11 director mistakes during interrogation in tax
Nikolai Gerasimov lists the main mistakes that the director of the company can make during interrogation at the Tax Inspectorate, talks about the possible consequences of these mistakes
The interrogation by the tax authorities for quite some time has been one of the most commonly used methods of obtaining information in order to conduct tax control and identify various violations in this area.
As a rule, interrogation is used for such purposes as identifying the characteristics of a one-day firm in relation to a particular legal entity, determining the “rating” of the head of the organization, obtaining detailed information about specific commercial transactions from counterparties of the enterprise in respect of which a tax audit is being conducted, identifying persons, reality managing the company, as well as the ultimate beneficiaries of its activities.
In accordance with Article 90 of the Tax Code of the Russian Federation, any individual who may be aware of any circumstances relevant to the implementation of tax control may be called as a witness to the tax authority.
Often, as a witness, employees of the tax authority call the director of a legal entity. What are the main mistakes that the director of the organization can make during his interrogation at the tax authority?
1. To appear for questioning by the tax authority without receiving proper written notice, for example, upon a call from an inspection officer.
Often, to save his time, and often to catch a person by surprise and not give him the opportunity to prepare, the tax inspector can invite for interrogation by phone call. In this case, as a rule, the witness is given very little time to appear (from several hours to a day). At the same time, employees of the tax authority are likely to indicate that in case of no-show, the witness will face adverse consequences, for example, the imposition of a fine under Article 128 of the Tax Code of the Russian Federation.
In this case, it must be borne in mind that only a written notice (summons) is sent to the witness by mail at the address where he is registered at the place of residence or works, or delivered to him on purpose. Only in this case does a person have an obligation established by law to appear for questioning, for the failure of which he may be held liable.
2. Ignore the interrogation call, duly executed and received.
Often a director who is not entirely confident in his abilities, or who does not want to give evidence to the tax authority for any other reason, decides not to appear for questioning at all. Often this seems to him a good way out of the situation, especially since the penalty for failure to appear for interrogation, established by Article 128 of the Tax Code of the Russian Federation, is only 1,000 rubles. However, this solution is incorrect.
Despite the apparent simplicity and logic, such a solution can do more harm than help. So, for example, the fact of failure to appear for interrogation can be interpreted by the tax authority as a sign that the non-appearing director is a “nominal” leader, or that the organization he heads is a “one-day company”, or that there are business transactions to confirm which he was called, in reality did not take place.
In this case, for example, it would be a less adverse outcome to appear for questioning and refuse to testify on the basis of Article 51 of the Constitution of the Russian Federation, rather than not be at all.
3. To be interrogated without a qualified lawyer (best of all – a lawyer).
Often among citizens who do not often encounter employees of regulatory bodies in everyday life, the prevailing opinion (diligently supported by these employees) is that the presence of a lawyer or other representative during interrogation indicates that the interrogated has something to hide, that he committed some kind of violation and is trying thus avoid liability.
This statement is completely untrue and can only harm an interrogated person who holds such an opinion. The right to receive qualified legal assistance is guaranteed by the Constitution of the Russian Federation (Article 48) and is absolute, that is, it cannot be limited under any circumstances.
At the same time, attracting a lawyer to provide legal assistance during interrogation, a person acquires the following positive consequences for him:
They help him prepare for interrogation both informationally and psychologically, discuss possible issues, study in more detail the necessary documents and the like;
The interrogated person certainly feels more calm and collected, realizing that the lawyer who provides him with legal assistance will not allow a violation of his rights or psychological pressure on him;