Whitewashing with a reservation – Newspaper Kommersant No. 203 (7165) from 10.11.2021

The introduction of a tax clause for 3.3 thousand of the largest taxpayers, now giving two-thirds of budget revenues, can almost completely whitewash the Russian economy and establish fair competition in the markets, according to the Federal Tax Service (FTS). Tax officials are confident that these federally-administered companies are regulators of the “demand for integrity” for the rest of the business, and the use of a new “chain” instrument in contracts with counterparties will lead to its emergence from the shadows.

The tax clause mechanism, which is gaining popularity in the business community and promoted by the Federal Tax Service, has become one of the main topics of the Tax Forum of the Chamber of Commerce and Industry. We are talking about the practice, which has appeared since 2015, of including in contracts between the buyer and the seller (customer and performer) special conditions that reduce tax risks. The importance of the clause has grown greatly with the appearance in the Tax Code of Art. 54.1 on “tax schemes”, which established the limits of the exercise of the rights of businesses to calculate payments to the budget.

By accepting the reservation, the parties guarantee that they will not violate Art. 54.1, confirm the availability of the resources necessary to fulfill the obligations, agree to the public availability of some of the information constituting tax secrets, and undertake not to use “dummy” contractors. In addition, the right to compensation for losses is prescribed upon presentation of claims by the tax authorities arising from non-compliance with the clause. As follows from the order of the Federal Tax Service of March 10 of this year, if there is a tax clause, a taxpayer who could not take into account expenses or apply a VAT deduction due to the counterparty’s dishonesty may demand compensation from him for losses, and in case of refusal, withhold their amount from the calculations under a contract or collect them in court.

However, as the moderator of the forum round table on this topic, the managing partner of Tax & Legal Management Vasily Vayukin, noted yesterday, the law enforcement practice has not yet developed under the clause, it is contradictory and the courts in a number of cases refuse to compensate for property losses. The lawyer noted that the courts take into account the clause only if the parties act in good faith and exercise due commercial due diligence – for example, do not enter into a contract with a clause with “dummy”. According to him, business concerns about the clause are now associated primarily with the fact whether the result of its application will be shifting responsibility to bona fide counterparties, “from which there is something to take” – through the wrong definition of the beneficiary of the transaction.

Note that tax authorities assess the meaning of the new mechanism somewhat differently than lawyers. According to the Deputy Head of the Control Department of the Federal Tax Service Varvara Burlevich, the tax clause should be viewed not as a tool for recovering losses after the claims of the tax authority against the buyer, but more broadly as a format for interaction between business and the state, which allows preventing tax violations and restoring a fair competitive environment. According to her, for example, the cleaning industry or the market of private security companies “cannot get out of the vicious circle of unfair competition when customers do not give fair tariffs, including all taxes, and those who want to work honestly are not able to do this and are also forced to dump.” …

Varvara Burlevich recalled that the reservation is not an invention of the Federal Tax Service and, in general, a control mechanism. In the form of providing information support from the Federal Tax Service, it was developed by participants in the agro-industrial complex.

“This market worked in a terrible” chernukha “- with illegal reimbursement and non-payment of VAT, budget losses were estimated at about 60 billion a year,” – explained the representative of the Federal Tax Service.

After these problems were removed with the help of the new contractual structure, it was recommended by the Federal Tax Service and other markets. Later, cleaning companies, as well as Gazprom, joined this work.

The service understands a tax clause as an agreement between the parties that the chain of cooperation in the supply of goods or services is limited to the “real” parties to the transaction. For example, in a construction site these are two or three links (contractor – subcontractor – subcontractor of the second level). In addition, it is prescribed that the FTS informs the parties to the transaction about the presence of VAT “gaps” in the chain of suppliers and about the confirmation of the resources for the execution of the transaction, duly executed with the supplier. Another part of the clause – in case of non-elimination of such “gaps”, the buyer has the right not to pay the amount in the amount of the unformed source of VAT, terminate the contract with the supplier and “publish” information about him on a special information resource.

The Federal Tax Service believes that the new format of interaction is capable of giving business better conditions for fair competition, removing tax, commercial and other risks. The state needs it to whitewash the economy, increase tax collection and reduce the cost of administration. The tax authorities want to promote the clause, first of all, among the 3.3 thousand largest taxpayers, who now give 64% of the federal budget revenues. The service believes that these federally administered companies are regulators of the “demand for integrity” and through them the effect of whitewashing the economy and improving the state of competition will go along the entire supply chain.

Vadim Visloguzov



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