On recognition as illegal and cancellation of the order, as well as on the appointment of a thematic tax audit
No. 6001-24-00-6ap/932 dated February 04, 2025
Plaintiff: LLP "A"
Respondent: Russian State Institution "Department of State Revenue" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition as illegal and cancellation of the order dated September 6, 2023 on the appointment of a thematic tax audit
Review of the defendant's cassation complaint PLOT:
On April 6, 2023, the DGD received information from the Department of Economic Investigations on five plaintiff's counterparties, against whom criminal pre-trial investigations were initiated on the facts of issuing invoices without actually performing works, services, and supplies of goods: LLP "D", LLP "I", LLP "2019", LLP "Com", "O" LLP. It follows from the information provided by the DER that criminal cases against
LLP "D", LLP "2019" and LLP "Com" were sent to court in June - July 2022. For the remaining two counterparties, the deadlines were interrupted due to the appointment of an expert examination.
On June 13, 2023, the DGD sent a notification to the plaintiff about a preliminary decision regarding an unscheduled thematic audit.
On June 19, 2023, the DGA held a hearing of the taxpayer, where the latter was given the right to eliminate violations independently.
On July 25, 2023, the SRC issued an order appointing an unscheduled thematic audit against the plaintiff for settlements with the above-mentioned five counterparties, against whom a pre-trial investigation is underway, for the period from January 1, 2020 to December 31, 2022.
On August 22, 2023, the UGD issued a notice to the plaintiff on the elimination of violations identified by the results of desk control, according to which the taxpayer must exclude settlements on the invoices of D LLP and Com LLP, the extract of which was recognized by the court verdict of August 24, 2022 without the actual performance of work, delivery of goods.
On August 23, 2023, the UGD issued a second notice of desk control to the plaintiff, according to which the taxpayer must exclude settlements on the invoice of "D" LLP, the extract of which was also recognized by the specified court verdict without the actual performance of work, delivery of goods.
On September 6, 2023, the DGD issued a contested order dated September 6, 2023 on the appointment of a thematic tax audit in respect of the plaintiff.
Disagreeing, the plaintiff filed a lawsuit with the court, demanding that the disputed order be declared illegal and canceled.
According to the local courts, an unscheduled inspection can be ordered only if there are specific facts about the taxpayer's violation of the requirements of the law, which are absent in the present case, and there is no information in the submitted information about the confirmation of the statement of fictitious invoices. In addition, the plaintiff is deprived of the opportunity to independently eliminate violations in accordance with paragraph 2 of Article 96 of the Tax Code, since a tax audit was scheduled before the deadline for the execution of notifications. There is also no resolution or instruction from the criminal prosecution authority in the case under consideration, which, by virtue of subparagraph 3) of paragraph 3 of Article 145 of the Tax Code, could serve as the basis for an unscheduled thematic audit.
Judicial acts:
1st instance: the claim was satisfied, the order dated September 6, 2023 on the appointment of a thematic tax audit was declared illegal and canceled.
Appeal: the decision of the first instance was upheld.
Cassation: the judicial acts in this case have been annulled, with the issuance of a new decision to dismiss the claim.
Conclusions: in accordance with subparagraph 11) of paragraph 3 of Article 145 of the Tax Code, unscheduled tax audits are inspections that are not related to inspections conducted in a special manner, including those carried out on the basis of a decision of an authorized body.
The basis for issuing the order dated September 6, 2023 was the order of the State Revenue Committee dated July 25, 2023 on the appointment of an unscheduled thematic audit against the plaintiff for the period from January 1, 2020 to December 31, 2022, that is, an unscheduled thematic audit against the LLP was appointed in accordance with subparagraph 11) of paragraph 3 of Article 145 of the Tax Code. the Code on the basis of a decision of the authorized body.
The contested administrative act in the form of an order dated September 6, 2023 was issued by the Department within the limits of its competence and authority, on the basis of an order from a higher authority, and handed over to the plaintiff on September 18, 2023.
At the same time, the judicial board took into account that the hearing within the framework of the APPC on the planning of the tax audit was held on June 15, 2023, when the plaintiff became aware of the existing violations of tax legislation.
The order to appoint an unscheduled thematic audit in respect of LLP for mutual settlements with the above-mentioned five counterparties, in respect of which a pre-trial investigation is underway, was issued on July 25, 2023.
Notices on the elimination of violations identified by the results of desk control were issued on August 22 and 23, 2023, the disputed order itself was issued on September 6, 2023.
Thus, the arguments of the defendant's cassation complaint that 57 working days were provided for the LLP to eliminate violations on its own, which is 2 times longer than the deadline for the execution of the desk control notification, deserve attention.
In addition, it should be noted that the appealed order on the appointment of a tax audit complies with the requirements of regulatory legal acts, has passed the necessary registration with the prosecutor's office, the grounds and motives for the order are set out in the order itself, and the norms of the Tax Code are correctly applied when it is issued.
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