9. The court’s determination of the presence of reasonable economic or other reasons (business purpose) in the taxpayer’s actions is carried out taking into account the assessment of circumstances indicating his intentions to obtain an economic effect as a result of real business or other economic activity.
Courts must take into account that a tax benefit cannot be considered as a business purpose in its own right. Therefore, if the court establishes that the main goal pursued by the taxpayer was to obtain income solely or primarily through tax benefits in the absence of an intention to carry out real economic activity, recognition of the validity of its receipt may be refused.
The validity of obtaining a tax benefit cannot be made dependent on the methods of attracting capital to carry out economic activities (use of own, borrowed funds, issue of securities, increase in authorized capital, etc.) or on the efficiency of use of capital.
10. The fact that a taxpayer’s counterparty violates its tax obligations does not in itself constitute evidence that the taxpayer received an unjustified tax benefit. A tax benefit may be recognized as unjustified if the tax authority proves that the taxpayer acted without due diligence and caution and he should have been aware of violations committed by the counterparty, in particular, due to the relationship of interdependence or affiliation of the taxpayer with the counterparty.
PLENAUM OF THE HIGH ARBITRATION COURT OF THE RUSSIAN FEDERATION
ON THE ASSESSMENT BY ARBITRATION COURTS OF THE VALIDITY OF RECEIPT
TAXPAYER'S TAX BENEFITS
In order to ensure uniformity of judicial practice when arbitration courts evaluate evidence of the validity of the emergence of a tax benefit for a taxpayer, the Plenum of the Supreme Arbitration Court of the Russian Federation, on the basis of Article 13 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation,” decides to provide the following clarifications.
1. Judicial practice in resolving tax disputes is based on the presumption of good faith of taxpayers and other participants in legal relations in the economic sphere. In this regard, it is assumed that the actions of the taxpayer, resulting in the receipt of tax benefits, are economically justified, and the information contained in the tax return and financial statements is reliable.
For the purposes of this Resolution, a tax benefit is understood as a reduction in the amount of tax liability due, in particular, to a reduction in the tax base, receipt of a tax deduction, tax benefit, application of a lower tax rate, as well as obtaining the right to a refund (offset) or reimbursement of tax from the budget.
Submission by the taxpayer to the tax authority of all properly executed documents provided for by the legislation on taxes and fees in order to obtain a tax benefit is the basis for receiving it, unless the tax authority proves that the information contained in these documents is incomplete, unreliable and (or) contradictory.
2. In accordance with Part 1 of Article 65 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. The burden of proving the circumstances that served as the basis for the adoption by the tax authority of the contested act rests with that authority.
In this regard, when considering a tax dispute in an arbitration court, the tax authority may present to the court evidence of an unjustified tax benefit for the taxpayer. This evidence, like the evidence presented by the taxpayer, is subject to examination in a court hearing in accordance with the requirements of Article 162 of the Arbitration Procedure Code of the Russian Federation and assessment by the arbitration court in its entirety and interrelation, taking into account the provisions of Article 71 of the Arbitration Procedure Code of the Russian Federation.
3. A tax benefit may be considered unjustified, in particular, in cases where, for tax purposes, transactions are taken into account not in accordance with their actual economic meaning or transactions are taken into account that are not due to reasonable economic or other reasons (business purposes).
4. A tax benefit cannot be recognized as justified if it was received by the taxpayer outside of connection with the implementation of real business or other economic activity.
It should be taken into account that the possibility of achieving the same economic result with a smaller tax benefit received by the taxpayer by performing other transactions provided for or not prohibited by law is not a basis for recognizing the tax benefit as unjustified.
5. The unfoundedness of a tax benefit may also be evidenced by evidence-based arguments of the tax authority regarding the existence of the following circumstances:
The impossibility of the taxpayer actually carrying out the specified operations, taking into account the time, location of the property or the volume of material resources economically necessary for the production of goods, performance of work or provision of services;
Lack of necessary conditions to achieve the results of the relevant economic activity due to the lack of managerial or technical personnel, fixed assets, production assets, warehouses, Vehicle;
Accounting for tax purposes only those business transactions that are directly related to the emergence of a tax benefit, if this type of activity also requires the completion and accounting of other business transactions;
Carrying out transactions with goods that were not produced or could not be produced in the amount indicated by the taxpayer in the accounting documents.
If there are special forms of payment and payment terms that indicate group coordination of transactions, the court needs to examine whether they are due to reasonable economic or other reasons (business purposes).
6. Courts must keep in mind that the following circumstances in themselves cannot serve as a basis for deeming a tax benefit unjustified:
Creation of an organization shortly before a business transaction;
Interdependence of parties to transactions;
The irregular nature of business operations;
Violation of tax laws in the past;
One-time nature of the operation;
Carrying out the transaction at a location other than the taxpayer’s location;
Carrying out settlements using one bank;
Making transit payments between participants in interrelated business transactions;
The use of intermediaries in carrying out business transactions.
However, these circumstances, taken together and in conjunction with other circumstances, in particular those specified in paragraph 5 of this Resolution, may be recognized as circumstances indicating that the taxpayer has received an unjustified tax benefit.
7. If the court, based on an assessment of the evidence presented by the tax authority and the taxpayer, comes to the conclusion that the taxpayer for tax purposes took into account transactions not in accordance with their actual economic meaning, the court determines the scope of the rights and obligations of the taxpayer based on the true economic content of the relevant transaction .
8. When changing the legal qualification of civil transactions (clause 1 of Article 45 of the Tax Code of the Russian Federation), courts should take into account that transactions that do not comply with the law or other legal acts (Article 168 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)) are imaginary and sham transactions (Article 170 of the Civil Code of the Russian Federation) are invalid regardless of whether they are recognized as such by the court by virtue of the provisions of Article 166 of the Civil Code of the Russian Federation.
9. The court’s determination of the presence of reasonable economic or other reasons (business purpose) in the taxpayer’s actions is carried out taking into account the assessment of circumstances indicating his intentions to obtain an economic effect as a result of real business or other economic activity.
Courts must take into account that a tax benefit cannot be considered as a business purpose in its own right. Therefore, if the court establishes that the main goal pursued by the taxpayer was to obtain income solely or primarily through tax benefits in the absence of an intention to carry out real economic activity, recognition of the validity of its receipt may be refused.
The validity of obtaining a tax benefit cannot be made dependent on the methods of attracting capital to carry out economic activities (use of own, borrowed funds, issue of securities, increase in authorized capital, etc.) or on the efficiency of use of capital.
10. The fact that a taxpayer’s counterparty violates its tax obligations does not in itself constitute evidence that the taxpayer received an unjustified tax benefit. A tax benefit may be recognized as unjustified if the tax authority proves that the taxpayer acted without due diligence and caution and he should have been aware of violations committed by the counterparty, in particular, due to the relationship of interdependence or affiliation of the taxpayer with the counterparty.
A tax benefit may also be recognized as unjustified if the tax authority proves that the activities of the taxpayer, its interdependent or affiliated persons are aimed at carrying out transactions related to tax benefits, mainly with counterparties that do not fulfill their tax obligations.
11. The court’s recognition of a tax benefit as unfounded entails a refusal to satisfy the taxpayers’ claims related to its receipt.
At the same time, courts should keep in mind that recognizing a tax benefit as unjustified should not affect other rights of the taxpayer provided for by the legislation on taxes and fees.
Chairman
Supreme Arbitration Court
Russian Federation
A.A.IVANOV
Secretary of the Plenum,
judge of the Supreme Arbitration Court
Russian Federation
A.S. KOZLOVA
S.G. Pepelyaev,
managing partner,
Ph.D. legal sciences,
Law Firm
"Pepelyaev, Goltsblat and partners"
The author expresses gratitude to N..L. Igolkina, V.V. Voinov,
O.R. Mikhailova, R.R. Vakhitov, D.M. Shchekin, A.V. Fedina and V.M. Zaripov
for their comments and suggestions on the draft commentary.
The Resolution of the Supreme Arbitration Court of the Russian Federation orients arbitration courts evaluate the tax authorities' arguments regarding understatement of taxes based on specific legislative provisions. Recognition of a tax benefit as unjustified should not affect other rights of the taxpayer provided for by the legislation on taxes and fees.
Abandoning the concept of the dishonest taxpayer
Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of a taxpayer receiving a tax benefit” was adopted due to the need to adjust judicial and arbitration practice in cases of tax planning and tax evasion.
Tax legislation of the period of formation of new economic relations was sketchy and incomplete. Very quickly it began to lag behind the needs of practice. In particular, regulations did not contain rules that would allow an adequate response to cases of understatement of taxes as a result of a number of illegal actions (tax fraud schemes) or abuse of law (creation of artificial legal structures to minimize taxes). Legal tax planning often became punishable.
Since evasion has acquired significant proportions, and the legislator was in no hurry to propose appropriate ways to prevent and prosecute such phenomena, law enforcement officers began to propose their own methods of response. This is how the concept of an unscrupulous taxpayer emerged and developed. Applied by the Constitutional Court of the Russian Federation solely for the purpose of preventing tax evasion using “problem” banks, it was picked up by tax authorities and arbitration courts and began to be used extremely widely to solve almost any problem of increasing tax collection.
The concept of “unfair taxpayer” has no legislative basis and allows for a broad interpretation based on ethical assessments. Against this background, an extremely varied judicial and arbitration practice arose, when the same actions and situations received opposite assessments, and the concept of “bad faith” was used to justify decisions in the absence of appropriate legal provisions.
As a result constitutional principles legal certainty and equality were often violated, and a crisis of legality developed tax relations. There was growing conviction that it was necessary to refuse to enforce the concept of an unscrupulous taxpayer. In 2005-2006, the Constitutional Court of the Russian Federation stopped referring to this term in support of its positions. In Determination No. 36-O of January 18, 2005, the Constitutional Court of the Russian Federation indicated the inadmissibility of the broad application of this concept.
In 2005, the Administration of the President of the Russian Federation announced a competition to study foreign experience combating tax evasion with a view to further developing a corresponding bill.
As part of the improvement of Part 1 of the Tax Code of the Russian Federation, an amendment was introduced to the State Duma to consolidate the presumption of good faith of the taxpayer and limit the possibility of recognizing a taxpayer as dishonest only in cases of direct violation of the law. A number of higher government officials in articles and interviews they recognized the need to abandon the concept of an unscrupulous taxpayer.
The commented resolution directs arbitration courts to evaluate the tax authorities' arguments about understatement of taxes on the basis of specific legislative provisions, and not subjective moral and ethical concepts, such as the concept of an unscrupulous taxpayer. The bad faith of the taxpayer is excluded as a subject of proof.
The Resolution, although it addresses situations to which the concept of bad faith had previously been applied, proposes different approaches. At the same time, arbitration courts are not given instructions on what decisions should be made in certain cases. The resolution specifies the circumstances that must be assessed when considering disputes about the amount of tax payments and proving elements of violations of the legislation on taxes and fees.
The resolution uses the concept of “unjustified tax benefit”
This concept is general (collective) for all cases when the dispute is about the amount of tax, regardless of which element of the tax was the direct subject of disagreement between the disputing parties.
This concept does not carry any other specific load. When considering specific cases, it is inappropriate to use it in the motivational part of judicial acts, since the court always examines specific situation and must make a conclusion about the legality and validity, for example, of attributing expenses to production costs, deducting VAT paid to the supplier, using benefits, etc.
Otherwise, it is easy to refuse to make court decisions strictly on the basis of legal provisions and, instead of the concept of “unfair taxpayer,” get a worthy replacement in the form of the concept of “taxpayer who unreasonably receives a benefit.”
It should be noted that the resolution is aimed at suppressing cases of receiving unjustified tax benefits. The concept of “tax benefit” itself does not carry any negative content.
The resolution is based on the presumption of good faith of taxpayers and other participants in economic relations
This is a procedural presumption that distributes the burden of proof, including in tax disputes.
In the judicial and arbitration practice of previous years, the concept of “good faith” (“bad faith”) was used not as a procedural presumption, but as a substantive basis for the position of the tax authorities. The commented resolution excludes such use of this concept. In addition to the fact that the burden of proof lies with the tax authority, the subject of proof is the composition of a specific offense, and not the bad faith of the taxpayer.
The tax authority must prove the circumstances that served as the basis for its adoption of the contested act. The resolution specifies what type of circumstances must be proven in connection with claims for the taxpayer to receive a tax benefit (insufficient, contradictory or unreliable information contained in the documents submitted by the taxpayer to the tax authority) (paragraph 3, paragraph 1).
The resolution noted that the basis for receiving a tax benefit is the submission by the taxpayer to the tax authority of all properly executed documents provided for by the legislation on taxes and fees. It is necessary to take into account that the right to include expenses in the cost of production, to apply a benefit that is lower tax rate, to deduct VAT paid to the supplier arises for the taxpayer by force of law, and not by virtue of a decision of the tax authority. The tax authority only controls the legality and validity of the taxpayer’s actions in cases and in the manner established by the Tax Code of the Russian Federation.
Taking this into account, the taxpayer is obliged to submit to the tax authority documents confirming his right to receive tax benefits, and to the extent and to the extent established by law. If the law requires this type of documentation to be submitted with your tax return, the absence of any required document may be considered an incomplete submission.
In most cases, documents are submitted to the tax authority at its own request, issued as part of a particular procedure tax control. In such situations, the scope of the requested documents is determined by the tax authority, guided by legislation and tax control requirements and excluding harm caused by an unreasonable expansion of the range of requested documents. The taxpayer does not have the obligation to “automatically” submit to the tax authority documents that, although confirming the right to receive a tax benefit, are not required by the tax authority in the manner prescribed by law.
Therefore, the mention in paragraph 2 of paragraph 1 of the commented resolution on the submission to the tax authority of “all properly executed documents” should be understood restrictively: we are not talking about all the documents available to the taxpayer that justify his right to receive a tax benefit, but only about those the provision of which to the tax authority is mandatory by virtue of a direct indication of the law or a requirement of the tax authority issued in cases and in the manner prescribed by law.
This understanding completely coincides with the position Constitutional Court of the Russian Federation, expressed in the Determination of July 12, 2006 No. 266-O on the complaint of Food Products Production CJSC: “The obligation to provide such (confirming. - S.P.) documents arises from the taxpayer in accordance with part four of Article 88 of the Tax Code of the Russian Federation only if the tax authority sends a corresponding request. Since the decision to refuse a tax deduction is made based on the results of a desk or on-site tax audit, the tax authority does not have the right to refuse a tax deduction to a taxpayer if the corresponding tax audit has not been carried out by it” (paragraph 4, clause 2.1).
In the Determination of July 12, 2006 No. 267-O on the complaint of Vostoksibelektrosetstroy OJSC, the Constitutional Court of the Russian Federation also indicated: “The powers of the tax authority, provided for in articles 88 and 101 of the Tax Code of the Russian Federation are of a public law nature, which does not allow the tax authority to arbitrarily waive the need to request additional information, explanations and documents confirming the correctness of calculation and timely payment of taxes. When carrying out the function entrusted to it of identifying tax offenses, the tax authority in all cases of doubt about the correctness of payment of taxes and, even more so, detecting signs tax offense is obliged to use the right granted to him to demand from the taxpayer necessary information. Accordingly, the taxpayer has the right to assume that if the tax authority does not contact him for explanations or documents confirming the declared taxes, then the tax authority has no doubts about the correctness of the payment of taxes. Otherwise it would mean a violation of the principle of legal certainty and would lead to the arbitrariness of the tax authorities” (paragraph 1, paragraph 2.2).
Thus, when assessing the tax authority’s arguments that the taxpayer did not submit to the tax authority all the documents necessary to confirm the right to receive a tax benefit, the court must check whether the relevant documents were requested by the tax authority during a desk or field tax audit. If the court finds that the documents were not requested, then the tax authority’s arguments about the incompleteness of the information necessary to obtain a tax benefit should be considered unfounded.
It must be taken into account that Article 88 of the Tax Code of the Russian Federation (as amended by Federal Law of the Russian Federation dated July 27, 2006 No. 137-FZ) limits the powers of tax authorities to claim primary documents during a desk tax audit.
Testing the arguments tax office about the taxpayer’s failure to provide supporting documents, the court must clarify whether these documents were requested from the taxpayer within the powers of the tax authority established by law. Failure to provide documents or refusal to provide documents requested in excess of the powers and procedures established by law cannot be considered a violation of the law and does not serve as the basis for a conclusion that the taxpayer has received a tax benefit without justification.
The court should also check the taxpayer’s arguments that the documents requested but not submitted for verification are not necessary and sufficient for the purposes of tax control. As the Constitutional Court of the Russian Federation indicated in Ruling No. 266-O dated July 12, 2006 on the complaint of Food Products Production CJSC, “the tax authority has the right to demand from the taxpayer documents necessary and sufficient to verify the correct application of tax deductions” (clause 1 of the operative part ).
If the court finds that the legality and validity of the taxpayer’s receipt of a tax benefit is confirmed by the documents presented, then the argument about incomplete information due to the failure to submit other documents containing the same data should be considered unfounded.
The tax authority, stating arguments about the unreliability of the information contained in the taxpayer’s documents, must provide the court with other information that, in its opinion, is reliable
This information must be contained in evidence received by the tax authority within the framework of tax control in the manner and forms established by law.
The Constitutional Court of the Russian Federation indicated in Ruling No. 267-O dated July 12, 2006, on the complaint of Vostoksibelektrosetstroy OJSC, that one of the constitutional guarantees is the right of the taxpayer arising from Article 24 (Part 2) of the Constitution of the Russian Federation to know what he is accused of and to submit objections to accusations. Therefore, when determining the procedural rights of a taxpayer, the legislator cannot deny him the right to know about claims that have arisen from the tax authority, to raise objections to them, to present evidence of illegality or groundlessness. decision taken(paragraph 1, clause 2.4).
Consequently, the court must check whether the evidence presented by the tax authority to the court was transferred to the taxpayer before the tax authority made the contested decision and whether the taxpayer could have raised objections or given explanations or counter-evidence before the tax authority. If the court determines that the evidence was received by the tax authority after the disputed decision was made or before that moment, but was not presented to the taxpayer for review in the prescribed manner, then such evidence should be excluded as obtained in violation of the requirements of the law (Articles 88-100 of the Tax Code of the Russian Federation) .
In this case, one should be guided by part 2 of article 24 of the Constitution of the Russian Federation, according to which state authorities, their officials are obliged to provide everyone with the opportunity to familiarize themselves with documents and materials that directly affect their rights and freedoms, as well as Part 2 of Article 50 of the Constitution of the Russian Federation, which establishes that in the administration of justice it is not allowed to use evidence obtained in violation federal law.
In development of these provisions, Article 64 of the Arbitration Procedure Code of the Russian Federation (Part 1) establishes that evidence in the case is information obtained in the manner prescribed by the Arbitration Procedure Code of the Russian Federation and other federal laws; The use of evidence obtained in violation of federal law is not permitted (Part 3).
In paragraph 1 of paragraph 1 of the resolution it is noted: “it is assumed that the actions of the taxpayer, resulting in the receipt of a tax benefit, are economically justified, and the information contained in the declaration and financial statements is reliable”
The taxpayer is not obliged to prove in court the existence of grounds for receiving a tax benefit, and the court does not have the right to demand appropriate confirmation from the taxpayer, and in fact, to verify the correctness of tax calculation.
However, the taxpayer is obliged and has the right to submit materials to refute the evidence presented by the tax authority in support of the incompleteness, unreliability and (or) contradictory nature of the information contained in the taxpayer’s documents.
In paragraph 2 of paragraph 2 of the commented resolution it is stated that the evidence presented by both the tax authority and the taxpayer is subject to examination in a court hearing in accordance with the requirements of Article 162 of the Arbitration Procedure Code of the Russian Federation and assessment by the arbitration court in its entirety and interrelation, taking into account the provisions of Article 71 of the Arbitration Procedure Code of the Russian Federation.
It should be borne in mind that the taxpayer has the right to present as evidence (and the court is obliged to examine and evaluate) including those documents that were not presented by the taxpayer to the tax authority during a desk or field tax audit or as part of objections to the audit report.
The Constitutional Court of the Russian Federation, in Ruling No. 267-O dated July 12, 2006, on the complaint of Vostoksibelektrosetstroy OJSC, indicated that “in cases where the courts, when considering a case, do not examine the merits of its factual circumstances, but are limited only to establishing the formal conditions for the application of the norm, the right to judicial protection, enshrined in Article 48 (Part 1) of the Constitution of the Russian Federation, turns out to be significantly infringed” (paragraph 1, paragraph 3.2).
The Constitutional Court of the Russian Federation indicated that “the judicial protection of the rights and legitimate interests of taxpayers, guaranteed by Articles 35 and 46 of the Constitution of the Russian Federation, cannot be ensured if the courts, when deciding on the legality of refusing to provide the declared tax deductions, proceed from the mere lack of documents from the tax authority, confirming the correctness of their application, without establishing, researching and assessing all the circumstances that are important for the correct resolution of the case, in particular invoices and other documents confirming the payment of tax, as well as other factual circumstances that, in accordance with tax legislation, must be taken into account when resolving issues on the possibility of providing tax deductions and bringing the taxpayer to tax liability” (paragraph 2, clause 3.2).
The Constitutional Court of the Russian Federation determined that “Part 4 of Article 200 of the Arbitration Procedural Code of the Russian Federation suggests that the taxpayer has the right to present, and arbitration courts are obliged to examine, documents that are the basis for obtaining a tax deduction, regardless of whether these documents were requested and examined by the tax authority when deciding on bringing the taxpayer to tax liability and submitting a tax deduction” (clause 2 of the operative part).
In accordance with Article 6 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation”, the specified interpretation of Part 4 of Article 200 of the Arbitration Procedure Code of the Russian Federation is generally binding and excludes any other interpretation in law enforcement practice.
If the evidence presented by the taxpayer to the court could have been presented to the tax authority when conducting an audit or filing objections to the inspection report or when carrying out additional tax control measures, but nevertheless was not presented without good reason, this circumstance may be taken into account when deciding on the distribution of the burden legal expenses.
The conclusions of the Plenum of the Supreme Arbitration Court of the Russian Federation on the application of the presumption of good faith should also be taken into account when considering taxpayers’ applications for interim measures.
The Constitution of the Russian Federation (Article 55) guarantees the protection and protection of private property, including from encroachment by government agencies. The right of ownership is primary to the obligation to pay legally established taxes and fees.
Since it is assumed, as stated in paragraph 1 of the commented resolution, that the actions of the taxpayer, resulting in the receipt of a tax benefit, are economically justified, and the information contained in the tax return and financial statements is reliable, then, therefore, when considering the taxpayer’s application for interim measures there are no legal grounds to assume that the taxpayer has committed an offense, or to suspect him of committing an offense, based only on the fact of the existence of a tax audit report and the decision made on this act.
Taking into account the balance of private and public interests when considering taxpayers’ applications for interim measures is that the court must establish the taxpayer’s fundamental ability to pay off additional assessments in the future (if the court refuses to invalidate the tax authority’s decision) at the expense of existing property or planned revenues from the current economic activity. To do this, the court must evaluate the evidence presented by the taxpayer of his property status, production plans, etc.
The court should also evaluate whether the taxpayer's appeal to the court was the result of a real dispute or whether there is convincing evidence that such an appeal is only an attempt to defer collection. To do this, the court must assess the overall quality of preparation statement of claim, general elaboration of arguments in defense of the taxpayer’s position, completeness of the evidence base.
It should be taken into account that the court cannot refer to these criteria in the determination based on the results of consideration of the application for interim measures, since such a determination is not by judicial act, rendered on the merits of the case.
In the event of an actual dispute about the existence of conditions for repaying additional accruals in the future, refusal to take interim measures would be an unlawful shift in the balance of private and public interests in favor of state interests to the obvious detriment of the interests of the business entity.
In paragraph 3 of the resolution and in a number of other paragraphs (paragraph 2, paragraphs 4, 7, and 9), the Plenum of the Supreme Arbitration Court of the Russian Federation indicates the need to take into account the essence and business purpose of business transactions when considering tax disputes
1. The commented resolution outlines only the most general outlines of approaches and gives rough recommendations to courts regarding their application, which is explained by the novelty and insufficient research of these approaches in Russia.
Firstly, The Plenum of the Supreme Arbitration Court of the Russian Federation indicates that for tax purposes, transactions must be taken into account in accordance with their actual economic meaning. This means that the courts must evaluate the arguments of the tax authority and the evidence presented in support of them that the form of operation chosen by the taxpayer does not correspond to its essence (for example, when making payments to managers, the bank charges extremely high interest on deposits specially opened by it, which leads to savings of a single social tax).
Secondly, The Plenum of the Supreme Arbitration Court of the Russian Federation indicates that the consequence of a proven discrepancy between the form of a business transaction and its economic meaning should be the reconstruction of tax consequences: the court determines the scope of the rights and obligations of the taxpayer based on the true economic content of the relevant transaction (clause 7).
In relation to the above example, this means that the court, excluding interest payments from the cost price, must analyze the nature of the relations between the parties to the transaction and determine whether the same amounts are included in the costs, but not as interest on deposits, but as other economic factors. reasonable expenses (for labor); Couldn't part of the expenses (in the amount of regular interest on deposits) be taken into account as part of the costs?
In other words, the Plenum of the Supreme Arbitration Court of the Russian Federation considers a purely formal approach unacceptable, when the fact of an attempt to minimize tax payments serves as the basis for accrual maximum amounts arrears and sanctions. While requiring the taxpayer to observe the unity of the essence and form of a business transaction, the court must also base its decisions not on formal features, but on the essence of the existing economic relations.
This approach corresponds to the position of the Constitutional Court of the Russian Federation cited by us, set out in the Determination of July 12, 2006 No. 267-O, according to which the courts must examine the actual circumstances of economic activity, and not limit themselves only to establishing the formal conditions for the application of the norm (paragraph 1, clause 3.2).
2. Neither the legislation nor the commented resolution indicates the facts that should be decisive in identifying the actual economic meaning of a business transaction, nor does it contain criteria for determining the difference between the form and essence of a transaction.
In conditions of uncertainty, in order to avoid unjustified interpretations and conclusions when considering cases, make court decisions, referring to a valid economic sense transactions are permissible only in exceptional cases when the case materials contain undoubted evidence that objectively reveals the economic content of the transactions.
In a number of cases, the essence of the operation allows it to be clothed in various shapes provided by law. For example, the founder of a company can contribute cash deposit V authorized capital or provide a loan to the company. The taxpayer has the right to choose the form of financing that seems most profitable to him, including for reasons of tax savings. This approach will correspond to paragraph 2 of paragraph 4 of the commented resolution.
3. The use of artificial legal structures for business transactions that do not contain signs of illegality, but are not explained by non-tax reasons, is considered as an abuse of law.
Abuse of law presupposes that a person, fully following the requirements of the legal norm, acts lawfully, but does not receive legal protection of his rights and is responsible for losses caused to third parties, since he acts to the detriment of someone without a legitimate benefit for himself.
Identification of abuse of rights entails payment of the corresponding arrears. To determine the amount of debt, transactions that constitute abuse should be reclassified in order to restore the situation that would have occurred in the absence of transactions that constitute such abuse. Paragraph 7 of the commented resolution states that “the court determines the scope of the rights and obligations of the taxpayer based on the true economic content of the relevant transaction.”
In this situation, a complete recalculation of the tax consequences of all interrelated transactions should be carried out, taking into account the provisions of the tax legislation in force in the relevant tax periods.
In this case, a transaction or a set of transactions that served as a legal form for circumventing the requirements of tax legislation is preserved in the civil law sense and is not recognized as void or voidable. A party's refusal to execute a transaction when the court changes the tax consequences has no legal basis.
Since abuse of rights is not a violation of formal norms of legislation, by virtue of Article 106 of the Tax Code of the Russian Federation it cannot be considered a tax offense. Therefore, recalculation tax obligations based on the concept of a business purpose, entails payment of arrears and penalties, but does not lead to the imposition of penalties provided for in Article 122 of the Tax Code of the Russian Federation.
This conclusion corresponds to the position of the Constitutional Court of the Russian Federation, expressed in Resolution No. 9-P of May 27, 2003: “It is unacceptable to establish liability for such actions of the taxpayer, which, although they result in non-payment of tax or a reduction in its amount, but consist in the use of the rights granted to the taxpayer by law related to legal exemption from tax or the choice of the most beneficial forms for it entrepreneurial activity and, accordingly, the optimal type of payment.”
4. Reclassification by the court of operations that constitute an abuse of law is carried out in accordance with paragraph 6 of paragraph 1 of Article 45 of the Tax Code of the Russian Federation. It should be taken into account that the re-qualification of transactions, status and nature of the taxpayer’s activities is carried out in order to determine the content and scope of the rights and obligations of the taxpayer in accordance with the actual economic content of the transaction or set of transactions. Such re-qualification of transactions by the court does not affect the civil validity of transactions. This is the meaning of paragraph 8 of the commented resolution, according to which, when changing the legal qualification of civil transactions, courts acting on the basis of the powers granted by paragraph 1 of Article 45 of the Tax Code of the Russian Federation should not resolve the issue of the civil consequences of a tax dispute, since these consequences are imperatively determined civil legislation.
In other words, the Plenum of the Supreme Arbitration Court of the Russian Federation shares the tax consequences and legal fate of the transaction. The very fact of invalidity of a transaction is not significant for taxation until the parties to this transaction renounce the resulting economic result of the invalid transaction (for example, through restitution).
The invalidity (including nullity) of a transaction is immaterial if the economic result of the transaction is actually achieved. Therefore, for example, transactions with a defect in form are considered valid for tax purposes. The same applies to cases of defect in the legal capacity of a party to a transaction, when the transaction was completed by a person who does not have the authority to complete it. Tax consequences depend only on economic consequences actual actions of the taxpayer.
(End to follow)
See: Zorkin V.D. Constitutional and legal aspects tax law in Russia and the practice of the Constitutional Court // Comparative Constitutional Review. 2006. No. 3. - P. 101; Ivanov A.A. Interview with the newspaper “Business” dated June 22, 2006 No. 111(405), interview with the newspaper “Vedomosti” dated September 28, 2006 No. 182(1709), interview with the magazine “ Double entry" 2006. No. 11; Shatalov S.D. Interview with the Prime-TASS agency on July 5, 2006, interview with the Business newspaper dated May 16, 2006 No. 85, interview with the Kommersant newspaper dated December 28, 2005 No. 245, interview with the Gazeta newspaper dated December 21, 2005.
Key words: assessment of evidence, presumption of good faith of the taxpayer, abuse, tax benefit, taxpayer rights