Retail

An on-site tax audit was carried out with respect to the Client, based on the results of which the tax authority imputed to the taxpayer a fictitious document flow with three suppliers, which provided the client with advertising services on TV channels (RBC-TV, Channel 8, Good Cinema, World Business Channel) and radio stations (Radio Energiya MO 103.5 FM, Europa Plus MO 90.5 FM, Avtoradio MO, Humor FM, Megapolis FM, Retro FM, Nashe Radio, BEST FM, Kommersant FM). The project was complicated by the fact that the analysis showed no direct money transfers from the Client to the TV channels and radio stations. In order to prove advertising costs, auditing expertise was carried out to determine actual tax liabilities of advertising services purchased by the company directly from TV channels and radio stations on the basis of primary documents (broadcasting statements), taking into account terms of contractual relations with disputable counterparties.

Tax Compliance lawyers appealed against the act of tax audit and prepared the legal position. As the result the company managed to decrease additional tax charges based on the results of field tax audit by 80%. As part of appeal against the results of the audit, mechanisms of tax reconstruction were applied to reduce the amount of tax arrears, taking into account the actual expenses of the company. This approach may be used when declaring expenses of oil companies.

Mikhail Begunov

FMCG

Investigative authorities have initiated criminal proceedings against managers of an organization on the grounds of committing a crime under part 2 of Art. 199 of the Criminal Code of the Russian Federation. Our lawyers have analyzed the resolution on institution of criminal proceedings and came to the conclusion that it may be cancelled on the following grounds: First reason for cancellation - in the framework of the preliminary investigation the Client's officials, who managed the company during the tax audit, were not interrogated, the role of each of them is not defined, that does not allow to make a conclusion on the presence of the actions of a specific person of the elements of the crime, provided by Art. 199 part 2 of the Criminal Code. 2 OF THE CRIMINAL CODE. The second reason for cancellation - the decision of the tax authority to prosecute for a tax offense suspended by the arbitration court before making a decision on the court case on the Company's application to recognize the decision of the tax authority invalid and, in addition, by the time of institution of criminal proceedings established by Article 32 § 3 of the Tax Code has not expired, and, respectively, the materials of the tax authorities were sent to investigative authorities in violation of the law.

CU attorneys were able to prove the illegality of the initiation of criminal proceedings, the prosecutor's office considered the complaint and issued a resolution to cancel the investigator's resolution to initiate a criminal case. The initiation of criminal proceedings against the Client under Art. 199 of the Criminal Code was cancelled by the prosecutor's office.

Mikhail Begunov, Alexander Dmitriev

FMCG

The client, with the support of Tax Compliance, applied to court for suspension of the tax authority's decision based on the results of an on-site tax audit. Enforcement of that decision could have caused considerable damage to the company and paralyzed its activity, taking into consideration the substantial amount of tax charges that could have been critical for the client's business.

We managed to work out a convincing legal position, based on which the court took interim measures. Representatives of the tax authority appealed the interim measures, but thanks to the efforts of our lawyers the court ruling was upheld, despite the fact that according to statistics less than 37% of applications for interim measures are satisfied by the courts.

Mikhail Begunov, Denis Kozhevnikov

Manufacturing companies

The tax authorities charged the Client with additional VAT and income tax. As the result, tax authorities assumed the existence of fictitious supplies of goods to four counterparties. In two episodes, mechanisms were applied to calculate the tax reconstruction within the framework of Art. 54.1 of the Tax Code (the interaction with the technical participants of the transaction solely for the purpose of reducing the tax liabilities). The lawyers contested the results of on-site tax audit in the pretrial order at the stage of filing objections to the act of the audit, as well as addendums to the act. The lawyers performed a comprehensive analysis of the Client's business, estimated the average market value of the goods purchased from the disputed counterparties, confirmed the reality of the counterparties' business operations by analyzing supply contracts, interviewing counterparties' employees, and analyzing bills of lading for the delivery of goods.

As the result of tax audit and additional control measures provided by the lawyers, the Client managed to avoid large additional charges from unfair counterparties. According to results of pre-trial legal defense, the lawyers managed to dispute 85% of additional tax charges of total amount of tax claim and thus saved a considerable amount of circulating assets for the Client.

Mikhail Begunov, Yulia Pavlova

Manufacturing companies

At the stage of pre-trial appeal of the tax authorities' decision, the law enforcement officers included in the audit, without waiting for the completion of the tax audit, forwarded the collected materials to the investigating authorities for initiation of a criminal case under part 2 article 199 of the Criminal Code. The criminal case was brought against the CEO and an unidentified group of people from the company's management. The amount of damage, according to the tax and investigative authorities amounted to more than 500 million rubles.

In accordance with the correctly built strategy of defense in the investigation of the criminal case and as a result of additional measures of tax control, lawyers and employees of Tac Compliance provided documents on "tax reconstruction", disclosed the real tax liabilities, as well as conducted an examination of the costs of transporting goods, which allowed to reduce the damages to 80 million rubles and termination of the criminal case on the fact of absence of corpus delicti in connection with the payment of arrears.

Mikhail Begunov, Alexander Dmitriev, Yulia Pavlova

Manufacturing companies

The Client was under the threat of a field tax audit and additional tax assessments if the company did not voluntarily file revised excise tax returns and did not pay the tax and penalties. The lawyers evaluated the materials of the tax authorities, available judicial practice, and clarifications of the Ministry of Finance and the Federal Tax Service. As the result our lawyers reasoned to the Client that voluntary tax payment is more efficient for the Client than an on-site tax audit and further litigation in courts; in addition, the amount of taxes to be paid voluntarily will be considerably smaller. Tax Compliance attorneys developed a legal position to substantiate the expediency of independent calculation of tax liabilities of the Client on excise duty and its voluntary payment to the budget, in connection with the changes in the approach of the Russian Federal Tax Service to charging excise duty when mixing petroleum products, as well as the current negative court practice on the subject.

The client has prepared a refined tax return and completed the tax calculations. We managed to avoid penalties and fines of over 190 million rubles.

Mikhail Begunov

Information technology

Additional tax control measures were taken. Evidence of the absence of interdependence with suppliers of equipment was presented. The price of the purchased equipment is indicated to be corresponding to the market level. All established violations concerned beneficiaries-importers of the supplied products, rather than the taxpayer.

Claims of the tax authority were disputed. A positive practice was formed on additional payments to companies that supply imported equipment through a chain of suppliers

Mikhail Begunov, Alexander Dmitriev

Retail

The Client petitioned the court to suspend the tax authorities' decision based on the results of an on-site tax audit according to which the tax authorities had charged substantial amounts of additional tax and VAT as well as penalties and fines totaling over 3 billion rubles. Most of the claims were related to expenses for logistics services because the tax authority suspected that they were of a fictitious nature. The lawyers worked out a legal position on the expediency of suspension of the tax authority's decision. As part of the litigation we provided documents confirming the movement of goods from the Client's suppliers to the end buyer with the participation of logistics companies, as well as with the help of experts, confirmed the market value of services. Cash write-offs from company accounts were converted, allowing the Client to continue business operations and avoid significant financial losses.

Thanks to position developed by lawyers and provided evidence, the court took interim measures and actually suspended the tax authorities' decision. An important precedent was created and positive arbitration practice on cancellation of tax authorities' decisions was formed. Judicial practice has developed an approach according to which a taxpayer should not be held liable for the actions of third parties. According to independent experts, the case may be of importance for the practice of application of Article 54.1 of the Tax Code (interaction with technical participants in transactions solely for the purpose of reducing tax liabilities) in general and, in particular, for large taxpayers who make extensive use of the services of third-party transportation and logistics companies, such as in the FMCG industry.

Mikhail Begunov, Denis Kozhevnikov

Pharmaceuticals

According to the results of the second field tax audit in connection with the violation of the rules of Art. 54.1 of the Tax Code, the company was charged a significant amount of additional taxes and penalties in terms of transactions for the supply of raw materials concluded with several counterparties. During the trial, the court was presented with evidence of the uniqueness of the raw materials purchased from the disputed counterparties and their actual use in production, the circumstances of the conclusion and execution of transactions by the disputed counterparties, as well as the availability of material and labor resources in sufficient volume.

The legal position developed by our experts allowed the court of first instance to appeal against the additional charges for several counterparties totaling 117 million rubles.

Mikhail Begunov

Retail

Price adjustment would have entailed an additional charge of income tax on the formed tax base based on the market prices of the transaction. The project developed a legal position indicating that the formed pricing corresponds to the market level, because the calculation of the cost of the taxpayer's goods contains production costs, economically justified in terms of the type of activity.

As a result of the successful legal defense, additional tax assessments in the amount of 280 million ₽ were avoided.

Mikhail Begunov

Information technology

The client appealed to the arbitration court with a claim to the tax authority to invalidate the decision made on the basis of the field tax audit. The basis for the accrual of additional taxes, penalties and fines served as the basis for the conclusions of the tax authority that the Client received a tax benefit in the relationship with several counterparties, which, as telecommunications operators, could not provide services for traffic transit in connection with the fact that they had signs of organizations that do not perform real financial and economic activities. A particular difficulty in proving the case lies in the fact that the "traffic service" is not tangible and can not be visualized, so it was very difficult to collect evidence of the reality of transmitting traffic. As the result of legal efforts and well-designed defense strategy the court of the first instance partially rendered a judgment in favor of the Client. In this case the court saw an opportunity to interpret the concept of "due diligence" in favor of telecom companies. This approach (if supported by higher courts) can be used by other recipients of similar services (in particular, telecommunications companies), both at the stage of selecting counterparties, and when defending against claims of tax authorities.

Tax Compliance team managed to defend around 50% of additional tax charges (in terms of corporate income tax, the client's claims were recognized as legitimate). This dispute is unique and constitutes positive arbitration practice for the entire telecommunications industry.

Mikhail Begunov, Denis Kozhevnikov, Andrey Solomyany

Construction

The task was complicated by the fact that - the volume of money transfers from the Company to "technical" organizations was 70% and higher; - Access to bank accounts and the electronic document management system with the fiscal authorities was carried out from the same device at the same time interval; - overlap of key employees; - coordination of business activities of "technical" organizations was performed by the Company; - the Company had direct relations with the actual suppliers and contractors before the inclusion of "technical" organizations in the chain of suppliers and contractors; - part of funds sent by the Company to the accounts of "technical" organizations was subsequently transferred by them to the accounts of actual suppliers and contractors.

Our lawyers have achieved the application of tax reconstruction according to the letter № БВ-4-7/3060@ of 10.03.2021 issued by the Federal Tax Service of Russia, thanks to which the Inspectorate has taken into account the real amount of expenses, attributable to the services of actual contractors and suppliers. Also, to confirm the reality of the expenses we have prepared and submitted a package of documents. Actions of Tax Compliance lawyers helped to reduce the amount of tax claims by half and formed the practice of tax reconstruction.

Mikhail Begunov, Yulia Pavlova

Manufacturing companies

In the opinion of the tax authority, the organization violated the term for receiving (returning) the deposit by a resident of foreign currency in accordance with the terms of the loan agreement issued by the taxpayer to the foreign company

As a result, all claims of the tax authority with regard to violation of terms for receiving foreign currency by a resident in accordance with the terms of the loan agreement were successfully challenged in courts of 3 instances, as the tax authority did not take into account the submitted additional agreements to the loan agreement with the foreign company.

Mikhail Begunov, Andrey Solomyany

Information technology

Analysis of individual business transactions for their compliance with the conditions for the application of VAT exemption and accounting for the purpose of 90% threshold of income from IT-activities was carried out.

Based on the results of the analysis, Tax Compliance team has come to the conclusion that the business operations of the client comply with the conditions stipulated by Articles 149 and 284 of the Tax Code of the Russian Federation; recommendations on the improvement of the internal document flow in the company have been prepared as well. As a result, the client decided to start applying the tax benefits provided for by the IT maneuver.

Mikhail Begunov, Nikita Zharov

Manufacturing companies

The tax audit was carried out in respect of the Client; as a result of it the tax authority decided to assess additional VAT and profit tax on the relations with the controllable transit counterparty created for the purpose of artificial document flow in order to withdraw money for uncontrolled turnover through the one-day companies. The lawyers contested the decision of the tax authorities, worked out a legal position that allowed calculating and documenting the Client's actual expenses related to the purchase of goods, and successfully initiated an independent expert evaluation of the market value of transportation expenses included in the surcharge on goods from the transit counterparty.

The amount of charges was reduced by 520 million rubles, or 85% of tax claims. Lawyers formed the law enforcement practice under Article 54.1 of the Tax Code of the Russian Federation in terms of real tax liabilities ("reconstruction of VAT and income tax").

Mikhail Begunov, Yulia Pavlova

Information technology

The tax authority appointed a field audit after the company's reorganization started, although the field audit partially covers the periods of previous audits. An appeal was lodged to a higher tax authority. The field tax audit was reversed.

We cancelled the results of the field tax audit for the previously inspected period. There is a positive practice of pre-trial appeal against the decision of tax authorities to appoint an on-site tax audit for the same tax period in case of its appointment in connection with the reorganization or liquidation of the company under Article 89 of the Tax Code.

Mikhail Begunov

Manufacturing companies

As a result of in-house tax audit, the tax authorities denied the client's claim for a VAT deduction of 27 million rubles. The tax authorities had established the facts of unscrupulousness of one of the client's counterparties: counterparty's failure to pay VAT, lack of business reputation, lack of human resources (the risk of lack of actual performance of obligations under the contract); presence of "straightforward gaps" in VAT and, consequently, no deduction of VAT. The lawyers prepared a set of documents with clarification of the tax authority's request concerning the validity of VAT deductions made by the client and confirming the fact of the counterparties' performance of the works declared in the revised tax return. As a result, the Tax Compliance team managed to confirm the facts of cooperation with the counterparties stated in the previous declarations and the circumstances of submission of the clarified declarations. The lawyers created a positive practice, confirming the lawfulness of submitting a revised VAT return with corrected information on the suppliers and claiming VAT deductions outside the 3-year period, if the revised declaration shows the deductions that were previously declared in the declaration filed within this period.

As a result of Tax Compliance lawyers' work, the tax authorities decided not to bring the Client to tax responsibility. The client's objections were accepted and the VAT deduction for the audited period in the amount of 27 million rubles was found justified. The lawyers managed to save the Client's current assets.

Mikhail Begunov, Yulia Pavlova

FMCG

The lawyers proved at the pre-trial stage of the dispute with the tax authorities that the intermediary companies had indeed been operating: they presented documentary evidence that the counterparties could perform their delivery obligations and had sufficient material and human resources, confirmed the flow and transportation scheme, and collected explanations from the counterparties' employees. The lawyers contested the conclusions of the tax authorities that there was intent in the actions of the client in purchasing products from intermediaries solely for the purpose of obtaining illegal tax savings. This case resulted in additional positive pre-trial practice of challenging the decisions of the tax authorities that did not contain the scheme of withdrawal of funds for the benefit of the inspected company by minimizing the tax burden.

Lawyers successfully challenged act of tax audit and reduced tax payments by 10 times.

Mikhail Begunov, Yulia Pavlova

Construction

Based on the results of a tax audit, the tax authorities brought the taxpayer to liability provided for in Paragraph 3, Article 122 of the RF Tax Code ("willful" failure to pay taxes / 40% fine). Tax Compliance team helped the client develop a legal position according to which the tax authority had no grounds for qualification of the taxpayer's actions as "intentional".

The higher tax authority accepted the arguments of the taxpayer. In particular, the qualification of the tax offense was changed and additional mitigating circumstances were taken into account. As a result, the penalties were reduced by 87%. The economic effect for the client was 7.5 million ₽.

Mikhail Begunov, Nikita Zharov

Information technology

In the course of tax audit of problematic counterparties, real tax risks in terms of relationships with suppliers were established, which amounted to 15 million ₽. In the other part of the requirements of the tax authority were not proved: the organization provided the primary documents with the substantiation of the reality of supplies, as well as the documents on full reflection by the suppliers of the amounts of proceeds from sales in VAT declarations, and their contact information.

As a result of a successful tax audit, the organization independently adjusted the tax base for VAT and paid 15 million ₽ on their own. This allowed avoiding field tax audits and additional penalties.

Mikhail Begunov, Alexander Dmitriev

Pharmaceuticals

At the stage of objections and additional activities it was proved that it is necessary to measure quantitative indicators at the beginning and at the end of the production process. The tax authority has been provided with calculations on writing-off materials purchased from contested counterparties and information on raw material remainders.

Claims of the tax authority for income tax were partially withdrawn. The taxpayer's objections were partially satisfied in the amount of 343 million ₽. Positive practice of pre-trial appeal against acts of tax authorities in relation to manufacturers of medicines was formed taking into consideration the specifics of the industry.

Mikhail Begunov

FMCG

With the help of additional tax control measures, the reality of subcontractors' activities was proved. The absence of intent in the actions of the client and lack of affiliation with suppliers, which partially confirmed the disputed shipments, was proved.

Claims of the tax authority for the field inspection report were appealed and partially withdrawn. Positive pre-trial appeal against the acts of tax authorities in favor of taxpayers under 54.1 of the Tax Code was formed.

Mikhail Begunov, Alexander Dmitriev

FMCG

Within support of the procedure of transfer to tax monitoring the client was rendered services on preparation of documents according to the requirements of the Federal Tax Service Russian FTS. In particular, it was actualized and brought in compliance with the effective tax legislation, the accounting policy for tax accounting purposes, documents regulating the company's internal control system were prepared of the company, and prepared tables and data on coordinators of of subdivisions and levels of control within the company.

Successful work on the analysis and preparation of documents required for the transition to tax monitoring, as well as interaction with the tax authority to address procedural issues in connecting to the tax monitoring system, allowed the client to take advantage of the transition to this mode of tax control and reduce the risk of additional additional tax assessments.

Mikhail Begunov, Yulia Pavlova