What do the codes mean in VAT requirements? ASK VAT: the principle of operation of the Federal Tax Service service for searching for illegal VAT deductions How the ASK VAT 2 program works

Taxpayers hand over electronic VAT returns, containing indicators of the purchase book and sales book. In 2015, the Federal Tax Service launched the ASK VAT-2 PC to control declarations.

Reference

Abbreviation PC ASK NDS-2 stands for “software package for automated control over value added tax, second version.” At the end 2013 In 2009, the Federal Tax Service launched the ASK VAT-1 PC for the first time.
From this moment on, the Federal Tax Service takes control of data on transactions subject to VAT.
A year later, the Federal Tax Service reported a double reduction in illegal attempts to refund taxes, which added 102 billion rubles to the budget. At first 2015 In 2009, the Federal Tax Service launched the second version of the ASK VAT-2 program.

The work of PC ASK VAT-2 is aimed at identifying organizations that do not pay VAT and do not reflect the corresponding tax charges in the tax return.
All information is accumulated in the system Big data, which is used to process data from PC ASK NDS-2.
Thus, all VAT reports (and therefore all invoices) now fall into the all-Russian database (data center of the Federal Tax Service of Russia in Dubna).
The program is aimed at comparing data on each operation along the goods movement chain.

Big Data(Big Data) is a system for processing huge volumes of data, formed in the late 2000s, an alternative to the traditional database management system (DBMS).

Defining Characteristics of Big Data:

data volume,
data processing speed,
variety of simultaneous processing various data types.

Since 2013, big data as an academic subject has been studied in emerging university programs in data science, computational science and engineering.

Algorithm of operation of ASK VAT-2

The program compares the VAT charged by the seller (according to his sales book) and the VAT accepted for deduction by the buyer (according to his purchase book).
If these data do not match, the program finds out what is wrong:
whether the seller reflected the sale and how lawfully the buyer claimed tax deductions.
Everything happens without the participation of the inspector:
The tax office automatically sends requests for clarification to the buyer and seller.
You have five days to respond, and then the local inspectorate begins an inspection.
As a result, taxpayers either correct payment errors themselves or receive notification of additional assessments.

Scheme of operation of ASK NDS-2

RESULT:
By introducing the PC ASK VAT-2, tax officials actually automated the classic “counter check”, for greater efficiency, also introducing the necessary amendments to the Tax Code, which began to work from the beginning of 2015. The use of new Big Data technologies makes it possible to automatically compare the data of counterparties, quickly identify and suppress the illegal activities of fraudulent companies that do not fulfill their tax obligations. Now the Federal Tax Service, having identified inconsistencies in the reporting of the buyer and seller, can request invoices and primary documentation from companies. And a company that has not confirmed receipt of tax demands or notifications may have its accounts blocked by tax authorities.

How tax authorities and ASK VAT-2 work

You submit a VAT return.
The system independently analyzes data for each operation along the chain of movement of goods and identifies tax gaps in transactions for which there is a deduction, but VAT has not been paid.
Unscrupulous VAT payers are automatically detected, and a tree of connections with other participants in the trade turnover is built.
The totality of the data obtained allows tax authorities to identify the beneficiary of VAT tax deductions.
It can be absolutely any organization or individual entrepreneur claiming a tax deduction - after all, the right to deductions is given to those who buy goods (works or services) from their counterparties who present the tax amount (clause 2 of Article 171 of the Tax Code of the Russian Federation).

What does "tax gap" mean?
This is when your counterparty:
Or submitted a zero VAT return.
Or he didn’t pass it at all.
Or you submitted the declaration, but did not reflect the invoice issued to you in the sales book (or distorted the data).

Thus, often all the headaches from ASK VAT-2 are caused by erroneous actions/inactions of our counterparties or the existence of relationships they have with shell companies.

If contradictions are identified in the VAT declaration, the system automatically generates a request for explanations.
This is followed by other tax control measures. Let's say a tax gap has been identified.
To identify the recipient of an unjustified tax benefit, inspectors can use an expanded list of tax control measures already within the chamber: requesting a voluminous list of documents, inspecting premises, territories, interviewing employees, etc. ...
Conscientious taxpayers are also under attack.
Most audits after identifying tax gaps end unfavorably.
Claims from inspectors regarding violations of third parties can be made specifically against bona fide companies and, more likely, against those who have property. Even in cases where you yourself interact with a bona fide counterparty, but there are “gray” or “black” companies in the chain.
The number of tax audits initiated thanks to the VAT-2 ASK is growing and, as judicial practice shows, most of these audits resulted in a victory for the tax authorities in the form of additional assessments or denials of deductions.
Tax authorities continue to improve the tax administration of VAT.
A new software package is coming ASK VAT-3.

The ASK VAT-2 software package has been used by tax inspectorates for three years. The program developed by tax authorities stores information from invoices, VAT returns, as well as information about company transactions on a special server. The lion's share of illegal tax optimization is associated with the use of fly-by-night companies. How do tax authorities use the ASK VAT-2 system to prove the illegality of deductions?

The ASK VAT-2 software package includes data on VAT payment along the entire chain: from the primary supplier to the final consumer.

The main purpose of the ASK VAT-2 system is to check the mirror image of information about reflected invoices in buyer and supplier declarations.

Let us remind you that starting with reporting for the first quarter of 2015, the VAT return must be filled out using a new form approved by order of the Federal Tax Service of the Russian Federation dated October 29, 2014 No. ММВ-7-3/556@. The essence of the amended tax return form is to identify taxpayers’ “problem” counterparties at the stage of the tax authorities conducting a preliminary verification analysis of tax reporting.

Since the tax return includes information from purchase (sales) books, as well as logs of invoices received and issued (from intermediaries), the data presented in electronic format will be verified with similar data from the taxpayer’s counterparties.

Automatic reconciliation of purchase (sales) books online is designed to identify discrepancies in the context of each invoice by conducting a virtual counter-check of the taxpayer and his counterparties.

The essence of the ASK NDS-2 software package

In order to automate the desk audit of tax returns and identify discrepancies between the information declared by buyers in the purchase books and the information declared by sellers in the sales books, the Federal Tax Service of Russia launched an automated system for monitoring the collection of VAT "ASK VAT -2" (hereinafter referred to as "ASK VAT - 2"). The principle of operation of "ASK VAT -2" is to compare data from purchase and sales books of suppliers and buyers and identify so-called "tax gaps".

If, during a desk audit, a discrepancy between the information declared by the buyer in the purchase book and the information contained in the database of the ASK VAT-2 software package about sales declared by the seller in the sales book is revealed, the tax authority must inform the taxpayer about this with a requirement to submit within five days, provide the necessary explanations or make the appropriate corrections within the prescribed period (Clause 3 of Article 88 of the Tax Code of the Russian Federation).

FOR EXAMPLE

When comparing the information contained in the book of purchases and sales, it was established that the counterparty is not in the Unified State Register of Legal Entities or meets the criteria of a fly-by-night company.

The Federal Tax Service of the Russian Federation constantly posts on its official website (www.nalog.ru) new schemes with the participation of fly-by-night companies (Letter No. AS-4-2/14800@ dated August 21, 2015).

Tax authorities understand a “fly-by-night” company as a legal entity that does not have actual independence, was created without the purpose of conducting business, does not submit tax reports, and is registered at the “mass” registration address (Letter of the Federal Tax Service of the Russian Federation dated February 11, 2010 No. 3-7 -07/84).

The concept of “tax gap” means that the taxpayer has an invoice reflected in the purchase book, which is not reflected in the tax return (in the section where the sales book data is reflected) of the counterparty. That is, “tax gaps” are transactions for which there are deductions, but VAT has not been paid. Such transactions with “tax gaps” will be tracked in the tax authorities’ database. And the more such gaps a company has, the more likely it will be scheduled for an on-site tax audit.

When conducting desk tax audits, tax officials must take into account the level of tax risk assigned by the ASK VAT-2 risk management system, as well as the result of previous desk tax audits of VAT tax returns (Letter of the Federal Tax Service of the Russian Federation dated January 26, 2017 No. ED-4-15 /1281@).

Judicial practice on the use of “ASK VAT -2” by tax authorities

The mere presence of discrepancies between the data in a taxpayer’s declaration and the data in the tax return of his counterparty is not a sign of a tax offense, and therefore, solely on the basis of a “tax gap,” tax authorities have no grounds for holding taxpayers accountable. It should be noted that previously the courts noted that the conclusions of tax officials based on the use of internal database data contain only background information for decision-making by tax officials on the advisability of carrying out tax control measures in relation to specific legal entities. For example, maintaining the information resource “Risks” is carried out in accordance with Order of the Federal Tax Service of the Russian Federation dated June 24, 2011 No. ММВ-8-2/42дSP@ “On approval of Methodological recommendations for maintaining the information resource “Risks”, which bears the stamp of DSP and indicates that this information resource is an internal resource of the tax authorities. At the same time, the information resource “Risks” is an internal (non-public) information resource created to automate and systematize the processes of collecting, accumulating, storing and processing certain information about organizations received by tax authorities legally in the course of performing their functions, the fact of inclusion of a legal entity in the IR “Risks” is not a clear indicator of its unreliability.

And therefore, the courts do not recognize information from internal information resources as appropriate evidence (Resolution of the Moscow District Court of December 28, 2015 No. A40-43028/2015).

To date, there has not been extensive practice in using the “ASK VAT-2” system. However, available decisions indicate that information obtained with the help of “ASK VAT-2” is subsequently used by tax authorities to prove unjustified VAT deductions and refusal to liquidate the company.

Thus, in one of the disputes, tax officials considered the company’s liquidation balance sheet to be unreliable, since during a desk audit of the VAT return using “ASK VAT-2”, the tax inspectorate established the unlawful use of a tax deduction of 43 million rubles.

The company did not submit a VAT return for the last tax period. The court agreed with the tax authorities, pointing out that the mere submission of documents to the registration authority for the purpose of liquidating a company does not constitute grounds for state registration if the information contained in these documents is unreliable and the liquidation was carried out in violation of the law and the rights of creditors.

In this situation, the debt to the budget (in the amount of 43 million rubles) was not reflected by the company in the liquidation balance sheet submitted to the registration authority, and therefore the courts supported the conclusion of the tax authorities about its unreliability and, as a consequence, the legality of the refusal to liquidate the legal entity. If the company included information about accounts payable to the budget in the liquidation balance sheet, then the tax authorities could present claims as creditors to the liquidation commission (Resolution of the Volga District Autonomous District of June 24, 2016 No. A12-58767/2015).

Using data from the ASK VAT -2 program, tax officials identify contractors using illegal VAT refund schemes.

FOR EXAMPLE

According to the ASK VAT -2 program, counterparties (2nd link suppliers) of Alfaservice LLC were identified in the purchase book. In turn, the 2nd level suppliers (Iskra-MKK LLC and Kedai LLC) did not reflect the invoice data in the sales book.

Let us remind you that, in necessary cases, an expert can be engaged on a contractual basis to participate in specific actions to implement tax control, including when conducting on-site tax audits (clause 1 of Article 95 of the Tax Code of the Russian Federation). The examination itself is appointed by a resolution of the official of the tax authority carrying out the on-site tax audit (clause 3 of Article 95 of the Tax Code of the Russian Federation).

Based on the results of a handwriting study of the director’s signature, it was established that the signatures on behalf of the director were made by another person. However, due to procedural oversights by the tax authorities (in this case, the tax inspector who conducted the desk audit on VAT did not issue a resolution to appoint an examination and the company did not familiarize itself with it), the court did not take into account the results of the handwriting examination.

Therefore, assessing the tax inspectorate’s arguments about the non-confirmation of VAT receipts to the budget from the supplier Alfaservice LLC and the absence of a generated source for VAT refund, the court found that these arguments are not supported by the evidence presented by the tax inspectorate.

As the judges noted, the mere fact of identifying violations committed by subsuppliers when filling out VAT returns is not acceptable evidence of non-payment of tax by the supplier, but by virtue of clause 3 of Article 88 of the Tax Code of the Russian Federation, it is the basis for the tax authority to send requirements to submit within the prescribed period necessary clarifications or make appropriate corrections (Resolution of the Fifteenth Arbitration Court of Appeal dated February 13, 2017 No. A32-26347/2016).

The results of control measures carried out by the tax authority in relation to the audited company and its counterparties can serve as a basis for bringing these persons to tax liability, and not as a reason for the company’s refusal to apply tax deductions. Otherwise, a violation of the fundamental principle occurs: responsibility must be personified, and the refusal to apply tax deductions in this case is a measure of the taxpayer’s responsibility for the actions of the counterparty, which is unacceptable. This legal position is formulated in the Resolution of the Administrative District of the North Caucasus District dated January 13, 2016 No. F08-9657/15. The company cannot be held responsible for the actions of third parties (2nd, 3rd level suppliers) with whom it does not have economic relationships, which are beyond its control and influence.

Thus, the use by tax authorities only of information from the ASK VAT-2 software package without providing adequate evidence of the taxpayer’s dishonesty is not a basis for denying the company the claimed tax deductions.

By using the data reflected in the ASK VAT-2 software product, tax authorities identify the taxpayer's counterparties listed in his purchase book.

In one of the cases, tax officials identified the main supplier of the company - Tonus LLC (the share of the deduction for it was 99.8%) and then carried out control measures against it. According to the data reflected in the personal account card of Tonus LLC, the VAT arrears amounted to more than 9 million rubles.

When studying the circumstances of the debt of the organization Tonus LLC, facts were established that the activities of the counterparty-seller were unrealistic, which included:

lack of ownership of buildings, structures, and other fixed assets necessary for the implementation of activities;
lack of open current accounts for making settlements, payments and other payments;
“mass” founders and managers (Tyuvelev - founder in 37 organizations, head in 48 organizations; Egorov - founder in 50 organizations, head in 50 organizations).

As a result of the analysis of information about the taxpayer, it was established that Tonus LLC does not have the resources to conduct financial and economic activities.

Thanks to the ASK VAT-2 system, tax authorities have identified counterparties of the second, third and fourth levels. But at the same time, the tax authority did not prove the involvement of the taxpayer being audited in a scheme to obtain an unjustified tax benefit.

As the judges noted, the dishonesty of second-, third- and fourth-level counterparties does not automatically entail the recognition of an unjustified tax benefit declared by the taxpayer, since each of these persons is independently responsible for fulfilling their duties and independently exercises their rights.

Therefore, the inspector’s argument about the company’s dishonesty, based on an analysis of the relationships between suppliers of the second, third and fourth levels, as well as on the fact that the company’s subsuppliers do not have the necessary conditions to achieve economic results (warehouses, vehicles, managerial and technical personnel), is not may be taken into account by the court, since the specified circumstances do not refute the authenticity of the documents presented by the company confirming the actual receipt, posting and further use by it of materials received from suppliers (Decision of the Nizhny Novgorod Region Administrative Court dated November 8, 2016 No. A43-23105/2016).

One of the dangerous tax optimization schemes is the use of “fly-by-night” companies in various variations (directly, through a complex chain of counterparties, etc.).

A simple scheme using fly-by-night companies is as follows. The company deliberately enters into an agreement for the supply of products (performance of work, provision of services) with such a company. Then the fly-by-night company provides the company with a set of documents (certificate of completed work, delivery note, invoice or UPD, etc.) to reduce its tax obligations.

The funds transferred by the company to the fly-by-night company are cashed out (for a certain percentage) and returned to the company.

The obligation to prove that a taxpayer has received an unjustified tax benefit is assigned to the tax authorities, who for these purposes use the results of tax control measures, as well as the collected evidence on these facts.

And with the proper evidence collected, tax authorities manage to prove the receipt of an unjustified tax benefit.

FOR EXAMPLE

According to the information resource "ASK VAT-2", which allows you to compare the data of the buyer's and seller's purchase books, the invoices reflected in them, as well as data submitted to the tax return inspection, it has been established that the deductions declared by InnoTechPro LLC are not declared by the LLC's counterparties "SMU-3" and LLC "Condvent".

In an intermediary transaction, a so-called chain is drawn up from the buyer to the seller through the logs of invoices received and invoiced by the intermediaries. The VAT declaration submitted by InnoTechPro LLC, according to the “relationship tree”, contains invoices issued by WestRu LLC, Center-E LLC, Atrium LLC to InnoTechPro LLC. No other counterparties (SMU-3 LLC, Convent LLC) were declared in the submitted declaration of InnoTechPro LLC. In relation to the organizations WestRu LLC and Center-E LLC, the tax inspectorate presented interrogations of managers who refused to participate in the activities of the organizations. Atrium LLC was already liquidated at the time of the inspection. The inspection conducted a survey of a representative of the general contractor as part of its control activities.

Thus, taking into account the circumstances established by the tax authority, the court considered the conclusion of the tax authority that the company received an unjustified tax benefit by overstating the amount of tax deductions that reduce the total amount of VAT reflected in the invoices issued to the company by contractors of InnoTechPro LLC as justified (Decision AS of Moscow dated January 24, 2017, No. A40-197462/2016).

Immediate prospects

Currently, tax specialists are working on a large-scale project to modernize the entire automated information system and transfer it to a qualitatively new level (AIS “Tax-3”). The main idea is that all tax information is stored and processed in a single federal repository, in a system of data centers. Already now, several functions are performed in a centralized mode. We are talking about state registration and accounting of all taxpayers, acceptance of tax and accounting reports, electronic document flow between taxpayers and tax authorities and the use of a unified information and analytical platform.

Currently, the ASK VAT-2 system is being tested in three regions.

Starting from the first quarter of 2015, taxpayers submit VAT returns using a new form ( Order of the Ministry of Finance of Russia dated October 29, 2014 No. ММВ-7-3/558@). Now the company reports to the tax authorities information from the purchase book and sales book and information about issued invoices (sections 8–12 of the declaration).

The tax authorities have at their disposal a special automated control system for VAT-2 (hereinafter referred to as ASK VAT-2). This system stores and accumulates all information on taxpayer transactions. Let's consider what claims tax authorities make based on the results of the analysis of the ASK VAT-2 database.

The system identifies discrepancies in declarations

ASK VAT-2 allows tax authorities to compare information from purchase books and sales books along the chain from the supplier to the final buyer. The program verifies counterparties, invoices and tax amounts indicated on them. The system can detect several types of discrepancies.

Discrepancies of the type “VAT”. The program identifies these discrepancies when the tax is indicated in the declarations, but there are errors in them. The list of such errors is known to many accountants. These are discrepancies in the transaction code, incorrect invoice number or date, as well as discrepancies in the amount of VAT payable by the seller and deductible by the buyer.

Some accountants agree with the requirements of inspectors and submit updated declarations. However, if there are technical errors that do not affect the amount of tax, it is sufficient to provide an explanation. They must be accompanied by invoices and other documents. In this case, providing clarification is the right and not the obligation of the taxpayer ( para. 2 p. 1 art. 81 Tax Code of the Russian Federation). This includes typos in invoice numbers and dates and incorrect transaction codes. If the company does not match the amount of VAT declared for deduction on the invoice from the supplier, then the most common case is the presentation of VAT for deduction in a later period. For example, the supplier posted an invoice in the first quarter of 2016, and the buyer accepted VAT for deduction in the second quarter of 2016.

Discrepancies of the “gap” type. We are talking about the so-called tax gap. When comparing data from the purchase and sales books, it turns out that the counterparty whose invoice is stated in the declaration is simply not in the Unified State Register of Legal Entities. Either he does not submit tax reports, or he submits them with zero indicators. With this type of gap, the taxpayer receives an invoice, the amount of tax for which is not reflected in the counterparty’s declaration. If the company is a supplier and VAT is declared for payment, then, most likely, this will not cause suspicion, since VAT has been paid to the budget. But if the company is a buyer and has declared this VAT deductible, then the inspectorate will most likely immediately formulate a requirement to submit documents ( clause 8.1 art. 88 Tax Code of the Russian Federation).

However, if the company has submitted the entire package of documents, then it is not yet possible to refuse deductions based on discrepancies identified according to the AKS VAT-2 data. The sign of a deduction is the presence of an invoice ( Art. 169 Tax Code of the Russian Federation). And if the inspectors intend to refuse deductions, then they are obliged to carry out tax control measures. These measures must prove the fictitiousness of one-day transactions or the presence of other unjustified tax benefits.

In judicial practice, there are interesting cases of losses for tax authorities when they refused to allow companies to make deductions on invoices of counterparties that were not included in the Unified State Register of Legal Entities. In one of the cases, the accountant of a company excluded from the Unified State Register of Legal Entities continued to issue invoices on behalf of a non-existent company for two years ( decision of the Moscow City Court of June 20, 2013 No. A40-18764/13).

The tax authority denied deductions. The company redid the invoices and submitted them to the court. The arbitrators indicated that the organization did not suspect that the invoices were invalid and could not verify this fact. The court canceled the additional assessments. At the same time, the company could check the status of the counterparty using publicly available services on the website of the Federal Tax Service of Russia. Therefore, such court decisions are rather isolated and cannot be relied upon.

Taxpayers are faced with a tax gap when ASK VAT-2 cannot compare invoices for advances issued and when offsetting these advances. This is due to the fact that the company that paid the counterparty an advance prepares the invoice itself. Even if you have the correct transaction code, ASK VAT-2 often generates a requirement indicating the absence of a “twin” invoice. In this case, it is enough to provide written explanations and attach documents to them.

The purpose of introducing ASK VAT-2 is to combat fly-by-night scams

ASK VAT-2 helps tax authorities identify an unscrupulous link in the trade chain - a fly-by-night. The stage at which the tax has not reached the budget. This is necessary to find the ultimate beneficiary who receives unjustified benefits from tax gaps. The risk management system “SUR ASK NDS-2” is responsible for searching for beneficiaries. Its main tasks are described in the letter of the Federal Tax Service of Russia dated 06/03/16 No. ED-4-15/9933@“On the assessment of RMS risk signs.” Taxpayers may fall into low, medium and high risk groups. Companies with low tax risk have material and labor resources, conduct real activities, and pay taxes. They have on-site inspections.

Organizations with persistent signs of ephemeral activity are classified as high-risk. They have no assets or personnel, pay little taxes with high turnover, and use third parties to make payments. Inspectors mark the company's risk group in the program using color indicators. Tax authorities use the results of “SUR ASK VAT-2” when deciding on VAT refunds and planning on-site audits.

For the effective use of ASK VAT-2, inspectors received expanded powers at their desks. They use almost the same list of control measures as during on-site inspections. Inspectors may require the company to provide:

documents due to discrepancies in transactions ( clause 8.1 art. 88, Art. 93 Tax Code of the Russian Federation, Appendix No. 15 To );
explanations ( clause 3 art. 88 Tax Code of the Russian Federation, application no. 1 To Order of the Federal Tax Service of Russia dated 05/08/15 No. ММВ-7-2/189@).

If the organization has received a request, it is necessary to send a receipt of receipt of the electronic document via telecommunications channels within six working days. Otherwise, the inspectorate may block bank accounts ( subp. 1.1 clause 3 art. 76 Tax Code of the Russian Federation).

Taxpayers send a response to the request for the submission of documents to the inspectorate within 10 working days from the date of receipt of the request ( clause 8.1 art. 88, Art. 93 Tax Code of the Russian Federation). And written explanations - within five working days ( clause 3 art. 88 Tax Code of the Russian Federation).

Companies rarely ignore document submission requirements. This is fraught with a fine ( Art. 126 Tax Code of the Russian Federation) and denial of deductions on formal grounds.

It is better to provide explanations too. Otherwise, the inspector will draw up a desk inspection report ( clause 5 art. 88 Tax Code of the Russian Federation). Then you will have to recoup additional charges by filing objections or in court.

However, confirming the right to deduct during a camera meeting does not guarantee that the company will not schedule an on-site inspection ( Art. 89 Tax Code of the Russian Federation). The duration of a desk inspection is limited to three months, so inspectors often do not have time to collect evidence that can stand up in court. The courts believe that inspectors have the right to order an on-site inspection of a period that has already been inspected off-site. Taxpayers are not exempt from liability for detected offenses ( Resolution of the Federal Antimonopoly Service of the West Siberian District dated June 24, 2011 No. A75-8783/2010).

Tax officials can also schedule an on-site audit after tax control activities, which will be carried out by the pre-audit analysis department. The maximum period for an on-site inspection is 15 months. Subject to extension (up to six months) and suspension (six or nine months). In such an impressive period of time, inspectors will definitely collect the necessary evidence.

Judicial practice on ASK VAT-2 has not yet been formed

The argument about “tax gaps” in the ASK VAT-2 database is new for judicial practice. So far it is rare. There are several reasons for this.

Firstly, ASK VAT-2 is an internal database of the tax authorities; there is no public access to it. Courts do not recognize information from internal information resources as proper evidence ( Resolution of the Moscow District AS of December 28, 2015 No. F05-18124/2015). The company may learn about the fiscal conclusions made on the basis of internal information no earlier than negative tax consequences occur.

Second, the tax gap itself does not prove that the tax benefit is unreasonable. This gap is only a mathematical result of the control ratios of the numbers in the two declarations. If the numbers are different, this is just a reason to check.

Nevertheless, information from the ASK VAT-2 has already begun to appear in judicial practice. And not only in disputes related to VAT deductions.

For example, in Resolution of the Volga Region Autonomous District dated June 24, 2016 No. Ф06-9933/2016 the company challenged the refusal of the tax authority to register the liquidation of a legal entity in the Unified State Register of Legal Entities*. The company compiled a liquidation balance sheet and submitted it to the inspectorate. However, the inspection, based on the results of two chamber VAT declarations, denied the company deductions for an impressive amount and handed over inspection reports.

* Read more about this in the article “Tax officials refused to liquidate a company with an unreliable balance sheet” on the website e.nalogplan.ru or in “PNP” No. 9, 2016, p.

After the cameral decisions come into force, the tax authority could post the VAT debt on a personal account and become a creditor of the company. In addition, at the time of filing the liquidation application, the company had not submitted another VAT return. As a result, the inspectorate recognized the company's balance sheet as unreliable and refused state registration of the changes. In the decision of the appellate instance, the judges indicated that the tax authority, with the help of the VAT-2 ASK, established the existence of a tax gap in the form of an illegally declared VAT deduction ( Resolution of the Twelfth AAS dated April 15, 2016 No. 12AP-2681/2016).

The tax authorities issued demands for the presentation of documents. The company ignored the demands and did not provide documents. The head of the company also avoided appearing for questioning.

The company believed that at the time of filing the liquidation balance sheet, the tax authority did not have a decision on desk audits. Therefore, the amount of VAT payable was unknown to him.

ASK VAT-3: how it works and who will be checked first

However, the court took into account the fact of opposition and evasion of society from submitting documents. And I came to the conclusion that the application for liquidation was filed to avoid additional charges due to inspections.

The court decided that the company knowingly provided false information, and the liquidation procedure cannot be considered complied with. The legality of additional accruals based on desk audits was not the subject of the dispute. Therefore, regarding the unreliability of the balance sheet, the court supported the inspection.

The unusual case was considered by the Nineteenth AAS ( Resolution dated August 31, 2016 No. A14-16854/2015). The evidence found in the ASC VAT-2 was stated by one of the parties in a civil dispute. It was between two legal entities regarding the falsification of the manager’s signature in an agreement.

The company went to court with a demand to collect from the counterparty the debt under the supply agreement for 12 tons of fishmeal. However, the buyer unexpectedly declared in court that the manager’s signature on the contract was fake. This means that the deal was not concluded and there are no grounds for compensating the seller for losses.

As evidence of the reality of the shipment, the supplier presented a contract, an invoice for goods acceptance, emails to the buyer and replies to them. In addition, the seller submitted a letter from the inspectorate stating that, based on the results of desk audits of the declarations of both companies, the tax authority found an invoice for the supply of fishmeal in both the seller’s declaration and the buyer’s declaration. The tax authorities found the invoice by cross-comparing declarations in the ASK VAT-2 system.

The tax authorities confirmed that the buyer claimed a deduction due to the fact that the seller reflected the transaction in the declaration and paid VAT on it to the budget. The court concluded that the buyer concealed information about the delivery from the court and did not allege falsification of evidence. In connection with this, the court decided to recover the entire amount of debt and a penalty from the negligent buyer.

ASK NDS-2

ASK VAT-2 has been operating for three years. It stores information from invoices, VAT returns, and transaction information. The system collects data on VAT payment throughout the entire trade chain: from the primary supplier to the final consumer.

The system is operated by data processing centers (DPCs) in Nizhny Novgorod and the Moscow region. In 2017–2020, the authorities plan to build a backup data center in the Volgograd region.

Data centers allow the Federal Tax Service of Russia to implement other administration tools. This includes tax monitoring, a system for monitoring the use of cash register equipment (ASK KKT), and electronic services. They also support the operation of information systems of the Ministry of Finance, the Federal Tax Service, the Treasury and other institutions of the financial department.

11/14/2016. Article topic:

Reference

Big Data(Big Data) is a system for processing huge volumes of data, formed in the late 2000s, an alternative to the traditional database management system (DBMS).

Defining Characteristics of Big Data:

data volume,
data processing speed,
variety of simultaneous processing various data types.

Since 2013, big data as an academic subject has been studied in emerging university programs in data science, computational science and engineering.

Algorithm of operation of ASK VAT-2

The program compares the VAT charged by the seller (according to his sales book) and the VAT accepted for deduction by the buyer (according to his purchase book).
If these data do not match, the program finds out what is wrong:
whether the seller reflected the sale and how lawfully the buyer claimed tax deductions.
Everything happens without the participation of the inspector:
The tax office automatically sends requests for clarification to the buyer and seller.
You have five days to respond, and then the local inspectorate begins an inspection.
As a result, taxpayers either correct payment errors themselves or receive notification of additional assessments.

Scheme of operation of ASK NDS-2

RESULT:

By introducing the PC ASK VAT-2, tax officials actually automated the classic “counter check”, for greater efficiency, also introducing the necessary amendments to the Tax Code, which began to work from the beginning of 2015. The use of new Big Data technologies makes it possible to automatically compare the data of counterparties, quickly identify and suppress the illegal activities of fraudulent companies that do not fulfill their tax obligations. Now the Federal Tax Service, having identified inconsistencies in the reporting of the buyer and seller, can request invoices and primary documentation from companies. And a company that has not confirmed receipt of tax demands or notifications may have its accounts blocked by tax authorities.

How tax authorities and ASK VAT-2 work

You submit a VAT return.
The system independently analyzes data for each operation along the chain of movement of goods and identifies tax gaps in transactions for which there is a deduction, but VAT has not been paid.
Unscrupulous VAT payers are automatically detected, and a tree of connections with other participants in the trade turnover is built.
The totality of the data obtained allows tax authorities to identify the beneficiary of VAT tax deductions.
It can be absolutely any organization or individual entrepreneur claiming a tax deduction - after all, the right to deductions is given to those who buy goods (work or services) from their counterparties who present the tax amount (clause 2 of Article 171 of the Tax Code of the Russian Federation).

What does "tax gap" mean?
This is when your counterparty:

Or submitted a zero VAT return.
ASK VAT-2: where should taxpayers expect threats?

Or he didn’t pass it at all.

Or you submitted the declaration, but did not reflect the invoice issued to you in the sales book (or distorted the data).

Thus, often all the headaches from ASK VAT-2 are caused by erroneous actions/inactions of our counterparties or the existence of relationships they have with shell companies.

If contradictions are identified in the VAT declaration, the system automatically generates a request for explanations.
This is followed by other tax control measures. Let's say a tax gap has been identified.
To identify the recipient of an unjustified tax benefit, inspectors can use an expanded list of tax control measures already within the chamber: requesting a voluminous list of documents, inspecting premises, territories, interviewing employees, etc. ...
Conscientious taxpayers are also under attack.
Most audits after identifying tax gaps end unfavorably.
Claims from inspectors regarding violations of third parties can be made specifically against bona fide companies and, more likely, against those who have property. Even in cases where you yourself interact with a bona fide counterparty, but there are “gray” or “black” companies in the chain.
The number of tax audits initiated thanks to the VAT-2 ASK is growing and, as judicial practice shows, most of these audits resulted in a victory for the tax authorities in the form of additional assessments or denials of deductions.
Tax authorities continue to improve the tax administration of VAT.
A new software package is coming ASK VAT-3.

Taxpayers hand over electronic VAT returns, containing indicators of the purchase book and sales book. In 2015, the Federal Tax Service launched the ASK VAT-2 PC to control declarations.

ASK VAT 3: a new “tracking complex” for business

Tax gaps that are posted by “bona fide” taxpayers under the ASK VAT-2 program create a huge problem in the work of tax inspectors. The Tax Service is making every effort to modernize its work in order to minimize tax gaps.

For this purpose, in all tax authorities of the Russian Federation, from July 1, 2017, a reorganization took place in the VAT verification departments. Separate groups within departments have been created or control and analytical departments have been newly created. Despite the fact that no regulations have been developed for their work, they receive the necessary instructions and recommendations from a higher tax authority.

Functions of control and analytical departments.

1. The main function of the newly created departments is to work out complex discrepancies performed using the ASC NDS-2 complex. Complex discrepancies are when there is a scheme of several stages, links and in which a one-day company, a transitor and a beneficiary will take part, and the one-day company and transiters will be located in different regions of the Russian Federation and this will be an “interregional scheme”. A simple discrepancy is a discrepancy between two operating organizations, when the current beneficiary is registered with the same inspectorate as the problematic counterparty. It is not difficult to work out simple discrepancies, and thanks to registration with one tax authority, this can be accomplished quickly. For the most part, by “pressure on business” with the submission of an updated declaration, and in other cases, carrying out tax control measures and additional assessments as part of a desk tax audit.

2. Search and identification of recipients of unjustified tax benefits. Those. searching for potential beneficiaries and collecting evidence, including materials received from another tax authority. The task will be as follows. The inspector will see a complex discrepancy with LLC (transit), which is not independent and does not carry out real economic activities. Using the software package, the ability to construct a circuit is realized. By analyzing all the functionality and resources available to the tax authority, at the first stage it is visually determined who could be a potential beneficiary (scheme analysis). It happens that the beneficiary cannot be determined in a very complex scheme and fragmentation of the “business”. Having identified the beneficiary, a picture emerges before the inspector - where the participants in the scheme are registered for tax purposes. The entire complex of MNCs is carried out in relation to the organization that is located in a given tax authority. This is determined by its functionality - the possibility of carrying out a real FCD, the address is inspected and the director is interrogated (for involvement in the management and signing of documents, digital signature). It is clear that if the beneficiary is registered in the same non-profit organization, a “claim” is presented to him. If the beneficiary is registered with another non-profit organization, then all the collected information is accumulated and a conclusion is prepared for the Department of this non-profit organization. The department evaluates the correctness of the beneficiary determination and makes its internal decision. If confirmed, all materials are sent to the department where the real beneficiary is actually registered. Next, the Department issues a letter to the Federal Tax Service regarding the registration of the beneficiary, and the inspection, in turn, is obliged to work on filing claims.

3. When there is a gap in another tax authority, and the participants of the scheme are registered with this non-profit organization. They can be both “transitors” and beneficiaries. That is, the same similar information comes and will come from other non-profit organizations to this tax authority. Will change... When information is received from the regions with an evidence base that those participants who created the chain could not sell the goods reflected in tax accounting. This tax authority, if necessary, if it deems it necessary, will finalize the received material and then submit a “claim” to the taxpayer registered in this tax account.

4. If a “transitor” is registered with this tax authority, and the source of the gap and the beneficiary are located outside the region, then all measures to analyze the purchase and sale of goods are also carried out. This is followed by an analysis of the bank, interrogation of the director regarding the implementation of the transaction, and then information is sent through the Federal Tax Service on the accounting of the potential beneficiary.

5. Encouraging the beneficiary to voluntarily submit an updated tax return. Invite him to a commission, where the inspectors must clearly and clearly outline the business plan for him. The task will be to convince him that the tax authorities are in control of the situation, that they know that he is a user of the scheme and is minimizing his taxes, and that he simply could not purchase goods (services) from the person declared in the scheme.

But! This is, so to speak, an ideal option if the taxpayer has clarified the details and control activities have been closed. Another option would be when the taxpayer did not voluntarily agree to clarify his obligations, and the tax authorities have enough evidence during an open desk audit, then a KNI act is drawn up. In case of insufficient evidence or the end of the desk inspection period, the same inspector will be required to conduct the necessary MNC as part of the pre-inspection analysis. After conducting a PPA, no one will stop the inspectors of the control and analytical department (unit) from calling the taxpayer back to the commission and, accordingly, presenting him with the facts and evidence that were collected that he has underestimated his tax liabilities. The conversation must be formally documented in a protocol indicating those organizations for which there is a complaint. If the taxpayer has not responded, then the tax authorities have the opportunity to conduct a comprehensive or thematic on-site tax audit.

Thus, the newly created control and analytical departments conduct not only desk checks, but also, so to speak, carry out a completed cycle before transferring materials to VNP.

The Federal Tax Service sets the following goals for these departments (blocks) - the correct identification of the beneficiary with the final result of paying taxes in order to replenish the budget.

The most difficult thing at this point in time will be to complete the current desk audit and go back, which means, at the direction of the Federal Tax Service, to carry out work in relation to taxpayers for previous tax periods.
The distinction in functionality between an ordinary cameraman and an inspector of the control and analytical department (unit) will probably be that an ordinary cameraman must work out only simple discrepancies and, accordingly, work out all errors according to the set auto requirements. In response to an auto-request, tax officials expect a formalized explanation that will eliminate the gap, and if the gap does not go away, documents confirming the purchase of goods (services) will be requested.

A number of taxpayers, in order not to create a gap and not attract attention, submit declarations with doubtful debts, or the smartest ones file invoices before 2015 (which the VAT ASC will not match) and the gap does not work out.

The main stages when conducting a test to work out ruptures.

1. Construction of a flow diagram through ASK VAT-2, identification of objects for work,
2. Using available resources, all links are checked for numbers, property, etc.,
3. Accounts are analyzed for the implementation of real economic activities. Availability of rental payments, electricity, payment of salaries to employees, transfer of taxes, dividends, etc. In general, everything that will confirm the conduct of a real FCD.
4. Who submitted the taxpayer declaration. If this is an authorized representative, then the presence of a power of attorney is checked accordingly, what it was issued for and by whom it was signed,
5. Viewing the registration file that the tax authorities have had since 2015,
6. Requests to banks to obtain documents on accounts regarding who manages the account, contact numbers, etc. If there are signatures, compare (visually) the signatures on the power of attorney of the taxpayer being audited with the samples in the bank.
7. Interrogation of the manager in the presence of a law enforcement officer.
8. Requesting documents from electronic document management operators. It is clarified as a taxpayer personally or through an authorized representative. If it is obvious that the signature on the power of attorney is not of the manager, then the task is to carry out an examination in order to subsequently cancel it and recognize the submitted declaration as invalid.
9. Inspection of the address of the place of registration. If there is no LLC at the registration address, the information is transferred to the registration department, followed by making an entry about the unreliability of the information contained in the Unified State Register of Legal Entities.
10. Transfer of information to the bank about termination of the account servicing agreement. This information must contain the conclusions of the tax authority about why this taxpayer is a transit organization or an organization that cashes out funds.

Thus, the tax authorities paint a picture of the taxpayer, from which it is concluded that the taxpayer does not carry out financial taxation.

Working with telecom operators.

In the recent past, a seminar was held with all existing telecom operators as part of interaction with the Federal Tax Service. After the seminar, the operators were also given the task of photographing those people who come to them. Therefore, today the tax authorities will also request a photograph in addition to the power of attorney.
Cancel – liquidating an electronic digital signature can be very difficult for inspectors, since the director often does not refuse to participate or simply cannot be found to question him. And there are not enough other available facts that can serve as a basis for revoking the digital signature.

Those organizations that do not respond to letters from tax officials do not show up at the invitation, are not at the place of registration, did not pay rent, and the owner himself confirms that this tenant did not exist.

In any case, having collected even a minimum package of documents, the tax authorities worked out measures to transfer the collected information to the operator about the suspension of the digital signature key. For any cooks who encounter this problem, it is very important to know that when you file a complaint, the suspension is immediately lifted.

CONCLUSIONS.

The results of work over the past few quarters show that tax specialists have learned to work with the ASK VAT-2 software package. The Federal Tax Service recognizes the effectiveness of the software package, including at the government level, all increases in tax revenues are associated with the fact that this software package has been introduced.
But at the same time, throughout the country there is a very impressive figure for undeveloped gaps and it amounts to about 250-300 billion rubles. per quarter.

ASK VAT-2: new service from the Federal Tax Service for checking VAT returns

It turns out that the budget loses more than 1 trillion rubles a year. Such indicators lead us to the conclusion that the tax authorities have only completed the first stage. The second stage consists in the formation of control and analytical departments (blocks, sectors). But in essence, this is taking measures to work out the unfulfilled 250 KK per quarter. In general, as was said above, the cameramen will first “trample” and the field workers will finally “trample”.

Prudence when choosing a counterparty Accounting for discounts in accounting

You receive demands from the Federal Tax Service when the new ASK VAT-2 service finds discrepancies in declarations. Requests are generated automatically. See how to avoid them.

All VAT returns are uploaded into a single database. Then the new service of the Federal Tax Service for checking the ASK VAT-2 declaration matches each invoice in the declaration of the supplier and the buyer. The goal is to identify tax discrepancies when the buyer claimed a deduction but the supplier did not charge the tax. If there are inconsistencies in at least one invoice detail from the declaration, the program automatically generates a claim.

Discrepancies may be the result of an error on the part of the supplier or the buyer. Conscientious companies will correct mistakes, and tax authorities will not have questions. Another type of gap occurs on one-day transactions.

Attention! Tax authorities temporarily do not accept VAT returns for the 2nd quarter of 2017 and other reporting in electronic form. The reason is an accident on the Federal Tax Service server.

On July 24 at 20:00 Moscow time, a technical failure occurred on the equipment of the Federal Data Center of the Federal Tax Service of Russia. As a result, all electronic document flow with the tax service stopped. Such messages are already sent to their clients by special operators, through which companies send reports to the Federal Tax Service and funds. Work to restore the server continues. But so far no one has given accurate forecasts about how long it will take to fix the problem.

July 25 is the last day when you can submit your VAT return for the 2nd quarter of 2017 without penalties. You can send your declaration up to 11:59 pm inclusive. If the Federal Tax Service does not have time to organize the reception of reports, it’s okay. As we found out from the Federal Tax Service, companies do not face fines. After all, the company is not at fault in this case.

Send the VAT return and other reports anyway. The special operator will respond with confirmation of the shipment. This is the only way to prove that the report was submitted on time. The day of submission of the declaration is considered to be the date of its dispatch (Article 80 of the Tax Code of the Russian Federation). If this is not done, inspectors may claim that the report is late. It will be difficult to challenge them.

How does the ASK VAT-2 service work?

The ASK VAT-2 program compares invoice indicators from the buyer and seller. The service looks for discrepancies - when the buyer declared a deduction, but the supplier did not charge the tax. That is, in fact, the new service of the Federal Tax Service automatically conducts counter checks on all VAT returns.

There are two types of discrepancies. The first type is called “VAT”. It means that both counterparties showed transactions in their declarations, but they did not agree on the tax amounts. The second type is “Gap”. It means that:

the counterparty did not submit a tax return;
the counterparty submitted a declaration with zero indicators;
there are no transactions in the counterparty’s tax return;
The declaration contains very distorted data.

If the NDS-2 ASK detects inconsistencies, it generates a request for clarification. This requirement contains a table, the last column of which is called “For reference: possible error code.” And the code is digital. For a breakdown of the codes, see the table below.

What do the codes mean in VAT requirements?

Code	In which column of requirements should I look?	What does it mean
1	In column 20 of the table with section 8	The company reflected the invoice in the declaration, but the counterparty does not have a record for this invoice
2		The company's declaration contains discrepancies between the purchase book and the sales book.
3	Column 22 tables with section 10. Column 21 tables with section 11	The intermediary's declaration contains discrepancies in the log of issued and received invoices
4	Column 20 of the table with section 8. Column 23 of the table with section 9	There is an error in a specific column of the purchase book or sales book. The number of this column appears after code 4 in square brackets. For example, 4

Why are there discrepancies in VAT returns?

Most often, the ASK VAT-2 program finds discrepancies not because the company deliberately underestimated the tax. The reason is usually that the company may register the same invoice several times in declarations for different quarters. For example, a buyer does this if he claimed a partial deduction and transferred the rest of the amount to the next quarter. It is also common for companies to record the same invoice in the purchase ledger by mistake. As a result, the company doubles the deduction.

When checking, the Federal Tax Service program summarizes invoice deductions in all declarations. If the total deduction exceeds the assessed tax on this invoice, inspectors will ask for clarification.

There are situations when there is no error in the declaration. But the program cannot compare invoices because the company provided a partial cost of the goods. It is safer to include the full cost of goods in the purchase book. Then there will be fewer requests from inspectors.

How to respond to requests from the new ASK VAT-2 service

We found out from the specialists of the Federal Tax Service of Russia what explanations to provide them. We share detailed information with you.

If tax authorities require clarifications on VAT, form them in a new format. Since January 1, 2017, an amendment has been in force stating that companies must electronically send three types of explanations about the VAT return to the inspectorate:

about errors that the Federal Tax Service program detected (responses to so-called auto-requests);
about other discrepancies and contradictions in reporting;
about tax reduction in clarification.

For answering on paper, inspectors will fine the company 5,000 rubles. The fine for a repeated violation within a calendar year is RUB 20,000. (Clause 1, 2 of Article 129.1 of the Tax Code of the Russian Federation).

In the request for clarification on the VAT return, code 1

If you receive a request code 1, check your purchase ledger against the supplier's sales ledger. It is possible that either you or the counterparty registered an invoice with several errors at once: in the details, INN/KPP, cost. So the program cannot match the entries for this invoice in the declarations. If the supplier is not ready to reconcile, then at least find out from him whether he recorded the disputed invoice in the sales book.

The buyer entered an invoice with errors in the purchase ledger. If the reconciliation reveals an error in your purchase book, please provide the correct information in the explanations. To do this, fill out Table 2 (the recommended form is in the letter of the Federal Tax Service of Russia dated April 7, 2015 No. ED-4-15/5752).

The supplier recorded an invoice with errors in the sales ledger. And everything in your reporting is correct. Then you, as the buyer, must inform the tax authorities that everything in your purchase book is correct. To do this, fill out Table 1 from the same letter No. ED-4-15/5752. In it, provide the entry for the invoice without changes.

After the tax authorities receive such a response from the buyer, they will send a request to the supplier. And he will inform them of the correct invoice data by filling out table 2.

The supplier forgot to register an invoice or the sales book for the old quarter was attached to his declaration. The buyer must inform the tax authorities in Table 1 that he indicated the correct data in the declaration. And the supplier will have to submit a clarification.

The dishonest supplier did not charge VAT. This is the riskiest option for the buyer. Such a supplier is unlikely to submit a clarification. Therefore, there is a high probability that inspectors will remove deductions, accusing the buyer of receiving an unjustified tax benefit. Then the company will need documents confirming the reality of the transaction and due diligence:

contract;
invoices;
extract from the Unified State Register of Legal Entities for the supplier company, etc.

You can immediately attach these documents to the explanations. Another option is to say in the explanation only that the declaration is correct. And provide the documents only when the tax authorities request them.

Code 2 in the request for clarification from the Federal Tax Service

Code 2 means that the company's sales book and purchase book differ in data about the same transaction. That is, we are talking about inconsistencies within the reporting of the company itself, and not about discrepancies between the declarations of the buyer and the supplier. The company registers the same invoice in the sales book and the purchase book if it first charges tax and then itself accepts it for deduction. Let's look at common situations.

Advance VAT. The supplier charges VAT on the advance payment, and upon shipment of goods declares a deduction of this amount (clause 6 of Article 172 of the Tax Code of the Russian Federation). The program will generate a request if it detects that there is a deduction in the declaration, but the company did not charge tax on this invoice.

When you receive a request with code 2, check whether the company has recorded the advance invoice in the sales ledger. If not, then reflect it in an additional sheet of the sales book for the quarter in which the advance was received, pay additional tax and penalties and submit an amendment (clause 1 of Article 81 of the Tax Code of the Russian Federation).

The problem may not be that the sales ledger doesn't have the correct invoice. The problem is that this invoice was registered with errors. If the error affects the amount of tax in the declaration, then submit an amendment. If it does not affect, then it is enough to send an explanation. To do this, fill out the recommended table 2.

Agent VAT. Tax agents can also receive requests with code 2. For example, companies that rent municipal property. Such organizations withhold VAT, draw up an invoice and register it in the sales book. And then they declare a deduction on this invoice in the purchase book. After receiving the request, follow the same algorithm as for advance VAT.

The update request contains code 3

Code 3 means that there are inconsistencies in the intermediary's declaration between the journal of invoices received and the invoices issued. When shipping goods to the buyer, the commission agent issues invoices and registers them in part 1 of the accounting journal. Then the commission agent must receive invoices from the principal for the shipment of these goods and register them in part 2 of the accounting journal.

If the commission agent does not sell, but purchases goods for the principal, then he receives invoices from suppliers and reflects them in part 2 of the accounting journal. Then reissues invoices to the principal and records them in Part 1 of the accounting journal.

In both cases, the program can identify discrepancies between invoice data in Part 1 and Part 2. For example, errors in the invoice details or TIN of counterparties. Then the correct data can be sent to the tax authorities in Table 2 of the explanations.

Code 4 in the request for clarification on the VAT return

Code 4 means errors in individual columns of the purchase book and sales book. As a rule, this happens if the buyer provides incorrect invoice details, supplier TIN or cost of goods in the purchase book. By the way, most of the requirements come with code 4.

In which details to look for an error, you can also determine by the code. In the requirement, after code number 4, the number of the column in which the company most likely indicated incorrect data is given in parentheses. This column number is not in the approved form of the purchase book, but in the version of the purchase book that is given in the tax authorities’ requirement.

Let's say the inspectors sent you a request for the purchase book and indicated 4 in the “Possible error code” column. Column 3 in the purchase book, which is given in the request, is the invoice number. This means that it is in this props that we must look for an error.

If the error does not affect the VAT amount, indicate the correct indicators in Table 2, which was recommended by the inspectors:

in the “Difference” line, provide the erroneous entry without changes;
in the “Explanation” line - the correct data in exactly those columns in which there were errors.

For example, if there is an error in the invoice number, indicate the correct number in the “Explanation” line in the “Invoice number” column. It is better not to fill in the remaining columns of this line.

If the error affects the amount of VAT, no explanations may be required. It is enough to submit an updated declaration.

Why do you need the ASK VAT-2 program?

The ASK VAT-2 system allows you to quickly track risks not only for VAT, but also similar risks for other taxes. First of all, these are income tax risks, including when a company generates losses through one-day transactions. Therefore, the Federal Tax Service refocused the work of its commissions on the risks that are identified through the value added tax.

Are tax commissions needed now?
The Federal Tax Service canceled its letter about tax commissions (letter dated March 21, 2017 No. ED-4-15/5183). This is due to the fact that inspectors are now actively using the AKS VAT-2 system. The only thing that the service does not allow you to see is personal income tax risks. Consequently, inspectors will continue to separately monitor whether the company’s salaries deviate from the industry average, whether there is arrears for personal income tax and whether revenues from this tax have decreased.

To prove tax evasion, additional measures must be taken: interrogations, counter-inspections, inspections of premises, examination of documents. This will not be possible during a desk audit. However, inspectors will not stop at asking for clarification. From the desk control department, tax officials transmit information about discrepancies in reporting, chains, etc. to the pre-audit analysis department.

Some inspectorates are already appointing and planning on-site inspections to prove the unjustified tax benefit that was suspected in the VAT camera room. Both VAT and income tax will be charged.

For simplified companies, inspectors monitor the limits under which the special regime can be applied, and also look for signs of business fragmentation. If such fragmentation is detected, the income and other indicators of several companies or entrepreneurs are summed up. After all, if we take all receipts as the income of one company, then the limits are usually exceeded. In this case, inspectors will assess additional taxes according to the general taxation system.

How ASK VAT-2 identifies tax risks

In total, the ASK VAT-2 program uses 84 risk criteria. Among them are the tax burden, profitability, tax history of the company for three years, debt to the budget, information about the founders and directors. Algorithms for calculating these criteria are constantly being improved. The new service of the Federal Tax Service automatically distributes companies that have submitted VAT returns into three tax risk groups:

high;
average;
short.

Information about the assigned tax risk criteria is reflected in the program in the form of color indicators. Tax authorities will carry out enhanced control over the red group.

Which companies belong to each risk class can be seen in the table below.

Tax risk criteria

Tax officials also analyze the company's counterparties. If among them there are companies that show signs of being one-day companies, then the likelihood of increased control increases. Federal Tax Service specialists will check the reality of the transaction using different methods. They have the right:

request documents from the buyer and supplier regarding shipment, delivery, payment for goods;
request documents as part of a meeting along the chain of counterparties, request information about the movements of money in the bank;
Conduct an inspection of warehouses and other premises of the company.

Inspectors carry out all these activities during the desk inspection period (clause 8.1 of article 88, clause 1 of article 92, clause 1 of article 93.1 of the Tax Code of the Russian Federation). It lasts only three months. Tax authorities cannot increase it.

Can analysis of a declaration in ASK VAT-2 lead to an on-site inspection?

Let’s say the inspectors did not have time to obtain the information they needed during the desk inspection. In this case, information about the organization is transferred to the pre-audit analysis department. The specialists of this department themselves decide whether an on-site inspection is needed.

The decision to check depends, among other things, on the price of the issue - the amount of possible additional charges. The average price of an on-site audit for 2015 is 10 million rubles. The specific amount depends on the region. Thus, there is a risk of an on-site inspection if additional charges amount to 5–10 million rubles. To estimate this indicator, you can take the total amount of questionable deductions. These are deductions for which the Federal Tax Service program found gaps, that is, the supplier did not charge tax. Add additional income tax charges, as well as a penalty of 20 percent. After all, inspectors will also deduct expenses for fictitious transactions.

If a company has a gap amount of less than 1 million rubles, then an on-site inspection is unlikely. But it is advisable that questionable deductions do not accumulate into a large amount. After all, the program records all such deductions in the tax database.

The Federal Tax Service does not hide the capabilities of its new systems for automatic control over the payment of taxes ASK VAT 2 and AIS Tax 3. In 2014, businessmen were required to submit VAT reports in electronic form (declaration + purchase/sales book). This data is loaded into the tax authorities’ database, where it is automatically processed to identify tax gaps, in other words, non-payment of VAT.

According to the country's chief tax inspector, Mikhail Mishustin, “the share of questionable deductions in the third quarter of 2017 decreased to 0.7 percent - more than 13 times, while in the third quarter of 2015 it was nine percent.” The reduction in the number of dubious transactions is largely due to the successful operation of the ASK VAT 2 complex.

In practice, the program looks for “fly-by-night companies.” How does this happen? An unscrupulous company either does not provide information to the inspectorate, or does, but it is unreliable. Thus, the program detects unscrupulous organizations and builds a tree of connections with other participants in the trade turnover. The totality of the data obtained allows auditors to identify the beneficiary of VAT tax deductions, since the right to deductions is obtained by a businessman (who is on the OSN) by purchasing goods, work or services from his counterparties, who present him with the corresponding amount of tax (Clause 2 of Article 171 of the Tax Code of the Russian Federation) . Accordingly, any commercial organization or entrepreneur claiming a tax deduction can become such a beneficiary.

Basically, the inspection makes claims based on the results of a desk or on-site inspection, but recently - even before conducting audits as part of a pre-inspection analysis.

Let's look at several situations that taxpayers have encountered, using the example of court cases in tax disputes.

Questionable chain

In the Resolution of the Ninth Arbitration Court of Appeal dated December 13, 2017 No. 09AP-59460/2017 in case No. A40-76179/17, the court recognized the decision of the inspectors based on the results of a desk audit of the VAT declaration with additional charges of this tax in the amount of more than four million rubles as legal and justified on based on the following.

The company claimed a deduction for relations with a counterparty, which, according to the auditors, could not actually deliver the goods, since this company in its VAT return reflected information about the purchase of the same goods from companies (subsuppliers), which also could not supply it due to lack of material and technical base. The tax service received data about these transactions and dubious counterparties from the VAT 2 ASK, which the court that made the decision refers to in the judicial act. The automated system helped inspectors establish the chain of movement of goods, quickly identify “fly-by-night items” and, without conducting an on-site inspection, charge additional VAT after the usual “office inspection”.

"Normal" contractor

In the Resolution of the Ninth Arbitration Court of Appeal dated May 18, 2017 No. 09AP-10542/2017 in case No. A40-197462/16, left unchanged by the cassation ruling, the court did not cancel the decision of the tax inspectorate to refuse a VAT refund in the amount of more than eight million rubles due to the lack of evidence of the formation of legal deductions for tax reimbursement. The point was this: the organization claimed compensation for transactions with a contractor who performed construction and installation work on paper, who reflected false information in his VAT return.

As the court pointed out, according to information from the information resource ASK VAT 2, which makes it possible to compare the data of the purchase books of the buyer and the seller, the invoices reflected in them, and data from the declaration submitted to the tax authority, it was established that the deductions claimed by the disputed counterparty were declared based on the relationship with “fly-by-night companies” that do not have the resources to carry out any work.

In his defense, the taxpayer referred to the fact that his disputed counterparty erroneously indicated fly-by-night invoices in the purchase book and that the work was actually performed by other contractors. However, the arbitrators did not accept this argument, pointing out that according to the “tree of connections” formed by ASK VAT 2, the disputed contractor functioned only with “one-day” contractors; he had no other “normal” counterparties.

At the service of business

Despite the large amount of negative judicial practice for businessmen, in which arbitrators refer to information from the VAT 2 ASK as evidence of business dishonesty, in the Resolution of the Ninth Arbitration Court of Appeal dated March 12, 2018 No. 09AP-4856/2018 in case No. A40-179491/ 17, satisfying the company’s demands, the judicial panel accepted the company’s argument about the reality of the counterparty in view of its submission of a tax return, which was verified in the ASK VAT 2 system.

The merchants appealed to the fact that no violations were identified as a result of the automated check. A large deduction amount does not contradict tax laws and is not an error. That is, if the program accepted the declaration, there were no demands to the company and its counterparty to provide explanations, which means that the declaration is reliable. The court recognized that the deduction of 14 million rubles was legal.

Without reason

In the Resolution of the Eighteenth Arbitration Court of Appeal dated June 19, 2017 No. 18AP-5899/2017, 18AP-6041/2017 in case No. A76-27274/2016, the court satisfied the company’s demands for VAT refund and recognition of deductions as legal in the amount of 1.8 million rubles, despite the minimum payment of this tax by counterparties. In denying the right to deduction, the controllers referred to the following: based on the information contained in the AIS Tax-3 ASK VAT 2 software package, the company’s invoices did not contain marks on comparison with sellers of goods (disputed counterparties) in section 8 of the VAT declaration.

The panel of judges rejected this argument with reference to the absence of such a basis for applying VAT deductions (clause 1 of Article 169, clauses 1 and 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation).

In addition, the board indicated that the company cannot be responsible for the actions of its counterparties in recording transactions in tax accounting. And the main criterion for recognizing deductions as legitimate is the reality of the operations and the exercise of the due degree of diligence and care when choosing a supplier.

The courts came to similar conclusions in the Resolution of the Arbitration Court of the Moscow District dated July 18, 2017 No. F05-8203/2017 in case No. A40-43799/2016.

note

Thus, judicial practice in tax disputes confirms the conclusion that the main criterion for recognizing tax deductions as justified is the reality of operations and the diligence of the company.

According to the legal position of the Supreme Arbitration Court, set out in Resolution of the Presidium of May 25, 2010 No. 15658/09, which is still relevant today, in support of its arguments for exercising due diligence and choosing this particular counterparty, a company can refer not only to the commercial attractiveness of the transaction and its conditions, but also on the presence of a proven business reputation, confirmed solvency and the ability to fulfill their obligations under the contract (material and technical base, qualified personnel, etc.).

The court came to similar conclusions in the Resolution of the Moscow District Arbitration Court dated September 11, 2017 No. F05-12716/2017 in case No. A41-74234/2016, recognizing the tax benefit from a transaction with seemingly dubious counterparties as justified. Thus, following the rules of conduct dictated to us by the new reality and the Federal Tax Service, in terms of prudence when choosing business partners and confirming the reality of the transaction, even if an unscrupulous organization was among the counterparties, entrepreneurs can protect their rights and not pay tax twice - “for themselves and for that guy."