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An examination within the framework of a tax audit is a tax control event that is appointed on the basis of a resolution of the official carrying out the audit, if special knowledge in science, art, technology or craft is required to clarify emerging issues.

Expertise cannot be appointed on issues accounting, legal issues, as well as other issues, the knowledge of which, or the authority to resolve which must be possessed by inspectors or other specialists of the tax authority (lawyers, etc.).

This norm was determined Federal Tax Service of the Russian Federation on the basis of judicial practice (letter dated July 17, 2013 No. AS-4-2/12837@ “On recommendations for carrying out tax control activities related to tax audits”). The Federal Tax Service of the Russian Federation also draws attention to the fact that when ordering an examination, preference should be given to those types and issues that give the tax authority reason to believe that the results of the examination will allow the establishment of violations of the legislation on taxes and fees on a large and especially large scale.

Types of examinations that have priority:

• identification examination to establish whether a product belongs to a homogeneous group of goods or a controlled list of goods;
• examination to determine the value of goods;
• expertise in assessing the value of real estate, fixed assets, intangible assets, estimated construction costs;
• examination to determine the volume of work (services) performed, the quantity of products produced (mining), goods;
• examination of information on computer media;
• forensic examination (handwriting, auto-editing, technical-forensic).

The procedure for appointing an examination

The examination is appointed by a resolution of the official of the tax authority carrying out the tax audit.
The examination must be appointed during the period of the tax audit.

The resolution contains information about the grounds for ordering the examination, the name of the expert and the name of the organization in which it will be carried out, as well as the questions posed to the expert and the materials made available to the expert.

The official must familiarize the person being inspected with the decision ordering the examination and explain to him the following rights:

• challenge the expert;
• request the appointment of an expert from among the persons indicated by him;
• submit additional questions to obtain an expert opinion on them;
• be present with the permission of a tax authority official during the examination and give explanations to the expert;
• get acquainted with the expert's opinion.

The expert also has certain rights. In particular:

• get acquainted with the inspection materials related to the subject of the examination;
• submit requests for additional materials to be provided to him;
• when establishing during the examination circumstances that are significant for the case, about which questions were not raised to him, include conclusions about these circumstances in his conclusion;
• refuse to give an opinion if the materials provided to him are insufficient or if he does not have the necessary knowledge to conduct the examination. An expert’s refusal to participate in a tax audit in the absence of these circumstances entails tax liability provided for in paragraph 1 of Article 129 of the Tax Code of the Russian Federation, namely a fine of 500 rubles.

Materials for conducting the examination are provided to the expert by the official of the tax authority conducting the tax audit. If the materials provided are not sufficient to conduct an examination on the questions raised in full, then the expert has the right to request the provision of additional materials.

Expert opinion

The examination ends with a conclusion. The expert gives a written opinion on his own behalf. The expert’s conclusion sets out the research he has conducted, the conclusions drawn as a result and reasonable answers to the questions posed. If, during the examination, an expert establishes circumstances that are significant for the case, about which questions were not put to him, he has the right to include conclusions about these circumstances in his conclusion.

The expert’s conclusion or his message about the impossibility of giving an opinion is presented to the person being inspected, who has the right to give his explanations and raise objections, as well as to ask for additional questions to be put to the expert and for the appointment of an additional or repeat examination. If the conclusion is incomplete or not clear enough, then an additional examination may be appointed. Additional examination may be entrusted to the same or another expert.

The presence of doubts about the correctness or validity of the expert’s conclusion is the basis for a re-examination. Unlike an additional examination, a re-examination can only be entrusted to another expert. By virtue of paragraph 2 of Article 129 of the Tax Code of the Russian Federation, giving a deliberately false conclusion by an expert entails tax liability in the form of a fine in the amount of 5,000 rubles.

Publication date: 10/03/2013 09:00 (archive)

In accordance with paragraphs. 11 clause 1 art. 31 of the Tax Code of the Russian Federation, tax authorities have the right to attract specialists, experts and translators to conduct tax control.

An expert can be involved in any actions to implement tax control (clause 1 of Article 95 of the Tax Code of the Russian Federation). Involving an expert when conducting tax audits is the right of the tax authority, and not an obligation.

Subclause 3 of clause 9 of Article 89 of the Tax Code of the Russian Federation provides that the head (deputy head) of a tax authority has the right to suspend an on-site tax audit to conduct examinations.

Engaging a specialist to give an opinion instead of an expert is unacceptable. Such a conclusion will be equated to the testimony of a witness or even considered unacceptable evidence (clause 4 of Article 101 of the Tax Code of the Russian Federation). The specialist does not conduct research, does not give opinions, but only assists in conducting tax control. His opinion does not have the same evidentiary value as an expert opinion.

The examination is appointed by a resolution of the official of the tax authority carrying out the tax audit. The resolution specifies the grounds for ordering the examination, the name of the expert and the name of the organization in which the examination should be carried out, the questions posed to the expert, and the materials made available to the expert.

The official of the tax authority who issued the decision to appoint an examination is obliged to familiarize the person being inspected with this decision and explain his rights, about which a protocol is drawn up.

When appointing and conducting an examination, the person being inspected has the right:

• challenge the expert; request the appointment of an expert from among the persons indicated by him;
• submit additional questions to obtain an expert opinion on them;
• be present with the permission of a tax authority official during the examination and give explanations to the expert; get acquainted with the expert's opinion.

The procedure for conducting examinations and drawing up expert opinions is regulated by the Federal Law of May 31, 2001 N 73-FZ “On State Forensic Expert Activities in the Russian Federation.” The norms of the said Federal Law also regulate the expert activities of persons operating outside state forensic expert institutions. in accordance with Article 25 of the above Federal Law, the result of the expert’s work is a written opinion, which is drawn up based on the results of research conducted by an expert or a commission of experts.

The expert gives a written opinion on his own behalf. The conclusion outlines the research he conducted, the conclusions drawn and reasonable answers to the questions posed. If, during the examination, an expert establishes circumstances that are significant for the case, about which questions were not put to him, he has the right to include conclusions about these circumstances in his conclusion.

The expert’s conclusion or his message about the impossibility of giving an opinion is presented to the person being inspected, who has the right to give his explanations and raise objections, as well as to ask for additional questions to be put to the expert and for the appointment of an additional or repeat examination.

An additional examination is appointed in case of insufficient clarity or completeness of the conclusion and is assigned to the same or another expert.

A re-examination may be ordered if the expert’s conclusion is unfounded or there are doubts about its correctness and is assigned to another expert.

Policy regarding the processing of personal data

1. Terms and accepted abbreviations

1. Personal data (PD) – any information relating to a directly or indirectly identified or identifiable individual (PD subject).

2. Processing of personal data – any action (operation) or set of actions (operations) performed using automation tools or without the use of such means with personal data, including collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data.

3. Automated processing of personal data – processing of personal data using computer technology.

4. Personal data information system (PDIS) – a set of personal data contained in databases and information technologies and technical means that ensure their processing.

5. Personal data made publicly available by the subject of personal data is PD, access of an unlimited number of persons to which is provided by the subject of personal data or at his request.

6. Blocking of personal data – temporary cessation of processing of personal data (except for cases where processing is necessary to clarify personal data).

7. Destruction of personal data - actions as a result of which it becomes impossible to restore the content of personal data in the personal data information system and (or) as a result of which the material media of personal data are destroyed.

8. A cookie is a piece of data that is automatically placed on your computer's hard drive each time you visit a website. Thus, a cookie is a browser's unique identifier for a website. Cookies make it possible to store information on a server and help you navigate the web more easily, as well as allow you to analyze the site and evaluate the results. Most web browsers allow cookies, but you can change your settings to refuse cookies or to track cookies. However, some resources may not work correctly if cookies are disabled in the browser.

9. Web tags. On certain web pages or emails, the Operator may use common Internet “web tagging” technology (also known as “tags” or “fine GIF technology”). Web tags help analyze the performance of websites, for example by measuring the number of visitors to a site or the number of “clicks” made on key positions on a site page.

10. Operator - an organization that, independently or jointly with other persons, organizes and (or) carries out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, and actions (operations) performed with personal data.

11. User – Internet user.

12. The site is a web resource https://lc-dv.ru, owned by the Limited Liability Company "Legal Center"

2. General provisions

1. This Policy regarding the processing of personal data (hereinafter referred to as the Policy) is drawn up in accordance with paragraph 2 of Article 18.1 of the Federal Law “On Personal Data” No. 152-FZ of July 27, 2006, as well as other regulatory legal acts of the Russian Federation in areas of protection and processing of personal data and applies to all personal data that the Operator may receive from the User while using the Site on the Internet.

2. The operator ensures the protection of processed personal data from unauthorized access and disclosure, misuse or loss in accordance with the requirements of the Federal Law of July 27, 2006 No. 152-FZ “On Personal Data”.

3. The operator has the right to make changes to this Policy. When changes are made, the date of the last update of the edition is indicated in the title of the Policy. The new version of the Policy comes into force from the moment it is posted on the website, unless otherwise provided by the new version of the Policy.

3. Principles of processing personal data

1. The processing of personal data by the Operator is carried out on the basis of the following principles:

2. legality and fair basis;

3. limiting the processing of personal data to the achievement of specific, predetermined and legitimate purposes;

4. preventing the processing of personal data incompatible with the purposes of collecting personal data;

5. preventing the merging of databases containing personal data, the processing of which is carried out for purposes incompatible with each other;

6. processing only those personal data that meet the purposes of their processing;

7. compliance of the content and volume of processed personal data with the stated purposes of processing;

8. preventing the processing of personal data that is excessive in relation to the stated purposes of their processing;

9. ensuring the accuracy, sufficiency and relevance of personal data in relation to the purposes of processing personal data;

10. destruction or depersonalization of personal data upon achieving the goals of their processing or in the event of loss of the need to achieve these goals, if it is impossible for the Operator to eliminate the violations of personal data, unless otherwise provided by federal law.

4. Processing of personal data

1. Obtaining PD.

1. All PD should be obtained from the subject of the PD himself. If the subject's PD can only be obtained from a third party, then the subject must be notified of this or consent must be obtained from him.

2. The operator must inform the PD subject about the purposes, intended sources and methods of obtaining PD, the nature of the PD to be received, the list of actions with PD, the period during which the consent is valid and the procedure for its revocation, as well as the consequences of the PD subject’s refusal to give written consent to receive them.

3. Documents containing PD are created by receiving PD via the Internet from the PD subject during his use of the Site.

2. The operator processes personal data if at least one of the following conditions is present:

1. Processing of personal data is carried out with the consent of the subject of personal data to the processing of his personal data;

2. Processing of personal data is necessary to achieve the goals provided for by an international treaty of the Russian Federation or law, to implement and fulfill the functions, powers and responsibilities assigned by the legislation of the Russian Federation to the operator;

3. Processing of personal data is necessary for the administration of justice, execution of a judicial act, act of another body or official, subject to execution in accordance with the legislation of the Russian Federation on enforcement proceedings;

4. Processing of personal data is necessary for the execution of an agreement to which the subject of personal data is a party or beneficiary or guarantor, as well as for concluding an agreement on the initiative of the subject of personal data or an agreement under which the subject of personal data will be a beneficiary or guarantor;

5. Processing of personal data is necessary to exercise the rights and legitimate interests of the operator or third parties or to achieve socially significant goals, provided that the rights and freedoms of the subject of personal data are not violated;

6. Processing of personal data is carried out, access to an unlimited number of persons is provided by the subject of personal data or at his request (hereinafter referred to as publicly available personal data);

7. The processing of personal data subject to publication or mandatory disclosure in accordance with federal law is carried out.

3. The operator may process PD for the following purposes:

1. increasing the awareness of the PD subject about the products and services of the Operator;

2. concluding agreements with the subject of personal data and their execution;

3. informing the subject of personal data about news and offers of the Operator;

4. identification of the subject of personal data on the Site;

5. ensuring compliance with laws and other regulations in the field of personal data.

1. Individuals who are in civil legal relations with the Operator;

2. Individuals who are Users of the Site;

5. PD processed by the Operator is data received from Users of the Site.

6. Personal data is processed:

1. – using automation tools;

2. – without the use of automation tools.

7. Storage of PD.

1. PD of subjects can be received, undergo further processing and transferred for storage both on paper and in electronic form.

2. PD recorded on paper is stored in locked cabinets or in locked rooms with limited access rights.

3. PD of subjects processed using automation tools for different purposes is stored in different folders.

4. It is not allowed to store and place documents containing personal data in open electronic catalogs (file sharing services) in ISPD.

5. PD is stored in a form that allows the identification of the PD subject for no longer than required by the purposes of their processing, and they are subject to destruction upon achievement of the purposes of processing or in the event of the loss of the need to achieve them.

8. Destruction of PD.

1. The destruction of documents (media) containing personal data is carried out by burning, crushing (grinding), chemical decomposition, transformation into a shapeless mass or powder. A shredder can be used to destroy paper documents.

2. PD on electronic media is destroyed by erasing or formatting the media.

3. The fact of destruction of PD is documented by an act of destruction of media.

9. Transfer of PD.

1. The operator transfers PD to third parties in the following cases:
– the subject has expressed his consent to such actions;
– the transfer is provided for by Russian or other applicable legislation within the framework of the procedure established by law.

2. List of persons to whom PD is transferred.

Third parties to whom PD is transferred:
The Operator transfers the PD to Legal Center LLC (located at: Khabarovsk, 680020, Gamarnika St., 72, office 301) for the purposes specified in clause 4.3 of this policy. The operator entrusts the processing of PD to Legal Center LLC with the consent of the PD subject, unless otherwise provided by federal law, on the basis of an agreement concluded with these persons. Legal Center LLC processes personal data on behalf of the Operator and is required to comply with the principles and rules for processing personal data provided for by Federal Law-152.

5. Protection of personal data

1. In accordance with the requirements of regulatory documents, the Operator has created a personal data protection system (PDS), consisting of subsystems of legal, organizational and technical protection.

2. The legal protection subsystem is a complex of legal, organizational, administrative and regulatory documents that ensure the creation, operation and improvement of the legal protection system.

3. The subsystem of organizational protection includes the organization of the management structure of the CPPD, the permitting system, and the protection of information when working with employees, partners and third parties.

4. The technical protection subsystem includes a set of technical, software, software and hardware tools that ensure PD protection.

5. The main PD protection measures used by the Operator are:

1. Appointment of a person responsible for PD processing, who organizes PD processing, training and instruction, internal control over compliance by the institution and its employees with PD protection requirements.

2. Identification of current threats to the security of personal data when they are processed in ISPD and the development of measures and measures to protect personal data.

3. Development of a policy regarding the processing of personal data.

4. Establishing rules for access to personal data processed in the ISPD, as well as ensuring registration and accounting of all actions performed with personal data in the ISPD.

5. Establishing individual passwords for employees to access the information system in accordance with their production responsibilities.

6. Application of information security tools that have passed the conformity assessment procedure in accordance with the established procedure.

7. Certified anti-virus software with regularly updated databases.

8. Compliance with conditions ensuring the safety of personal data and excluding unauthorized access to them.

9. Detection of facts of unauthorized access to personal data and taking measures.

10. Restoration of personal data modified or destroyed due to unauthorized access to it.

11. Training of the Operator’s employees directly involved in the processing of personal data in the provisions of the legislation of the Russian Federation on personal data, including requirements for the protection of personal data, documents defining the Operator’s policy regarding the processing of personal data, local acts on the processing of personal data.

12. Implementation of internal control and audit.

6. Basic rights of the subject of personal data and obligations of the Operator

1. Basic rights of the subject of personal data.

The subject has the right to access his personal data and the following information:

1. confirmation of the fact of processing of PD by the Operator;

2. legal grounds and purposes of PD processing;

3. goals and methods of PD processing used by the Operator;

4. name and location of the Operator, information about persons (except for the Operator’s employees) who have access to PD or to whom PD may be disclosed on the basis of an agreement with the Operator or on the basis of federal law;

5. terms of processing of personal data, including periods of their storage;

6. the procedure for the exercise by the subject of personal data of the rights provided for by this Federal Law;

7. name or surname, first name, patronymic and address of the person processing PD on behalf of the Operator, if the processing has been or will be assigned to such a person;

8. contacting the Operator and sending him requests;

9. appealing the actions or inaction of the Operator.

10. The Site user may at any time withdraw his consent to the processing of PD by sending an email to the following email address: [email protected], or by sending a written notification to the address: 680020, Khabarovsk, st. Gamarnika, house 72, office 301

eleven. . After receiving such a message, the processing of the User's PD will be stopped and his PD will be deleted, except in cases where processing can be continued in accordance with the law.

12. Responsibilities of the Operator.

The operator is obliged:

1. when collecting PD, provide information about PD processing;

2. in cases where the PD was not received from the subject of the PD, notify the subject;

3. if the subject refuses to provide PD, the consequences of such refusal are explained to the subject;

5. take the necessary legal, organizational and technical measures or ensure their adoption to protect PD from unauthorized or accidental access to it, destruction, modification, blocking, copying, provision, distribution of PD, as well as from other unlawful actions in relation to PD;

6. provide responses to requests and appeals from subjects of personal data, their representatives and the authorized body for the protection of the rights of subjects of personal data.

7. Features of processing and protection of data collected using the Internet

1. There are two main ways in which the Operator receives data via the Internet:

1. Providing PD by PD subjects by filling out the Site forms;

2. Automatically collected information.

The operator can collect and process information that is not PD:

3. information about the interests of Users on the Site based on the entered search queries of Site users about services and goods sold and offered for sale in order to provide up-to-date information to Users when using the Site, as well as generalization and analysis of information about what sections of the Site, services, products are in greatest demand among Site Users;

4. processing and storing search queries of Site Users for the purpose of summarizing and creating statistics on the use of sections of the Site.

2. The Operator automatically receives certain types of information obtained during User interaction with the Site, correspondence by email, etc. We are talking about technologies and services such as cookies, Web tags, as well as User applications and tools.

3. At the same time, Web tags, cookies and other monitoring technologies do not make it possible to automatically receive PD. If the Site User, at his own discretion, provides his PD, for example, when filling out a feedback form, then only then are processes of automatic collection of detailed information launched for the convenience of using the Site and/or to improve interaction with Users.

8. Final provisions

1. This Policy is a local regulatory act of the Operator.

2. This Policy is publicly available. The public availability of this Policy is ensured by publication on the Operator’s Website.

3. This Policy may be revised in any of the following cases:

1. when the legislation of the Russian Federation in the field of processing and protection of personal data changes;

2. in cases of receiving instructions from the competent government authorities to eliminate inconsistencies affecting the scope of the Policy

3. by decision of the Operator;

4. when the purposes and terms of PD processing change;

5. when changing the organizational structure, the structure of information and/or telecommunication systems (or introducing new ones);

6. when using new technologies for processing and protecting personal data (including transmission, storage);

7. when there is a need to change the process of processing personal data related to the activities of the Operator.

4. In case of failure to comply with the provisions of this Policy, the Company and its employees are liable in accordance with the current legislation of the Russian Federation.

5. Control of compliance with the requirements of this Policy is carried out by persons responsible for organizing the processing of Company Data, as well as for the security of personal data.

I would like to say right away that the reason for writing the article was one of the recent clarifications of financiers - Letter dated 04/23/2010 N 03-02-07/1-187.

In the Letter, the organization asks the Ministry of Finance for clarification on the following issue. In order to verify the legal capacity and integrity of counterparties, the Company has developed special internal instructions. According to the provisions of this document, before concluding contracts with potential suppliers, they are requested to provide copies of the charter, certificate of state registration, certificate of tax registration, as well as powers of attorney for persons authorized to sign contracts, bills, invoices, invoices and acts.

In addition, facts of state registration, addresses of location of counterparty organizations, information about their founders, officials who have the right to act without a power of attorney, licenses, etc. are verified by the company according to official data from the Unified State Register of Legal Entities via Internet access provided by the Federal Tax Service on the basis of a paid annual subscription service.

Having studied the opinion of the main financial department, presented in Letters dated 07/06/2009 N 03-02-07/1-340, dated 04/10/2009 N 03-02-07/1-177, dated 12/31/2008 N 03-02-07/ 2-231, the organization believes that the listed measures are sufficient confirmation of the taxpayer’s showing the due degree of diligence and care when choosing contractors, which is discussed in paragraph 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53.

And the actual question is: should a company, in addition to the above measures, conduct handwriting examinations in relation to the signatures of representatives of counterparty organizations affixed to contracts issued by them, powers of attorney, primary documents and VAT invoices, and if so, in which institutions should order such examinations so that during subsequent tax control their results will be accepted by the tax authorities as appropriate evidence?

At first glance, it seems that the company is going to extremes, trying to protect itself from accusations of connections with fly-by-night companies and receiving unjustified tax benefits, however, as an analysis of current arbitration practice shows, the signature on an invoice of an unauthorized person is one of the most common Arguments of tax officials in the fight for refusal to accept an invoice for accounting. At the same time, I would like to immediately note that this is far from the only argument. As a rule, along with it there are others that have already become “classic”: the absence of counterparties at the legal address, failure of counterparties to submit reports, registration of a counterparty company using a lost passport, and many others. In this case, the courts, when making a decision, evaluate the totality of these indicators.

In addition, it should be noted that the amount of tax risks directly depends on the transaction amount. Therefore, the larger the transaction, the more thorough the collection of information about the counterparty should be, and vice versa. Some judges express a similar position. Thus, the judges of the Federal Antimonopoly Service of the Moscow Region, in Resolution No. KA-A40/3561-10 dated April 22, 2010, drew the taxpayer’s attention to the fact that when concluding transactions with multimillion-dollar sums, the applicant was obliged to exercise due diligence, to ensure that the persons acting on behalf of counterparties, check the availability of appropriate licenses, equipment necessary to carry out activities to provide communication services, and obtain other information characterizing the business reputation of partners. The company did not present any evidence confirming this to either the tax authority or the court.

What about the Ministry of Finance? Let's return to the question asked at the beginning of the article.

Financiers rightly note that the Tax Code of the Russian Federation does not regulate civil legal relations arising between counterparties, and does not provide for the obligation of an organization to conduct a handwriting examination of counterparties’ documents. But this is only on one side.

On the other hand, the Ministry of Finance delicately draws the attention of taxpayers to the fact that tax authorities have the right to demand from taxpayers documents in the forms established by state bodies and local governments, as well as documents confirming the correctness of calculation and timely payment (withholding and transfer) of taxes.

Based on the general requirements for documents, including those used in civil and tax relations, any document must contain reliable information that allows the identification of the person who signed it.

And then follows a list of legal norms, according to which all business transactions must be documented in primary documents, and the reliability of the information contained in such documents is ensured by the persons who compiled and signed them.

Tax authorities' claims regarding signatures on primary documents

Recently, the list of responsibilities imposed on taxpayers has become increasingly significant. This especially applies to contractors with whom the organization works. What claims do tax authorities have regarding signatures on documents received by taxpayers from their counterparties? What place is given to the authenticity of a signature? What are the consequences of establishing that invoices were signed by unidentified persons?

Primary documents (invoice, delivery note, invoice) signed by unauthorized persons do not meet the requirements of Art. Art. 169, 171, 172, 252 of the Tax Code of the Russian Federation and Art. 9 of the Federal Law “On Accounting”, and therefore cannot be the basis for classifying value added tax as tax deductions and including costs as expenses for corporate income tax (see, for example, Resolution of the Federal Antimonopoly Service VSO dated March 11, 2010 N A19-22305/09). This is the main argument of the tax authorities.

In accordance with Art. 169 of the Tax Code of the Russian Federation, an invoice is a document that serves as the basis for the buyer to accept tax amounts presented by the seller of goods (works, services) for deduction in the manner prescribed by Chapter. 21 Tax Code of the Russian Federation.

Clause 6 of Art. 169 of the Tax Code of the Russian Federation establishes that an invoice is signed by the head and chief accountant of the organization or other persons authorized to do so by an order (other administrative document) for the organization or a power of attorney on behalf of the organization.

According to paragraph 2 of Art. 169 of the Tax Code of the Russian Federation, invoices drawn up and issued in violation of the procedure established by clauses 5 and 6 of this article cannot be the basis for accepting tax amounts presented to the buyer by the seller for deduction or reimbursement.

By virtue of paragraphs 1 and 2 of Art. 9 of the Federal Law “On Accounting”, all business transactions carried out by an organization must be documented with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is conducted. Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided for in these albums must contain the mandatory details established by the Law.

At the same time, the requirements for compliance with the procedure for preparing primary accounting documents relate not only to the presence of all established details, but also to the reliability of the information they contain.

From the systematic interpretation of the above rules it follows that one of the conditions for the application of VAT deductions is the presence of an invoice issued in accordance with Art. 169 of the Tax Code of the Russian Federation.

Documentary evidence takes on special importance in the light of Resolution No. 53. In accordance with paragraph 1 of Resolution No. 53, a tax benefit is understood as a reduction in the amount of tax liability due, in particular, to a decrease in the tax base, receipt of a tax deduction, tax benefit, or the application of a lower tax rate , as well as obtaining the right to a refund (offset) or reimbursement of tax from the budget. Submission by the taxpayer to the tax authority of all properly executed documents provided for by the legislation on taxes and fees in order to obtain a tax benefit is the basis for receiving it, unless the tax authority proves that the information contained in these documents is incomplete, unreliable and (or) contradictory.

Carrying out handwriting examination

Tax authorities have the right to involve experts when carrying out tax control activities. This is provided for in paragraphs. 11 clause 1 art. 31 Tax Code of the Russian Federation.

The procedure for conducting the examination is contained in Art. 95 Tax Code of the Russian Federation.

Basic rules for conducting an examination:

An examination is appointed if special knowledge in science, art, technology or craft is required to clarify emerging issues;

The questions posed to the expert and his conclusion cannot go beyond the expert’s special knowledge;

The examination is appointed by a resolution of the official of the tax authority carrying out the on-site tax audit. The resolution specifies the grounds for ordering the examination, the name of the expert and the name of the organization in which the examination should be carried out, the questions posed to the expert, and the materials made available to the expert;

The official of the tax authority who issued the decision to appoint an examination is obliged to familiarize the person being inspected with this decision and explain his rights, about which a protocol is drawn up;

The expert gives a written opinion on his own behalf. The expert’s conclusion sets out the research he has conducted, the conclusions drawn as a result of these studies and substantiated answers to the questions posed. If, during the examination, an expert establishes circumstances that are significant for the case, about which questions were not put to him, he has the right to include conclusions about these circumstances in his conclusion;

The expert’s conclusion or his message about the impossibility of giving an opinion is presented to the person being inspected, who has the right to give his explanations and raise objections, as well as ask to pose additional questions to the expert and order an additional or repeat examination.

For your information. Order of the Federal Tax Service of Russia dated May 31, 2007 N MM-3-06/338@ “On approval of document forms used by tax authorities in the exercise of their powers in relations regulated by the legislation on taxes and fees” approved the forms of the resolution on the appointment of an examination (Appendix 9) and protocol on familiarization of the person being inspected with the decision on the appointment of an examination and on clarification of his rights (Appendix 10).

Also Art. 95 of the Tax Code of the Russian Federation provides for the following rights of the person being inspected when appointing and conducting an examination:

Challenge the expert;

Request the appointment of an expert from among the persons indicated by him;

Submit additional questions to obtain an expert opinion on them;

Be present, with the permission of a tax authority official, during the examination and provide explanations to the expert;

Get acquainted with the expert's opinion.

When does the examination become invalid?

Judges for correct examination

When making decisions, judges pay attention to the compliance of the examination with the requirements of Art. 95 Tax Code of the Russian Federation.

Thus, when making a decision in a case in which there was a handwriting expert’s conclusion, which stated that when examining samples of signatures of the heads of the taxpayer’s counterparties, it was established that the signatures on behalf of these counterparties were not made by their managers, but by other unidentified persons, the judges of the FAS VSO assessed the relevance and admissibility of this written evidence, established compliance with the norms of procedural law in the appointment, conduct and registration of the results of a handwriting examination, and therefore the argument of the cassation appeal about the violation of the interests of the entrepreneur in the appointment and conduct of a handwriting examination could not be accepted by the court of cassation (Resolution of the FAS VSO dated 26.01 .2010 N A19-10014/09).

If the handwriting examination was carried out in compliance with all the requirements provided for in Art. 95 of the Tax Code of the Russian Federation, then, as the courts note, the signing of primary documents on behalf of the company’s supplier by an unidentified person who is not its manager could not entail legal consequences in the form of the company’s right to deductions for value added tax and the inclusion of costs in expenses for income tax (see, for example, Resolution of the FAS VSO dated March 11, 2010 N A19-22305/09).

What happens if, during the examination, the tax authority made any inaccuracies in the process of carrying out this event?

Expertise is different

Often, as evidence that the signature on documents was made by an unauthorized person, tax authorities present a certificate drawn up based on the results of a handwriting study conducted in accordance with the Federal Law “On Operational-Investigative Activities.” The judges believe that in this case the examination procedure established by Art. 95 Tax Code of the Russian Federation.

Regulations	Court position
Determination of the Supreme Arbitration Court of the Russian Federation dated 05.05.2010 N VAS-6179/10	A certificate from the forensic center of the Main Department of Internal Affairs for the Chelyabinsk Region cannot be considered admissible evidence, since it was compiled based on the results of a handwriting study conducted in accordance with paragraph 5 of Art. 6 of the Federal Law of August 12, 1995 N 144-FZ “On Operational Investigative Activities”, and therefore does not comply with the requirements of Art. 95 Tax Code of the Russian Federation
Resolution of the Federal Antimonopoly Service NWZ dated May 14, 2010 N A56-49950/2009	To substantiate the statement that the remaining invoices were signed by unidentified persons, the inspectorate refers to certificates of the results of operational handwriting studies, which cannot be considered admissible evidence in the case. According to the legal position of the Constitutional Court of the Russian Federation, formulated in Determination No. 18-O dated 02/04/1999, the results of operational-search activities are not evidence, but only information about the sources of those facts that, being obtained in compliance with the requirements of the Federal Law of 08/12/1995 N 144-FZ “On Operational-Investigative Activities”, can become evidence after they are consolidated in the proper procedural way
Resolution of the Federal Antimonopoly Service of the Eastern Military District dated March 24, 2009 N A29-4799/2008	A signature examination certificate issued by a forensic center cannot be considered appropriate evidence in the case, since in accordance with Art. 95 of the Tax Code of the Russian Federation, as well as Art. 9 of the Federal Law of May 31, 2001 N 73-FZ “On State Forensic Expert Activities in the Russian Federation”, the only form of evidence that clarifies issues the resolution of which requires special knowledge in the field of science, technology, art or craft is examination, which in this case was not carried out. The current legislation does not provide for such a form of tax control as a handwriting study, in which there were no circumstances and criteria that served as the basis for the conclusion that the signature belonged to an unknown person
Resolution of the FAS VSO dated January 27, 2010 N A19-13881/09	The arbitration court reasonably rejected the tax inspector's argument that the invoices issued to the entrepreneur were signed by an improper person. Having examined the certificate of the forensic center of the Main Department of Internal Affairs for the Irkutsk region, which concluded that the image of the signatures made in documents 1 - 44 (copies of invoices, delivery notes, receipts for cash receipt orders) on behalf of P.V. Spirin ., were executed not by P.V. Spirin, but by another person, the court rightfully came to the conclusion that this document is unacceptable evidence in the case. The certificate drawn up based on the results of a handwriting study does not comply with the requirements of Art. 95 Tax Code of the Russian Federation. The court also indicated that since the issues described in the study are issues requiring special knowledge, to resolve them it is necessary to appoint an examination and, accordingly, the appropriate evidence will be the conclusion of the examination appointed in accordance with Art. 95 of the Tax Code of the Russian Federation or Art. 82 Arbitration Procedure Code of the Russian Federation. The arbitration court established that during the on-site tax audit, an examination of the signatures of Spirin P.V. was not appointed, the tax inspectorate did not file a request for an examination when considering the case in the court of first instance

The examination was carried out outside the framework of a tax audit

In the Resolution of the FAS VSO dated April 20, 2010 N A19-15852/09, the following situation was considered. When appealing to the appellate court, the inspectorate requested that the handwriting expert's opinion be included in the case materials.

In accordance with the norms of Parts 1 and 2 of Art. 268 of the Arbitration Procedure Code of the Russian Federation, when considering a case in the manner of appeal proceedings, the arbitration court, based on the evidence available in the case and additionally presented, re-examined the case.

Additional evidence is accepted by the arbitration court of appeal if the person participating in the case has justified the impossibility of presenting it to the court of first instance for reasons beyond his control, and the court recognizes these reasons as valid.

Based on Part 3 of Art. 64 of the Arbitration Procedure Code of the Russian Federation, the use of evidence obtained in violation of federal law is not permitted.

The appellate court reviewed the inspection's request and determined that the inspection was appointed by the inspection outside the scope of the inspection and after the decision of the court of first instance. In addition, the court found that the inspectorate, when ordering an examination, violated the requirements of Art. 95 Tax Code of the Russian Federation.

Taking into account the above, the appellate court rightfully refused to add the said expert opinion to the case materials.

Visual assessment of a signature is not yet an examination

Back in Letter dated November 19, 2003 N 03-06/23808 “On the use of invoices for VAT calculations,” the Federal Tax Service for St. Petersburg drew attention to the fact that the conclusion about the discrepancy between the signatures on the invoice without conducting a handwriting examination is a violation of Art. 95 Tax Code of the Russian Federation. The on-site tax audit report should not contain subjective assumptions of the inspectors.

However, there are still cases when inspectors evaluate signatures “by eye.” Fortunately for taxpayers, the judges do not agree with this approach: the inspector’s argument that the signature of R.I. Vysotin is also subject to rejection. in the explanations and his signature in contracts and acts is visually different, since the inspection did not use its right established by Art. 95 of the Tax Code of the Russian Federation, and did not conduct an examination as part of an on-site tax audit. In addition, when considering the case on the merits, the inspectorate also did not file a request for a handwriting examination (Resolution of the FAS VSO dated April 14, 2010 N A33-13166/2008).

Errors were made when documenting the examination

The expert issued a certificate, not a conclusion. In the FAS PO Resolution No. A12-15936/2009 of April 29, 2010, the judges came to the conclusion that there was inconsistency in expert opinions on the correspondence of the signatures in the documents received from the counterparty and the signatures received by the tax authority during the audit, and there was unconditional evidence that the documents were from the name of the counterparty were signed by unauthorized persons and were not presented to the court. In addition, the court indicated that expert certificates cannot be accepted as admissible evidence in the case, since they do not meet the requirements for an expert opinion (there is no indication that the expert has been warned of criminal liability; the text of the certificate contains no references to any or regulatory documents on the basis of which the expert’s conclusions were made, etc.).

The tax authority’s argument about conducting an examination in accordance with Art. 95 of the Tax Code of the Russian Federation, since this article provides for the issuance of an expert’s conclusion, not a certificate.

The resolution appointing the examination does not indicate the name of the expert. In the FAS PO Resolution No. A55-11919/2009 dated March 15, 2010, judges were faced with a situation where the examination was carried out on the basis of a resolution, where, in violation of paragraph 3 of Art. 95 of the Tax Code of the Russian Federation did not indicate the name of the expert.

The courts made a legitimate conclusion that the content of information about the name of the expert in the decision ordering an examination guarantees the right of the persons involved in the case to challenge the expert. This is confirmed by the position of the Plenum of the Supreme Arbitration Court, set out in Resolution No. 66 of December 20, 2006 “On some issues of practice in the application of legislation on examination by arbitration courts.”

Samples of signatures were submitted for research in an inappropriate form. In the same Resolution of the FAS PO dated March 15, 2010 N A55-11919/2009, the arbitration courts also took into account the company’s reference to the fact that, as indicated in the resolution on the appointment of the examination, in the covering letter, as well as in the expert’s conclusion, sample signatures of representatives of the counterparties were provided on undated surveys.

Meanwhile, the copies available in the case materials and the original surveys presented to the court of first instance are dated. The dates on these documents, in terms of indicating the day and month, were made in one’s own handwriting. The expert report also reflects that the objects were presented for examination unpacked and unsealed.

Based on the above, the cassation court considered it legitimate to conclude by the courts of the first and appellate instances that the results of the handwriting examination cannot be recognized as reliable, since it was carried out in violation of the procedure for conducting the examination when implementing tax control measures established in Art. 95 Tax Code of the Russian Federation.

Of the 48 documents, only three were examined. In the Resolution of the Federal Antimonopoly Service NWZ dated May 14, 2010 N A56-49950/2009, judges were faced with a situation where an examination of signatures was carried out in relation to three invoices out of 48 received from one counterparty of the taxpayer, and in relation to four out of 48 received from another counterparty .

Evidence of conduct in accordance with Art. 95 of the Tax Code of the Russian Federation, the inspection did not provide a handwriting examination of the signatures on all invoices submitted by the company for transactions with the specified counterparties.

Based on this, together with other arguments, the courts came to the conclusion that the taxpayer confirmed the right to apply tax deductions on invoices issued by the disputed counterparties.

The expert did not follow the procedure for conducting the examination. In the Resolution of the Federal Antimonopoly Service NWZ dated May 13, 2010 N A56-41647/2009, the courts rejected as appropriate evidence a certificate drawn up by the 15th department of the forensic center of the Main Internal Affairs Directorate for St. Petersburg and the Leningrad Region, indicating that it was compiled based on the results of an operational handwriting study carried out on the basis of clause 5 of Art. 6 of the Federal Law “On Operational-Investigative Activities”, and does not comply with the requirements of Art. 95 Tax Code of the Russian Federation.

In addition, the courts found that the certificate of the results of the operational research did not indicate the expert’s compliance with the procedure for selecting samples of handwriting and signatures, did not describe the research methods, and there was no information about the availability of a sufficient number of free, conditionally free and experimental samples at the expert’s disposal, The study did not provide samples of handwriting and signatures close in time to the date of compilation of the documents studied. The inspectorate also did not provide evidence in the case file that the applicant was familiarized with the decision to order the examination.

Thus, the courts rightly rejected as inadequate evidence a certificate of the results of an operational study, compiled based on the results of an operational handwriting study.

Not a single examination, or a few words in conclusion

Of course, tax legislation is imperfect, and taking into account the way auditors interpret its gaps, it turns out that a taxpayer cannot take a step without a piece of paper, the authenticity of which still has to be proven. But in fairness, it should be noted that judges make conclusions based not only on the results of a handwriting examination (even carried out in accordance with all the rules of Article 95 of the Tax Code of the Russian Federation). They take into account the entire set of circumstances under which a particular business transaction was carried out. So, for example, in the Resolution of the Federal Antimonopoly Service of the Eastern Military District dated 04/07/2009 N A79-9740/2007, judges, in addition to the results of handwriting examination, examined contracts, certificates of work performed, certificates of the cost of work, invoices, acts of acceptance and transfer of bills, bank responses, explanations of employees societies, etc. Moreover, if a handwriting examination has established that the signatures on invoices were made by an unauthorized person of the counterparty organization, this does not mean an automatic refusal to deduct VAT (see, for example, Resolution of the Federal Antimonopoly Service of the North-Western Territory dated May 14, 2010 N A56-49950/2009, where the judges indicated that the signing of invoices by an unauthorized person does not in itself indicate that the conclusion and execution of transactions with the counterparty were not actually carried out. Failure to fulfill obligations to correctly prepare invoices by suppliers cannot be grounds for refusing to provide a VAT deduction to a bona fide taxpayer).

Thus, attention should be paid to the formation of a complete set of documents for each transaction, taking into account possible tax risks, the size of which directly depends on the amount of a specific transaction. In addition, if it comes to a dispute with the tax authorities, you need to pay close attention not only to the correctness of the procedure for conducting a tax audit, but also to additional tax control measures.

For your information. The Supreme Court also took the side of the taxpayer in Resolution No. 18162/09 dated April 20, 2010. The subject of the dispute was the additional charge of VAT, the basis for which was the inspector’s conclusion that the company had unlawfully applied tax deductions based on invoices issued to it by counterparties, since these documents contained false information and were signed by unidentified persons. At the same time, the courts found that the reality of the delivery is not a determining condition for the company to receive a tax benefit in the form of corresponding deductions for the said tax.

The judges of the Supreme Arbitration Court indicated that the obligation to draw up invoices that serve as the basis for the application of a tax deduction by the taxpayer - the buyer of goods (works, services), and to reflect in them the information specified in Art. 169 of the Tax Code of the Russian Federation, rests with the seller. Consequently, if the counterparty complies with the requirements for drawing up the necessary documents, there are no grounds for concluding that the information contained in the mentioned invoices is unreliable or inconsistent, unless circumstances are established indicating that the taxpayer knew or should have known about the seller’s presentation of unreliable or conflicting information.

During the inspection, the inspection did not establish any other circumstances that would cast doubt on the integrity of the company. Consequently, the conclusion about the unreliability of invoices signed by persons other than those listed in the constituent documents of suppliers as managers of these companies cannot independently, in the absence of other facts and circumstances, be considered as a basis for recognizing the tax benefit as unjustified.

Information about the company KSK GROUP

KSK group traces its history back to 1994. From its founding to the present day, the company has been one of the market leaders in consulting services in the fields of audit, taxes, law, valuation and management consulting. Over 20 years of work, more than 2,000 projects have been implemented for major Russian companies.

KSK Group offers a comprehensive and practical solution to the most pressing problems facing financial and general directors of companies and business owners. An individual approach, a deep understanding of the needs and goals of clients, combined with practical knowledge, allow us to solve these problems as efficiently as possible.

The KSK Group team is a team of more than 350 specialists with unique experience in implementing projects for both medium-sized and largest Russian corporations.

Currently, KSK Group offers a full range of services and solutions for business:

• audit according to Russian and international standards;
• tax and legal consulting;
• outsourcing and automation of business processes;
• decisions on attracting financing;
• marketing decisions and business strategy development;
• management and personnel consulting;
• assessment and examination;
• support of capital transactions;
• Due diligence.

The latest fashionable trend of tax authorities is to appoint an examination when conducting tax audits. This is especially true during income tax and VAT audits: either the signature on the document, or the seal, or the contents. According to the experience of KSK groups, two out of three tax audits involve various examinations, which, unfortunately, add headaches to taxpayers, especially those who are unprepared and rely solely on their own strength.

Article 95 of the Tax Code of the Russian Federation establishes the procedure for appointing and conducting an examination. Tax authorities have the right to invite experts in any cases where inspectors need special knowledge in science, art, technology or craft to formulate audit conclusions. As determined by the Constitutional Court of the Russian Federation, this right of tax authorities in itself cannot violate the rights of the taxpayer, because it allows one to obtain reliable and objective information about his activities (Definition of the Constitutional Court of the Russian Federation of July 16, 2009 No. 928-О-О).

Tax authorities actively use such a tool as examination, due to the fact that they are given the right to independently decide on the advisability of conducting an examination and determining the expert institution or expert to be involved. The main actual purpose of a “tax” examination is the ability to use its results to hold the taxpayer accountable.

Using the results of the examination as one of the main evidence in tax disputes, the following circumstances are confirmed or refuted:

• establishing the fact of signing documents by a specific person;
• determining how long ago a document was produced;
• establishing the belonging of goods (works, services) to a certain type or group;
• the cost of this or that object, etc.

Tax authorities have the right to engage an expert and conduct an examination during the period of a tax audit or additional tax control measures that the inspectorate may appoint after the completion of the on-site audit (Article 95, paragraph 3, paragraph 6, Article 101 of the Tax Code of the Russian Federation).

Courts do not recognize an examination as appropriate evidence if it is carried out:

• after the end of the inspection and additional tax control measures appointed by the inspection (resolution of the Federal Antimonopoly Service of the North-Western District dated July 9, 2012 No. A66-4438/2011);
• after completion of the audit and without the appointment of additional tax control measures (Resolution of the FAS Povolzhsky District dated September 28, 2011 No. A06-7370/2010, Resolution of the FAS Povolzhsky District dated April 3, 2009 No. A55-5439/2008).

Determining the need for an examination as part of an audit is the prerogative of the tax authority. However, it is worth keeping in mind that he needs to comply with a decent number of formalities and any deviation from them entails the invalidity of the examination.

Within the framework of tax examination, each of the participants in the process has a certain amount of authority.

The tax authority is obliged to familiarize the inspected person with the decision on the appointment of an examination, explain his rights under the protocol, enter into an agreement with an expert or expert institution, provide the opportunity for the inspected person to be present during the examination (in the absence of “prohibiting” circumstances) and familiarize the inspected person with the expert’s conclusion.

The taxpayer has the right to challenge the expert and petition for the appointment of another candidate expert. In addition, he can submit additional questions for the examination, be present during the examination, give explanations to the expert with the permission of an official of the tax authority, get acquainted with the expert’s conclusion, give explanations and objections based on the results of the examination, and also apply for the appointment of a repeat or additional examination (p 7 Article 95 of the Tax Code of the Russian Federation).

The expert has the right to familiarize himself with the inspection materials related to the subject of the examination, request the provision of additional materials, include in his conclusion conclusions about the circumstances relevant to the case, including in the absence of questions from the parties on these circumstances, and also refuse to give an opinion if the provided the materials are insufficient or the expert does not have the necessary knowledge. He is obliged to give a written opinion on his own behalf (clauses 4-5, clause 8 of Article 95 of the Tax Code of the Russian Federation).

Let's take a closer look at the stages of conducting an examination in practice.

Issuance of a decision on the appointment of an examination. The fact that the examination was carried out in the absence of a resolution may lead to the fact that the expert’s conclusion will be recognized as inadmissible evidence in court (see, for example, the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 10, 2007 No. A29-656/2007, which was upheld by the Ruling of the Supreme Arbitration Court of the Russian Federation dated March 24, 2008 No. 4093/08). However, if the resolution ordering an examination was signed by an unauthorized person (that is, another employee of the tax authority other than the one conducting the inspection), it is unlikely that it will be possible to challenge the admissibility of the results of the examination performed (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 22, 2012 No. F03-1582/2012).

Familiarization of the taxpayer with the resolution on the examination, about which a protocol is drawn up. At this stage, the taxpayer is given the opportunity to exercise his rights, in particular, to challenge the expert, propose his candidacy as an expert, or raise additional questions for the examination to resolve (clause 6 of Article 95 of the Tax Code of the Russian Federation).

Transfer of case materials to an expert.

Carrying out an examination. In this case, the taxpayer, with the permission of a tax authority official, has the right to be present during the examination and give explanations to the expert (clause 7 of Article 95 of the Tax Code of the Russian Federation).

Providing an expert opinion in writing.

An important point when conducting an examination is the full implementation by the taxpayer of his rights provided for in paragraph 9 of Art. 95 Tax Code of the Russian Federation.

For a taxpayer who disagrees with the results of the examination or the procedure for its appointment and implementation, it is important to use a competent tactical approach to protect their interests. Here, the activities of professional and experienced consultants are extremely important, who can clearly and “for results” prepare the taxpayer’s explanations and objections to the expert’s conclusion, additional questions, and also promptly announce the appointment of an additional or repeated examination.

As part of the examination, it is necessary to understand the real essence and objectives of the expert process. Yes, Art. 95 of the Tax Code of the Russian Federation, dedicated to examination, defines it as an independent control event carried out not only as part of an on-site tax audit, but also as part of a desk tax audit.

However, one must be aware of the difference in the “strength” of an expert opinion as evidence. If an expert’s opinion obtained as part of a trial is independent evidence (Article 86 of the Arbitration Procedure Code of the Russian Federation), then this cannot always be said about an expert opinion issued during a “tax” examination. Thus, if an expert during a tax audit came only to a probabilistic conclusion (for example, he indicated that the signature was probably not made by an authorized person of the taxpayer and made this conclusion in the absence of free handwriting samples), then the results of such an examination cannot be evidence in court at all (Resolution of the Federal Antimonopoly Service of the Moscow District dated November 19, 2013 No. F05-8517/13 in case No. A40-18229/2013).

So, the examination during the tax audit was carried out, but its results do not satisfy the taxpayer. We offer some ways to refute the expert’s unfavorable conclusions:

Additional or repeated examination (clause 9 of article 95 of the Tax Code of the Russian Federation). The taxpayer may exercise the right to initiate its appointment, but he must be completely sure that the “primary” examination is incorrect. In any case, if there has been a failure to ensure the implementation of this right, this should be declared at the stage of judicial appeal of the tax authority’s conclusions based on the results of the examination. Failure to ensure the exercise of the taxpayer's right can be expressed in the refusal of a tax authority official to request the taxpayer to order an additional or re-examination. The fact is that additional and repeated examinations are appointed in the same order as the primary examination (paragraph 3, paragraph 10, article 95 of the Tax Code of the Russian Federation). That is, the tax authorities assign it at their discretion.

Independent forensic examination. If contradictions are identified in the conclusions of the examination obtained as part of a tax audit, as well as in the event of failure to conduct one during the tax audit, a forensic examination may be ordered at the request of one of the parties (Article 82 of the Arbitration Procedure Code of the Russian Federation).

Refuting the conclusions of the examination with other evidence. The expert's opinion is one of the evidence in the case, does not have a predetermined force or priority position, is not binding, is subject to judicial assessment along with other evidence in the case, and cannot be the only evidence in the case. For example, the court, having established the reality of business transactions, rejected the tax authority’s argument that the transaction documents were signed by an unauthorized person (resolution of the Volga District Federal Antimonopoly Service dated September 13, 2011 in case No. A65-27977/2010).

Review of the expert opinion. This method is currently actively used in judicial practice. Its essence is to refute the results of a specific examination, in particular, the methodological approaches and conclusions of the expert. The review can be considered as separate evidence, and also serve as a reason for commissioning a forensic examination in order to verify the conclusions of the existing “tax” examination. The taxpayer has the right to independently choose an expert organization or expert to provide a review of the existing expertise. The review is carried out by an expert, but in this case his task is to analyze not only the circumstances of the case, but also the conclusion written by another expert.

The received review is evidence in the case and is subject to appropriate assessment (resolution of the FAS Moscow District dated November 7, 2013 in case No. A40-6292/2013, resolution of the FAS Northwestern District dated April 10, 2014 in case No. A56-30538/2013 , resolution of the Federal Antimonopoly Service of the Ural District dated August 20, 2013 in case No. A50-13756/2012). As a result, the court may take into account the reviewer’s critical comments and order a re-examination, order an additional check of the existing expert’s conclusion, or leave the review without attention.

Thus, the tax authorities have a fairly effective weapon against unscrupulous taxpayers, because with the help of examination it is possible to establish the falsification of documents, unreasonable expenses, and much more. However, those taxpayers who have not violated the law in most cases should not be afraid of the examination - however, it is important to attract experienced professional consultants.

One day a client contacted us, unfortunately, later than he should have, he already had in his hands a decision of the Federal Tax Service of Russia on an appeal with additional charges of about 82 million rubles, 5 million rubles. penalties and 6.7 million rubles. fines. The decision and act of the tax authority were quite voluminous, they cited a large number of episodes on income tax, VAT and personal income tax. But most of the tax authorities’ evidence was based on the following:

• the signature of the general director of LLC *** on documents (the corresponding impressive list) upon visual inspection differs significantly from the signature on the company’s local regulatory legal acts;
• work outsourced requires the contractor to have a license, since most likely they can be classified as work to create means of protecting information containing information constituting a state secret.

At the same time, there was no other evidence in the case regarding the invalidity of the documents and the need for a license to carry out the work provided for in the technical specifications. Inquiries were not sent to the licensing authorities about whether the work specified in the terms of reference was licensed, no examination of the documentation (technical specifications for contracts) was carried out to answer the question about licensing, all conclusions were probabilistic in nature.

Due to the fact that the case was already at the stage of judicial appeal against the decision of the tax authority, there was a significant risk of the court refusing to order an examination. This is due to the fact that forensic examination is intended to obtain evidence that could not be obtained during a tax audit or when appointing additional measures. Therefore, a forensic examination cannot serve as a “replacement” for the examination that the tax authorities should have appointed.

The consultants nevertheless managed to build their legal position in such a way that the court had no doubts about the need to conduct an examination. A handwriting examination and an examination of the need to license the list of works specified in the terms of reference were appointed. Previously, the consultants sent relevant inquiries to the licensing authorities about whether the work performed, specified in the technical specifications, required a license or not, and received answers that made it possible to calmly apply for the appointment of such an examination.

The court indicated that the tax authority’s conclusion about the discrepancy between the signatures of the heads of organizations on invoices and acts is presumptive in nature, while the tax authority did not exercise the right to conduct a handwriting examination. Regarding the licensed types of work, the court indicated that the tax authority did not attempt to collect evidence on the need to license the work specified in the terms of reference; the tax authorities’ arguments are subjective in nature and are not supported by legislative provisions or explanations of the competent authorities. And the court granted the petitions for the appointment of handwriting and legal examinations to answer questions that required special knowledge.

As a result, based on the results of a judicial appeal, the consultants managed to “withdraw” about 73 million rubles. additional charges, all fines, and also reduce the amount of penalties to 900 thousand rubles. At the same time, claims for 45 million rubles. were excluded from this amount precisely due to the examinations carried out. In general, the economic effect of the client’s company, thanks to the assistance of consultants, amounted to about 90% of the amount of the initially declared additional charges.

Based on a brief description of the fascinating expert process, we draw conclusions:

• it is necessary to pay special attention to documenting the expert process with monitoring compliance with all formalities provided for by the Tax Code of the Russian Federation;
• the taxpayer’s behavior must be active in terms of using the rights granted by the legislation on taxes and fees, in particular, when appointing (selecting) an expert or expert organization and conducting an examination;
• violation of the taxpayer’s rights can be used in the future to refute the results of the examination on procedural grounds;
• the taxpayer must form an evidence base that allows the significant evidentiary value of the examination to be “blurred”.

The key to success is the involvement of experienced professional consultants, which will allow tactically competent use of mechanisms to challenge unfavorable expert findings or build a legal position for the possibility of appointing an expert examination at the judicial stage of appealing the tax authority’s decision. A competent legal position, built with the help of professionals, allows you to determine the need to appeal the conclusions of the examination or the appointment of an examination at a certain stage of the dispute, and in some cases, to refrain from appealing procedural issues related to the examination at the pre-trial stage, and to use the available arguments when moving on to the trial process .

Let us emphasize once again: a “tax” examination is not equivalent to a judicial examination; its results must be appealed.

Yulia Shipovskova,
Lawyer of the Department of Tax Security, International Planning and Development http://kskgroup.ru/