The role of expertise in tax offences
The legislation allows the employees of the Federal Tax Service of Russia to engage specialists and experts in case of need during tax audits. Expert examination, as well as in other branches of law, is appointed when special knowledge in any field is required to answer these or those questions. At the same time, it is a separate event of tax control, which has a number of features due to the nuances of tax legal relations.
In practice of carrying out of tax checks the expert conclusions are one of the basic proofs of commission of offence.
The most common types of expert examinations are: technical (for example, establishment of the document's statute of limitations), financial and economic (determination of the value of goods), construction and technical (examination of construction and installation works), computer (examination of information on electronic carriers) and forensic (handwriting or author's studies).
It should be taken into account that the Federal Tax Service, when appointing the expertise, gives preference to its types, the results of which will make it possible to establish the presence of violations of the legislation on taxes in large and especially large amounts. At the same time, the expertise may not be carried out "in the sphere" of accounting or law - at least, on issues that fall within the competence of the inspection staff. In other words, an expert cannot give answers to questions that the tax authority is obliged to solve.
Especially, additional and repeated expert examinations can be highlighted. In the first case, an expert examination is conducted if the issued opinion is not clear enough or incomplete. The same or another expert can carry out an additional expert examination. A repeated expert examination shall be assigned if there are doubts as to the accuracy of the conclusion and conducted by another expert. One more expert examination may be required, including the person under audit, as the legislation does not define the subject to be evaluated.
The procedure for appointment and conduct of an expert examination by tax authorities is regulated by Article 95 of the Tax Code. During a tax audit, it is appointed by resolution of an inspection official. The same person shall conduct an expert search. A civil law agreement on provision of services shall be concluded with the selected expert. First, the expert's consent to conduct the research shall be obtained, and then a resolution shall be issued in which the expert shall participate. The presence of the two mentioned documents is mandatory.
The resolution specifies both the grounds for conducting the expert examination and questions to the expert, his name and the name of the organization in which the study will be conducted. In addition, the document shall contain information on all materials submitted for research. At the same time, the expert may familiarize himself/herself with other materials of the expert examination and require additional information. If, as a result, the information turns out to be insufficient, the expert has the right to refuse to conduct the expert examination.
One of the fundamental rights of the taxpayer, which is at the same time an obligation of the official of the inspection, is to familiarize himself with the decree on the appointment of the expert examination. A protocol is drawn up about it, which confirms the explanation of all his rights to the inspected person. Thus, the taxpayer may challenge the expert, ask for the appointment of a specific person or person from the list proposed by him/her, submit additional questions. He may also, with the permission of an official, be present during the examination and give explanations.
After the expert opinion is issued, the taxpayer is obliged to familiarize himself with it, and he has the right to raise objections, ask additional questions or request to conduct additional or repeated expert examinations. In practice, officials often violate the order and procedure of the expertise, which is confirmed by court practice (in particular, the decisions of the AC Volgo-Vyatka District of December 28, 2018 in case № A82-2942/2018, AC Moscow District of December 28, 2017 in case № A40-5888/2017, the Seventeenth Arbitration Court of Appeal of September 5, 2017 in case № A50P-100/2017, the decision of the AC Tula region of July 13, 2018 in case № A68-5026/2016).
The said court practice shows that the courts pay special attention to the circumstances and the procedure for carrying out an expert examination as evidence of significant importance for the consideration of the case in court in conjunction with other evidence, and in case of violation of the procedure for carrying out an expert examination, the courts recognize the decisions of tax authorities as invalid. Therefore, the taxpayer should respond to such violations at the stage of tax control measures in a timely manner so that the court had sufficient grounds for the appointment of a second forensic examination.
The procedure and procedure for appointment of a forensic expert examination is regulated by Article 82 of the Russian Federation Code of Criminal Procedure. As a rule, the need to conduct such an expert examination arises in the case of violation of the rights of the taxpayer - most often this is a violation of the obligation to familiarize the taxpayer with the protocol of the expert examination, ignoring the questions of the inspected person, transfer to the expert a partial package of documents.
In such a situation, the taxpayer must first of all provide irrefutable evidence of the violations committed by the tax authority in order to substantiate the necessity of the expert examination. It is also important to observe the order of application of the respective application (preferably, in writing, so that the grounds for conducting the research are clearly reflected in the application). The court makes a decision on the appointment of the expert examination. At the same time, it should be taken into account that the arbitration and procedural law does not include the definition of the appointment of expertise to the acts that can be appealed against separately from the final court act.
The practice of conducting expert examinations in disputes with tax authorities should be studied both in the framework of tax control measures and in the course of court proceedings. This allows for an objective assessment of the prospects of court consideration of applications for the appointment of expert examinations, as well as to forecast the result of the proceedings. It should be taken into account that sometimes the result of the expert examination may be critical to the final decision of the court.
Thus, in cases № A76-25409/2015 and № A53-23697/2016 the forensic examination of construction and installation works was conducted, as a result of which the expert opinion of the tax authority was rejected and the requirements of the taxpayer satisfied.
In case No. A45-4268/2016, a forensic technical expertise was assigned to determine types of technical facilities. The court of first instance satisfied the taxpayer's demands. The cassation, in its turn, found the approach of the court of first instance unfounded, pointing out on the basis of the review of the tax authority on the errors of the expert opinion, and sent the case for a new consideration, at the end of which the requirements of the taxpayer were also satisfied. At present, the case is on appeal. The above examples demonstrate the observance of the principle of legality and equality of the parties in resolving court disputes, which indicates their importance in law enforcement practice.
In conclusion, I will give a number of recommendations for lawyers, representing the interests of the clients in disputes with tax authorities, which will allow to react quickly to the violations of the latter during the examination in the course of tax audits:
- the application for carrying out of the examination in the court of first instance (it should be prepared in advance, choosing the type of the required examination);
- preliminary preparation of the review of the expertise appointed in the course of the audit (it will allow to react quickly to the moments that may negatively affect the course of the case);
- selecting an expert institution that has the practice of conducting research in the region of the court case, the expert opinions of which have positive results for the outcome of the case;
- correct questioning for the expert and providing him/her with all necessary documentation - be sure to participate in the expert examination by sending questions and explanations to the expert.
The above recommendations, in my opinion, will help to minimize the risks of taxpayers associated with the conduct of an expert examination, and direct the course of the case in the right direction. The main thing is that you should not underestimate the importance of the results of research conducted in the framework of tax audits and court proceedings.
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