The Supreme Court found that the tax service had fined the company based on the wrong article of the Tax Code. A comment by Julia Andreeva, head of projects at S&K Vertical for

7 july 2017 2017-07-7

Federal Tax Service fined a company for 7.7 million rubles for failing to have two of its divisions registered with the tax authorities. The firm insisted that it should have been punished based on another, "softer" article of the Tax Code for failing to report on her "daughters" on time. Three instances sided with the tax authorities and the case ended up in the Supreme Court.

FTS inspection has revealed that company "Tyndatransmost" received an unreasonable tax benefit. In particular, it incorrectly applied deductions for the value-added tax (VAT) that was paid in respect of the transactions with counterparties - "Stroy-Invest" and "Transit 28". They were seemingly uncredible taxpayers (they are not located at their legal addresses, do not submit tax reports, and their managers are "nominal"). The Inspectorate decided that the company did not exercise due diligence in concluding transactions with these counterparties, and added a VAT of 5.7 million rubles. In addition, the Tax Inspectorate found that Tyndatransmost had lowered the profit tax for 2013 by creating an artificial document flow. This was the reason for charging it another 1.7 million rubles. The Inspectorate also established that the firm conducted its activities through two separate divisions in the territory of other municipal entities, without registering them with the tax authority. For this, it was prosecuted under paragraph 2 of Art. 116 of the Tax Code and fined with another 7.7 million rubles. The company appealed against the decision of the Inspectorate of the Federal Tax Service, which was issued following the audit, in the Commercial Court of the Amur Region (case No. A04-12175/2015). The first instance, and then the appeal and the cassation refused to meet its demands. Then it appealed to the Supreme Court.

The firm referred to the violations committed by the courts in the episodes of holding it liable under paragraph 2 of Art. 116 of the Tax Code, as well as the refusal to grant it tax deductions for transactions with counterparties. Judge Tatyana Zavyalova, when deciding on the transfer of Tyndatransmost's complaint to the Supreme Court's economic chamber, pointed out that, in the case of counterparties, the objections of the firm were, in fact, to reassess the actual circumstances established by lower courts. Consequently, these arguments can not be grounds for the cancellation of the judgments on appeal. At the same time, Zavyalova considered that the applicant's arguments on the episode with the "daughters" indeed deserved certain attention.

The company, in particular, pointed out that paragraph 2 of Art. 116 of the Tax Code established liability for doing business without registration with the tax authority. Thus, the objective side of this offense is only "the conduct of activities of an entity without registration with the tax authority, when the duty to carry out such actions is imposed on the taxpayer by the Tax Code," the complainant underlines in his complaint. As it follows from the case materials, the firm was held laible for failing to register two separate units with the tax authorities. However, according to paragraph 4 of Art. 83 of the Tax Code, registration of en entity at the location of its separate subdivision is carried out by the tax authorities on the basis of a communication from this entity. A Art. 126 of the Tax Code establishes the liability of a taxpayer who did not submit documents and (or) other information provided by the code to the tax authorities on time. These provisions of the Tax Code, in the opinion of the company, make it possible to conclude that there is no violation in terms of failure to inform tax officers of the activities of detached units as stipulated in Article 116 of the Tax Code.

The economical chamber, following the results of the hearing held on June 21, has reversed the decisions of lower courts regarding the involvement of Tyndatransmost in this article of the Tax Code. The company's requirements in this part were satisfied so as to hold invalid the decision of the Tax Inspectorate regarding the fine of 7.7 million rubles.

What lawyers say

"The objective side of paragraph 2 of Article 116 of the Tax Code is limited to activities without tax registration of the taxpayer itself," emphasizes Dmitry Kirillov of A-PRO Law Firm (former Advocate Pro). "In this case, the activities of a registered taxpayer through an unregistered separate subdivision Is excluded from the structure of paragraph 2 of article 116 of the Tax Code and is considered only as a non-reporting of this unit. The responsibility for such an offense is established by paragraph 1 of article 126 of the Tax Code providing for a much milder sanction. " This approach corresponds to the logic of paragraph 4 of Art. 83 and Art. 23 of the Tax Code, which, in the number of the taxpayer's duties, divides its tax registration (section 2 of paragraph 1 of Article 23 of the Tax Code) and obligation to notify a tax authority on all of its separate subdivisions (sub-item 3 of clause 2 of Article 23 of the Tax Code), Kirillov adds.

According to Julia Andreeva, attorney and head of projects at S&K Vertical, there are two main points in this dispute. The first is the notion of stationarity of the workplace and whether the work is performed by the shift method for the purposes of the concept of a "separate subdivision" within the meaning of Art. 11 of the Tax Code. The second point is that the violation, referred to by the company itself (paragraph 1 of Article 126 of the Tax Code), that is, the failure to provide information and/or documents by a taxpayer, which does not exclude the prosecution under paragraph 2 of Article 116 of the Tax Code for the conduct of activities by the organization without registration in the tax authority, Andreeva said. In addition, it is obvious that the company does not dispute the very fact of doing business, she adds.

Taxpayer's liability under paragraph 2 of Art. 116 of the Tax Code for non-registration of the entity at the location of its separate units is not a proper sanction in this case, said the head of the Krasnodar branch of Khrenov & Partners Stanislav Vivchar. "The legal logic of liability under paragraph 2 of Article 116 of the Tax Code is related to those situations when an entity does not sign up in order to conceal the results of its commercial activities from the tax authority and, as a consequence, revenues subject to taxation," the expert explains. But this entity was registered at its own location and provided the necessary reporting for the purpose of tax controls, calculated and paid income tax. "

To apply this or that measure of tax liability it is necessary to take into account the nature of the violation itself and the unfavorable consequences for the budget, Vivchar adds. In this case, the non-registration at the place of separate subdivisions resulted only in the incorrect distribution of the amount of the profit tax that falls to the share of the budget of the region of the Russian Federation: the amount of the profit tax was calculated and paid to the budget of the region in whose territory the entity itself was registered, At a time when part of the profit tax was to be paid to the budgets of those regions on whose territory separate units are located in the manner provided for in Art. 288 of the Tax Code (based on the share of profits attributable to these separate units). "In this situation, if you hold the taxpayer liable under paragraph 2 of Article 116 of the Tax Code, then only in the part of the revenues attributable to the relevant separate units not registered, and not the entire income of the taxpayer for 2013, as the tax authority did ", - the lawyer believes.

By Elena Kitova

Пресненская набережная, 6 строение 2 123112 Москва
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