Moscow. May 2. Russian authorities report on the progress in the fight against the shadow economy. But despite the victory, the overall scale of tax evasion, corruption, trafficking, criminal money, according to experts, the decrease is not so significant.
This sector of the Russian economy demonstrates extremely high survivability and the ability to change that is clearly visible on the example of serving the gray economy firms-a something ephemeral, the study of the phenomenon which gave us a “SPARK-Interfax”.
Greetings from the “dashing 90”
The name “phony”, whose task – for a certain percentage to “help” the business in the cash received initially within a short period of life. After its in the system “hug”, a company registered in any bum, rapidly moving into the category of abandoned assets. In the process of elimination, no one spent.
10 years ago the number of firms with which it was possible to get the cash and evade taxes, accounted for about half of the total number of legal entities in the country, the analytical data of the system “SPARK”.
Various were the names that they were given the business from Frank, LLC “Bank transfer.Org”, “barnyard” and “Nal” to a traditional OOO “cornflower” or romantic “Ofeli”.
The scope of business can be judged by massive and blatant advertising in the Internet, on lampposts and in spam emails: “Need cash”, “Cash quickly”, “Obna. Transit. Envelope”, “envelope Salaries”, “Only for cash”, “Cash”.
Creative were the code names of the ephemeral. As soon as they among themselves call guapira, cesspool, bruise, Mulk, hedgehog, Daisy, dandelion, strip (white, grey, black), fungus, lantern, butterfly, suitcase, monkey…
Not extra know how to do the process itself. At the expense of the company, assisting in cashing, it is the client puts a certain amount of money for alleged services rendered. Then the company removes from your account cash for their own needs – for payment of staff salaries, purchase of materials, economic needs, etc. the Money cash is sent to the client minus the fee.
Options. Instead of cash the customer can be offered a promissory note of the friendly Bank. This scheme was popular in the 2000s, usually in conjunction with a few banks-laundries. Commission fee for encashment is usually 5%.
In General, the ephemeral and many other functions in addition to cashing: gray and black customs clearance, credit fraud, bankruptcy…
The “classic” ephemeral processed on a stolen passport or “homeless Petrovich with heating”. Address too much didn’t bother. For example, when tax authorities to find the whereabouts of one of them it turned out that this place is the Ministry of justice. Another time the study of genealogy ephemeral led a reviewer in Medical Academy named after Sechenov.
One hapless founder of a day to do this three times, lost passport. Other during interrogation indicated that they were registered in your name, the organization, whose name is not remember. The ladies parent for some business need at the time took away the passport, she was a Director of eleven companies. In one of the regions are “painted” a false passport in the name of Lyubov Polishchuk and registered in his construction firm.
“Dear Oksana, who lost his passport in the street of Gorky. Heartily congratulate you on your appointment to the position of General Director and chief accountant with the right to sign in 43 companies!!!”, – says the famous joke.
The last 6-7 years the government is really fighting with the ephemeral, but in fact with the entire informal sector, and many have succeeded.
FNS Russia has armed the business information that allows identifying unreliable partners.
After the recent changes in legislation has become difficult to register a legal entity that has mass address, mass Director and other telltale attributes of the “one day”.
Tax authorities began to strictly control the accuracy of the information on registration of companies. For example, companies not on the document address. It is entered in the state register of companies, after which a legal entity can be after a while eliminated.
FNS began to closely monitor companies that are changing the legal address. Control over financial migration has resulted in a reduction of 3.5 times.
In the fight against “shadow companies” the banks involved and they are required to identify among their customers organizations which can be suspected of cashing, withdrawals abroad, not paying VAT. If such suspicion means that the Bank must stop the service of such customer and to inform the Federal financial monitoring service.
Increased responsibility. In the criminal code there is an article on responsibility for the creation of the ephemeral, the penalty for which can range from 500 thousand rubles fine of up to 5 years in prison.
Finally, a blow to the night was the launch of the tax system to ask the VAT-2 (the second version of the automated system of control of VAT), which allows you to automatically match data on purchases and sales taxpayers to identify discrepancies in the submitted VAT returns and guide taxpayers of the requirement for the submission of revised data. Thus, the company evade taxes, then the tax becomes visible at a glance.
As a result of these actions on the price of cashing has increased dramatically. Today, if you want to perform the operation and not to get on the “radar” of the tax (and for this to be built a long chain of front companies to protect the company of the customer), the price has already reached 15%.
The number of companies that have signs of unreliability, has fallen to about 700 thousand, i.e. 2.5 times in 6 years, shows us a special analytical indicator – Index of due diligence, we hope to “SPARK”.
Under the hood tax
However, in terms of the existence of ask VAT-2 problems from “ephemeral” can occur even in companies, faithfully performing all obligations and not think about tax scams. Just enough to have among its suppliers the company which did not pay taxes.
“In practice, in many cases, the claims for the actions of dishonest contractors are not to controversial companies and their bona fide contractors. Often companies impose the tax claims for contractors and subcontractors of the second and subsequent links. If before in such situations, the courts in most cases took the side of honest taxpayers in recent years, in many cases it is possible to observe the opposite picture,” – said the head of group tax dispute resolution Goltsblat BLP Alexander Yerasov.
“The active use of ask VAT-2 has enhanced the capacity of FNS to identify the so-called “gaps” in the chain of VAT by contractors of the taxpayer. We are talking about cases where any of the contractors or sub-contractors failed to account for VAT for the period concerned, or not reflected in its accounts the appropriate operation. This means that even the most “respectable” of taxpayers at any time may have a claim arising from the fact that in the chain of suppliers or contractors anywhere in the third to fifth level was defaulting counterparty fails to perform its tax duties”, adds head of tax resolution practice of AKG “MEF-Audit” Alexander Ovesnov.
Quarterly courts are conducted in about 1,500 cases, when companies try to challenge the tax assessment received for the “ephemeral.” According to statistics, the chance to challenge the case in court the taxpayer has no more than 20%. The court needs to provide strong evidence that a transaction with a counterparty (which turned out to be a one-hit wonder) and was a real character, for example, that the goods have been delivered. To prove that, legally speaking, the due diligence was shown, you can also use information from a special information system, which will show that at the time of the transaction the company had no formal signs of one day.
When the court decides the dispute in favor of the tax authorities
When the court sided with the taxpayer
Woodworking has lost in courts of all instances, because primary documents do not confirm the reality of his business transactions with counterparties. “Arguments about due diligence when selecting the counterparties disputed on the basis of their reputation, availability of timber, the reality of the economic activities, not given,” concluded the court.
(The definition of the RF armed forces 08.02.2017 No. 302-КГ16-19848)
The Supreme court has recognized the legitimate use of deductions under the VAT and the accounting of costs at taxation of profits on contracts demircioglu Parking markings and applying new markings on the territory of the Business center Moscow-city, as the contractor conducted similar work for other investors in the project. In addition, the agreement was signed after an agreement with the Prefecture of the Central Administrative District of Moscow.
(Definition from 06.02.2017 No. 305-КГ16-14921 in the case №A40-120736/2015)
The arbitration court of North Caucasus district indicated that only the certificate on the state registration and statement on the tax account, the certificate of incorporation and bylaws of the society does not characterize the organization as a bona fide taxpayer that has business reputation and competitive advantage. The taxpayer had to make sure that the contractor carries out real business activity and has the capacity to fulfill the obligations under the contract.
(Decision of 18.01.2017 No. Ф08-9955/2016 on case №A32-2566/2016)
The company has managed to provide the proper degree of care when entering into contracts with counterparties controversial, not only received copies of all required documents (certificate of incorporation, certificate of admission for certain type of works influencing safety of objects of capital construction, certificates of registration, bin, TIN, certificate of incorporation), but in signing agreements favorable terms for price, delivery and order of calculation.
(The decision of Arbitration court of the Ural district from 08.12.2016 in case number A60-60601/2015)
Ninth arbitration court of appeal pointed out that the lack of personal contact between the General Directors of the companies entering into contractual relationships, shows, together with other available evidence about the absence of due diligence.
(Decision of 30.11.2016 No. 09AP-54168/2016-AK in case №A40-112921/16)
The court decided in favor of the taxpayer, as the choice of the disputed subcontractor was held on the results of the tender. Submitted by the contractor documents credibly testified that the company “Patriot gas station – Service” have the necessary equipment and human resources with adequate professional qualifications to perform construction works at the gas station.
(Resolution of the Fifteenth AAS from 21.12.2016 in the case №A53-28824/2015)
Who is behind the mask of a clown?
Despite the comprehensive all fronts of struggle, the demand for services, the “ephemeral” in Russia remains high. Themselves phony demonstrate high survivability and adapt well to new living conditions.
In an increasingly hostile environment in Russia was the rebirth of one-day firms, says the developer of the Index due diligence system “SPARK” Ilya Munerman. Standard factors with which it was possible to calculate the day, today is not triggered. Today “phony” outwardly indistinguishable from good companies and do not correspond to its previous name.
“Phony” is the first generation in the early 2000s, it was easy enough to calculate on formal grounds. They had no sites and answering phones. Because day do not lead real activity, the staff her was not necessary. For this reason, it was not required and office the company was registered on the so-called “mass”, and led her “mass Director” (aka, usually the founder of the company), which listed a dozen similar companies. A life span of 2-3 years, the lack of accountability and failure to pay taxes was complemented by the portrait.
The second generation of “night” already had websites, phone numbers, and many other signs of normal companies, but still fit a number of formal criteria of one day.
“Phony” third generation do not fit into the usual standards. It is not specially created for fraud “toadstool”, and having the history of the company, which actually worked, but broke. But instead of bankruptcy, the owners chose to sell them and the new owners began to use for cash or other fraudulent transactions.
Index due diligence “SPARK” aims to identify all the companies with signs of unreliability.
According to the formal criteria of the new “phony” similar to conventional company. They have a real Director, address, Bank account, cobbled together by the designer of the website, which is updated periodically, they take the tax returns.
Changed the portrait of the typical founder of “ephemeral”. Previously, they were often antisocial personality or firms registered on lost or stolen passports. Now the founder lived is just an average person who got in a difficult life or financial situation – lost his job, has a loan that cannot pay. And then there are good wizards, who offer him in exchange for repayment of debts become the owner/Director of the company with all the real duties: to sign the documents, answering phone calls…
A classic version of a modern Director of “phony” is a single woman from the region, with a child who is unable to pay off the microcredit and voluntarily agrees to the proposal of establishing a firm to be its CEO. By the way, it unites us with the countries of Southeast Asia, which are often the victims of such scams be relocating to the town peasants.
How to catch a black cat in a dark room
The fight against “shadow companies” reminiscent of the fight with the hijackers: even the coolest anti-theft system, sooner or later, the crooks pick up the key. Similarly, “one-day” learn to cheat the system of detection, for example, the Index of due diligence “SPARK”.
All signs that he used to build insights about the trustworthiness of companies now separately do not work, they must be supplemented by other information which can tell something about the real activities of the company, analysts said system.
A lot of information about it can give base Hosannah. For example, the information that the company entered into a contract or received a Bank guarantee testifies to the fact that it exists and has been audited by the specialists of the customer and the Bank – that is, definitely not “ephemeral”.
Posted on HR websites the information about the vacancies will tell you that the firm is working and recruiting staff.
If the company conducted the enforcement proceedings, information about it is available on the website of the arbitration court. The company’s participation in the arbitration process can show, for example, that she is a plaintiff in the ongoing arbitration, either won the courts as the defendant in the performance of contractual obligations. If you delve into things themselves, we can reveal more facts.
The presence of collateral shows that the company not only has a real property, it also cannot be rejected without notifying the mortgagee.
Certificates and declarations will talk about what the company has confirmed the compliance of its products to one or more technical regulations and manufactures / exports/ sells the products subject to certification or mandatory Declaration.
Confirm the efficiency of the company is and the presence of her own the trademark or rights to it.
These and many other sources of information allow us to expand the factor space for the analysis of companies and with greater precision to give an answer, is she a one-hit wonder or not. In hope to “Spark” the Index of due diligence, the number of factors by analysing the company was increased to 40. Those companies that do not conduct real activity, still going to give himself away, despite all attempts to hide it.
The number of sources that can be used to confirm real activity, the company will continue to grow. FNS begins to post information on the payment by companies of taxes, which also would confirm the fact that the company is real activity, as is paying taxes.
To completely displace the “phony” the market will work when the cost of their services will be almost equal to the amount of taxes you will pay (and to sleep). And when you change the psychology of the Russian business.
The court will understand…
A taxpayer today must not only verify the fact of registration of the company, but also to check that it has the reputation and resources necessary to perform obligations under the contract and the budget.
That is, the company in order to exercise due diligence, is not enough to collect primary documents. She will have to verify the reality of their contractors using the widest possible range of means for “identification” of the partner.
Before the courts are mainly checked if the taxpayer documents confirming the legal capacity of the counterparty and the authority of persons to represent their interests and sign the documents. Now pay more attention to the actual circumstances and reality of financial and economic relations. This has led to an increase of decisions made in favour of the tax authorities.
Denied to the tax authorities in the recovery of debts from companies, but only if they can prove that:
– individuals are not independent under the civil law, and the IRS has not provided proof of a depending;
there is no evidence of intentional evasion by the taxpayer from payment of taxes, the deal was real;
there is no evidence of deliberate transfer by a taxpayer of the proceeds to the accounts of persons that can be recognized as a dependent by the taxpayer.