What threatens “business fragmentation”: consequences and risks
Sergey Bragin lists the main consequences of “business fragmentation” and explains how to avoid common mistakes
All that is not forbidden is allowed – such a postulate has been enshrined in our heads since childhood. But far from always it comes down to direct prohibitions. I am sure that many start-up entrepreneurs do not even think about the consequences of “splitting up a business,” since they do not associate this process with something illegal. Indeed, at first, when the turnover and scale of the company are relatively small, you can get some tax benefit. But when the business grows, these “innocent” manipulations can turn into a very real criminal case.
I am convinced that the main mistake in business is to think that you are smarter than everyone and know everything. Such a model of behavior is characteristic of ambitious newcomers who are confident in their intellectual superiority, including over representatives of fiscal authorities. A curious observation: the vast majority of such “experts” are “introverted techies” who have not received any additional education.
If you are not one of them, then this material is very likely to help you avoid common mistakes. It will examine the thesis “how to precisely do it impossible” with links to real decisions. And if you find similar schemes in your business, you should think about it.
As in any other matter, without a base it will not go far. Therefore, we turn to the letter of the Federal Tax Service of Russia dated August 11, 2017 No. SA-4-7 / 15895 @, according to which “business fragmentation” is an artificial distribution of revenue from the activities of related parties to obtain tax benefit. In accordance with paragraph 1 of Article 54.1 of the Tax Code of the Russian Federation, “the taxpayer is not allowed to reduce the tax base and (or) the amount of tax due as a result of distortion of information about facts of economic life (the totality of such facts), about objects of taxation to be reflected in the tax and (or ) accounting or tax reporting of the taxpayer. ” It is already clear from the definition that most of the indictments of the court will concern the relationship of persons.
TOP 7 signs of the relationship
1. The leaders or founders of the counterparties are former employees of the company or relatives of the owner.
This is the most common mistake, especially common in the areas of construction and sales. For clarity, suppose that you are the owner of a certain developing construction company. At some point, you go on a certain turn and realize that you don’t want to build yourself anymore. Then you offer your employee or relative to create a new company on the USN and perform the necessary work. Thus, you fall under the criterion of “interrelated persons.”
Of course, you can reconstruct the transaction in court and prove that if you were involved in the construction yourself, it would have turned out to be more expensive due to high administrative costs, the purchase of special mechanisms, and so on. But, believe me, the courts and tax authorities look at this from a different angle. They believe that you underestimate the tax base on profits.
As a result, you will receive an increase in the tax base by “the sum of acts of interdependent persons”, and from above – a fine and penalties. For completeness, I recommend that you familiarize yourself with, for example, the Resolution of January 22, 2018 in case No. A05-9428 / 2016.