13 head-manager’s misconceptions about taxes

On the website of the Federal Tax Service there are 12 publicly available criteria for self-assessment of the risks of getting into the plan of on-site tax audits. Among them — insufficient tax burden, low profitability, unprofitability. Many companies are so zealously trying not to go beyond the established that they even «paint» an additional implementation or do not demostrate legal deductions. Just to squeeze into a «safe» framework and not attract too much attention.

Meanwhile, practice shows that neither the low profitability nor even the unprofitability of the company makes it more interesting for the inspectors. Rather the opposite.

Perhaps one of the most common misconceptions. It is connected with the erroneous interpretation of the law No. 294-FZ of December 26, 2008, which protects the rights of business during inspections by state agencies. According to paragraph 2 of Article 9 of the law, scheduled inspections are carried out no more than once every three years.

But these provisions do not apply to tax control.

There are no restrictions in the Tax Code regarding inspections of organizations and sole proprietors working for less than three years.

Of course, the inspectors are interested in capturing the maximum possible period (three years) by checking. It is reasonable, because according to the theory of probability in this case, the number of potential violations will be the maximum.

However, this does not mean that the tax service will wait patiently for three years, looking at how you misbehave. We have observed many cases when the audit was carried out to very young companies (1 - 1.5 years), which provoked on-site control with a large VAT refund, connections with , connections with «bad» counterparties or simply indecently high turnover on settlement accounts.

Many people believe that by changing the location of an organization or the place of residence of an individual entrepreneur, you can avoid a tax audit or paying taxes.
This is far from the reality.

Firstly, the procedure itself has now become more complicated – and at the slightest doubt, the tax authorities simply refuse to make changes to the Unified State Register of Legal Entities.

Secondly, the migration of a taxpayer to another region before, during or after the start of a tax audit does not exclude the possibility of checking at a new address.

And finally, an attempt to change the address may provoke an increased interest of the tax authorities.

As practice shows, additional charges based on the results of on-site inspections turn out to be significant. It can be difficult to part with such sums and withdraw them from economic turnover. Therefore, owners often go to various tricks, try to get rid of the company, leave it without property, and the treasury — without additional charges.

One of the typical schemes is to «freeze» the company and transfer all activities to another company of its group. A more «advanced» option — to a new legal entity. Contracts with suppliers and customers are renegotiated, cash flows are redirected from the old company to the new one, personnel and assets are transferred.

Only this approach does not save. Since 2014, the tax authorities have received the right to collect arrears not only from the debtor himself, but also from his interdependent (parent/subsidiary) structures, as well as from any other indirectly controlled or affiliated organizations (sub-item 2, paragraph 2, Article 45 of the Tax Code of the Russian Federation). And from 2017 – from individuals as well.

Another common way out of difficult situations is to liquidate a company that has accumulated tax risks. According to the well—known Stalinist principle «There is no person - there is no problem».

The catch is that it will not be possible to liquidate a company with a dubious tax past legally, especially with identified debts to the budget. What is actually usually offered by numerous dubious «quick-liquidators» whose ads hang on every pillar?

A simple option is to withdraw the director and founders, «rewriting» the company to other persons, and transfer the legal address away — to where «they won't look». As a rule, «other persons» are serial entrepreneurs, managers /founders of hundreds of companies, often not even aware of their crazy career.

At the same time, the legal entity itself remains as it is. It doesn't matter what is under a different name, in a different region and with new owners. The main thing is that it continues to exist. And the most interesting thing is that in accordance with the legislation, you are responsible for the period while the company was yours. It will not be possible to transfer your personal responsibility to front managers and founders.

A more complicated option: to reorganize (to join the company to another legal entity). But this is not the way out.

After the reorganization, the company does not disappear, it continues to exist as its legal successor. The probability of checking such a successor still remains. Checking the successor also means checking the predecessor company. And who will be responsible for its activities? Of course, the one who managed or owned it before the reorganization.

Many owners think that their share of responsibility is limited to their contribution to the authorized capital. Like, that's why it's a limited liability company, that liability is limited. And if the company has no assets, there are no interdependent firms that can «share» what they have acquired in a difficult situation, it would seem that there is nothing to be afraid of — there is nothing to recover. In vain they think so.

Recent practice shows that tax authorities are increasingly bringing managers/founders to subsidiary responsibility. «Subsidiary» means «additional»: if the property of a legal entity is not sufficient to repay debts, then they can be recovered from the personal property of the head/founder. As a result, tax authorities often seek to recover the entire amount of outstanding debt from individuals or legal entities controlling it.

It is a widespread practice when a company, realizing that it is unable to pay off its tax debts, begins to withdraw property in a hurry. The assets of the enterprise are scattered in unknown directions, debt is artificially accumulated, assignment and pledge agreements are concluded retroactively

Many entrepreneurs try to hide their ownership of the business in order to protect personal property in case of claims from authorities, partners, contractors. Taking into account the practice of applying subsidiary liability to directors/founders of debtor companies, the logic is clear.

The mechanism is simple: a proxy is appointed as the head, or even a «nominal», the same is done with the founders. And legally, no one takes part in their own business. So it turns out, «I'm not me, and the horse is not mine, and I'm not a cabman».

Since 2015, when initiating bankruptcy, the debtor can no longer choose an arbitration manager. This means that it will no longer be possible to influence the course of the bankruptcy procedure through «your» person.

Previously, a controlled arbitrator could delay the process in every possible way, not take any active actions, «accidentally» be late to file an application for subsidiary liability, which allowed the debtor to take assets away and hide the evidence. Now creditors influence the choice of the manager. And they won't fall asleep.

Only those who can prove their financial insolvency are recognized as bankrupt. According to the law, before starting the bankruptcy procedure, a citizen is obliged to provide information about all transactions on the alienation of property over the past three years. Such transactions may include prenuptial agreements providing for the division of the spouses' property, donation and sale of shares in the business, debt obligations (for example, an interest-free loan to your company), etc.

All this can be challenged by creditors if the intentional withdrawal of assets is proved. By the way, transactions made by a spouse in relation to common joint property can also be challenged. Therefore, schemes with a fictitious divorce, division of property or re-registration of assets to a close relative will no longer be able to help conceal property.

Let's start with the fact that bribery is criminally punishable. Now the scale of corruption has significantly decreased. The State is very attentive to this issue and is doing serious work. Reshuffling of personnel, transfer of the largest taxpayers to Moscow, strengthening control over the work of district inspections up to video surveillance in offices — naturally, all this reduces the desire to «solve issues».

In fact, in order to become a star of operational reports, you don't need much. The director of the company falls under Article 199 of the Criminal Code of the Russian Federation if the company's tax debts for three consecutive years exceed 5 million rubles, which will amount to more than 25% of the total amount of accrued taxes. Or the company will not pay more than 15 million rubles to the budget.

 It turns out that in order to annoy the state on a large scale, it is enough to illegally «put» on income tax expenses and claim deductions for «input» VAT from purchases in the amount of slightly more than 15.5 million rubles (if it is 25% of the amount of unpaid taxes) or 27.9 million rubles without interest. And that's in three years.

Add the unpaid insurance premiums also add u here (now it is also criminally punishable). Taking into account the level of prices, transactions and turnover of most companies, the figures are very modest.

In addition, the mechanism of initiating a criminal case for non-payment of taxes has become much simpler. At the end of 2014, amendments came into force that allow you to initiate a criminal case based on the materials of the bodies carrying out operational investigative activities, or even on a tip from your «well-wishers» (competitors, offended partners, dissatisfied employees). Conducting a tax audit is now optional.

As a result, there is a flurry of criminal cases on tax crimes and convictions on them.

Moreover, if two or three years ago for non-payment of taxes, as a rule, sentences were imposed with a suspended sentence or fine, now the punishment is a real imprisonment. However, it can be avoided if you pay the arrears before the appointment of the court session. An effective tool of recovery.

In addition, recently, in the framework of a criminal case for non—payment of taxes, a controlling person can not only be punished with a fine or imprisonment (maximum - 500 thousand rubles / up to 6 years according to paragraph 2. Article 199 of the Criminal Code of the Russian Federation), but also recover from him the tax debts of the company in the form of damage.

And what is most interesting, after the director reimburses this very damage at his own expense, the company's tax debts will still remain.

Thus, the question of whether to pay or not to pay becomes simply irrelevant. A comprehensive change in legislation and judicial practice puts new tools for collecting arrears into the hands of tax authorities. Including at the expense of the personal property of business owners.

And this means that it is time to approach the issues of tax security with all seriousness. The times of «How much, Ivan Vasilyevich, are we  painting VAT in this quarter and who are we throwing expenses at?» have already passed.