Possibility of recovering losses as a result of bringing to tax liability

The possibility of recovering losses as a result of bringing to tax liability. Arbitrage practice.

What should be taken into account in order to assess the prospects for recovering losses from the director in the event of additional taxes, penalties, fines following the results of a tax audit?

In the framework of the case under consideration, the court established circumstances to be proved, the absence of which will lead to the impossibility of recovering losses as a result of bringing to tax liability.

Case plot:

1. JSC "Komi Communal Technologies" (successor of LLC "Energotrade") filed a lawsuit against A.V. Lipatnikov. (the sole executive body of LLC) with a claim for the recovery of damages.

2. The basis for filing a claim with the court was bringing to tax liability, since the organization received unreasonable tax benefits from corporate income tax and VAT in the form of an unlawful overstatement of expenses and the use of value added tax deductions.

3. The Applicant believes that as a result of unfair and unreasonable actions of the former director of the Company, the latter suffered losses in the form of payment of penalties and fines accrued for a tax offense.

4. The court of first instance satisfied the requirements, with which the appeal did not agree. The court considered unproven the fact of causing losses to the Company for the claimed amount, as well as the existence of a causal relationship between the defendant's behavior and the accrual of penalties and fines for tax violations to the Company.

5. The Company believes that Energotrade LLC (represented by Lipatnikov A.V.) groundlessly entered into contracts for the provision of services with LLC Elektromontazh and Elektromontazh Komi on a reimbursable basis, which were provided by another person - Limited Liability Company Republican Grid Company (hereinafter referred to as RSK LLC) under another agreement.

Judicial act: Resolution of the Arbitration Court of the Volga-Vyatka District of October 28, 2021 in case No. A29-14183/2018

Court's findings:

1. The position of the Company was reduced to the fact that the defendant's guilt was proved by the decision of the tax authority based on the results of the tax audit.

2. Bringing an individual to responsibility for a tort in each case requires the court to establish the elements of a civil offense, otherwise it would mean an unreasonable confusion of various types of legal liability, a violation of the principles of justice, proportionality and legal certainty.

3. According to the plaintiff, the defendant’s agreements with counterparties, unreasonably concluded, had a different subject: the subject of the contracts with Elektromontazh LLC and Elektromontazh Komi LLC included the performance of work on taking readings of energy meters, while the subject of the contract with LLC "RSK" was the processing of these testimonies - no abuse of the court was established.

Comment:

1. In order to establish the possibility of recovering losses for bringing to tax liability, the following should be provided to the court:

1.1. Indicate certain actions / inaction of the defendant, with reference to the dates that would be in a causal relationship with the disputed losses (or part thereof), with reference to specific sheets of the decision on the on-site tax audit;

1.2. To substantiate the defendant's awareness of the formal nature of the document flow in the disputed period;

1.3. Provide a calculation of the amount of losses (indicating the period and basis for calculating the relevant tax sanctions);

1.4. Correlate the specified calculation with the dates of appointment and termination of the powers of the defendant (including justify compensation as losses for the amount of penalties in the amount claimed);

1.5. Justify the responsibility of the person who is brought to subsidiary liability for the disputed losses of the company (in the form of sanctions accrued for tax violations), taking into account the scope of the manager’s activities, the depth and importance of the tasks he solves in general for the existence, functioning and development of the organization, as well as the circumstances imputed to the Company tax offense (for each of the episodes of the offense imputed to the taxpayer separately);

1.6. Provide a calculation of the amount of damages separately for each violation separately.

2. Well, then, hope that the discretion of the court will coincide with yours))

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