“The tax authority, concluding that the applicant has received an unjustified tax benefit, does not distinguish between the concepts of tax optimization and tax evasion,” says one court decision. But I should differentiate, I would like to add.
Indeed, from a budget point of view, any reduction by a company in taxes paid is regarded as an “evasion scheme.” Of course, this is not always the case. Along with frankly illegal methods of tax evasion, such as the use of shell companies, there are also completely legal ones.
This current topic is dedicated specifically to them - it describes several ways to legally optimize taxation. It should be noted that each of them nevertheless raises complaints from tax authorities, but it is quite possible to prove the legality of these methods.
The document is included in the ATP "Consultant Plus"
Editor's note:
in the same case there was another episode - the organization hired employees from another enterprise. However, in this case, the court agreed with the Federal Tax Service, which drew attention to the fact that the enterprise in the period under review did not have the labor resources to carry out construction and installation work independently. In addition, no transfers for personnel representation services were received into the bank accounts of this company. Therefore, in this episode, the court came to the conclusion that it was unlawful to write off the declared costs as expenses.
The document is included in the ATP "Consultant Plus"
The document is included in the ATP "Consultant Plus"
Editor's note:
a similar court decision is Resolution of the Federal Antimonopoly Service of the North-Western District dated November 20, 2009 No. A52-4472/2008: during the inspection, the inspection found that 13 employees of the company quit of their own free will, registered as individual entrepreneurs and entered into contracts with the company to perform work ( provision of services). Moreover, payments to former employees who became individual entrepreneurs significantly exceeded the income they received while working in the company.
However, the court examined the protocols of interrogation of these citizens, contracts for the performance of work, acts and reports of work performed with attachments, data on the number of employees of the company, and considered that the inspection did not confirm the argument that the company created a tax evasion scheme by removing employees from the staff and concluding with them in the future civil law contracts.
Business splitting is legal if each company is independent
Splitting a business into several legal entities and/or individual entrepreneurs is a common method of tax optimization. It is not prohibited by law in itself. After all, in essence, this is just a rational structuring of a business.
However, in a particular case, tax authorities may consider such fragmentation a tax evasion scheme and accuse its participants of receiving the notorious unjustified tax benefit.
In some cases, the courts support the tax authorities in this and refuse companies to cancel decisions on inspections, in others they do not, and decisions on additional assessments are canceled for being unfounded. In each case, everything depends on the circumstances of the particular case.
On this issue, the Ruling of the Constitutional Court of the Russian Federation dated July 4, 2017 No. 1440-O was recently issued (recommended for reading and use together with the dissenting opinion of Judge K.V. Aranovsky).
It talks about the need to strike a fair balance between the requirements of the public interest (budget) and the requirements of protecting fundamental human rights (the taxpayer). On the one hand, the law does not prohibit the fragmentation of a business and does not provide for liability for it, but on the other hand, the taxpayer should not abuse his powers.
The Constitutional Court of the Russian Federation did not give clear criteria for how to distinguish one from the other, but practice gave rise to them. Therefore, in order for you to get your bearings, we, with the help of the Federal Tax Service of the Russian Federation, which also recently analyzed judicial practice on business splitting, have identified two groups of criteria - legal and illegal splitting.
TABLE: “Business splitting: when it’s legal and when it’s not”
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Signs of legal business division |
Signs of illegal crushing |
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Independence of companies Each organization (IP) included in the business group conducts independent activities, namely: - carries out financial and business transactions on its own behalf, that is, it enters into contracts and pays for them; - has fixed assets; - has a separate bank account; - maintains accounting; — pays taxes; — submits declarations; - has its own staff; - pays them wages; — rents property; - bears business expenses; - stores primary documents and seals; — there are no signs that the company’s actions are not subject to the will of its managers and owners, but occur solely on the instructions of the management of another organization included in the business division scheme |
Complete interdependence of scheme participants All organizations (IP), except one, are deprived of independence and are essentially only “technical” companies, since: - are engaged in the same type of economic activity; — they do not have their own fixed and working capital, as well as human resources; — use the same office, warehouse, website, sign, contacts, banks, current accounts, cash register terminals, terminals, etc.; — personnel were formally redistributed between the participants of the scheme without changing their job responsibilities; — organizations bear economic and other expenses for each other; — the interests of the participants in the scheme in relations with government agencies and other counterparties (not included in the business splitting scheme) are represented by the same persons; — their performance indicators, such as the number of personnel, occupied space and the amount of income received, are close to the maximum values limiting the right to use special regimes; — companies (IP) were created within a short period of time immediately before expanding production capacity and/or increasing the number of personnel; — the actual management of the activities of the scheme participants is carried out by only one person |
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Reality of deals The transactions made by companies are real. The tax inspectorate does not dispute or question this; it does not provide evidence that the transactions are fictitious |
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Economic reason for fragmentation Structuring a business into a group of companies is due to reasonable economic reasons, that is, it has a business purpose. For example, division of activities, increasing retail outlets, expanding the network of suppliers, reducing business costs, etc. Even better if it has already been achieved or is being achieved |
The only reason is tax cuts The only achieved goal of applying the business splitting scheme is to reduce taxes paid by the entire group of companies, which looks suspicious given the expansion of the entire activity as a whole |
A detailed review of arbitration practice on this topic can be read in letter No. SA-4-7/15895@ of the Federal Tax Service of the Russian Federation dated August 11, 2017. It describes dozens of court decisions on this topic and gives their details.
ARTICLE Prokazina E.A.,
expert editor of the magazine “Time of an Accountant”
The term “tax optimization” implies the activities of the taxpayer aimed at reducing tax payments.
Essentially, it is choosing the best, optimal path to achieve a single goal - increasing profitability.
Taxes are a tool by which the state regulates market relations among business entities.
They are a way to fill the country’s budget, which is distributed for social and public needs.
From the point of view of businessmen and business owners, taxes are direct financial losses.
Many entrepreneurs try to compensate for such losses illegally, which leads them (at best) to even greater losses in the form of penalties and fines.
To avoid all this, enterprises use tax optimization
Russian tax legislation is not perfect or stable.
Amendments, by-laws, and regulatory documents are issued very often, and many of them cancel the previous ones, and some contradict previously adopted ones.
Only experienced financial analysts can understand this constantly moving stream.
They will help not only to understand the intricacies of tax legislation, but also, using legal tools, to optimize the financial flows of an enterprise in the direction of reducing the tax burden and increasing the profitability of business activities.
By and large, the law does not limit the ability of business entities to maneuver. It is possible and necessary to optimize taxation by using legal methods and the skills of perfect knowledge of the tax code of the Russian Federation.
Minimizing tax payments
Payment minimization is often confused with optimization. These are two different tasks facing the financial management of an enterprise.
Minimizing tax payments may be one of the ways to achieve optimal financial results, but not always.
Tax classification used in minimization:
- , located “inside” the cost (UST – unified social tax). Reducing taxes in this group leads to a reduction in costs, but at the same time the tax base for calculating income tax increases;
- Taxes “outside” the cost price (VAT). In this case, it is necessary, by expanding the range of suppliers (works, services) working with VAT, to reduce the difference payable to the budget. VAT is defined as the difference in values between the amount of accrued tax and tax deductions, that is, the offset method;
- Taxes “above” cost (organizational profit tax). This group is reduced only by reducing the tax base or lowering the rate. The basis can be reduced by increasing taxes within the cost price; the rate can be reduced by using preferential conditions for paying this tax.
Reducing the tax base or the amount of payments carries a temporary reduction in the tax burden
The most effective way to optimize tax payments is through a set of measures. For this purpose, tax optimization schemes are drawn up, the main criteria of which are:
- efficiency;
- compliance with legal requirements;
- reliability;
- exclusion of negative consequences of use.
Read also Employee's personal card. Sample filling
Tax planning
Tax planning plays a special role. Well-designed internal and external planning helps to make maximum use of all the nuances of tax legislation to minimize losses when paying taxes.
When planning, especially long-term, a full analysis of the legislative framework is necessary at the initial stage. Then, during the activity, the tax burden is monitored.
For more effective control, a tax payment schedule is calculated (approximate values). As a result of tracking the actual situation, the planning indicator is determined.
Its analysis will help optimize the enterprise’s activities on a long-term level, and not only by reducing tax payments.
External tax planning, its main directions:
- Replacement of tax subject. The organizational and legal form of the enterprise is changed to one in which a tax regime that is more convenient for the organization is used (property tax benefits for enterprises whose employees are disabled people);
- Changing the type of activity. This implies a transition to activities that are taxed in a simplified form (special simplified tax systems for simplified taxation on income 6%, simplified taxation on profit 15%, UTII);
- Replacement of tax jurisdiction. Re-registration of a company in a region that provides preferential taxation or lower tax rates (registration of an enterprise in offshore zones, with actual location in the territory of any region).
Internal planning is carried out by optimizing accounting
All provisions are prescribed in the accounting policy of the enterprise.
A document developed for one financial year and confirming the legality and validity of the interpretation of regulations is an accounting policy.
The following tax optimization methods are used in internal planning:
- Reduction of the tax base when paying income tax and property tax of organizations. It is carried out by revaluation of fixed assets on the balance sheet of the enterprise, or their accelerated depreciation;
- Transfer of tax payments (parts thereof) to the next period, or vice versa – payment in the current period without transfer. Regulated through contractual relations with partners. The payment schedule for one transaction should be optimized taking into account commodity and financial flows;
- The use of benefits provided by the state to stimulate certain types and areas of economic activity that are necessary for the state for social significance.
Most benefits are provided by local budgets. Tax benefits include:
- non-taxable minimum values,
- exemption from payment for a certain circle of persons or categories of payers,
- lowering tax rates,
- targeted tax benefits within the framework of government programs,
- tax credits (installment payments).
Special tax regimes - simplified taxation, imputation, patent system and unified agricultural tax - are themselves low-tax. But with the correct use of legally permitted schemes, you can further reduce the cost of paying tax payments.
We optimize wisely
Tax optimization is a reduction in the tax base by legal means. Saving on taxes without the risk of being held liable is the main goal of optimization.
Important! The Federal Tax Service distinguishes between optimization and tax evasion, assessing the actions of entrepreneurs from the point of view of economic feasibility. If the only motive for the actions of a business entity was minimization, disputes with the fiscal authorities are guaranteed.
| Group of methods | |
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| Using Optimal Mode | choosing a suitable system at the stage of opening a business, changing the regime during the course of activity (including switching from one object of taxation to another under the simplified tax system) |
| combination of simplified tax system, UTII and PSN |
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| Use of benefits and preferences | changing the type of activity to use the rate reduced by the regions |
| “moving” to a region with preferential rates |
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| use of reduced rates for insurance premiums |
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| When comparing simplified options, they are based on the ratio of income and expenses for an activity: if expenses account for more than 60% of income, then the simplified tax system “income-expenses” is usually more profitable. The tax regime can be adjusted along the way, if the conditions for doing business or the type of activity have changed. It will be possible to switch to the new system in the new year. Scheme No. 2 Simplified “income”: reduction of the object of taxationThe Prodtorg company is engaged in wholesale trade and applies a 6 percent simplification. Instead of a sales contract, the company decided to enter into a commission agreement with buyers. According to the new scheme, Prodtorg is an intermediary, and contractors are customers. The amount of the intermediary's remuneration is set equal to the normal profit from the transaction. Goods are purchased by the Prodtorg company on its own behalf, but with the money of customers. It is commissions - the intermediary's remuneration - that will be taxed. It is advisable to apply the scheme if during the year there is a risk of “falling off” the simplified tax (as total revenue approaches the established limit). The method is effective when: initially the company applies the simplified tax system of 6% and conducts activities for which expenses are less than 60% of income, and then additionally begins to engage in trade (with a ratio of income and expenses that is unfavorable for the “profitable” simplification). Scheme 3. Using an individual entrepreneur on the simplified tax system “income” as a managerIn an LLC or JSC, the sole executive body (manager) can be an individual entrepreneur. The application of the scheme kills several birds with one stone: the individual entrepreneur pays from the income received not 13% personal income tax, but 6% according to the simplified tax system “income”, while reducing the amount of tax by 50% due to paid insurance premiums. Let's say the general director receives a salary of 150 thousand rubles. per month (1.8 million rubles per year). The organization will calculate personal income tax (13%) from his salary - 234 thousand rubles. and insurance premiums - 376 thousand rubles. (in the Pension Fund - 265.32, in the Social Insurance Fund - 19.43, in the Compulsory Medical Insurance Fund - 91.80). If the monthly remuneration of the individual entrepreneur is the same, then insurance premiums for the year will amount to 37.26 thousand rubles. (22.26 - fixed payments and 15 - 1% on the amount of income exceeding 300 thousand rubles). As a result, the individual entrepreneur will pay only 108 thousand rubles for the year. payments. Check out the calculation procedure contributions for individual entrepreneurs in 2015 And contributions from the salary of hired workers. When planning the scheme, it is worth considering that the insurance premiums that the company paid from the director’s salary:
Therefore, to assess the profitability of the scheme, additional analysis of the impact of reducing company expenses (they decreased in insurance premiums for an employee) on the tax result will be required. Scheme No. 4. Combination of simplified tax system and UTIIThe organization is engaged in wholesale and retail trade, the latter being carried out in a sales area of 50 m2. The company uses the simplified term “income”. In the region for the next calendar year, K2 will be set at 0.5 for stationary retail trade. Transferring retail to UTII is beneficial for the organization. Let's calculate three possible options. Data for calculating UTII: basic profitability = 1,800 rubles. per month, K1=1.798, K2=0.5. Imputed payment amount per month = 1,800 x 1,798 x 0.5x50 x 15 = 12,137 rubles. * - The tax can only be reduced by half. Read the rules calculation of UTII. Under favorable regional conditions for imputation, in the structure of a company that also deals with retail, it is beneficial to have a division for UTII - regardless of the revenue received, the tax amount is fixed. At the same time, the profitability of imputation increases with increasing sales. Check out the position of the Federal Tax Service on the conditions for combining special regimes: Optimization: success factorsAn optimization scheme cannot be a universal solution suitable for everyone. This is nothing more than an idea. When developing a program to minimize fiscal payments, it is necessary to take into account the real external and internal conditions of doing business. The greatest effect is achieved by a set of measures that takes into account the specifics of the business as much as possible: scale, type of activity, organizational structure, regional factors, etc. Everything that is not prohibited by law is permitted. However, in Russia today the line between optimization and tax evasion is too blurred. Be alert and take into account the opinions of experts! |
One way or another, the majority of organizational leaders use tax minimization. There is legal minimization of taxation and illegal.
Legal tax minimization is often ineffective and not all methods of legal minimization are applicable to all organizations. The state is constantly working on legislation - reducing the number of tax benefits and exemptions, as well as patching holes in the legislation.
Illegal tax minimization is associated with banal tax evasion by understating tax payments, this is a violation of the legislation of the Russian Federation (Articles 198 and 199 of the Criminal Code of the Russian Federation). This involves minimizing taxes by using shell companies, fictitious contracts, understating revenue, increasing costs and much more.
Tax minimization
Such tax minimization is fraught with unpleasant consequences for the CEO, so most resort to another method. Namely, a combination of legal and illegal minimization, as it is called “gray” tax minimization.
Of course, this tax minimization requires extensive knowledge of tax legislation and skillful use of tax planning tools. Any tax minimization must be carried out within reasonable limits and tax minimization schemes must be constantly modernized and adjusted to changes in laws.
Tax minimization schemes
Existing tax minimization schemes are strictly individual; they use tax breaks, legal methods of deferring taxes, tax exemptions, offshore organizations, “shell organizations” and much more. There are also tax minimization schemes that involve a combination of several organizations with different tax regimes.
For example, tax minimization schemes in which there is one large organization working on the OSN and one or more organizations using the simplified tax system or UTII, depending on the situation.
The essence of the tax minimization scheme is that an organization on the OSN sells goods to other “its” organizations with a minimum markup, and these organizations sell the goods to the final buyer at the market price. Thus, it turns out that an organization on the simplified tax system bears a minimal tax burden, and the main income is received by “their” organizations on the simplified tax system or UTII, where taxes are much lower.
This tax minimization scheme, despite its simplicity, requires careful study by specialists: accountants, lawyers and tax consultants, otherwise, during an audit, additional taxes may be assessed in full.
Tax minimization scheme
When using a tax minimization scheme, you need to soberly assess the risks and be aware of the consequences if something goes wrong, or the tax authorities try to recognize these transactions as illegal. That is why you need to first think through everything, calculate it, and then implement and implement tax minimization schemes. And of course, you need to immediately prepare for the worst, collect arguments and evidence, because you may have to defend your position in court.
Modern realities are such that the “presumption of innocence” is just words, and when proceedings by government agencies begin, the taxpayer is forced to justify his actions. Both inspection authorities and courts look at it from the position of “presumption of guilt.”
Because of this, the tax minimization scheme must be absolutely transparent and comply with all provisions of the law.
There are other ways to minimize taxes - illegal ones, but they are becoming less and less popular among entrepreneurs, since the state has significantly tightened responsibility for their use.
Ways to minimize taxes
Recall that there are the following ways to minimize taxes: legal (tax planning) and illegal (tax avoidance).
Legal methods of minimizing taxes are used by competent managers and act using well-constructed accounting policies, tax breaks, tax deferments and, of course, “holes” in the legislation.
Illegal or criminal ways to minimize taxes used by fearless leaders who are confident in their impunity, or who have a “pair of jokers” up their sleeves that will solve problems if they arise.
But even unscrupulous managers understand that they need to come out of the shadows while maintaining current income to the maximum, and tax optimization will help them with this.
Tax optimization
The concept of tax optimization includes a set of methods and methods for reducing the tax burden of a company.
For each manager, tax optimization means something different; everyone puts their own vision of the situation into this concept. But one thing remains unchanged. Whatever path the director of the organization chooses for himself, whatever methods he uses, he strives to reduce the tax burden of the organization while earning more profit.
This is the paradox: tax optimization reduces tax payments to the budget, while the actual profit of the organization increases. It’s like a game, and as you know, every game has its own rules, although in this game the taxpayer has already lost, since he still has to pay taxes. But he has the opportunity to reduce their size, and he can do this according to the rules (legally), or he can try to deceive the system and violate the established rules. And everyone decides for himself which tax optimization he likes.
Tax optimization
If you think everything through from the beginning, then no tax optimization may be needed in the current crisis. For example, if a person wants to open his own business and sell flowers in a tent or open a nail salon, then the best choice for him, provided that UTII has been abolished, will be the simplified tax system at 6% (income). Moreover, it is not an LLC, but an individual entrepreneur. Since an individual entrepreneur is required to pay insurance premiums annually, he can reduce the tax on the amount of these insurance premiums. In 2013, we can say the amount of tax-free income is slightly more than 550 thousand rubles.
Here is a striking example when tax optimization occurs even before taxes are formed. Such tax optimization is not applicable in all cases and not to all areas of business, but it still helps to understand the essence of the process of optimizing tax deductions.
One more example when tax optimization occurs before opening a business. Let's assume you have decided on the taxation regime and chosen the simplified tax system. But it distinguishes two objects of taxation: the first is income (6%) and the second is income reduced by the amount of expenses (15%). Which property should you choose to pay less taxes? This can be easily determined if you have a business plan or at least know how many expenses in percentage terms will be in 1 ruble earned. If the percentage of costs is less than 60%, then the simplified tax system of 6% on income will be more profitable. If in the range of 60%-80%, then you need to count, since depending on the white wage fund, it may be more profitable to either the simplified tax system of 6% or the simplified tax system of 15%. And if costs are more than 80% of income, then you definitely need to choose the simplified tax system of 15% of income minus expenses. This is the simplest example when tax optimization allows you to save money at the beginning of your journey.
To sum up all of the above, we can say that tax optimization is a tool for a successful business, and it should not be underestimated. Contact the specialists of GU Goodwin, and you will find additional financial reserves in your business through tax optimization.
