The Supreme Court ordered the tax authorities to apply the tax reconstruction. Practical conclusions from the decision of the Supreme Court of the Russian Federation.
The Supreme Court of the Russian Federation found it inadmissible to charge additional tax sanctions in amounts exceeding those payable in the absence of abuse by the taxpayer. Thus, the cases of applying tax reconstruction have been significantly expanded, which involves the recalculation of taxes taking into account the actual costs incurred by the taxpayer for the execution of the transaction, as if it were made not with a one-day deal, but with a bona fide counterparty. Previously, its application required the active participation of the taxpayer and the absence of intent in the actions of the taxpayer to reduce the tax burden.
In this case, the Supreme Court of the Russian Federation sent the case for a new consideration, because the tax authorities did not take into account the actual supplier when calculating additional charges of income tax, VAT and penalties. The taxpayer purchased goods from one supplier, and posted higher prices in the reporting for transactions with companies that did not carry out real business activities. The profit arising from the difference in prices was withdrawn through one-day companies. The tax authorities discovered these violations and charged additional taxes, penalties and fines without taking into account the costs of the real supplier, who was known to her. The taxpayer, in the process of appealing, reached the Supreme Court of the Russian Federation, as a result of which the case was returned with instructions to apply a tax reconstruction.
The Supreme Court recognized that the receipt of tax benefits without real grounds should be stopped, but the additional accrual of arrears in amounts exceeding the losses of the state from non-payment of taxes takes on the character of a sanction, which is unacceptable. The Supreme Court of the Russian Federation cited the position of the Constitutional Court in support of its opinion, which obliged the Federal Tax Service to take all possible measures to establish the actual amount of the tax, excluding the imputation of tax liabilities to the taxpayer in excess of those established by law. If the tax authorities have information about the real supplier who paid taxes, she is obliged to use them.
What practical conclusions follow from the decision of the Supreme Court of the Russian Federation:
the application of tax reconstruction is possible even if there is an intent to extract tax benefits;
data about the real supplier does not have to come from the taxpayer, the tax office is obliged to use other sources as well;
reconstruction can be applied to VAT.
The only restriction is that the supplier must be a law-abiding taxpayer who has paid taxes on operations. If taxes are also not paid by the supplier, the costs incurred by the taxpayer cannot be taken into account.
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