It is necessary to portion out... The state added 170 billion rubles to business

Victoria Pavlova

Then the tax authorities found 60.2 billion underpaid rubles. But earlier, the authorities took the pandemic much more seriously than they do now and gave business some relief by limiting on-site inspections of tax inspectors. Now the Federal Tax Service is making up for lost time, and at such a pace that it immediately exceeded the indicators of the first half of the pre-year 2019 by a third, when the tax service filed claims for 127.5 billion rubles. The situation for business is, to put it mildly, unpleasant: the federal lockdown (which, it is true, they prefer to call "vacations") is extended in many regions (except for Moscow and the region) new restrictions are introduced in the form of QR-codes. There are fewer sources of income, and more and more claims from the federal service that can lead to bankruptcy or even criminal liability.

But are additional charges from tax authorities always justified? Indeed, in addition to banal mistakes, no one has canceled the cane system, which forces civil servants to be guided primarily by beautiful reports, and not common sense. The tax authorities will have to look for violations every year more and more actively: the federal budget for 2022-2024 includes revenues from fines, sanctions and damages in the amount of 255 billion rubles. This is at once 15 billion rubles more than was budgeted for 2021-2023. Who is to blame for the growing additional charges - the authorities or the entrepreneurs themselves, and whether it is possible to live in Russia without fines - Novye Izvestia discussed with experts.

Who is guilty?

The human factor that leads to mistakes is always and everywhere present. But it's one thing if it is non-systemic and causes harm without intent, and quite another when the real picture is distorted on purpose. Vice-President of the Association of Lawyers in the field of registration, liquidation, bankruptcy and legal representation Vladimir Kuznetsov notes that incorrect claims from the Federal Tax Service are not uncommon:

"The number of incorrect, erroneous additional charges is constantly growing. Their scale is sometimes appalling. In their work, tax authorities often use not the evidence base for tax violations, but the so-called conceptual base. If they believe for themselves that the taxpayer is violating, then it does not matter what documents he has, it does not matter how the reality of business transactions is confirmed, and so on".

At least this applies to fairly large and successful companies that have something to take - says Maxim Blokhin, managing partner of Blokhin & Partners Management Company:

"The Federal Tax Service plans to collect taxes are growing, and the economy is shrinking. Therefore, the inspectors are going to charge those taxpayers who still have a cash flow, on the principle "for themselves and for that guy".

The main goal pursued by the tax authorities, looking for any reason for calculating taxes and fines, is, as Pavel Penkin, General Director of Rykov and Partners LLC , notes, to replenish the budget in times of crisis:

"Not only does the state need to collect all the accrued taxes, but taking into account the pandemic, this is not so easy. It is important to support the growing liabilities (payments due to the pandemic, the growth of pensions and benefits) with additional tax revenue. It is with this task that the specialists of the Federal Tax Service of Russia are called upon to cope".

But behind a beautiful screen, sometimes completely unsightly curtains are hidden. Vladimir Kuznetsov has such examples:

"One of the most indicative cases of the pandemic time was the additional taxation of the company “Dom Odezhdy” LLC, where the taxpayer was additionally charged taxes, fines and penalties in the amount of several hundred million rubles. Based on the results of the audit, the taxpayer paid these taxes, fines and penalties, challenged everything in court, winning cases in two instances. The budget returned this money as an overpayment. But despite all this, a criminal case was opened and in almost all regions companies were prevented from doing business, coming to all stores, finding nothing illegal, but creating obstacles in the conduct of trade, possibly due to "intractability"".

With small and medium-sized businesses, the situation is somewhat simpler. According to Pavel Penkin, there has been a tendency for improvement in recent years:

"Erroneous, or rather, let's call them excessive, tax accruals took place in my practice, but a very long time ago - 5-7 years ago, when the inspectors were faced with the task of adding additional charges in any way, and then, as they say, "the grass does not grow." Then the concept of planning off-site tax control activities began to change to the category - to collect additional charges, so there were fewer and fewer such checks. This was due to the fact that the business often fought off unnecessary additional charges in court and the statistics of the Federal Tax Service of Russia (as well as the reputation) were decently spoiled".

If tax inspectors sometimes resort to a “conceptual base”, then entrepreneurs do not have such an opportunity. And according to Maxim Blokhin's assurance, he did not violate the business anymore - you cannot just take and pay taxes with impunity, this option will not work with modern IT-monitoring systems:

"With the introduction of "electronic" VAT, with "anti-money laundering" legislation that turned banks into branches of the Federal Tax Service, the corridor for tax violations has become very narrow in space and short in time. Therefore, the entrepreneurs did not violate any more, because there is no possibility".

Does this mean that all entrepreneurs are white, fluffy and crystal clear? Alexander Lyuboserdov, General Director of ALIR LLC and Chairman of the Expert Council of the Finance Committee of MRO Delovaya Rossiya, is sure that this is not the case. If entrepreneurs quite openly do not evade paying taxes, then they walk on the very edge, looking for controversial points in the legislation. But also not from a good life:

"The problem is that taxes, given the existing tax burden, which is becoming more and more, in principle, it is impossible to pay "white". For certain industries with a large number of personnel, the tax burden is such that it is impossible to conduct a legal business. It rarely happens that the taxpayer himself is clean. Taxpayers use different schemes to evade taxes, use different industry norms to make money and survive - now, in a pandemic, it is purely a matter of survival".

What to do?

If the Federal Tax Service has unreasonably charged taxes and fines from the point of view of business, then there are practically no options. There is a direct road to court. The experience of Vladimir Kuznetsov shows that it is almost impossible to resolve the conflict out of court:

"It is worth noting that recently the position of tax inspectorates during inspections has become even more rigid and categorical. Often from the employees of the bodies the words are heard: "If you do not agree, go to court". At the same time, reasonable arguments cannot always be heard".

But in court, everything is not so simple, even if you are sure that you are right. The chances of winning in arbitration are minimal. Why this happens - there are several different factors that complement each other. Alexander Lyuboserdov focuses on the bias of the courts:

"Penalties and fines are such a measure of punishment for failure to pay taxes and fees on time. It has become quite difficult to challenge them in the last 3 years, because the tax authorities are quite well prepared in this regard, and plus there is still some presumption of the taxpayer's guilt, within which, of course, the courts take the side of the federal tax service. Therefore, in principle, if you have reached the court, then it is quite difficult to challenge anything".

And Pavel Penkin points to the growth of the competence of tax officials:

"Now, according to statistics from the website of the tax authorities, for several years in a row, they have won at least 8 out of 10 cases from business on appealing decisions on additional tax assessment. This became possible thanks to better planning and detailed selection of candidates for verification".

Fortune smiled at you, and you were able to defeat the Federal Tax Service in court? It's early to open champagne! As Maxim Blokhin says, such processes do not pass without a trace:

"In cases where the arbitration court came to the opinion that tax claims were unreasonable, the decision on additional accrual was canceled. However, litigation costs in the amount of actual tax attorney costs incurred in our court system are not fully recovered from the losing party. Courts collect only a fraction of the actual costs of lawyers, relying on a rather unclear criterion of “reasonable limits”. The part of legal costs not collected from the losing party is direct losses of the business. The state, represented by its judiciary, does not consider it necessary to stimulate the Federal Tax Service, like all other defendants, to reduce the number of litigations by collecting court costs “in fact”".

We were sharing an orange...

The conclusions are disappointing: if the tax authorities have complaints about your business, then you will definitely get a lot of problems, and you will still have to pay to one degree or another. In the context of the crisis, the competition for capital between the state and business has intensified. But the paradox is in it: when the state wins and starts pumping more money out of business, it starts to lose. And, unfortunately, as Dmitry Krasnoshchek, a lawyer and head of the law firm Strategy , explains, the authorities are following the path of tightening the screws, which has a negative impact in the long term:

"The internal instructions of the Federal Tax Service established that the amount of additional charges cannot be less than 10 million rubles. If less was charged, then it immediately raised questions from the Office of the Federal Tax Service. In our opinion, the amount was quite balanced, and the number of clients who, as a result of the audit, paid money to the budget, was growing. They chose to stay in business, not bankruptcy. From 2021, the amount of charges based on the results of a tax audit cannot be less than 30 million rubles. The number of clients who want to keep the business has dropped dramatically. Clients think about how to preserve minimal personal assets, and someone even thinks about changing their country of residence".

Yes, now the Federal Tax Service is on a horse: charges are growing, but how long will this last? Closing a business, going through bankruptcy proceedings is an unpleasant, but still a real alternative for entrepreneurs. And who will then pay taxes? There will remain state-owned companies that, due to bureaucratic peculiarities, are not able to create competitive products in the free market.