Company that wrongly received tax benefits such as the deduction of VAT cannot expect to recount all its taxes – the letter with such explanations, the Ministry of Finance sent to FNS. “Vedomosti” familiar with its copy, the authenticity was confirmed by the representative of the Ministry of Finance. Informed about the letter, RBC reported.
Signs of unfair business conduct was enshrined in article 54.1 of the Tax code in 2017, the Company cannot claim the tax reduction if acted in bad faith, even if the transaction had an economic purpose and it really took place, the Finance Ministry says.
Before the tax authorities and judges focused on the grounds of unreasonableness of the benefits described by the Plenum of the Supreme arbitration court (YOU) in 2006, Courts are required to carry out the reconstruction tax liabilities – for example, the inspector might refuse the deduction of VAT, but reduce the income tax for the costs incurred, says partner Taxology Alexey Artyukh. In the resolution of the Plenum, it was stated that the court should proceed from the real economic substance of operations, says the head of analytical service “Pepelyaev of groups” Vadim Zaripov: if the transaction is a sham, first on must specify what transaction it covers, i.e., to reclassify it and re-determine the tax liabilities.
Article 54.1 does not provide for “consideration of costs when calculating the tax on profit” companies that have abused the rights and establishes the same for all tax regulation, the Finance Ministry says. FNS representative declined to comment. With the advent of article 54.1 of the FTS was to tell the inspectors that they did not donachislenie taxes solely on formal grounds, for example because of an error in the invoice, says the Federal official, but the reconstruction business can count on. The inspector stopped picking on small formal grounds in the early 2010s recalls General practice formed on the basis of resolution of the Plenum, article 54.1 technically, nothing has changed.
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the Approach of the Ministry of Finance is wrong, it leads to the payment of taxes, even the portion of the transaction, which was carried out correctly, says senior lawyer at Taxadvisor Victor Andreev. Without reconstruction may experience double taxation – the seller is assessed additional VAT and the buyer cannot put the amount to be deducted, says Zaripov. The Tax code really there is no requirement to carry out reconstruction, but it was used when applying the resolution of the Plenum and article 54.1 this approach does not negate, I’m sure Andreev.
the Practice is in favor of the tax. They won 70 out of 80 cases of optimization since the advent of article 54.1, said the Deputy head FNS Daniel Egorov. Attorneys could recall only one case where the courts agreed to the reconstruction according to the article 54.1, a case of “Kuzbasskonservmoloko” (his representative did not respond to a request during the weekend). The inspector did not deny that the company has incurred expenses, but refused to take them into account, considering that the transaction was for tax evasion. The company carried out the reconstruction and justify the cost 56 million rubles, the court agreed with her and decided to lower the base income tax on that amount. The dispute will reach the Supreme court, says Andreyev, and if he refuses to hear the case, the reference point may be the letter of the Ministry of Finance.