Advice for a director who received a tax interrogation subpoena
Gleb Shevchenko gives advice to company directors on how to behave during interrogation at the tax office and on which aspects of the legislation to pay special attention to
The main mistake in the interrogation by both directors and ordinary employees is a lack of understanding of what is happening. Many citizens believe that the interrogation at the Inspectorate of the Federal Tax Service is a compulsory procedure, during which it is impossible to take an extra step, but this is not so.Firstly, a fine for failure to appear or for failure to appear without good reason for a person who is summoned as a witness in a tax violation case shall be sanctioned with a fine of 1,000 rubles. Tax Code, Article 128, the responsibility of the witness.
Secondly, according to the same article, for a wrongful refusal of a witness to testify, as well as for giving knowingly false testimonies, a fine of 3,000 rubles is incurred.
Objectively, these are not the most terrible consequences that cannot be reconciled with. It is also worth always remembering that the interrogation of a witness as part of a tax audit is not a mandatory event for the interrogated person, you can take a break at any time during the interrogation or get up and leave at all: you already need to look at your own feelings, the main thing is that the interrogation is comfortable for you.
If we consider the situation of giving evidence in conjunction with the full procedure for conducting taxpayer verification, the risks of giving false evidence significantly increase the risks for the company. So, you should immediately understand that during the audit, a strict position must be developed, which all employees of the company must adhere to. The position must be developed with a professional lawyer or attorney directly practicing in the field of tax disputes and accompanying your tax audit. This will allow us to understand and adhere to the general line of evidence that must be given to the inspection in order to reduce the consequences of a tax audit.
So, the first thing that should not be done during interrogation: to give up your own position, in other words, to tell the inspector that you have no idea what organization is involved and what they want from you, because you have nothing to do with it. This threatens you with the liability provided for in Article 170.1 of the Criminal Code of the Russian Federation “Falsification of the unified state register of legal entities, the register of holders of securities or the depository accounting system” – punishment for the easiest of the parts is punishable by up to two years in prison and a fine of up to 100 thousand rubles.
Do not forget that after the audit as part of the tax control, all materials will most likely be transferred to law enforcement agencies, primarily to the Investigative Committee, which is responsible for the jurisdiction in the field of tax offenses.
If you have not made the first mistake and admitted the fact that you are not a “nominal” director, you will be required to provide explanations on the entire structure and activities of the company. Yes, it will be strange, but they will ask the CEO how the goods are shipped, which companies and employees are involved, how the contract was signed, where you came to the supplier and under what circumstances. A full list of questions to the head during the interrogation of a witness as part of tax control is contained in Appendix No. 2 of the Letter dated July 13, 2017 No. ED-4-2 / 13650 @ of the Ministry of Finance of the Russian Federation Federal Tax Service “On sending methodological recommendations for establishing tax and procedural checks circumstances indicating evidence of intent in the actions of taxpayer officials aimed at non-payment of taxes (fees). ”
Also, do not panic and be surprised that the main issues are aimed at identifying the final beneficiaries and their affiliation with the companies through which the goods were delivered or with counterparties from which the goods / work / services were purchased. This is due to the intentions of the Federal Tax Service to identify unlawful overvaluation of the goods or to identify unreasonable expenses of the company, which lead to an understatement of income tax.
During the interrogation, it is necessary to give answers to questions such as: who hired you, under what circumstances did you meet with the founder, who are the main contractors of your organization, how the contracts were signed, and so on.
It is clear that in the realities of big business, the director will not be able to answer some of the questions related to the direct activities of the company, but in this case it is necessary to explain who is responsible for these questions in the company: these can be references to deputies, an accountant or a driver. It is important to understand that the Federal Tax Service during the interrogation tries to establish all the actual circumstances of the organization.
In general, a refusal to testify or giving knowingly false data will not save the company from tax extra charges, there is only the opportunity to regulate the size of additional charges, using and adhering to the correct position.