Double and black bookkeeping LLC, IP: signs, responsibility, practice
The main method of tax optimization is to “draw a low tax base”. Salary fund and less property, more expenses. This directly contradicts the goals of management accounting - to show everything as it is. The set management accounting creates additional risks - you can calculate the real tax burden. But does getting the exact data to fiscals mean the inevitable additional charge of taxes?
Case No. A28-10248 / 2015. The company carried out activities to issue loans to the population, applied a simplified taxation system with a base of income minus expenses. To optimize taxation, regulatory accounting did not reflect all loan agreements.
During the search, UEBiPK operatives seized receipts and expenditures that were not reflected in accounting, as well as spreadsheets “revenue” and “cash”, according to which the company's hidden income amounted to 58 million rubles (approximately 66% of the total turnover).
The tax authority selectively questioned the borrowers of the Company, whose contracts were not reflected in accounting, a total of 37 people. They confirmed receipt of loans from the Company and regular payment of interest.
The former head of the Company was interrogated. He acknowledged the maintenance of “double” accounting. Based on this, according to “black bookkeeping”, the tax authorities charged the Company 9.35 million rubles in taxes.
The court recognized as lawful all the measures taken by the tax authority and the police to seize documents and software.
He rejected the Society’s argument that the seized electronic databases had nothing to do with it and recognized the inspection’s conclusion that the taxpayer understated the tax base by creating an illegal scheme for concealing income through double-entry bookkeeping.
However, in the court’s opinion, information from the computer database is insufficient to determine the actual tax liabilities of the Company, since the information itself does not certainly confirm the actual amount of income received by the Company.
The computer program itself contains only digital information, the tax authority is not able to verify the accuracy of this.
The court indicated that the tax authority, in order to reliably determine the taxpayer’s tax obligation to pay taxes in this part, was required to apply the calculation method provided for in paragraphs. 7 p. 1 art. 31 of the Tax Code. Based on this, the court canceled additional charges in the amount of 7.03 million rubles and upheld the arrears in the amount of 2.32 million rubles in the part in which it was confirmed by the testimony of the borrowers.
Case No. A11-6372 / 2016. During the inspection of the workplace of the chief accountant of the Company, employees of the internal affairs bodies seized a laptop with the “1C-Accounting” base.
During the analysis of the base, salary accruals not reflected in accounting were discovered. Based on these data, the tax authority concluded that salaries paid in the Company “in envelope” and accrued arrears of personal income tax.
In support of this, information was provided on income from banks provided by employees for obtaining loans, information on large purchases made by employees, and a low level of salaries in the Company compared to previous employers.
However, the court sided with the taxpayer.
According to the court, the information seized by law enforcement officers from a laptop belonging to the Company, in the absence of properly executed settlement and payment documents signed by the head and chief accountant, cannot serve as evidence of the presence of unofficial wages in the Company.
The court dismissed the remaining arguments of the tax authority. In particular, the court took into account the explanations of the employees that certificates with high income were submitted to the bank with the consent of the employer in order to obtain a loan.
Case No. A46-943 / 2013. The tax authorities received cash flow reports seized by law enforcement agencies (the amount of income in them exceeded the income from the tax reports submitted), signed by a certain person. The examination showed that some of the signatures belong to the director of the taxpayer, and some to other existing employees. Based on the examination, the tax authority accepted these reports for tax reporting and accrued taxes thereon. The taxpayer said in court that the seized financial statements do not meet the criteria for the primary accounting documents (Article 9 129-FZ “On Accounting”), therefore it is not possible to charge taxes on the basis of it.
The court agreed with him, but noted that in this case, having reasonable doubts about the applicant's proper observance of the established accounting procedure (the company has “double” accounting), the inspections should be guided by paragraphs. 7 p. 1 art. 31 of the Tax Code of the Russian Federation and to calculate taxes not arbitrarily, but by a calculation permitted by law — on the basis of the information about the taxpayer available to her. The appeal and cassation made similar conclusions.
In these cases, there is a general positive point:
Courts do not recognize the data of “black bookkeeping” as an independent source for calculating tax liabilities. But a positive outcome for taxpayers should not create false illusions.
In the described cases there is “bad news”. The fact that they did not finally tip the scales in favor of the tax authority is just a coincidence.
1. I have never come across a case in which the taxpayer’s attempts to challenge the seizure and analysis of documents and computer programs that are not related to routine accounting were understood by the courts. Even if the police and tax authorities committed separate procedural violations. They will be seized, seized and seized.
2. Any seized documents that do not correspond to the data reflected in the regulatory accounting are interpreted by the court as signs of “double” accounting. It can be not only primary accounting documents, but also orders, memos, reports, computer data.
3. If there are signs of “double” bookkeeping, the courts unequivocally conclude that they keep records in violation of the established procedure, which is the basis for the tax authority to apply the calculation method (paragraph 7, paragraph 1, article 31 of the Tax Code of the Russian Federation). This fact should be taken into account by most entrepreneurs who believe that it is enough to locate a server with data abroad. In the case of applying the calculation method, the tax authority has the right to calculate the arrears on the basis of the information about the taxpayer available to them, as well as data on other similar taxpayers. Most often, the calculation based on our own real data is economically more beneficial for the taxpayer.
Conclusion: a server with a management base abroad is not a protection against tax risks. It is imperative to audit the accounting processes and workflow in the company.
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April 4, 2018
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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.
