolution of the Moscow District Arbitration Court of May 30, 2017 in case No. A40-208019 / 2016).
As well as contradictory information or errors in primary accounting documents, the taxpayer does not exclude the reality of the operations committed by him (seeResolution of the Arbitration Court of the Volga District No. F06-20557 / 2017 of 05/30/2017 In case No.A12-38366 / 2016, the Resolution of the Arbitration Court of the West Siberian District of July 18, 2017. in case number A67-4937 / 2015).
In conclusion, we note that first of all, taxpayers still need to approach the issue of tax savings. Hope to apply the principle of the presumption of innocence in relation to the taxpayer or interpretation in favor of the taxpayer of all inaccuracies and ambiguities is also not worth it. To date, the courts apply to the well-known doctrine of the "Balance of private and public interests". This means that if the company taxpayer will be suspected of the fictitiousness of transactions or any economic operations, then it is the taxpayer that the company itself will have to prove its good faith and reality of transactions and operations. That is why, when concluding contracts, it is conscientious and as you can check information about counterparties and it is advisable to record the process of its collection. About how to show due diligence today when making taxpayers with new counterparties, you can find in our article. Currently, the topic of due diligence is very relevant in tax legal relations, especially since the times it was enough to request a copy of the certificate to evoke their good faith OGRN, long lasting.
