Deputy Head of the Federal Tax Service Sergei Arakelov on “anti-evasion” amendments to the Tax Code. Tightening control of legal entities - benefit or harm

Russian President Vladimir Putin signed amendments to tax code, introducing a direct ban on tax abuses directly into legislation for the first time. The new provisions, in particular the new Article TC 54-1, provide for the denial of tax preferences in the event of the creation of tax schemes aimed at non-payment of taxes, and also establish the criteria for those transactions and operations that will be considered justified for tax purposes. Deputy Head of the Federal Tax Service (FTS) Sergei Arakelov told Kommersant about how the discussion and adoption of the law took place.

- The President signed the law on tax abuses. To what extent was it necessary to legislate these provisions?

The Tax Code was originally developed for conscientious taxpayers. There were no provisions in the legislation that indicated abuse. It was necessary to enshrine in the law the basic principles that would help both taxpayers and tax authorities understand the “rules of the game.” After all, most taxpayers are ready to comply with the requirements of tax legislation. The development of amendments to the Tax Code containing conceptual principles has become an objective necessity. Such norms exist in many foreign countries. The introduction of special anti-evasion provisions into national legislation, as indicated by the OECD in its report on Base Erosion and Profit Shifting (BEPS Plan), is one of the measures to prevent tax evasion.

Many tax consultants spoke out about the advisability of simply copying (transferring) the text of the resolution of the Supreme Arbitration Court of the Russian Federation No. 53 on unjustified benefits into the Tax Code. Why didn't the legislator take this path?

- Resolution No. 53 was a guideline designed to streamline the approaches of the courts on the issue of unjustified tax benefits. The introduced criteria and concepts have been developed for many years within the framework of judicial practice: “business purpose”, “impossibility of actually performing transactions”, “lack of necessary conditions" For many of them, no certainty has been achieved. We all remember how long and differently the practice of “failure to exercise due care and caution” has evolved. The wide discretion of many concepts, as well as the huge number of court decisions on various factual circumstances, made it difficult to uniformly apply the developed law enforcement approaches. In recent years, numerous approaches to assessing the evidence base, identifying signs of bad faith of the taxpayer, calculating the received unjustified tax benefit have been formed in law enforcement practice, and certain legal positions have been developed at the level Supreme Court RF and the Federal Tax Service of Russia, which needed to be summarized. The only correct decision, in my opinion, was to develop uniform and understandable signs that would indicate facts of abuse.

Work on the bill began many years ago, and during this time it has undergone significant changes. How do you evaluate the final result?

The law managed to consolidate the most indisputable legal positions. It reflects two main principles. Amendments that we're talking about about distortion of information about the facts of economic life, about objects of taxation, describe the intentional actions of the taxpayer. The legislator has introduced a ban on the use of tax schemes when the taxpayer commits deliberate actions aimed at non-payment of taxes. The second principle is related to the suppression of the use of fly-by-night companies in their activities. These provisions state that for tax purposes only transactions (operations) that meet two criteria can be taken into account: the main purpose of their implementation should not be non-payment of tax, and it should also be carried out by the declared counterparty (first link).

Thus, the law excludes a formal approach. The broad and vague concept of “failure to exercise due diligence” has been eliminated. After all, any valuation concepts and open lists allow abuse by both the tax authority and the taxpayer. It will be necessary to proceed only from the reality of transactions (operations) carried out by the taxpayer. The departure from formal criteria and the establishment of a limited number of cases when the taxpayer’s actions are regarded as dishonest allowed the legislator to introduce a complete denial of expenses and deductions in the event of establishing and proving such facts. Thus, a certain balance of interests of the state and business has been achieved, so the result can be assessed as positive.

The law is aimed at eliminating the use of shell companies in their activities. Are we talking about increased responsibility for our counterparties?

The purpose of the bill is really not only to prohibit the receipt of tax benefits when committing deliberate actions aimed at non-payment of taxes, but also to suppress the use of shell companies in their activities. It is not only the state that must deal with this problem.

If we want to create a healthy competitive environment, the business community must also take on increased responsibilities and respond responsibly to new requirements.

After all, the law does not talk about the second, third and further links of counterparties in the chain, about which the taxpayer may objectively not know. The taxpayer must understand with whom he directly enters into an agreement, whether the counterparty has experience, the ability to fulfill this agreement, and whether the work will actually be performed. Agree, it sounds rather strange to say that the taxpayer is not obliged to check the company with which he is going, for example, to enter into a contract that seriously affects his financial activities. Already today, most participants in economic turnover, based on their capabilities, organize a control system for selecting counterparties. And we see that there are fewer and fewer cases of using shell companies. The number of such tech companies decreases significantly every year. In addition, today much information about taxpayers is open. This provides new opportunities for assessing your own risks and compliance of your activities with legal requirements. .

The Federal Tax Service has already done a lot to ensure that conscientious taxpayers can protect themselves when choosing counterparties: services, reducing the list of information that constitutes a tax secret.

Yes, in addition to the unified registers of legal entities and individual entrepreneurs, there are information databases containing information about persons in respect of whom the fact of impossibility of participation in the organization has been established in court; about persons who do not submit reports, persons with mass founders, mass managers, as well as a register of disqualified persons. On the website of the Federal Tax Service of Russia there is a service available to everyone: “Business risks: check yourself and your counterparty.”

You know that since last year, information about the size of the organization, debt, information about taxes paid, income, and expenses has not been a tax secret. Amendments to the Tax Code of the Russian Federation on expanding information that does not constitute a tax secret were adopted for taxpayers to help when choosing counterparties. This year, the Federal Tax Service has been developing a special service and a procedure for posting such information on our website. From July 25, 2017, basic data on all legal entities in Russia will be open. The existence of such an open resource will be an important tool in the implementation of the new law on abuse. Taxpayers, before completing a transaction, will have the opportunity to collect sufficient information about their counterparty in order to conduct a legal due diligence and determine the possibility of fulfilling obligations under the contract.

How would you comment on the assessment of some tax consultants who believe that the law gives tax authorities new powers?

Such statements are completely false. The law prohibits taxpayers from recording for tax purposes transactions and transactions that fall under the “criteria of depravity” established by the new provisions. These are operations and transactions with the main purpose of tax evasion, as well as unrealistic transactions. At the same time, it is stipulated that such facts are proven by tax authorities only during tax audits. Thus, the principle of presumption of good faith of the taxpayer, the procedure for proving by tax authorities the fact of committing an offense and the procedure for appealing such decisions are observed. Thus, this is not about providing the tax authorities with new broad powers, the new rules concern the establishment of facts of abuse within the framework of already existing tax control procedures.

Will the consolidation of norms on tax abuses in the Tax Code of the Russian Federation lead to a wave of radically new law enforcement practice?

The essence of the doctrine of unjustified tax benefit and the provisions prohibiting tax abuse is the same. This is a denial of tax preferences (expenses, deductions) in the event that the taxpayer commits dishonest actions aimed at reducing his tax obligations, and lack of reality of transactions (operations). The practice of proving such actions has been established and does not cause controversy or misunderstanding among tax authorities and taxpayers. Moreover, even before the law was issued, in March of this year, the Federal Tax Service communicated to the territorial tax authorities a unified position on disputes related to proving the circumstances of obtaining an unjustified tax benefit, in which it directed to abandon the formal approach, be guided by the principle of priority of substance over form and prove exactly unreality of operations. The position of the Federal Tax Service is that formal complaints against suppliers in the absence of facts disproving the reality of the transaction do not indicate abuse. That is why it can be argued that, despite the emergence of new norms that will objectively entail new judicial practice, it will not come as a surprise to taxpayers, tax authorities and courts.

Was the bill discussed, among other things, with the participation of leading tax experts and representatives of large businesses? Were there any difficulties in finalizing the bill?

The preparation of this bill took more than three years. At the meetings held expert council under the Committee on Budget and Taxes State Duma business representatives expressed their concerns and suggestions. For its part, the Federal Tax Service has repeatedly held meetings with representatives of leading legal and consulting companies, business and the scientific community. The main complaint of the business was: to exclude the possibility of refusing expenses and deductions for unidentified and unauthorized persons. After long discussions, we agreed that it was necessary to prove only the fact that the transaction was unrealistic by the counterparty stated in the documents. The bill introduced provisions according to which formal claims against counterparties (questions of officials, violation of the law by counterparties, etc.) are not an independent basis for refusal to take into account expenses and claim deductions for transactions. It was difficult but productive work.

- Will the Federal Tax Service provide territorial tax authorities with clarifications on the application of the new provisions?

Yes, the Federal Tax Service of Russia plans to prepare and communicate to the territorial bodies the position of the legislator in order to achieve uniformity in the application of rules on abuse.

- How do you assess whether the adoption of the law will lead to an increase in disputes regarding abuses?

We still believe that these issues will not be widespread. In recent years there has been a major transition from quantity to quality. The main issues that are currently being addressed in tax audits and which are a priority are cases of taxpayers using deliberate tax schemes using interdependent and controlled companies, as well as cases of abuse within the framework of the application of international agreements.

In addition, every year the number of inspections decreases by about 30%. Unfounded claims from tax authorities are removed at the stage of pre-trial appeal. The effectiveness of the system of “internal reviews” of their own decisions is noted by both tax consultants and the business community. Over the years of introducing the mechanism for pre-trial settlement of tax disputes, the number of complaints has decreased by one third. Over the past seven years, we have reduced litigation almost tenfold. Currently, only about 10 thousand court cases are considered per year, and this corresponds to the level of bringing disputes to the courts in the most developed countries. The high efficiency of the judicial work of the Federal Tax Service of Russia is connected with this. And we are not going to deviate from the trend of reducing disputes, since this is not in our interests.

The consolidation of rules on abuse in the Tax Code eliminated a long-standing gap in the legislation. Such harmonization will lead to certainty in assessing the integrity of taxpayers’ actions.

We must take into account that the main goal of this law is not additional additional charges, but the creation of a fair business environment and the exclusion of unfair competition.

Interview prepared by Dmitry Butrin

Deputy Head of the Federal Tax Service (FTS) of the Russian Federation SERGEY ARAKELOV in an interview with Kommersant summed up the results of the program for introducing out-of-court procedures for resolving disputes with taxpayers.

— The President signed a law introducing the institution of tax monitoring in the Russian Federation. Is this the final stage in the development of conciliation procedures in the tax system?

- Yes. We had a concept for introducing pre-trial methods of resolving disputes. And now we can talk about the unique experience of implementing this project. We have introduced internal review procedures for all disputes, both tax and registration matters. We introduced a tax monitoring regime and a mechanism for settlement agreements in the tax sphere. To date, we have implemented the entire range of measures.

— What was the final goal of the changes?

— Improving the quality of administration, reducing the number of disputes and increasing certainty in the application of tax legislation. After all, a conscientious taxpayer wants to pay taxes correctly and have fewer conflicts with the tax service, but does not always know our position. Therefore, we need to tell you how to pay taxes correctly and reduce the number of disputes with taxpayers.

— Judging by the statistics, taxpayers argue with the service less than before, at least in the courts.

— In previous years, the tax service was involved in a large number of legal disputes, which were the result of not always high-quality decisions. The courts were actually overloaded with all this routine. The psychology of both the tax service and payers was this: let’s bring all disagreements to court, and let the court decide everything. Then it was decided to more actively develop conciliation procedures and introduce mechanisms for internal review of decisions. The situation began to change with the entry into force in 2009 of the law on pre-trial settlement of disputes. Initially, it applied only to decisions on desk and field inspections. It was incredibly difficult to change the psychology of our employees - to convince them not to be afraid to independently cancel the wrong decisions of the territorial tax authorities. The result is now visible: over the years, the number of complaints has decreased by a third, the number of legal disputes has halved.

— After the advent of the pre-trial procedure, many experts said that it would become a formal procedure that would only delay the trial period.

— Yes, many believed that we had created a formal mechanism that would lead nowhere, and that the outcome of the appeal would still be a trial. Large businesses said that the tax office would never cancel large assessments on its own. But since 2010-2011 we have seen high-quality and objective consideration of complaints. We overturned more than 40% of decisions of lower bodies. The service revised about 50% of accruals for large businesses. This is significant. We saw that this mechanism was working, after which we decided to extend the pre-trial settlement mechanism to all disputes. And this law has been in effect since this year.

— In addition to inspections, we have extended pre-trial appeals to actions and inactions of tax authorities. These are complaints about demands, notifications, untimely tax refunds, procedural issues, including registration of legal entities. We purposefully took on the burden of such disputes. They are simple, and it is important to quickly eliminate the violation of rights. Based on the materials of such complaints, we try to eliminate future cases of errors in each inspection.

— A large number of cancellations of decisions of territorial bodies seems to be an ambiguous indicator. It turns out that local tax officials often make mistakes?

— In any case, controversial issues arise within the system. The task of the internal review mechanism is to respond quickly to this. That is, do not take a citizen or organization to court for a long time, but quickly, if the tax authorities are wrong, reconsider the decision. The decisions we make are posted on our website. Today we are open and public. As a result of a unified approach, legal positions are unified. Thus, by review we control the quality of decisions of specific tax authorities. And if we see that we are canceling, but nothing changes in the inspection, then this is certainly a negative indicator for this territorial unit.

- Are you punishing?

- Of course, we will punish you. If we did not do this, our mechanism would not work effectively. Disciplinary sanctions are imposed, including dismissal. Moreover, we see an improvement in the quality of our work.

— What happens in the courts with your decisions?

- It is very important. There has been a major transition from quantity to quality. And court statistics confirm this. When we started the pre-trial procedure, about 40% won in court in terms of amounts. Today, about 80% of amounts disputed by taxpayers are considered in the courts in favor of the budget. The growth occurred precisely because we reviewed all issues that did not have a judicial perspective on our own. Only important methodological disputes and disputes with unscrupulous taxpayers reach the court. And it is right. You know, progressive international experience shows that in some countries the rate of disputes that reach the court is no more than 10%.

— You said about concluding settlement agreements with taxpayers?

— Yes, there were a lot of discussions about them too. In particular, about whether government agency enter into settlement agreements with the taxpayer.

— Were you talking about the possibility of causing damage to the budget?

- Including. And not everything was clear from the point of view of law - whether such agreements were possible or not. For a long time there was a position to go through all the authorities, go to the end and in no case give in to the taxpayer. We then raised this issue before the Supreme Arbitration Court (SAC), which caused a certain furor: no one expected this from us. The Supreme Court acknowledged that settlement agreements are possible. Today we have already concluded more than 40 global agreements. They are concluded at all stages. We concluded the first at the stage of consideration of the issue by the Presidium of the Supreme Arbitration Court, followed by agreements at the stages of first instance, appeal, and cassation. If we see that there are no grounds, there is no longer any determination to go to the end.

—What kind of disputes end peacefully?

— These may be disputes of a methodological nature, disputes regarding the application of a rule, there may be situations where the practice of law enforcement has changed. In order to ensure uniform policies and practices, all settlement agreements are agreed upon at the central office level.

— One of the latest administration innovations is the inclusion of a tax monitoring mechanism in the Tax Code?

- Yes. In fact, this is a new model of interaction between tax authorities and taxpayers, which is based on the principles of openness and trust. Around the world, this approach is also called enhanced information interaction (horizontal monitoring). The point of the mechanism is that even before filing a return, the taxpayer has the opportunity to clarify all controversial issues with the tax authority regarding the taxation of transactions. That is, certainty arises; the company can actually protect itself from risks in the form of inspections. In return, it provides the tax authority with online access to its tax and accounting data.

To be honest, at first I didn’t really believe that anyone was ready to open up. I wasn't sure if it would work. Then they decided to do a pilot project: they took five companies - those that were ready for this. These are Inter RAO, RusHydro, MTS, EY and Severstal. We have been working with these companies in this mode for two years. We see that it is effective. For example, regarding one of the “five” companies, the number of disputes has decreased by five times. Over the course of the year, we responded to more than 50 requests from companies regarding tax issues and held more than 60 meetings with them. The bulk of data is in electronic form; the volume of document transmission on paper has decreased significantly. But this is not the most important thing. This is a new level of relationship with taxpayers. We work in dialogue mode, helping to minimize questions and disputes between us.

— Is the Federal Tax Service sure that it will get full access to company documentation?

— During monitoring, we constantly monitor online the reflection of data in accounting, the correctness of calculation and payment of taxes. According to the law, if a company provides false information, we can always initiate a control regime in the form of tax audits. But it seems to me that the moment of trust is very important here. If companies do not provide us with something and we later identify it, a mechanism of sanctions and further inspections will come into force. And it will be difficult to restore trust again. A serious public company is not interested in this.

— Which companies will be able to take advantage of the regime?

— The criteria for entering this regime have been established: payment of taxes of 300 million rubles. per year, revenue 3 billion rubles. and assets 3 billion rubles. In general, the law establishes a tax monitoring mechanism, as it is known in world practice. The payer draws up regulations establishing the procedure for access to its reports. At the taxpayer's request, we provide a reasoned opinion on a particular issue. Or we independently identify the topic that needs to be reflected. He, in turn, if he agrees, makes changes to the declaration. If not, the conciliation procedure comes into play. We are specially conducting it at the level of the Federal Tax Service, listening to both sides. This is an opportunity to jointly develop common legal positions. The monitoring agreement is concluded for a year, then it can be extended, and during this period tax audits, both on-site and desk-based, are not carried out.

— Are there any people now willing to join the monitoring?

— According to our estimates, a maximum of about 2 thousand payers who meet the above criteria may fall under it. It is clear that many are not yet ready for new administration methods. But we already see about 30 companies that would like to switch to this mode of interaction. We believe that there will be more companies ready for open relationships.

— When should taxpayers decide to join the new mechanism?

— Until July 2015, the payer can apply. I repeat that there was no idea to extend this mechanism to everyone; after all, tax monitoring concerns issues that are difficult to apply and is mainly intended for large businesses with a built-in internal accounting system for compliance with the law. But, on the other hand, if we see the effectiveness of the measures, the access criteria can be adjusted in the future. For example, in Holland, medium and even small businesses—several tens of thousands of companies—participate in monitoring.

— Taking into account all the new mechanisms, how is the Federal Tax Service’s approach to tax audits changing?

— We are reducing the level of tax control in relation to bona fide businesses, but increasing it in relation to unscrupulous ones. But these are not total checks. Not at all. On the contrary, every year the number of inspections decreases by about 30%. We have begun to implement a system for modeling taxpayer behavior, where companies with the highest risk areas are selected in a certain industry, and after verification, the results for companies in this industry are widely reported. This is how we create a ripple effect; companies themselves adjust their obligations. There is no need to conduct full-scale audits of the industry. When selecting taxpayers for audits, a risk-based approach is used. This means the inspector must know where he is going and who he is checking. We check taxpayers point-by-point. In particular, we are closely looking at the issues of creating schemes, including transactions through offshore companies, and obtaining unjustified tax benefits. And we control inspections from the beginning until the recovery of amounts into the budget, using all mechanisms, including recovery from dependent companies if the payer hides assets.

— Are there cases of collection of taxes from dependent companies?

— Previously, we often encountered a situation where the service carried out an audit, the decision came into force, but the payer transferred assets to another company for the purpose of non-payment of tax, effectively continuing its activities. After all, a new legal entity has been formally created, which is not responsible for the previous one. There was no mechanism to counter this in the Tax Code. A year ago, we introduced a rule that allows us to collect taxes in such a situation from dependent companies. Now the courts have supported us, the mechanism is effective, and we will apply this practice to unscrupulous companies.

- What else legislative initiatives Does the Federal Tax Service have a policy against unscrupulous payers?

“We have taken the initiative to enshrine in law the prohibition of taxpayers abusing their rights. By and large, the Tax Code is written for the conscientious taxpayer. When there is no “good faith”, we work within the framework of the 53rd resolution of the Supreme arbitration court for an unjustified tax benefit. That is, when making a decision based on the results of inspections, we actually refer not to the norms of the law, but to a judicial act. Of course, the rules on abuse of law must be enshrined in legislation. It shouldn't be step by step instructions how to prove receipt of unjustified benefit, but it is necessary to secure general principles prohibition of taxpayer's abuse of rights. If a person abuses his rights, then, of course, he should be limited in the use of privileges, benefits, and preferences. Such norms exist in many foreign countries.

— That is, the Federal Tax Service has different approaches to conscientious taxpayers and unscrupulous ones?

- That's how it should be. Out-of-court mechanisms for resolving disputes, the concept of expanded interaction is a reduction in the level of control over bona fide payers. This frees up manpower so we can switch to at-risk payers. And here we must use all legal mechanisms to protect the interests of the budget.

— The program for introducing extrajudicial procedures has been completed. Does the Federal Tax Service have any other innovations planned?

— Indeed, we have implemented most of the plans regarding pre-trial procedures. But there is another topic that we plan to approach in the future—tax mediation. This is also a very difficult story - to involve in the consideration of controversial issues a person who would be trusted by both parties: the state represented by the tax authorities and the taxpayer. It is clear that it is very difficult to find an independent and professionally knowledgeable person who would be trusted by both parties. It seems to me that mediators could alternatively be retired judges or representatives of the scientific community - specialists in one field or another. The mechanism itself is interesting, used in many countries. With the help of tax mediation, you can resolve the most complex disputes that require special knowledge. But it is necessary to weigh how harmoniously this mechanism can be integrated into our tax system. In general, as our experience has shown, the implementation alternative methods dispute resolution is effective and leads to improved administration and reduced conflict.

Interview prepared by Dmitry Butrin

Colleagues, what do you think? Will the new procedures be beneficial? Or will people finally lose interest in entrepreneurship? I'm leaning towards the second one.

The vice-chairman hands over the cases

The Russian market will be cleared of fly-by-night companies

Business partners will be able to receive guaranteed verified information about each other. And the risk of running into a shell company or fictitious company will be significantly less. This means that consumers will have less reason to worry that their order will not be fulfilled or that a low-quality product will be sold.

From the moment of publication and in the second stage from January 2016, amendments to several laws relating to state registration of legal entities and individual entrepreneurs will come into force. Most of the changes concern the Federal Tax Service. Deputy Head of the Federal Tax Service Sergei Arakelov told RG about this.

Sergey Ashotovich, why were the changes needed? Since 2013, the law has already obligated us to check company data; you can even object to their registration if errors are found.

Sergey Arakelov: A legal business wants to be sure of the true existence of its counterparties, that they will not disappear as soon as obligations need to be fulfilled. And get real information about actual condition legal entity. Fictitious companies do not contribute to the investment attractiveness of our economy. Often it is the opacity of corporate structures and the presence of shadow companies that discourage foreign businesses from operating in our markets.

With the help of such companies, unscrupulous persons can easily escape their obligations, deceiving business partners and the state. As a result, those who use fraudulent schemes receive unreasonable competitive advantages over conscientious businessmen. This cannot be allowed.

Yes, the Civil Code in 2013 established a rule on verifying the accuracy of register information, but it remained mostly declarative. No verification procedure is prescribed by law.

It remained unclear how and in what way to qualitatively verify the accuracy of the information submitted to the tax authority, if only five days were allotted for registering documents. What to do if false data is identified after making an entry in public registers: the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs? The law answers all these questions, specifies how the authenticity check should be carried out and what its consequences are. Introduced and new normal, which allows you to supplement registers with entries about the unreliability of certain information.

Will this become another bureaucratic procedure that interferes with business?

Sergey Arakelov: No. It won't. Conscientious businessmen today are hampered by false information in the public register. This situation is beneficial only to scammers. There is no talk at all about any obstacles to running a legal business. And an entry about unreliability is excluded from the register immediately after the correct information is entered.

For those who simply “forgot” to enter them by mistake or carelessness, the tax authority will first remind you of this. And it will be possible to provide correct data within a month from the date of issuing notifications of inaccuracy. If someone does not agree with an entry about unreliability already entered into the register, they can always file a complaint with a higher tax authority before the court.

In what cases is the Federal Tax Service now obliged to conduct an “inspection” of information before registration?

Sergey Arakelov: Firstly, if there are reasonable doubts about their authenticity based on documents available to the tax authority.

Secondly, when applications are received from interested parties objecting to the upcoming state registration or changes to the charter of a legal entity, or the inclusion of information in the register.

If the tax authority determines that the data is incorrect, registration will be denied.

What sanctions threaten for falsifying information? Are they getting tougher?

Sergey Arakelov: No, we are not talking about tightening, but about differentiating responsibility and ensuring its inevitability for those guilty of falsification.

Thus, according to amendments to the Criminal Code, now a figurehead will be considered not only the one who was allegedly “deceived” by the organizers of the company, making him the “sic chairman”, but also the one who deliberately became a figurehead director. Administrative responsibility has also been streamlined. For systematic or deliberate submission of false information for registration, only disqualification of up to 3 years is now provided, which can no longer be avoided by imposing a small fine.

New grounds have been added for refusal of state registration. Individuals who have already abused their civil rights once - were involved in violating the law, creating or operating fictitious companies, or deliberately entered false information into registers - will be limited in creating new legal entities.

Forever?

Sergey Arakelov: The restriction will not be for life - after three years you can again conduct business through a legal entity, that is, under conditions of limited liability.

In this case, violators are not deprived of the right to occupy entrepreneurial activity, for example, as an individual entrepreneur. That is, on the terms of personal responsibility, when you cannot simply “quit” the business and thus forget about your creditors, debts to the state and unpaid taxes.

What will you do with the information that is already in the registers? Is it possible to fight counterfeits with hindsight?

Sergey Arakelov: Yes, if inaccurate data is detected, the procedure for making a corresponding entry in the register is initiated.

Do new legislative amendments close gaps in liquidation procedures for legal entities?

Sergey Arakelov: Yes. Now creditors can be sure that they will have time to submit their claims, and the debtor will not be liquidated until the end of the trial and collection of debts from him.

This will also help the state when carrying out control measures; it will be impossible to use liquidation to evade paying taxes.

In the interests of creditors, a procedure for prior notification of an upcoming change in the location of a legal entity has also been introduced. Now that the company is not just moving to another office, but making another location its location locality, and most often the subject of the Federation, creditors or its clients find out about this in advance. This can be very important, since the location of the legal entity determines, for example, in which court it will have to be sued, as well as the jurisdiction of a number of other actions, for example, enforcement proceedings.

What other important innovations, in your opinion, have been introduced into the law?

Sergey Arakelov: The registration law now states that any interested person will be able to obtain official information from registers with an electronic signature of the registering authority free of charge. To do this, you need to go to the Federal Tax Service website and make a request for any company or individual entrepreneur you are interested in.

Together with all other information that is currently posted on nalog.ru. And this is the most wide range information - from information about mass addresses, about those who do not pay taxes, who are disqualified, to those who cannot be found at their legal address and who do not submit tax reports, you can create a complete portrait of companies or individual entrepreneurs.

How will all the expected innovations change the business climate in the country?

Sergey Arakelov: Registers of legal entities and individual entrepreneurs are the most popular federal information resource, where every citizen, if necessary, can find out who he is dealing with. Today they contain data on more than 8 million legal entities and individual entrepreneurs.

Maximum publicity of registers is the key to moving towards healthy civil relations and trust in the business environment.

The state is making these efforts as part of the general direction to improve and simplify the conditions for doing business and the openness of registration procedures. Reduced time consumption and Money when starting a business, which is reflected in the World Bank ratings. Here, let me remind you, Russia is for Last year significantly increased its position in the area of ​​“registration of enterprises”.

Work in this direction continues. Literally on March 27, the State Duma adopted in the third reading a law that abolishes the mandatory use of seals by legal entities. Now, in order to start a business, you will not need to go through the procedure of making any stamps - this will be entirely on a voluntary basis.

When will the changes to the Register Accuracy Act come into full force?

Changes in terms of criminal and administrative liability will come into force in the near future, immediately after the publication of the law. The same as the rules against abuses in the liquidation of companies.

The bulk of the innovations will go into effect after January 1, 2016. So both business and the state will be able to prepare for such serious changes in registration rules.

The law has been signed

Yesterday, the President of Russia signed amendments to the laws “On State Registration of Legal Entities and Individual Entrepreneurs”, “On Limited Liability Companies”, Fundamentals of Legislation on Notaries, the Criminal Code and the Code of Administrative Offenses.

Most of the changes relate to the registration of legal entities, which is carried out by the Federal Tax Service. For the first time, comprehensive changes have been made to all necessary legislative acts regarding abuses in the field of state registration of legal entities.

The most important effect expected by the Federal Tax Service is increasing the reliability of the register of legal entities.

Therefore, mechanisms are being introduced to protect against fraudsters and fictitious companies, and to provide maximum access to reliable information databases.

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The President signed amendments to the bankruptcy law and the Code of Administrative Offenses, which should help collect tax debts from final beneficiaries. Until recently, many bankrupts managed to evade paying taxes, while the persons associated with them did not bear financial responsibility for this. Deputy head of the Federal Tax Service (FTS) Sergei Arakelov, in an interview with Izvestia, spoke about how the tax service will now work with bankrupts, how multi-billion-dollar debts of companies were bought for pennies, and that taxes can be collected even from offshore companies, and also about the results of the transfer of the administration of insurance premiums from the Pension Fund of the Russian Federation, the Compulsory Medical Insurance Fund and the Social Insurance Fund to the tax office.

The liability of directors and nominal owners of legal entities was already in the very first edition of the Civil Code. Why are these amendments necessary?

Most bankruptcy cases did not produce any economic effect. Moreover, before bankruptcy, the business had turnover, assets, cash flows, as well as persons who received these incomes. In a situation complete absence assets in bankruptcy, the right to collect uncollected debt from the controlling person (so-called subsidiary liability) could become a source of replenishment of the bankruptcy estate. But before we only received fractions of a percent. This happened because all subsidiary liability was reduced to obtaining a deliberately unenforceable judicial act to collect debt from the nominal manager of the business. This is a situation where the truly guilty persons escaped responsibility. The main question - how to make sure that it is not the nominal leader who is responsible for the debts, but the one who actually organized the debt evasion scheme - has not been resolved.

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- What is the essence of the adopted amendments? What practically do they change for tax authorities, business and courts?

A lot is changing. The main thing is to increase the role of the court in collecting evidence and creating security mechanisms for the safety of the assets of persons whose abuses caused losses to creditors, including drawing on the experience of foreign legal orders. The new law will allow us to ask the court to seize not only the defendant’s own property, but also the assets of persons controlled by him. Previously, this was not the case and we had to get involved in a constant procedural “chase”, when the assets of each subsequent debtor melted away by the time we received a new writ of execution. Creditors will now also be able to initiate subsidiary liability at any stage of bankruptcy. Previously, it was necessary to wait for bankruptcy proceedings - and by this time several years could have passed, during which the beneficiary's assets and evidence simply disappeared.

It is important that the concept of “controlling persons” is also clarified to exclude the possibility of escaping from such status by the real beneficiaries of the debtor who are guilty of causing damage to creditors.

I will also note that the new rules are aimed at overcoming the practice of avoiding subsidiary liability through its purchase by affiliates for pennies. We have had cases where billions of dollars in debt were purchased for hundreds or tens of thousands of rubles. Moreover, outwardly everything was legal. Now the creditor will be able, without waiting for such auctions, to transfer to itself the right to demand compensation for damages from the defendant. Or - require the arbitration manager to seek execution of the judicial act through the bailiff.

How much money did the budget receive from bankrupts before, did these revenues increase this year and what is the potential for their growth after the adoption of the law?

We have seriously increased the efficiency of bankruptcy for the budget. If in 2015 we received about 28 billion rubles a year from bankruptcies, then in 2016 - already 64 billion. Moreover, in the first half of 2017 alone we already have revenues in the amount of 42 billion. In fact, we are increasing revenues from year to year one and a half to two times.

Growth in all directions. Our direct receipts from debt included in the register of creditors' claims have also doubled. The amount for the last six months is almost equal to the amount received for the entire last year.

We expect that new law will change the behavior of debtors and debts will be paid without bankruptcy or, in principle, will not be formed under the threat of personal liability. The less confidence there is in successfully getting out of debt, the more motivation there will be to fulfill obligations, the more trust there will be in business.

- What are the most striking examples of abuse of the law for tax evasion?

More often than not, we see bankruptcy abuse schemes go hand in hand with tax understatement schemes. The areas here are very different. Those who do not want to pay taxes are not going to do so at all - and after non-payment is revealed by the tax authorities, too. Bankruptcy is either planned in advance or carried out already during tax audit or after it.

There are several basic schemes here. An organization that operates with tax risks may not have assets initially, using the assets of affiliates, including those not formally related to the future debtor. Material benefits from the activities of such an organization are transferred to beneficiaries in many ways - from various forms of payment of dividends and non-return of foreign currency earnings to banal cashing out.

If the company had assets, they are withdrawn at the pre-bankruptcy stages. And if this could not be done, the assets are withdrawn already in the bankruptcy procedure, using bid manipulation or other methods. In order to smoothly implement schemes at the bankruptcy stage or protect against claims of withdrawal of assets or escape of beneficiaries from personal liability, so-called “friendly” debt is generated. This allows, through fictitious debt, to control the meeting of creditors and, accordingly, the bankruptcy trustee.

- How can a bankrupt pay at all if he is, by definition, insolvent?

We do not equate those who have actually found themselves in a difficult financial situation for one reason or another and those who consciously choose bankruptcy to write off their debts. We are ready to enter into amicable agreements with those who cannot pay in one lump sum, but want to keep the business. And from such agreements the budget now receives several times more than before. Over the past six months, revenues have already amounted to almost 2 billion compared to 300 million for the same period last year. If we see that there was a source of repayment, but it is carefully hidden from us, transferred or registered in the name of other persons, in order to evade paying debts behind the screen of limited liability of a legal entity, then the arsenal available to us to counter abuse comes into play - from collection from dependent persons under the Tax Code, challenging transactions and bringing them to subsidiary liability before criminal prosecution mechanisms.

After the Federal Tax Service drew attention to this topic, it was even possible to obtain payments from offshore companies. What is the volume of such revenues?

Debtors' assets are often transferred to offshore companies. We already have precedents for the seizure of offshore assets of persons held vicariously liable. There are cases in which offshore companies themselves became defendants in claims of subsidiary liability and invalidation of transactions for the withdrawal of funds. After the court accepted our claims, the debts to the state were immediately repaid, and directly from the accounts of the foreign organization. In another situation, the beneficiary of an organization that owed a large amount to the budget became a defendant in a criminal case and, after a civil lawsuit was brought against him personally and his property was seized, he began to repay debts also from offshore accounts.

What does the law change for the activities of arbitration managers? How will the work of their self-regulatory organizations (SROs) change?

The main problem with the activities of arbitration managers is their independence from control, including from SROs. There is still no mechanism for the independent appointment of such managers. They are appointed not because they are effective, but simply at the will of the person who first filed for bankruptcy. There is no point in expecting objectivity from such a manager. There have been cases when one arbitration manager was fined 5-6 times a year, but continued to violate the law. According to statistics from the Federal Tax Service and Rosreestr, about 4–4.5 thousand violations of arbitration managers were established annually by judicial acts. According to the courts, the number of claims for violations was about 8 thousand per year.

If we want the insolvency practitioner to truly be an independent figure, there must be a system of independent appointment based on the insolvency practitioner's professionalism, performance, commitment to compliance with the law and the rights of all persons involved in the bankruptcy case.

Has the transfer of powers to the Federal Tax Service to administer contributions to extra-budgetary funds somehow changed the effectiveness of their collection in bankruptcy?

Yes, we are now especially carefully monitoring the repayment of current debt for these types of payments in bankruptcy. This is something we couldn't do before.

Thanks to targeted work to counter violations of the order of repayment of these payments, identifying violations of bankruptcy trustees and credit institutions, it is now possible to achieve the repayment of debts that were many years old. In the first half of 2017, extra-budgetary funds received 80% more payments from our participation in bankruptcy procedures than in the same period last year.

The law on extending criminal liability to criminal manifestations of evasion of payment of insurance premiums is also intended to increase the motivation of debtors to inadmissibly evade the fulfillment of these obligations. The legislator quite understandably extended the existing measures of criminal law protection of tax payments to insurance premiums.

- What does the Federal Tax Service see as further steps to collect taxes?

The new law, for the first time at the legislative level, takes a step to counteract persons affiliated with the debtor who tried to influence the effectiveness of bringing to subsidiary liability by blurring the register of creditors' claims. There are already first steps in the practice of the Supreme Court. In fact, the general position of the court is the inadmissibility of abuse by artificially generating the debt of the debtor to the founder through imaginary transactions. Eliminating such negative manifestations will increase the repayment of debt to bona fide creditors.

If we also talk about areas of special application of our efforts, I will note the work to overcome the practice of evading current tax payments in bankruptcy. These are the debts that arise from the activities of a debtor whose bankruptcy has already been recognized by the court.

The main task here is also to counteract abuse. The situation when, instead of paying off debts, bankrupt enterprises only create new ones is unacceptable; it directly contradicts the law, which says that the purpose of the bankruptcy procedure is settlements with creditors. In practice, we often see that the arbitration manager, together with related persons, often former managers and owners, continue economic activity debtors. Goods and services are sold, revenue is generated, payments are made to suppliers, but taxes are not paid. That is, instead of returning the debt to the budget, its size continued to increase.

The methods of non-payment were different - from disguising all expenses, except taxes, under the term “operational”, where everything was included - right up to transfers to offshore companies for supposedly “raw materials”, to blatant violations of priority, when the arbitration manager simply did not calculate taxes or did not put them in register of payment orders.

We managed to obtain positive precedents when the courts directly said that such a situation is nothing more than a tax evasion scheme.

- Won't all these changes in the law and judicial practice worsen the situation of taxpayers?

Russian practice is developing in the trend of development of world law. The challenges - for example, such as business transfer or “shadow” management through nominee directors - are similar everywhere. And we see that the paths to combat them that we and foreign jurisdictions are following are very close. It is important that more and more attention is paid not to the formal legal construction of chains of transactions and corporate relations, but to the real content of economic relations. So, if we are talking about subsidiary liability, it is obvious that it is not a figurehead who should be held accountable for abuses, but the one who actually makes decisions and receives income from failure to fulfill obligations to creditors. And such an approach will not only not worsen, but will improve the situation of conscientious taxpayers.

We already have some of the institutions, but we need to improve legislation and law enforcement practice - law-abiding businesses should count on the fact that they will not be in a worse position than those who circumvent the law.