Retail and wholesale: taxes (for example, the work of gas stations)
I talked about the problems of using a fairly common scheme of additional sales arm for tax optimization in a wholesale trading company. The vulnerability of this scheme is a business purpose. Most tax lawyers offer to solve this problem by creating two sleeves.
Indeed, the question why LLC “Zakup” sells supposedly to an independent IPshnik at almost cost price, we know the answer: because LLC “Zakup” is engaged in large wholesale and sells to all customers at such a price (naturally, it would be better if LLC “Zakup” would receive any profit). But does the new scheme solve the remaining problems that an entrepreneur will encounter in the process of operating activities and on the basis of which the tax will “break” this scheme in court?
1. To save on VAT, it is necessary to divide customers into simplistic and classic. How to divide incoming clients into classics and simplistic during the work is still not clear. If you directly ask them and, depending on the answer, issue invoices from Torgovy Dom LLC or from IP, this will give you the true purpose of splitting - tax optimization. The new tax service “Transparent Business” could help, but its implementation has been postponed for a year.
2. There remains a problem with the active sales department. Obviously, he must be his own in LLC “Trading House”, and in the IP. In this case, it is not clear how to migrate between potential customers between departments. It is necessary to implement it for tax savings, but how to explain it to managers. The demotivated manager will then be a good witness to the true reason for the migration of leads - tax savings.
3. The issue with warehouses is not an unsolvable problem. In the customs of business turnover, a situation is common when dealers sell goods, having data on the balances in the warehouse of their main supplier. An agent agreement would be better placed on this option, but it will not allow saving VAT in the endless sleeve.
4. Sales from a single warehouse of LLC “Purchase” specified in the previous paragraph are a good way to solve the problem of logistics. It is important to carefully fine-tune this business process, so that the employees of IP and LLC Torgovy Dom did not independently manage the general warehouse of LLC Zakup.
5. An important issue is the automation of this business, primarily management accounting. Very often, owners try to calculate the margin between the entrance to LLC “Purchase” and the exit from LLC “Trading House” and IP. It is not necessary to ignore intermediate movements between companies and consider them as transit ones. Your employees will have an appropriate attitude towards this and all this will be revealed as a result of surveys, even if you manage to hide the server with managerial accounting.
As we see the main problems of the legal construction are not solved. Their decision is individual, depending on the type of business and the established business processes. I will give one example of how this was decided in a real business - a network of gas stations.
1. The difficult to implement operational division of customers into net sellers and VAT in this business is being replaced by the division into wholesalers-cashless and retail buyers. For the fuel trade, these groups almost coincide. The main thing is not to be greedy or send a person who wants to buy fuel through a cashless simplist at a gas station. Such cases will not bring big savings, but they may cause additional questions.
2. Retail sales from gas stations do not require managerial support, therefore in such a business it is enough to have one active sales department in a wholesale company. Thus, there will be no migration of potential customers.
3. Features of such a business may force the separation of commodity flows. Each IPshnik should have its own equipped gas station, and it is enough for the wholesale company to have an office.
4. There are no problems with the internal migration of goods due to the nature of the business. This business has only four items, each with its own barrel.
5. Features of doing business help here. Separate sales records are compelled, because each gas station is initially equipped with sales counters. Since customer service is carried out only in the wholesale company, then CRM will be installed only there. Problems may arise when implementing consolidated accounting. Moreover, as I have repeatedly noted, the problem is not the existence of a single database (all owners think that it is enough to organize a server with such a database in an inaccessible place). Consolidated accounting requires data; its receipt is “sewn” into business processes.
I’m talking about situations such as this (for example, this is a real case): every week an economist sends sales reports on the network to the head. He cannot send in time because one of the gas stations has not yet sent his data. As a result, reporting was received not at 10-00, but at 12-00. Naturally, there follows a memo from the economist, an explanatory note from the manager of the gas station, and an order on penalties. In addition to documents, this will be revealed in employee surveys. All this clearly refutes the legend of the independence of business entities. Any automated consolidated management accounting contains a lot of such points of “subordination”, revealing the artificiality of fragmentation.
This example clearly demonstrates that the “Two Sleeves” scheme is well suited for gas stations, but not suitable for auto parts trade, regardless of how documents are executed. Moreover, it is not suitable for gas stations in every case. Outside of the scope of today's article, the issue of designing a scheme for operating units of gas station equipment has remained. Which is also critical in terms of revealing the artificiality of crushing and requires additional analysis.
Therefore, before applying any tax optimization scheme, it is extremely important to make sure that it matches your business processes. Otherwise, this discrepancy will necessarily be revealed by the tax inspectorate. And this will be a serious reason for recognizing the tax benefit as unlawful (Clause 1, Article 54.1 of the Tax Code).
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August 28, 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.
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