The new review of the Supreme Court (hereinafter - SC) on taxation indicates new provisions that should be followed by both entrepreneurs and tax authorities. In this article we will tell you how, in our opinion, you can use the provisions of the Review in your practice of interaction with the tax authorities.
Detailed investigation and ordinary transactions
The Supreme Court noted that it is reasonable to require the same level of diligence from companies that conduct transactions in small volumes as for market participants that deal with high-value assets.
The company need only verify that the counterparty is capable of fulfilling the obligation itself or by engaging a third party. It may request accounting and/or tax reports, check its labor resources and contracts with third parties. These are common actions within the document flow, if the company orders cleaning of premises, forwarding services, purchases office supplies.
We recommend that local acts should set out the significance of the transactions and the relevant documents to be requested. The Supreme Court notes that the tax authorities must take into account the significance and specificity of the transaction and, if you have received from the counterparty documents confirming the reality of resources, the presumption of due diligence applies. So, for example, the company is not responsible in such a case for the presence of a tax gap in the counterparty and the presence of collusion will have to prove the tax authorities and rebut the presumption.
Opposing conclusions of two Inspectorate of the Federal Tax Service
The Supreme Court indicates that in the case of two contradictory opinions on the issue of extraction of an unjustified tax benefit. If you are accused of deriving such a benefit, we recommend contacting your counterparties and finding out the opinions of their FTSs. In case of divergence of positions, point out in court the unanimity of opinion of the state body. But it is important to remember that this is just an argument in favor of your position, an additional reason, such a provision can strengthen the position.
Tax reconstruction and intermediary companies
The SC noted that the tax authority, having learned about the real details of the transaction, the example indicates the discovery of data on the real supplier and price, then it should take into account this data for tax reconstruction.