VAT: problems and solutions. Nuances of calculating VAT for business entities How VAT schemes work now

Changes in the procedure for conducting desk tax audits of VAT returns, the emergence of the innovative Big Date system and the ability of the tax inspectorate to quickly compare the data of a taxpayer’s declaration with the data of his counterparties made it possible to identify illegal tax evasion schemes.

LIABILITY FOR NON-PAYMENT OF VAT

Until 2015, most enterprises, wanting to reduce the tax burden, submitted “optimized” declarations to the tax office, increasing VAT expenses. After 2015 manipulations became transparent. “Optimizers” face claims, demands to explain existing discrepancies, additional VAT charges, penalties, transfer of materials to law enforcement agencies and criminal cases.

Using an innovative system for comparing transaction information contained in VAT returns, tax authorities can easily identify all companies associated with shell companies. Supporters of working with fly-by-night companies can expect meetings with tax authorities as part of an on-site audit, which may result in the initiation of a criminal case under Art. 199 “Evasion of taxes and (or) fees from an organization” of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), if the amount of unpaid taxes corresponds to the penalties of this article: the share of unpaid taxes exceeds 10% of the amounts of taxes payable or 6 million rubles.

NOTE

You can also be held accountable for non-payment of value added tax under other articles of the Criminal Code of the Russian Federation:

• under Article 159 “Fraud”, if we are talking about refunding VAT on the export of goods that was not actually paid;
• under articles 173.1 “Illegal formation (creation, reorganization) of a legal entity” and 173.2 “Illegal use of documents for the formation (creation, reorganization) of a legal entity” - for creating a “one-day” company, with the help of which VAT was stolen;
• under Article 199.1 “Failure to fulfill the duties of a tax agent”, if an arrear of agent VAT has arisen.

If any company is still using the services for cashing and she didn’t have any troubles with regulatory authorities, then the company simply didn’t get the turn and the arrival of inspectors (very often together with law enforcement agencies) is still ahead.

HOW DO THEY KNOW?

The question is not how the tax authorities know that, for example, you are working directly with a fly-by-night company or using buffers, that is, a group of layers. The answer to this question is obvious: the scheme was revealed by a new electronic system.

A taxpayer who is undergoing a serious on-site tax audit is concerned with another question: how do tax authorities know that disparate companies are one holding structure controlled by one owner?

In this case, it is not difficult to understand that companies engaged in the same or logically complementary activities, which have intersections in a number of other ways, are actually one single business.

WHO IS TO BLAME AND WHAT TO DO?

The Big Date system is to blame, allowing it to quickly identify taxpayer steps to evade taxes.

The question “What to do?” more difficult. This question is better divided into two parts: how to optimize the current VAT and income tax? In fact, they should, of course, be optimized together, like other taxes (fees). However, it is necessary to understand that income tax and VAT have different structures and specifics, therefore, different methods are used to minimize them.

If income tax can be minimized with the help of expense agreements, transfer pricing and by dividing the business into different tax regimes, then with value added tax everything is more complicated.

Let's consider options for solving problems with VAT.

Many financiers who attended seminars on VAT optimization in the hope of finding out what would help them get out of the situation in which they found themselves (the manager demands to minimize VAT and find a replacement for cashing out, but they do not know how to do this), left dissatisfied with the result. It seems that they talked about VAT optimization, but there was no benefit. What is the reason? The fact is that optimization of value added tax can be divided into several types:

1. Optimization of turnover VAT. As a result of such optimization, the company does not pay less, it simply does not pay VAT on advances. This method is used when there is not enough cash working capital. At the same time, the company as a whole can have large profits. A similar situation is typical for construction organizations. For optimization, VAT on advances, loans, payments under preliminary agreements, etc. is used.
2. Optimization of customs VAT due to understatement of customs value, splitting the actual price of the goods into different components, etc.
3. Optimization of VAT in large transactions. Suppose you have real estate and expensive equipment that need to be sold. In this case, various schemes can be used with the reorganization of the enterprise, with shares and a simple partnership. At the same time, foreign elements can be built into the circuits. This VAT optimization saves money and can be done, but it is only suitable for large transactions due to the specifics of the methods used.
4. Optimization of current VAT(for example, when selling food, clothing, equipment, etc.). This optimization worries accountants the most (it was with the minimization of current VAT that problems arose in connection with the advent of the Big Date system), but little is said about it at seminars.

First of all, financiers should be warned against using incorrect schemes, which tax planning specialists sometimes talk about. They are based on a case that, in terms of taxation, is not clearly regulated in law and the parties to the transaction pretend that they do not know who in this or that case should pay VAT (for example, complex situations with agents and principals). Nevertheless, it is clear that such schemes are not entirely correct, the parties are interconnected, and value added tax is simply stolen.

As for the real optimization of the current VAT, to competently minimize this tax it is necessary to understand its nature. And it is such that in most situations (to which there may be exceptions) VAT optimization is based on the principle of communicating vessels. The less you pay, the less your counterparty will deduct. In other words, if you find a way to pay not 200, but 100 rubles to the state treasury, then your partner to whom you provide services will deduct 100 rubles.

Therefore, many consultants advise the taxpayer to switch to a taxation regime without paying VAT and, instead of one organization on the main taxation system, create several organizations on the “simplified” one or make sure that the revenue limit does not exceed the threshold limits at which VAT is not paid.

In practice, following these tips is not always realistic, because in the absence of VAT, some clients may refuse to work with such a counterparty. Secondly, very often it is more important for a company to maintain one legal entity rather than create many new ones. If the owner splits a single company into a large number of legal entities, he is clearly pursuing an unjustified tax benefit.

Optimizing value added tax is a lot of painstaking work, as a result of which an acceptable solution can be found.

To optimize you can play at different VAT rates for products and the materials from which they are made. For example, a reduced VAT rate is provided for toy products 10 % (Subclause 2, Clause 2, Article 164 of the Tax Code of the Russian Federation, List of codes for types of food products and goods for children subject to value added tax at a tax rate of 10 percent, approved by Decree of the Government of the Russian Federation of December 31, 2004 No. 908). In this case, the rate of materials from which toys are made can be equal to 18 % .

You can make sure that one part of the services is subject to VAT, and the other is not.

EXAMPLE 1

The single cost of the goods is divided into two parts: the main cost of the goods plus pre-sale preparation services. Basic services provided by one company (on a common taxation system), pre-sale preparation services- another (on a simplified taxation system).

When optimizing, it is important not to lose the VAT that you receive from your counterparties. After all, the value added tax paid to the budget by your counterparties is simply thrown away.

Suppose, to minimize VAT, on the advice of a consultant, you split one legal entity on OSNO into many simplified ones. In this case, you make purchases from persons using the general taxation system. You will take the “input” VAT as an expense if your simplified tax system is with the object “income minus expenses”, but as a value added tax it turns out to be lost. If your simplified tax system regime with the object of taxation is “income”, this amount is basically lost altogether.

Let's look at an example where a holding company could have suffered VAT losses, but with the right business structure they were avoided.

EXAMPLE 2

Company “A” (at OSNO) was engaged in production and wholesale trade. To optimize taxation in 2015, she decided to change the old work scheme as follows: open company “B” on the simplified tax system (pre-sale preparation of goods), conclude a contract between company “A” and “B” expenditure contract.

To analyze this scheme for the presence of tax risks, the company turned to a specialized company. After analyzing the new scheme, experts came to the conclusion that it is not very viable. The reason is that expenses under contracts between organizations were inflated several times. Any service (work) has a certain range of market prices and must be provided (performed) in certain volumes justified for a given production or sales.

There are many cases in judicial practice when tax authorities proved that expenditure contracts were fictitious and were used only to minimize tax payments.

In one of the court cases, tax officials multiplied the carrying capacity of the machines by the number of transportations and found out that the work in the amount stated in the expenditure contract was not performed, therefore, the price for the work was significantly inflated.

It turns out that the agreement was concluded in order to withdraw funds to a more preferential tax regime and receive unjustified tax benefit(Review of judicial practice of the East Siberian District, approved by Resolution of the Presidium of the Fourth Arbitration Court of Appeal dated April 15, 2011 No. 5).

The scheme of company “A” in terms of unreasonable costs was similar. To indicate a high price for an expenditure contract, it was necessary to establish in it an unrealistically large volume of services or an excessively high price for the service.

Another point was also confusing: company “B” provided services to only one customer using the simplified taxation system.

As an alternative to company "A" it was proposed split the business into two legal entities:

• company on the simplified tax system (production);
• company on OSNO (wholesale sales).

Firstly, such a system of work provided savings on insurance premiums (clause 8, part 1, article 58 of the Federal Law of July 24, 2009 No. 212 (as amended on December 29, 2015) “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation Federation, Federal Compulsory Medical Insurance Fund").

Secondly, income tax expenses in this case were justified. After all, the wholesale company paid a real, and not an inflated market price, for the goods supplied.

In addition, to minimize risks, it was decided to structure the business so that the production company would work directly with several other large companies. In order not to lose the “input” VAT on materials, which a company using the simplified tax system could not accept for deduction, it was proposed to build a relationship according to the toll option, when materials for production were purchased by a wholesale company.

Conclusion: competent analysis of the situation and the use of non-standard ideas make it possible to solve the problem of optimizing the current VAT.

Yu. A. Khachaturyan, General Director of Nika, risk plan

The tax burden on a company's budget often forces the company's management to think about optimizing taxes, including even taxes. Of course, it is correct to act only on those options that have a legal basis. Let's find out today whether and how to reduce the VAT tax without breaking the law, as well as whether it reduces the income tax.

Is it possible to reduce the tax amount?

When they talk about reducing VAT, the first thing that comes to mind is illegal and less than legal methods of cashing out money through shell companies or offshore zones. There are quite reliable schemes, but they also pose a threat to such violators. But besides all this, there are also quite official ways to reduce VAT. They:

• Less effective than fraud.
• But if used systematically and correctly, they can significantly reduce payments to the budget.

A diagram of how you can legally reduce the accrued VAT payable to the budget (optimization) is discussed below.

Schemes for legal VAT reduction are reviewed by a specialist in this video:

How to reduce VAT payable to the budget

Reducing deductions

Another legal way to reduce tax is VAT deductions. They can only be used by companies working on . The normative basis for this is Article 171 of the Tax Code.

Features of the method:

• This method is to reduce the tax base.
• The company must pay VAT on all “outgoing” products.
• One of the conditions is the absence of tax benefits for suppliers. They all must pay VAT.
• The deduction includes VAT on purchased goods and materials.
• VAT amounts must be shown on invoices and other source documents.

Now let’s find out how to reduce import VAT.

Import VAT

For companies involved in business, an important factor is the optimization of import VAT. For this, the conditions must be met (Article 171 of the Tax Code):

• The goods or materials must be sold or used in VAT-taxable transactions.
• VAT is usually deducted in the same quarter when the receipts were entered into the company's warehouse records.
• Timely submission of customs declaration.

Documents confirming the right to deduct:

• Contract with a foreign company.
• Having an account.
• , which was paid by the company at customs.

In addition, importers have the opportunity to defer payment of customs VAT. This can be done under guarantees from banks or insurance companies.

Tax payable for the current period

In the current period, VAT can be reduced by drawing up a loan agreement. The scheme in this case is as follows:

• The buyer enters into a loan agreement with the seller and provides it.
• Then, under the supply agreement, the seller ships the goods without prepayment.
• The deal is completed.

Although there is nothing illegal in this, in order for the tax office not to have questions, it is necessary:

• Specify in the agreement an acceptable neutral purpose for the loan.
• The loan amount should differ slightly from the cost of the goods.
• The terms of the loan agreement and the sales agreement should not coincide.

Tax after the end of the quarter

In Article 145 of the Tax Code of the Russian Federation there is an indication that a company is exempt from paying VAT if its income for the quarter was less than a million rubles. provided for a year after contacting the local Federal Tax Service. The appeal includes:

• Statement.
• Extract from the company's balance sheet.
• Copying from the book of registration of incoming and outgoing invoices.
• Extracts from the book of sales, income and.

In this case, if profits increase during the year, the benefit is automatically lost. Read below for information on how to further reduce profits without affecting VAT.

Other options

There are several other options for reducing VAT payments.

Is it possible to reduce income tax and VAT when renting premises without registering an agreement with Justice? This video will tell you:

Transfer of the deposit

Since there is no deposit (the Tax Code speaks about this), with its help it is possible to reduce the taxable amount of the transaction and, consequently, VAT. The scheme in this case works as follows:

• The advance payment issued is documented as a deposit for the purchase of materials.
• This is a legal basis for not including this amount in the tax base.
• The full amount of the transaction is indicated only upon its completion in the act of completion.

This scheme is most effective when the purchase of materials does not occur immediately, but is extended over some time.

Optimization of VAT, reducing it in terms of transport costs, is discussed below.

Optimization of VAT on transport costs

Relevant for companies with a 10% VAT rate. Since VAT on transport is always 18% (Article 153 of the Tax Code), companies with lower rates can include transportation costs in the cost of goods to reduce the tax. Then VAT on these services will also be 10%. Prerequisite:

• Do not highlight transport expenses as a separate line. The amount must be total.

Delay in the transfer of ownership of goods

Without allowing you to at least partially reduce VAT, using this method you can defer its payment. To do this, a clause is included in the contract regarding the complete transfer of ownership rights to the buyer only after completion of the transaction.

This will make it possible not to include payments in the tax base until the last payment has been received or the completion certificate has been signed. If the contract is long, then the payment of VAT may be delayed for one or two tax periods.

The video below will tell you how to reduce VAT without reducing profits:

VAT optimization depends on tax planning. The essence of optimization is to increase the company's cash flows by minimizing tax payments in accordance with current legislation. There are ways of tax optimization of VAT permitted by law, various schemes and methods, the solution of which can be found for any organization.

The essence of tax optimization is to minimize tax payments and avoid penalties. This can be achieved through correct and timely payment of taxes.

The Tax Code of the Russian Federation presents the taxpayer with a choice depending on the specific economic activity. For example:

• A business entity can choose the tax payment option that seems optimal to it.
• If possible, the law allows you to choose a type of economic activity that is not taxed under Article 149.
• Another option for reducing tax payments is to carry out export operations:

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The options for optimizing VAT tax payments described above cannot be subject to claims from tax authorities; they can be interpreted as competent planning of business activities, which allows achieving tax savings with the least risk.

The formation of profit centers in those entities that have a reduced tax burden also has a positive effect on the amount of payments. This method is considered the most popular and safest among Russian entrepreneurs.

Factors influencing VAT optimization

To assess the amount of VAT optimization, the following factors must be taken into account:

• Who is the counterparty - a resident of the Russian Federation / non-resident, does it have benefits, individual entrepreneur / legal entity;
• Relations between the parties;
• Transfer of ownership of products or goods.

Before you begin to assess the possibility of optimizing the amount of VAT, you need to carefully analyze all the features of concluding contracts. To do this, it is best to use the balance sheet method of tax planning.

How to reduce your tax burden

Today there are a huge number of methods that can reduce the tax burden on an organization. It should be immediately noted that some of them are universal, while others are suitable only in certain situations. The most common ways to optimize tax payments are:

• Method of changing the type of activity.
• Method of changing the tax subject.
• Method of replacing tax jurisdiction.
• Optimization method through contractual relations.
• Method of using benefits and exemptions.
• A method of making policy that makes maximum use of the opportunities provided by law.

Also among the special schemes to reduce the VAT rate are:

• Relationship replacement method.
• Tax payment deferment method.
• Relationship separation method.
• Method of direct reduction of the taxable object:

Optimization of VAT using the example of an organization

Many organizations mistakenly believe that VAT can only be optimized through the interaction of several organizations with different tax regimes. Because of this, legal entities often register several companies, the main one of which acts as an intermediary. She is engaged in purchasing goods from the manufacturer. After that, she resells the product and receives her commission. Thus, the level of VAT, which applies only to this remuneration, is reduced.

Also, one organization with a traditional taxation regime can sell its goods to another company that operates on the basis of a simplified taxation system. Income from the sale of this product is received only by those companies that sell it at the market price. Despite making a profit, they will pay less value added tax.

It should be taken into account that such schemes for optimizing VAT at enterprises always attract a lot of attention from the tax authorities. It is important that company employees have an accurate legal address and conduct business activities.

In this article we will take a closer look at the topic of VAT payment. What important amendments to the law were adopted in 2015? What schemes are most popular among Russian companies? Read on for step-by-step and accessible information about this.

In this article you will read:

• What changes have been made to the VAT law in 2015?
• What punishment is provided for illegal VAT optimization schemes?
• What to do if you are faced with an audit regarding an illegal VAT refund
• What methods of VAT optimization are currently the most secure?

What has changed with VAT in 2015

In accordance with the amendments to clause 8 of Art. 145 of the Tax Code of the Russian Federation, when using the exemption not from the 1st month of the quarter, the restored tax may be reflected in the last declaration. The deadlines for submitting the declaration and paying the tax were postponed to the 25th (Article 174 of the Tax Code of the Russian Federation).

Check your partners urgently!

Do you know that When checking, tax authorities can cling to any suspicious fact about the counterparty? Therefore, it is very important to check those with whom you work. Today, you can receive free information about your partner’s past inspections, and most importantly, receive a list of identified violations!

Taxpayers have the opportunity to shift the deadlines for paying VAT by 5 days. In particular, it will be necessary to pay the tax no later than January 26, February 25 and March 25, 2015 (taking into account clause 1 of Article 174, clause 7 of Article 6.1 of the Tax Code of the Russian Federation).

By changing the VAT restoration period when using the exemption not from the beginning of the year, legislators provided the opportunity to obtain a certain deferment from paying the restored tax. In particular, entrepreneurs and companies that received an exemption from April 1 will have to transfer the restored VAT no later than April 27, May 25 and June 25. By obtaining an exemption, it becomes possible to postpone the deadline for paying the restored VAT to July 27, August 25 and September 25. After all, Article 174 of the Tax Code of the Russian Federation does not contain any clauses on changing the procedure for paying tax when receiving an exemption.

It is worth noting that the tax authorities provide the opportunity to change the tax period, but only during the reorganization of the company (clause 4 of article 55 of the Tax Code of the Russian Federation). This rule will not apply in case of release. At the same time, the entrepreneur or company, upon exemption of receipt, remains a taxpayer. Consequently, the tax period does not end for them.

VAT optimization: current schemes for 2015

In addition to the well-known legal schemes for optimizing VAT, proper execution of primary documents also deserves attention.

1) Applying for a loan. The buyer provides the seller with a loan in the amount of the cost of the goods. Next, a supply contract is drawn up without prepayment. According to this agreement, the buyer is provided with the goods. To complete the transaction, the 3rd agreement is drawn up - offset. In accordance with this agreement, the loan will be offset against payment for the goods supplied.

Disadvantages of this method: this transaction may be classified by the tax authorities as a tax evasion scheme. Therefore, the following conditions are important:

– it is necessary to carefully think through and prescribe the purpose of receiving a loan, and not a logical advance;

– make sure that there is no correspondence between every penny of the loan amount and the cost of the goods;

– make sure that the days of shipment of the goods, the signing of the mutual settlement agreement, and the terms of the return of the debt agreement do not coincide.

2) Execution of a written agreement on the deposit. The deposit is not an object of taxation. Consequently, the advance can be documented as a deposit, for which a written agreement will be concluded. Legally, the seller may not include the amount of this deposit in the tax base before the actual provision of services or shipment of goods.

This method is relevant for optimization in the construction industry. It is not uncommon here to provide an advance for the purchase of materials purchased in parts. As a result, VAT is required to be paid at the end of the quarters, and there are also no deductions because subcontractor services and materials have not been accepted in full. Therefore, it is better to immediately draw up an agreement on a deposit for the purchase of materials, with payment of tax upon the conclusion of a certificate of completion of work, when all deductions and costs are taken into account.

3) Establishing the transfer of ownership of the goods. This act is called the transfer of rights of implementation (clause 1 of Article 39 of the Tax Code of the Russian Federation). Sales agreements provide for the possibility of stipulating a step-by-step transfer of ownership of goods, ultimately benefiting from a deferment of VAT payment.

4) Replacement of the purchase and sale agreement with an agency agreement. If the supplier is not a VAT payer, therefore, the seller has no VAT deductions. In this case, you will need to pay tax on the full cost of goods sold. The seller has the opportunity to conclude an agency agreement or a commission agreement using a reverse or direct agency scheme for VAT optimization. The transfer of goods occurs from the supplier to the seller for a commission. The seller sells the goods at his own markup, paying the cost of the goods to the supplier under the concluded agreement.

Tax authorities did not prove that the company entered into agency agreements in order to obtain tax benefits

Olga Eremina, lawyer at Hannes Snellman, Moscow

The tax inspectorate brought the company to justice in accordance with Art. 122 of the Tax Code of the Russian Federation for incomplete payment of VAT. Tax inspectors considered that agency agreements were concluded by the company only for the sake of unjustified tax benefits. Nevertheless, the tax authorities lost in the trial. The court established the fact that the agent compiled quarterly reports indicating the amounts of remuneration that were received from customers, as well as the amounts that were transferred to the seller, and the amounts of remuneration for agency services.

The fact of execution of agency agreements by all participants in the transaction was confirmed. The court noted that the inspectors did not prove that the agent’s actions were aimed solely at obtaining tax benefits. Consequently, the court ruled that the tax authorities’ decision to hold the taxpayer accountable was unlawful (resolution of the Federal Antimonopoly Service of the West Siberian District dated November 10, 2008 No. F04-6892/2008 (15713-A46-41) in case No. A46-2364/2008).

5) By managing transportation costs. This VAT optimization method is applicable for payers working at a reduced tax rate of 10%. It is used in 2 types:

– upon delivery of goods by the seller’s transport;

– when applying for the services of a transport company.

In the first case: VAT on transport services is 18% in any case (clause 1 of Article 153 of the Tax Code of the Russian Federation), but if they are shown separately in the invoice, payment of tax at the rate will be required.

The solution in such a situation would be to include these services in the total cost of the goods. When calculating the price or calculation, there is no need to include “transport” costs as a separate item - the tax authorities will easily calculate the amount from which the arrears are required to be paid. They can be included in sales costs without decoding. In this case, isolating the cost of transport services will be practically impossible.

The second case involves the benefit that the goods are sold by the seller at a VAT rate of 10%, and VAT deductions from the services of a transport organization are accepted at a rate of 18%.

6) Other legitimate optimization schemes in the enterprise:

1. Bill advance. If the price of the goods is known in advance and will not change, the seller has the option of providing the buyer with his own bill of exchange. The transfer is documented in the form of an act drawn up in any form, indicating the details of the bill. The money is transferred by the buyer on a bill of exchange, which will not become an advance, and is subject to taxation. After the goods have been shipped, an agreement on the offset of mutual claims is drawn up, where the previously shipped goods will represent payment on the bill of exchange.

2. Updated declaration. If a situation arises that at the end of the reporting month there are large revenue receipts, and in the next month there will be a significant receipt of input VAT, a VAT return can be submitted to the tax office without taking into account the amount of this receipt. When submitting a declaration for the next month, reflecting these deductions, it is necessary to recalculate the VAT for the previous month, pay a penalty for late VAT, and submit an updated declaration. The penalty will be small, and the company will have the opportunity not to withdraw funds from circulation. This method is suitable for those who file a declaration and pay VAT on a monthly basis, since the inspector only has a month to identify the fact that an incorrect declaration has been filed. After the company independently “identifies the error” and pays all penalties, tax inspectors will no longer have the opportunity to bring charges and penalties.

It happens that it is necessary to postpone not the moment of payment of VAT, but the moment of obtaining the right to submit tax for deduction

Igor Bogomolov, head of the project work department of the tax and legal department of the management company “Independent Directors”, Moscow

There may be situations when it is necessary to postpone not the moment of payment of VAT to the budget, but the moment of obtaining the right to claim this tax for deduction. This will be possible, in particular, when the company has exceeded the deduction standards recommended by the tax inspectorates. The tax authorities themselves recommend that many companies transfer part of their deductions in order to avoid unnecessary doubts during the audit. This advice about the transfer is given directly by the inspector, so in the next period, most likely, he will accept the company’s declaration with the transferred deduction.

In this situation, you can use the following methods to transfer deductions:

1. Document the late invoice. According to the Ministry of Finance of the Russian Federation, in this case, the right to present the amount of VAT for deduction arises not during the period of the transaction, but during the period of receipt of the invoice. Courts usually take a similar position.

2. Finding flaws in the invoice provided by the supplier. If such deficiencies are identified, you have the right not to deduct VAT. The purchasing company has the right to claim the amount of VAT for deduction only after the buyer has made corrections to the invoice.

3. Postpone posting of goods. It is possible to delay the transfer of fixed assets from account 08 “Capital investments in non-current assets” to account 01 “Fixed assets”. The property in this period is classified as “Capitalized”, the company has the right to accept VAT for deduction.

It is important to take into account that if the documents confirming the legality of the transfer of deductions from the company are not prepared properly, after 2-3 years you may encounter serious problems during an on-site tax audit. Practice confirms the difficulty of defending your position in court.

10 tips for taxpayers to help avoid breaking the law

1. Any business model that provides relief from the tax burden must be comprehensively and preliminary assessed for the presence of tax risks.

2. Transactions entered into should not be of a sham nature; there must be a convincingly formed business goal.

3. It is necessary to have a competent justification for the pricing policy used, which does not contradict the provisions of Art. 40 Tax Code of the Russian Federation.

4. Transaction prices must be motivated with foreign intermediaries, corresponding to the market level.

5. Everything carried out within the group of companies should not look artificial or imaginary. It is necessary that any transaction clearly fits into the general logic of the holding’s business process.

6. The preparation of documents that confirm the reality and economic justification of costs deserves due attention.

7. It is worth avoiding the interdependence of parties to transactions during tax planning.

8. When selecting new counterparties, evidence of due diligence must be documented.

9. It is better to refuse cooperation with “gray” optimizers and unreliable partners.

10. During the implementation of the VAT optimization scheme, it will be useful to obtain a written explanation from the tax office about its legality and feasibility.

What is the penalty for illegal VAT refund?

Almost everyone knows that illegal VAT refunds result in criminal liability. But how does it manifest itself, what consequences are possible? To answer this question, it is necessary to correctly qualify a specific crime by identifying the appropriate article of the Criminal Code, according to which one can judge the possible consequences.

• Current assets of an enterprise: concept, management and analysis

Many believe that illegal VAT refund is a tax crime, which is punishable under Article 199 of the Criminal Code of the Russian Federation - tax evasion by an organization. The maximum consequence, according to part 1 of this article, involves imprisonment for up to two years. The second part of the article (in case of non-payment of tax on an especially large scale or by a group of persons) – up to 6 years. But according to established judicial practice, illegal VAT refunds are classified as fraud in accordance with Article 159 of the Criminal Code of the Russian Federation.

Fraud carries a more severe penalty. In particular, according to Part 4 of Article 159 of the Criminal Code of the Russian Federation (this is what is usually applied), the punishment is imprisonment for up to 10 years with a fine of up to 1 million rubles.

If the illegality of the VAT refund is revealed after a positive decision on the VAT refund and the receipt of funds into the organization’s current account from the treasury, the crime will be considered completed. If the money is not transferred, including due to refusal of VAT refund, the actions will be qualified as an attempt. Since the state did not face real damage during the assassination attempt, one can count on less serious punishments, but they still turn out to be not conditional, but real.

How tax authorities can check the validity of a VAT refund

The main task of the tax authorities is to prove the fictitiousness of the transactions being carried out. When checking the legality of VAT refunds, tax officials can take a number of measures:

– request from tax inspectorates information about open accounts, VAT paid for the reporting and past periods, as well as information on participants, founders and other data;

– obtaining information from banks on the movement of funds in current accounts;

• Tax audit: how to behave competently if inspectors come

– interrogation of accountants, directors and other employees of organizations, as well as in the chain of transactions for which VAT was to be paid;

– carrying out inspections of warehouses, construction sites, premises to check the availability of constructed buildings and purchased products;

– sending requests for the provision of documentation to confirm the actual conduct of transactions - including invoices, contracts, primary documents of warehouse, accounting and production records.

What facts indicate the illegality of VAT payment?

Signs of fictitious companies (one-day companies):

– upon recent registration of a legal entity, “for a transaction”;

– the company is registered at mass addresses;

– with a small staff;

– the company is actually absent from its location;

– there are no costs for maintaining the office, purchasing office equipment, and office supplies.

Signs of nominee directors:

– a person is en masse a founder or director of other legal entities;

– during interrogation by the tax authorities, and usually by law enforcement agencies, a person cannot answer basic questions that the manager needs to know;

– the director admits during interrogation that he is a figurehead;

– use of a citizen’s documents without his knowledge;

Signs of fictitious transactions:

– forged signatures were detected in the documents;

– the persons on whose behalf the signatures were placed do not confirm their authenticity;

– there is no actual crossing of goods into the Russian Federation border;

– there is no real movement of goods, there is no equipment in warehouses, the declared work was not carried out;

– there are no movements on accounts that are comparable to the provisions of the contracts.

Signs of a fictitious transaction:

– there is no economic feasibility in concluding a transaction;

– absence of VAT charges prior to reimbursement comparable to those declared in the period under review;

– interdependence between legal entities that participate in the transaction;

– the company (firms) was re-registered with another inspection immediately before the VAT refund;

- a combination of these factors, based on which one can conclude that there was intent only in creating formal grounds for tax refund, but without conducting real economic activity.

How can you protect yourself before criminal proceedings are initiated?

VAT refund cases involve the possibility of organizing a defense before initiating a criminal case. It should be understood that all materials collected as a result of a tax audit, if signs of illegal compensation appear, are transferred to law enforcement agencies, subsequently representing the basis of a criminal case.

Therefore, even at the verification stage, you need to be prepared to call the tax office to explain to the directors of the entire chain of legal entities whose testimony is important for the case. Analyze the questions voiced during interrogations in order to identify “weak” points in the taxpayer’s position, taking appropriate measures to strengthen it, providing additional explanations or documents.

• Service agreement: sample, typical mistakes

A decision to refuse a VAT refund, with the company being brought to tax liability, may become the basis for a criminal case. But when the arbitration court decides to cancel the decision to refuse VAT refund, criminal cases do not have a criminal-judicial perspective. A judicial act that has entered into force is binding on all government bodies and organizations, including law enforcement. Consequently, when challenging a refusal to refund VAT in an arbitration court, by winning this case, you will receive undoubted evidence of a legal VAT refund.

Before applying to arbitration, it is mandatory to go through the appropriate procedures for pre-trial dispute resolution, which are established by the Tax Code - with filing reasoned objections to the tax audit report, appealing the decision to refuse a VAT refund. These actions in themselves allow you to achieve the desired result, eliminating the grounds for a criminal case.

Of course, to draw up and challenge a decision, it is necessary to involve professional lawyers.

What to do if an audit has begun against you regarding illegal payment of VAT

Law enforcement officers are much more effective than tax officials, since they have a wider arsenal of possible actions. During a pre-investigation check and investigation of a criminal case, you need to be prepared for searches at the addresses of offices, warehouses and homes of the defendants. In the case of a major attempt to recover VAT, there is a possibility of establishing the IP addresses of bank-client connections, organizing wiretapping of telephone conversations, and viewing electronic correspondence.

The investigation involves interrogating persons who have already been interviewed during the tax audit, with the identification of other persons involved in the illegal VAT refund. Interrogations are designed to identify and confirm signs of illegality of VAT refunds, with proof of guilt on the part of a specific person.

At this stage, there is an aggravation of the contradictions between the defendants in the case, which law enforcement officers know how to competently and effectively play on. For ordinary executors-signatories, they will be asked to accept the position that “they did not understand what was happening”, did not know about the illegal VAT refund, but in return they must actively cooperate with the investigation. For the true beneficiaries, it is required that the previous testimony be preserved - for this it is necessary to competently organize a complex protection system, with control of the testimony of each person involved.

At the pre-investigation stage of a criminal investigation, it is imperative to involve a lawyer. During interrogations, he is able to prevent violations of the procedural rights of those being interrogated, insisting that the version voiced during the interrogation be recorded in the protocol, obtaining valuable information that a layperson will not be able to “hear.”

Information about authors and companies

Olga Eremina, lawyer Hannes Snellman company, Moscow. Graduated from the International Law Faculty of MGIMO. Engaged in consulting on tax law issues, including VAT refunds, taxation of foreign companies in the Russian Federation, assessment of tax risks when structuring transactions, including those involving the use of foreign jurisdictions. Represents the interests of client companies in arbitration courts in tax disputes and bankruptcy cases. Before joining Hannes Snellman, she worked as a tax consultant for a large trading holding. Hannes Snellman. Field of activity: legal services. Number of employees: 300. Main clients: Renaissance Capital, Electrolux, Nokia, Panasonic, Tikkurila.

Igor Bogomolov, head of the project work department of the tax and legal department of the management company “Independent Directors”, Moscow. "Independent Directors". Field of activity: legal and financial consulting. Number of personnel: 45. Main clients: CJSC Loko-Bank, OJSC Montazhspetsstroy, OJSC Russian Railways.

What are the ways to optimize VAT in 2019? Which schemes are legal and which are not. What methods and schemes are there, and how to apply them for different organizations.

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Tax legislation requires entrepreneurs to pay a large number of taxes. Therefore, many are looking for ways to slightly reduce their size or get a deferment.

Not all of them are legal, so tax authorities always check the activities of companies with particular care. However, there are methods that allow you to optimize taxes without violating the law.

What you need to know

It is known that every modern businessman is required to pay a huge amount of taxes. And their optimization allows entrepreneurs to save significantly.

In 2019, many changes were made to the Tax Code. This also applies to paying taxes such as VAT. For example, it allows taxpayers to make payments not on the 20th, but on the 25th.

If VAT exemption applies, entrepreneurs can take advantage of the deferment. Another innovation for 2019 is provision in electronic form.

This innovation is regulated by the Tax Code (, 174). In addition, if the declaration is submitted in paper form, it will not be considered submitted.

This also applies to tax agents, and not just taxpayers themselves. To ensure that optimization does not violate the law, you should know:

To achieve a significant result from optimization, it is necessary to make it comprehensive. Otherwise, the effect of the company paying attention to only one transaction will be minimal.

The main thing is to have an experienced specialist who was able to do everything without violating Russian legislation. If you need to create an intermediary company for optimization, then you must:

• separate room;
• materials and funds in a bank account;
• personnel working in the new company;
• all activities must be documented.

A rate of 10% is used for the sale of certain types of printed publications, children's goods, imported medicines and livestock.

It is also taken into account for domestic air transport. VAT of 18% applies to all other cases. Rates of 10/110% and 18/118% are paid if an advance payment has been made for the goods.

Legal regulation

Everything related to taxation is regulated by the Tax Code of the Russian Federation, and the letter of the Ministry of Finance of Russia dated March 26, 2012 No. 03-07-05/08.

Value added tax optimization methods

There are several such methods. But most often taxpayers use the following methods:

Options	This is the name for contracts in which the person who bought the option can at any time refuse the rights to it. The sale of options is not subject to value added tax ()
	Some companies sell their property to pay off their debt. But it is subject to VAT. Therefore, this deal is replaced with another. For this purpose, another company is created, and the funds invested in it are considered authorized capital. VAT is not paid on them
Deposit	In this case, the company formalizes the advance as a deposit, for which it is drawn up. It is not taxed
Transport Cost Management	This optimization method allows an entrepreneur to reduce VAT by 10%. For this purpose, the goods can be delivered by the seller’s transport or
Loan	The buyer pays for the goods using a loan. Then he receives it from the seller. Next, a netting agreement is drawn up. But tax authorities often consider such a scheme as illegal.

What is the purpose of the event

All methods of optimizing value added tax allow taxpayers not only to reduce the amount of payments, but also to receive a deferment. To do this, just use the appropriate method.

VAT optimization schemes

The most popular legal schemes that entrepreneurs use to reduce VAT are registration, registration of a deposit, replacement of a purchase and sale agreement and management of transport costs.

But it is important to know that when borrowing, you must ensure that the cost of the goods and the loan amount do not coincide. As well as the deadlines for sending cargo and signing documents.

Video: tax optimization

Otherwise, the tax authorities may decide that this scheme was invented on purpose and is illegal. In the case where the advance is formalized as a deposit, the tax is paid only after the specified services are provided.

This method is often used in the construction industry. In addition to these schemes, there are several more:

Receipt of goods	The company has the right to withhold for some time the transfer of funds from the “Capital investments in non-current assets” account to the “Fixed Assets” account. Then VAT can be deducted
Disadvantages in	If there are any shortcomings in the document from the supplier, VAT may not be deducted. Naturally, until the supplier eliminates the errors in the invoice
Deadlines for receiving an invoice	The amount of VAT deductible is accepted upon receipt of this document. Therefore, receipt of an invoice can be arranged at a later date.
	It should be issued if the cost of services or goods will not change. A document is drawn up in any form in which the bill of exchange details must be indicated. Funds will be transferred through it as payment for goods or services. This money is not subject to taxation ()
Clarifications in the declaration	There are situations when large amounts of funds are expected to be received at the end of the reporting month, and the input VAT will increase the following month. This means that these receipts may not be taken into account in the declaration. In the declaration for the next month, it is necessary to recalculate the VAT and late fees. This method is convenient when a company submits monthly declarations, as it allows it not to withdraw funds from the company’s turnover. Paying a small penalty prevents the tax authorities from regarding this scheme as fraudulent.

In addition, a company may have its own individual VAT optimization schemes. The fact is that some well-known schemes can greatly harm a company. Therefore, entrepreneurs have to create their own unique methods.

Using the example of an organization

How to optimize VAT in 2019 in a company? You can consider one of the optimization schemes using an example.

Let’s say that the Ogonyok company needs to sell goods worth 20 thousand rubles. At the same time, the company uses the general taxation system, which means VAT will be 18%.

The seller also requires the buyer to make an advance payment in the amount of 4,720 rubles. VAT is also taken into account. If the transaction goes through on the grounds, then the company will have to pay VAT in the amount of 720 thousand rubles.

And the entire amount of VAT will be 3 thousand 600 rubles. If you use an option scheme, both parties can set a certain price for the product.

For example, 18 thousand rubles. They conclude a contract under which the seller transfers a so-called premium of 4 thousand rubles.

This money is not subject to VAT. The tax will have to be paid in the amount of:

3 thousand 240 rubles (18 thousand rubles * 18%)

The savings for the selling company will be 720 thousand rubles.

Features by type of activity of the enterprise

There are many ways to optimize VAT, but it all depends on the company’s activities. Trading companies can reduce tax by switching to a simplified tax system or creating (legally) secondary companies.

For wholesale trade

It should be taken into account that optimization is possible in 2 cases:

• if there are buyers who do not need VAT deductions;
• if buyers pay tax but resell goods to those who do not pay.

In the first case, the payers are individuals or companies using, as well as the simplified tax system. Insurance companies, government agencies and banks do not need it.

In the second case, the buyer may be a large store that pays VAT, but its customers do not. All you need to do is create a new company through the simplified tax system and use it to sell goods without VAT.

In production

Tax optimization of VAT in production includes several schemes. For example, you can use an enterprise that is a VAT exemption.

This is possible if the company's authorized capital consists of funds contributed by a public organization of disabled people.

Another way to optimize tax payment is to divide the load between several enterprises. One of them will be the main one, and the second should perform an auxiliary function.

The result of such a scheme will be that one company will produce products, the price of which already includes VAT. And in the second company - those goods that are sold without the allocation of taxes.

In auxiliary production, products can be produced independently, or with the help of the main company. In any case, thanks to the scheme, material costs of the main production will increase, and other costs will decrease.

The second enterprise will have everything the other way around. Based on this, the tax amount for the VAT payer is reduced due to its increase for the non-payer.

To achieve maximum savings, it is necessary to increase the amount of material costs at the main enterprise, and at the second - the volume of production.