Black, gray, white tax optimization. What it is? Competent marketing? Is there power in it?
Tax optimization and business security is now one of the most pressing problems for entrepreneurs. Sensing the situation, namely a direct connection with criminal risks, all those who provide this service must indicate that they offer only “legal optimization tools” or “white tax optimization”. There are many variations, but this is all pure marketing.
Tax optimization methods are not divided into legal (white) and illegal. Here are some examples.
1. All consultants almost unanimously agree that the use of IP is a legal way of cashing and tax savings. However, the Supreme Court in decision No. 302-KG17-382 in case No. A58-547 / 2016 did not recognize the application of such a scheme for tax optimization purposes as legal.
2. Again, such a method of tax optimization as transferring a retail unit to UTII is widely used. It seems much more legitimate, because the legislator has specifically introduced into the Code such opportunities for tax savings. But LLC Master-Instrument companies recounted the entire revenue of retail companies according to the general taxation system and the Constitutional Court of the Russian Federation in decision No. 1440-О of the tax authorities supported it, recognizing that the articles of the Tax Code allow recognizing such benefits as unreasonable and this does not violate any rights of the taxpayer.
3. It is unlikely that there will be at least one tax consultant who recognizes a scheme using one-day white firms. Here, too, the expert community is completely unanimous, however, the Supreme Court in decision No. 305-KG16-10399 sided with Centerregionugol LLC, which uses companies with obvious signs of one-day supply chain.
As can be seen from these examples, the higher courts have a different opinion on the division of tax optimization methods into legal (white) and illegal. There is simply no such separation. This is a marketing ploy.
The problem is not in the methods themselves, but in their everyday application. In business, everything is subordinated to operational efficiency, and therefore execution often runs counter to the scheme used. Tax officials learned to capture and document these discrepancies. To avoid this, you need to apply not “white” or “gray” tax optimization schemes, but those methods that are most suitable for your business processes. That is, to build a legal structure that is as close as possible to them.
Therefore, there are no legal or illegal methods of tax optimization. There is only competent structuring of the business. In subsequent articles on the example of real businesses, I will try to show what operational problems arise when implementing the most common schemes. And how to choose the right scheme for the existing business processes in the company.
Structure your business correctly.
In the event that your litigation or other dispute, contractual work or any other form of activity concerns the issues discussed in this or our other material, we recommend checking and making sure that your legal position complies with the latest changes in practice and legislation.
We will be happy to provide you with legal assistance regarding the minimization of legal risks and available opportunities. We will try to find a solution that is right for you.
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August 18, 2017
Kirill Soppa, partner. I am engaged in taxes, I like to build business processes. I am writing articles, looking for interesting information and suggest ways of its practical use. I believe that thanks to high-quality legal analytics, clients come to a law firm, and not vice versa. Do you agree? Then let's be friends on Facebook.
