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 a counterparty to the other side of the transaction.
Risk assessment
The right choice of counterparty affects the right of the payer to receive a VAT tax deduction. In this regard, the exercise of prudence is of particular importance when concluding a transaction.
The key control authority in the field of taxes and fees is the Federal Tax Service. Checking the counterparty in the IFTS is carried out in an automated system.
The scheme of her work is as follows. The system compares the tax deductions that the payer declared for his purchases with the information from the seller’s invoices - the tax counterparty.
If the latter has not filed a declaration or has not reflected transaction data in the Sales Book or other significant deficiencies have been identified, the supervisory authority makes a complaint to the buyer.
When conducting inspections, the control bodies of the Federal Tax Service Office take into account a set of circumstances that may become evidence of the receipt by the payer of unjustified benefits.
Any business entity 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
One-day tax counterparties can cause significant damage to both the payer and the state as a whole. The purpose of such unscrupulous partners is tax evasion. The payer, in turn, will have to prove the validity of the benefits when accounting for expenses or VAT refunds.
The control bodies of the Office 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 (dated October 12, 2006). This document sets out the key signs of dishonesty of a tax counterparty.
As for the payers, they can use the generally available criteria for independent risk analysis used by the control authorities when selecting objects for field inspections.
General recommendations
How not to become a partner of a problem counterparty? Tax has developed several recommendations for payers.
First of all, before making a deal, you need to request copies of:
- Sv-va about state registration.
- Of the Charter.
- St.-va on registration with the IFTS.
It is also advisable to get an extract from the Unified State Register of Legal Entities, as well as a certificate confirming that the tax counterparty has no debt to the budget.
In addition, you can request information on the number of partners, their financial situation, cost and composition of fixed assets (fixed assets), reputation, work experience. All of these actions are considered due diligence.
Arbitrage practice
It is worth saying that the courts do not have a single opinion on the need to confirm the actual activities of the tax counterparty.
Some authorities believe that to recognize the good faith of the payer, it is not enough to confirm the status of a legal entity partner.
Some courts believe that it is necessary to ensure that the tax counterparty does have the ability to comply with the terms of the transaction. In particular, the authorities explain, it is necessary to verify the availability of qualified personnel, proper equipment, vehicles, other assets, permits necessary to fulfill obligations.
Some courts only have to confirm the fact of state registration in order for the payer to fulfill due diligence requirements. For example, individual authorities believe that the execution of an employment contract is far from the only way to attract workers. Employees can work under civil law agreements.
If the reality of the performed business operations is confirmed, the courts often state the conscientiousness of the payer for certain defects in documentation.
Legal advice
If an extract from the USRLE was provided by a tax counterparty, it is advisable to independently verify the information in it with the data posted on the IFTS website. Some unscrupulous partners may fake a document.
Using the services of the Federal Tax Service
Search by TIN is the most common way to confirm the integrity of a partner. There is a special form on the official inspection portal. On the website of the Federal Tax Service, the TIN search is carried out online and takes several minutes.
On the corresponding page, select "Legal Entity" or "Individual Entrepreneur" / "Peasant (Farm) Farm (KFH)". Next, the actual TIN is entered.
You can check the counterparty in the tax by sending a written request. Courts consider such an act as due diligence.
On the tax website, checking the counterparty for the TIN, you can also get information:
- on the name of the legal entity;
- legal address of the company;
- date of state registration;
- PPC
- BIN;
- termination of activity (about the fact and date);
- invalidation of registration.
An extract from the registry can be downloaded and printed from the site. It contains data:
- on the size of the authorized capital;
- founders;
- types of counterparty activities (according to OKVED);
- persons authorized to act on behalf of a partner without a power of attorney.
The tax database for counterparties contains a complete list of information, a list of which is present in the order of the Ministry of Finance No. 115n (dated December 5, 2013). Data is updated daily.
If the individual payer number is unknown, you can conduct a counterparty tax audit on the site by name.
Additional Requests
As can be seen from the above information, it’s not difficult to find a counterparty on the tax website. In addition, the portal provides the following information:
- Did the counterparty provide documentation for registering changes to the articles of association or to the Unified State Register of Legal Entities
- Was it decided to liquidate, reduce the size of the authorized capital, reorganize, acquire 20% of the capital of another company, etc.
- Whether the decision was made to exclude the counterparty from the registry as inactive.
- Are disqualified persons present in the executive bodies of the partner enterprise.
- Is the partner registered at an invalid address, is there a connection with him at the address indicated in the registry.
- Does the counterparty give tax reports. It is worth saying that a zero declaration does not indicate a partner’s reliability.
- Are there any information about the leader / founder in the database of persons who have refused to leadership / participation in the company.
It should be said that some courts adhere to the position that the mismatch of the actual and legal addresses cannot in itself serve as a basis for refusing the payer to provide deductions.
Information on the participation of a partner in litigation
To obtain this information, it is necessary to study the file cabinet on the BAC website. The database contains information about all arbitration cases, including the content of disputes.
For information, you must use a special search form. It has the field "Member of the case." You can enter the name, PSRN 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.
Bankruptcy Procedure Information
In order not to conflict with the tax office, you need to know as much as possible about the counterparty. To make sure that the partner is not at any stage of bankruptcy is possible in the register of data on the facts of the activities of legal entities. Here you can find other information. For example, the register contains data on the value of assets of the joint-stock company at the reporting date.
Executive production
Information that enforcement proceedings have not been instituted against the partner can be obtained on the FSSP portal. The site has a database search form. You can get information about both the legal entity and the entrepreneur.
Check for Permissions
Some courts point to the need to confirm the availability of licenses for counterparties. Of course, those entities that conduct licensed activities must have permission.
Information can be obtained on the website of the authority issuing this document. It is worth saying that for each type of license it will be different. For example, on the Rospotrebnadzor website you can find information about licenses issued for activities in the field of use of radiation sources.
Partner Accounting
The main normative act that should be followed by the payer is PBU, approved by order of the Ministry of Finance No. 34. As indicated in paragraph 89 of this Regulation, the annual reporting of an enterprise is an open document for all interested parties. These include, but are not limited to:
- banks;
- investors
- Buyers
- lenders;
- suppliers and so on.
These persons have the right to legally not only familiarize themselves with the annual accounts, but also make extracts from it or copies. In turn, the enterprise has an obligation to provide access to information to interested parties.
Information on annual reporting is provided by organizations free of charge to Rosstat.
Supplier Registry
A potential counterparty, of course, may not participate in the procurement for municipal and state needs. However, the probability of this cannot be ruled out.
Lawyers recommend checking the counterparty against the registry of unscrupulous suppliers. This database is maintained and updated by the FAS.
Verification of authority of the contracting entity
Many courts consider it a mandatory step for recognizing a payer as bona fide. If it does not pass, you can lose the case.
So, if the subject received all the information and documents, but did not verify the authority of the person signing the contract on behalf of the counterparty, this will serve as the basis for recognizing the payer as unscrupulous.
In some cases, during the proceedings, representatives of counterparties refuse their signature on the documents. In such situations, a graphological examination is assigned. Although the case can be resolved without it.
Nevertheless, many jurisdictions are of the opinion that a visual comparison of the paintings and the testimony of the representative of the payer cannot serve as a sufficient basis for recognizing the fact that the papers were signed by inappropriate persons.
Important point
Some courts recognize the payer as unscrupulous if the authorized representative of the partner died at the time of signing the agreement or his powers ceased.
Other courts believe that the latter case cannot indicate the receipt of unreasonable benefits if, before the transaction was completed, its participants were in continuous economic relations.
Expert Advice
Before signing contracts and other important documents, it is necessary to check:
- Whether the transaction is large for the counterparty.
- Have the powers of the representative of the partner expired? Their term is determined in the power of attorney or the charter of the enterprise.
- Are the powers of the head of the company to conclude contracts limited by constituent documents the value of which exceeds the value established by the charter or legislation.
Tax Inquiry
We have already said a few words about him. Let us dwell on the request a little more.
The request is sent to the IFTS at the address of registration of the partner.
The district courts confirm the obligation of the regulatory authorities to respond to the request and provide information in the framework of information not related to tax secret (Article 102 of the Tax Code). At the same time, some authorities emphasize that the failure of the IFTS to provide data affects the rights of the payer related to receiving a deduction.
When considering cases, some courts indicate that the payer, having the opportunity to send a request to the inspection, does not. However, in practice there are cases when the authorities conclude that the entity really could not contact the inspection at the registration address of the partner due to the lack of such authority (it is owned by the tax authorities).
According to lawyers, even if the payer is refused the requested information, the fact of the appeal itself will serve as evidence of prudence. Experts note that it is more expedient to submit the application in person to the IFTS or send it by registered mail with a notice. In the first case, a copy of the request will remain on hand with the seal of the control body on the acceptance of the application, and in the second, a notification will come that the request has been received.
Conclusion
As can be seen from the above, the positions of the courts regarding the volume of measures necessary to verify the integrity of the partner are very different. At the same time, in normative acts there is no list of actions that the payer must take to confirm his due diligence.
It is worth saying that the presence of any one sign of dishonesty of a partner usually does not appear as an obstacle to the recognition of tax benefits as unjustified. The set of criteria, in turn, often makes the control authorities wary, and the judicial authorities make decisions in favor of the payers.