The tax legislation does not contain a clear definition of what the tax risks of an enterprise are. This term can be found, rather, in the scientific literature. At the same time, tax risks can be characterized as the danger of financial losses, as well as adverse legal consequences, which can be assessed with varying degrees of probability.
Types of tax risks
The types of tax risks of an organization are classified according to different criteria. Suppose, according to the nature of the occurrence, the risks are divided into:
- external, not dependent on the activities of the company. That is, related to macroeconomic factors or political changes in the state that lead to changes in the tax system;
- internal, arising from the activities of the company. This may be the transition of the organization to another taxation system, a change of suppliers, an increase in the number of employees, etc.
By the time of occurrence, risks are distinguished:
- current, which take place here and now. For example, if the deadline for submitting a tax return expires today or tomorrow, then missing the deadline and not submitting the declaration within 10 working days after the deadline carries the risk of suspending operations on the organization's accounts (clause 1, clause 3, article 76 of the Tax Code of the Russian Federation);
- promising. They are that the company's actions today (for example, entering into an agreement with a dubious counterparty) can lead to negative consequences in the future.
Also in the scientific literature there are such main groups of risks as:
- tax control risks - possible additional charges based on the results of desk and field audits (clause 50 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 N 57);
- risks of increasing tax liabilities - increasing tax rates, cancellation, etc.;
- legal risks. First of all, we are talking about the uncertainty of tax legislation, which leads to different interpretations of the rules of law with all the ensuing consequences (different points of view of taxpayers and tax authorities, additional tax charges, penalties, fines, legal costs, etc.).
In addition, business can create tax risks for itself, more precisely, persons occupying senior positions in the business. For example, in case of failure to appear when choosing counterparties, or in case of deliberate tax evasion.
Assessment of tax risks at the firm level
Some tax risks can be assessed by the organization itself. For example, the company's accountant can independently calculate the level of the company and thereby assess the likelihood of the organization getting into the plan for on-site inspections.
What is tax risk management? Who should be in charge of managing tax risks in an enterprise? What tax risks may accompany the business? What measures should be taken as part of tax risk management? In an interview, Andrey Zuykov, Director of the Tax Policy Directorate of NTV-Plus OJSC, will give clear answers to the questions posed.
Zuykov Andrey Valerievich
In 2001 he graduated from the Academic Law University under the Institute of State Geology of the Russian Academy of Sciences with a degree in Law, in 2006 - the Academy of National Economy under the Government of the Russian Federation with a degree in Economics. Since 2002 - a consultant on taxes and fees. Since 2001, he has been engaged in tax practice in the manufacturing, engineering, construction, and alcohol industries. Since 2007 - Director of the Directorate of Tax Policy of NTV-PLUS OJSC, where he ensures the company's tax security to the present.
- What is tax risk management at a particular enterprise?
As a rule, large enterprises have implemented a whole risk management system, which includes the management of financial, legal, reputational and other risks. One of these elements is the tax risk management system, which, however, can be independent.
The task of such a system is to identify, assess and promptly respond to tax risks in order to reduce the likelihood of their occurrence or minimize the negative consequences associated with the taxation process.
The tax risk management system begins with a management decision on its creation, that is, the owners or management must come to such a decision. Typically, this system includes the organizational structure, procedures, functions, responsibilities of employees of departments responsible for managing tax risks.
In other words, an organization that cares about its financial position, reputation, and takes an active position in managing its business risks, sooner or later thinks about creating a unit whose functions, powers, and area of responsibility include the analysis of operations performed, their assessment for compliance with tax legislation, established practice and minimization of negative consequences.
- You are talking about the creation of a separate division, while in many Russian companies the chief accountant deals with tax issues ...
Yes, this often happens. And sometimes it's justified. It is necessary to understand the tasks set by the owner and management in this area, financial opportunities, etc.
But if we talk about an integrated approach to managing tax risks, and this implies the interaction of all divisions of the company in the process of identifying and assessing risks in areas of activity, then the transfer of management functions to a division whose risks are controlled can neutralize the positive effect of the introduction of risk management procedures. Indeed, often the risks are created by the accounting service itself. These are the so-called process risks, i.e. tax risks caused by unintentional errors made by the accounting services of taxpayers (for example, technical errors).
In addition, it should be noted that lately, tax risks are being understood not only as the risks of additional tax charges. Large international companies, followed by Russian companies, also understand tax risks as the risks of overpayment of taxes, non-use of tax benefits, tax reserves, budget lending, i.e. risks of inefficient taxation. The accounting department is not able to cope with all these tasks ...
In general, tax risk management is carried out at the expense of internal and external sources.
Risk management through internal sources implies management within the organization without the involvement of external consultants.
The effectiveness of this method of managing tax risks depends on many factors: on the company's approach to this issue; on the number of personnel involved in tax risk management; from the qualifications of the staff; on the degree of personnel involvement in the decision-making process.
Management of tax risks from external sources is carried out through the involvement of third-party tax consultants or supervisory services.
The combined method combines internal and external intellectual resources.
The choice of this or that resource, which will be used to manage tax risks, as I said, depends on many factors: the scale of the organization's business, the cost of ensuring tax security, etc.
- What tax risks can the organization face?
Risks arising from the enforcement and interpretation of tax laws by tax authorities and courts (so-called environmental risks).
These include tax risks caused by the imperfection of legislation, the presence of gaps in regulatory documents, when some issue is either not resolved at all, or different documents contain different interpretations of the same norms, they are associated with contradictions and ambiguities in tax legislation acts. Therefore, one should remember the rule provided for in paragraph 7 of Art. 3 of the Tax Code of the Russian Federation: "All irremovable doubts, contradictions and ambiguities of acts of legislation on taxes and fees are interpreted in favor of the taxpayer."
This group can also include tax risks arising from the uncertainty of the application of tax laws in various circumstances, the risks of a possible change in tax legislation or practice, unexpected court decisions. The Organization has no control over the likelihood of these risks occurring. Moreover, the state plays the main role in the process of creating these risks.
I have already mentioned the next group of risks. These are tax risks associated with incorrect implementation of tax laws, errors in tax accounting or tax planning (the so-called process risks):
- tax risks arising from unintentional errors made by taxpayers (for example, technical errors). The reasons for making such mistakes may be the insufficient level of qualification of accounting services employees. Often such risks arise due to simple managerial errors, when the tax or accounting departments are not involved in the process of making managerial decisions;
- tax risks due to conscious actions. This group of tax risks is caused by the desire of the taxpayer to reduce the size of the tax burden, using various tax planning tools for this, or simply by direct tax evasion.
The risk group of inefficient taxation is the risk of overpayment of taxes, non-use of tax benefits, tax reserves, budget lending, etc.
When a company seeks to save on taxes, it is in the zone of potential risk, and therefore it is necessary to act very carefully. As a result, reputational tax risks may arise.
These are the risks of damage to the company's reputation, which may lead to a decrease in the number of customers, refusal of suppliers to work with the enterprise due to the formation in society of a negative image of the financial stability of the company or the nature of the activity in general.
The task of minimizing reputational risk is based on minimizing claims against the organization from third parties, primarily tax, law enforcement and judicial authorities. These risks are external to process risks and law interpretation risks. Claims from the tax authorities are not always based on a violation by the taxpayer of the current tax legislation.
- What stages of work with tax risks could you single out?
In the management of tax risks, there are identification of tax risks, assessment of tax risks, development of measures to respond to tax risks, control (monitoring) of the implementation of measures to minimize (eliminate) tax risks.
As part of the identification work, it is necessary to maintain a balance of the main principles of tax policy:
- observance of caution in judgments about the requirements of tax legislation;
- a balanced approach to tax risks that may arise when resolving issues that are not sufficiently covered in the current legislation;
- a sufficient degree of professional conservatism in relation to the taxation of transactions and transactions with an ambiguous interpretation of the current legislation;
- optimization of taxation, i.e. development of a set of measures aimed, within the framework of the current legislation, at optimizing taxes paid and reducing tax risks, implying a balance in the level of the tax burden and keeping tax risks within acceptable limits.
Both the concept of tax risk and the principles of its assessment are very subjective and depend, as a rule, on the qualifications of the contractor and the assessment criteria used by him, the compliance / non-compliance of the position of the Ministry of Finance and the tax authorities, and the probability of detecting the risk (found / not found).
In addition to the financial aspects of the risk (i.e., the amount of possible additional taxes and fines), when determining the risk assessment principles, it is necessary to take into account other consequences of tax risks for the company (for example, reputational ones), which will allow developing a more balanced approach to their assessment.
To assess the tax risks of your enterprise, the Concept of the system for planning field tax audits, approved by order of the Federal Tax Service of Russia dated May 30, 2007 No. MM306 / can help you [email protected](as amended on 10/14/2008). In particular, the Concept defines publicly available criteria for self-assessment of risks for taxpayers used by the tax authorities in the process of selecting objects for on-site tax audits, which makes the process of choosing the object of an on-site tax audit more transparent for organizations.
According to this Concept, there are only 12 criteria for selecting the object of an on-site tax audit, in the presence of which it is possible to conduct an on-site tax audit. For example, the Concept contains such a criterion as conducting financial and economic activities with a high tax risk.
It covers transactions with counterparties that may lead to tax risks.
The imputation of tax claims based on the negligence of counterparties has now become especially “popular” among the tax authorities and has gained considerable scope.
In this regard, prudence when choosing counterparties is of the greatest importance, which will allow you to avoid additional taxes in the future if, for example, the general director of your supplier refuses to complete your transaction.
I can advise you to fix the procedure for document flow when concluding transactions, as well as the requirements for your counterparties, by a local regulatory act for your company.
Risk assessment can be qualitative and quantitative.
When quantified, i.e. when determining the amount of risk, it is enough to multiply the base for calculating the risk by the tax rate of the tax on which the risk arose. For example, if there is an income tax risk in the form of the absence of documentary evidence of an expense, to calculate the risk, it is necessary to multiply the amount of expenses for which there is no documentary evidence by the tax rate.
A qualitative assessment is an assessment of the likelihood of a tax risk (an expert method is used):
- high risk - the requirements of tax legislation are violated, the position of the tax authorities and / or the Ministry of Finance of Russia on complex issues of tax legislation is sufficiently justified and unfavorable for the taxpayer; there is no arbitration practice or it has developed not in favor of the taxpayer;
- medium risk - the requirements of the tax legislation are not violated, but the position of the tax authorities and / or the Ministry of Finance of Russia is unfavorable for the taxpayer; there is no arbitration practice or the position of the courts is ambiguous;
- low risk - the requirements of the tax legislation are not violated, the position of the tax authorities and / or the Ministry of Finance of Russia is unfavorable for the taxpayer, but arbitration practice has developed in favor of the taxpayer.
To conduct a qualitative assessment, ranking can also be used, when the following are evaluated in points:
- probability of detection (probability of claims of the tax authority) - a risk characteristic that represents an expert assessment given in the range from 1 to 5, depending on the possibility of detecting the circumstances underlying the risk during tax or other audits;
- the probability of losing the dispute in court in the event of claims from the tax authority is a risk characteristic that represents an expert assessment given in the range from 1 to 5, depending on the possibility of losing the dispute in court, taking into account established judicial practice.
The probability of a risk event occurring is estimated, i.e. probability of detection (probability of claims of the tax authority), and the probability of losing the dispute in court in the event of claims of the tax authority, after which the degree of risk is determined.
Risk assessment indicators are multiplied and ranked according to the following groups: "remote" - remote (risk level from 1 to 5), "possible" - possible (risk level from 6 to 14), "probable" - probable (risk level from 15 to 25 ). After that, the integral risk assessment is determined:
Integral risk assessment = Risk degree H Financial risk assessment x Risk value.
- And what ways of responding to tax risks would you advise taxpayers to take? And how to control tax risk management?
As part of the development of measures to respond to tax risks, the following methods are applied in practice.
Risk acceptance. The risk is accepted if all the available ways to reduce it are not economically feasible compared to the damage that the realization of the risk can cause. Managers are aware of the existence of this risk and its characteristics and do not consciously take any action to influence the risk.
Risk prevention/avoidance. Risk avoidance is implemented by terminating a certain type of activity, business operations leading to risk. One way to avoid risks is to change the strategic objectives or operational process.
Transfer/transfer of risk. The decision to transfer risk depends on the nature of the activity, the importance of the risk-related transaction and its financial significance. Standard risk transfer mechanisms include: insurance, transfer of risks to partners as part of the creation of a joint venture or association, outsourcing, diversification of the Company's activities. Relocation of the source is not a transfer of risk.
Risk control/reduction. Risk reduction - actions taken to reduce the likelihood, negative consequences, or both.
Risk control/reduction is achieved through the organization of a reporting system, formalization of processes; conducting training programs; development of methods and procedures for internal control and risk management; conducting an internal audit.
Control (monitoring) of risk management - control of the dynamics of changes in the characteristics of tax risks and the effectiveness of the implementation of risk management measures. Monitoring allows you to track the status of the risk, determine whether the desired result has been achieved from the implementation of certain measures in the field of tax risk management, whether sufficient information has been collected to make decisions on risk management, and whether this information has been used to reduce the degree of risk in the Company.
Monitoring is carried out by collecting information on the dynamics of critical risks and the implementation of plans for the implementation of measures for their management, received from risk owners.
Monitoring results may include:
- implemented measures have been corrected or additional ones have been developed;
- amendments were made to the Company's local regulations providing for procedures and mechanisms for risk management;
- methods and procedures for managing tax risks were developed in accordance with the criteria of internal standards and the requirements of tax legislation;
- prepared a presentation on the tax risk management system;
- prepared a summary and provided information on tax risks for the company's consolidated financial statements.
Interviewed by Yana Shishkina
"Finance", 2011, N 1
The uncertainty of both the external and internal environment inevitably leads to the presence of risks in the implementation of management. Risk is inherent in any form of human activity, which is associated with a variety of conditions and factors that affect the positive outcome of people's decisions.
The modern economic dictionary defines risk as the danger of unforeseen losses of expected profit, income or property, cash, other resources due to an accidental change in the conditions of economic activity, adverse circumstances.
Other authors understand risk as the possible danger of losses arising from the specifics of certain natural phenomena and activities of human society. As an economic category, risk is an event that may or may not occur. If such an event occurs, three economic outcomes are possible:
- negative (loss, damage, loss);
- zero (neutral);
- positive (gain, benefit, profit).
The concept of tax risk has not yet been developed. Moreover, even the very formulation of the question of what constitutes tax risks is new.
Tax risks are most often understood as uncertainties that can lead to negative consequences.
The term "tax risk" is used quite rarely. More often in scientific circulation and in business practice such concepts as "banking risks", "audit risks", "currency risks", "insurance risks" are heard. The definition of tax risk, if it occurs, is mainly formulated from the position of the taxpayer.
Tax risk, according to V. Narezhny, is the danger of an unforeseen alienation of the taxpayer's funds due to actions (inaction) of state bodies and (or) local governments.
According to A.Yu. Che, the tax risk from the point of view of the taxpayer is the probability (threat) of additional taxes (fees), penalties and fines during a tax audit due to disagreements between taxpayers and tax authorities in the interpretation of tax legislation, which can turn into a real increase in tax burden .
Obviously, from the position of the state, the definition of tax risk has a completely different content. The paradoxical position of the state lies in the fact that, being the main generator of tax risks in relation to an individual company, it is also the subject of tax risk management in the fiscal sphere. From the point of view of the state, represented by its authorized bodies, tax risk is the probability (threat) of not receiving taxes to the budget and state extra-budgetary funds due to the use by taxpayers of tax minimization methods, which are possible due to certain shortcomings in tax legislation.
Thus, according to V.G. Panskov, tax risks should be characterized as the probability of financial losses for all participants in tax legal relations.
Legal entities, as a rule, assess and predict tax risks. The effectiveness of the assessment organization is largely determined by the risk classification. According to the nature of possible negative consequences, tax risks are divided as follows.
The risk of tax control. The risk of tax control itself is not critical. But the tax audit simply paralyzes the work of some companies, which entails additional financial losses.
Risk of additional accrual of arrears and penalties. In general, this risk is most often predictable: it can be assessed either by internal audit services or by external auditing.
Risk of sanctions and fines. This is a pretty significant risk. The penalty for a tax offense can be as high as 40% of the arrears - in such a situation, the fine can actually change the financial status of the company.
The risk of increasing the tax burden. After the taxpayer corrected the financial statements at the request of the tax authorities, it turns out that he worked in completely different financial conditions. And as a result, the investor understands that the company deliberately deceived him by applying the scheme of adjusting the reporting to the business plan.
Risk of decrease or loss of liquidity. By reducing liquidity, the company can not only go bankrupt, but also lose investment attractiveness, which leads to panic and further deterioration of the financial condition.
The risk of seizure of assets. The tax authority has the right, under certain circumstances, to seize the company's assets, including settlement accounts.
The risk of suspension of the company. Among the most striking examples of the occurrence of such a risk are pseudo-entrepreneurship or the fact that a company is not located at the address of its state registration.
Risk of criminal prosecution. In accordance with Art. 199 of the Criminal Code of the Russian Federation, tax evasion is a criminal offense. In this regard, the risk of criminal prosecution for the leader is perhaps the most serious risk.
Bankruptcy risk. Here it is advisable to determine the time frame for the existence of the risk of bankruptcy. According to the departments for combating tax violations, the real life of the risk is 6 years. In his risk assessment, the author uses 5 years as the statutory retention period for accounting records.
The classification of risks according to the degree of reality proposed by A.V. Bryzgalin, includes obvious, probable and hidden risks. Explicit ones are that the taxpayer deliberately allows violations of the law in his activities. Possible risks are caused by the possibility of double interpretation of the current tax legislation. The tax authorities have their own, fiscal, interpretation of the rules. In parallel, there is also judicial interpretation, which is not always uniform in content. There is an unofficial interpretation, which is given by lawyers, representatives of science, and experts in the field of taxation. Hidden risks are risks that the taxpayer is unaware of. A typical example is one-day firms, when, during a tax audit, an inspector discovers that out of 200 counterparties of the taxpayer being audited, several have the characteristics of one-day firms. The audited taxpayer could not know about this, since he received commodity values from them.
By grouping risks on a temporary basis, it is possible to identify the risks of the past, present and future. The risks of the past are limited by the statute of limitations of tax control. Current period risks are forecasting of those problems that may arise due to decisions made today. Risks of the future - in the Tax Code of the Russian Federation there is a ban on giving retroactive effect to norms that worsen the position of taxpayers, but there remains such a risk of the future as the revision of judicial practice. One of the tax risks of the future A.V. Bryzgalin names the risk of double-checking.
There are several different causes of uncertainty (categories of risks): information risks, process risks, environmental risks and reputational risks. On the proposed classification, which seems the most interesting, in the opinion of the author, I would like to dwell in more detail.
First, the uncertainties arising from the need to carry out tax assessments (information risks). The risk of ambiguous interpretation of the law by the taxpayer and the tax authority is another typical risk for Russia. Experience shows that tax risks are associated with precisely those transactions that are carried out in order to achieve favorable tax consequences. You need to understand: when an enterprise seeks to save on taxes, it is in the zone of potential risk and therefore it is necessary to act extremely prudently. In the course of legal and tax analysis of planned transactions, as a rule, so-called tax risks are identified - situations where it is difficult even for a specialist to unambiguously answer the question "To pay or not to pay?".
The degree of risk can be assessed on the basis of established jurisprudence, and in the absence of such, it is necessary to initiate a litigation on your own in advance in order to create the necessary precedent and thereby launch the tax "time machine". Strictly speaking, case law is not officially recognized in Russia. But in fact, everything is different: judges do not want their decisions to be canceled, and therefore they try to take into account the position of higher judicial instances.
By virtue of the existing system of arbitration courts, the decision of the court of cassation is final for most litigation. Cases get to the Supreme Arbitration Court of the Russian Federation extremely rarely, only as an exception. Therefore, if on some issue there is no corresponding explanation by the Supreme Arbitration Court of the Russian Federation, then the practice of "their" district court will be decisive for the courts of first and appellate instances, for taxpayers and tax authorities.
Secondly, a group of risks associated with incorrect fulfillment of tax obligations, errors in tax accounting or tax planning (process risks). Process risks can be conditionally divided into several subgroups:
- Risks associated with a particular transaction. In terms of the risk of tax risks, one cannot compare the usual supply of goods with trade within the group, and even when crossing the border. Risks arise when an enterprise enters into a large or unusual transaction (personnel, systems, databases, control procedures are not set up to fully cope with the risk). This category includes the risks of technical or factual errors in the process of calculating taxes and (or) delay in their payment. The danger of such risks is also expressed in the fact that each individual risk may be small, but in the aggregate they can create a threatening situation, especially if the enterprise has an extensive branch network. The management of the company should ask themselves what will happen if the risks add up; are there enough resources to neutralize the consequences; whether the result of development under such a scenario would be acceptable. You have to be prepared for the worst situation. Such risks are commonly referred to as portfolio risks. In this situation, setting up a document management system, internal control, and a thorough audit by external auditors can help.
- Risks arise from simple managerial errors and oversights when tax or accounting departments are not involved in the process of making managerial decisions. In practice, this means that the company does not have a clear organizational structure for risk management. Accordingly, the more specialized departments are involved in the planning of the company's operations, especially the so-called non-standard ones, and not just reflect their results, the more justified it is to talk about risk management.
- The deal is poorly documented. One of the frequent causes of negative tax consequences is insufficient documentary evidence of what kind of transaction the company has carried out. It is no coincidence that the tax authorities increasingly require the submission of full documentation in order to make sure that the declared transaction is actually carried out. Unfortunately, very often this documentation is either insufficient or non-existent.
Documentary confirmation of economic feasibility significantly reduces tax risks, but it is not regulated by the current tax legislation: we can only talk about the general principles for preparing such documents.
Unfortunately, lately we have seen a clearly defined trend related to the peculiarities of tax control. It is impossible not to mention in this connection the situation with the issuance of invoices. So, for example, the lack of decoding of the signature of the person who signed the invoice, or an error in the legal address of the counterparty serve as grounds for refusing to refund value added tax (VAT) on this invoice, the amount of which can be either 100 or 200, and 500 million rubles At the same time, neither the company's references to making changes to the invoice, nor the counter-checks of counterparties, confirming the fact of accrual of tax on revenue and payment of tax to the budget, are taken into account. That is, the fact that the buyer pays the tax to the seller and the latter transfers this tax to the budget does not mean the right of the former to offset the VAT paid to the budget. An adequate judicial practice is currently called upon to resolve this contradiction, and in the future - a legislative settlement of this problem.
Thirdly, the risks arising from the enforcement of tax legislation by tax authorities and courts (environmental risks). This category also includes risks arising from the uncertainty of the application of tax laws in various circumstances, and the risks of possible changes in tax laws or practices, as well as unexpected court decisions, “changes of power”, from the federal minister to the tax inspector. The management of the company may face a very difficult task if the branches of the enterprise are geographically scattered throughout Russia, since in our country in St. Petersburg the legislation is interpreted differently than in Moscow. If the business crosses the borders of the country, the situation is even more complicated. The organization cannot influence the likelihood of these risks, and therefore they can also be designated as external risks.
Fourth, reputational risks are the risks of damaging the company's reputation.
The classification of tax risks according to various criteria revealed, in our opinion, the main drawback of the definition of tax risk, which was designated as the probability of financial losses. It is obvious that the company's losses in the event of classifying the risk of bankruptcy, the risk of suspension of the company's activities, the risk of damage to the company's reputation, the risk of criminal prosecution of company officials as tax risks cannot be reduced to purely financial losses. Indeed, the bulk of the negative consequences one way or another leads to financial losses for the company, but by no means boils down to them. So, according to A.V. Grachev, tax risks can be expressed not only in the form of real financial losses, but also as negative legal consequences of the actions of state and municipal authorities.
In this regard, it would be correct, in our opinion, to define tax risk as the probability of negative consequences of any kind for all participants in tax relations.
Literature
- Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. Modern economic dictionary. M.: INFRA-M, 2007. S. 358.
- Tsyrkunova T.A., Migunova M.I. Tax risks: essence and classification // Finance and credit. 2005. N 33. S. 48 - 53.
- Narezhny V. M&A without the right to tax risk // Consultant. 2008. No. 1.
- Che A.Yu. On tax risks // Tax Bulletin. 2007. No. 10.
- Pinskaya M.R. Tax risk: essence and manifestations // Finance. 2009. No. 2.
- Panskov V.G. Tax risks: taxpayers and the state // Tax Bulletin. 2009. No. 1.
- Pavlenko N.A. How to classify tax risks // Your tax lawyer. 2008. No. 12.
- Bryzgalin A. Speech at the Second All-Russian Tax Congress 18 - 11/19/2008.
- Grachev A.V. Tax risks and risks of dishonest business conduct // Finance. 2009. N 3.
O.V. Gordeeva
tax consultant
The most correct from these positions is the definition of financial risks, which is given by S. A. Filin: “Financial risks arise in connection with the movement of financial flows in conditions of uncertainty and represent the probability (threat) of adverse financial potential loss of financial resources (cash) or shortfall in profit (income) compared to the forecast option, or/and vice versa - the probability of obtaining additional benefits (income) as a result of the financial activity carried out by the subject of the economy in conditions of uncertainty” .
The most complete composition of financial risk leads, in our opinion, I. A. Blank (Fig. 1.1).
The risk of a decrease in financial |
Risk of insolvency |
Investment risk |
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owl sustainability |
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Other types of risks |
inflation risk |
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Types of financial |
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tax risk |
Interest risk |
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Rice. 1.1. Types of financial risks (according to)
The advantage of this gradation lies in the allocation of tax risks as a component of financial risks. Tax risks have a monetary value and entail an increase in costs. The bulk of tax risks can be directly assessed in monetary terms. Only tax risks associated with criminal liability can be considered non-financial. At the same time, organizations as legal entities cannot be subjects of criminal relations, thus, this type of risk cannot be fully extended to a taxpaying organization.
So, risk is a kind of uncertainty regarding the results of achieving the goals of certain operations by the subject, allowing the existence of a variant that is negative for the subject. In relation to tax planning, risk should be considered as a type of uncertainty regarding the results of the company achieving the goals of the tax plan.
nirovaniya. Risks, including those that must be taken into account in tax planning, must be classified according to a number of criteria in order to create the basis for the effective application of appropriate risk management methods and techniques. The system of classification features of risks makes it possible to give a comprehensive description and identify the essential characteristics of a particular risk, including tax risk. In particular, on the basis of the causes of occurrence, tax risks are a component of financial risks included in the group of commercial risks. At the same time, financial risks are risks arising from the movement of financial flows in conditions of uncertainty.
1.2. Concept and classification of tax risks
Tax risks are of significant importance in the financial management system, since tax relations mediate most financial transactions, and therefore, are an important factor determining their effectiveness. From the author's point of view, the criteria for assessing the quality of decisions made in the field of impact on the parameters of taxation of business entities in the framework of financial management should be not only the maximization of the financial result and / or cash flow in order to strengthen the financial condition and increase the market value of the organization, but also to minimize the risks of such an impact . This point of view can also be traced in the work of D. N. Tikhonov and L. G. Lipnik, who, speaking about the choice of a model of economic behavior associated with the payment of taxes, and referring to the experience of Russian enterprises, name two factors that determine it: efficiency and risks .
Moreover, due to the impact of tax risk, the value of the financial result and cash flow during tax planning can only be calculated approximately, and in case of significant deviations, this may lead to the adoption of economically inefficient management decisions in the field of tax management. Thus, the purpose of assessing tax risks is to reduce the uncertainty of information used when influencing the parameters of taxation of an economic entity.
As shown above, it seems appropriate to consider tax risks as a kind of financial risks, since in tax planning, as a result of the application of certain tax schemes, there are risks of financial losses. At the same time, the calculation of uncertainty that arises in the course of solving tax planning problems is of particular relevance, since some of the developed tax schemes that allow optimizing the existing model
taxation, designed to minimize financial risk. The absence of a well-established terminological apparatus of tax risk in the specialized literature makes it expedient to consider different points of view on the definition of the tax risk under consideration.
I. A. Blank and T. A. Kozenkova consider only the external component of the tax risk, subdividing it into the following types:
− the risk of introducing new tax payments;
− the risk of increasing the rates of existing tax payments;
− the risk of changing the conditions and terms of payment of tax payments;
− the risk of canceling tax breaks.
T. A. Kozenkova connects tax risks with changes in the country's tax policy, the establishment of new forms of taxation, changes in rates, the introduction of new taxes and duties, the abolition of tax incentives, etc. . It seems that this approach is unreasonably narrow. The source of tax risk may be not only external, but also a number of internal factors.
S. A. Filin interprets tax risk somewhat more broadly, taking into account such an internal source of risk as tax errors: “Tax risk is the probability (threat) of losses that an economic entity may incur due to adverse changes in tax legislation in the process of financial activity or as a result of tax errors made in the calculation of tax payments. However, from our point of view, limiting internal factors only to tax errors is also not correct.
V. N. Evstigneev defines tax risk through the expression of the assessment of “the possibility of occurrence in the field of tax planning of adverse consequences for a particular taxpayer”; however, it limits tax risks only to losses that are tax sanctions: “Tax risk ... is the possible additional taxes, fines, penalties and other sanctions of the tax authorities in the event that they conduct an on-site documentary audit”
AT In the definition of D.N. Tikhonov and L.G. Lipnik, this restriction is absent and the possibility of the existence of financial losses of a different kind than penalties is implied: “Tax risk is an opportunity for a taxpayer to incur financial and other losses associated with the process of paying and optimizing taxes, expressed in monetary terms.
AT At the same time, it is more adequate to refer some tax risks not to pure, but to speculative risks, since their consequences can manifest themselves not only in the form of losses, but also in the form of positive results. For example, legislative softening of the conditions for taxing economic entities entails a reduction in the tax burden, an increase
profit and cash flow. The use of tax optimization schemes is accompanied by the risk of some losses, but is directly aimed at a positive result.
From the author's point of view, tax risk should be understood as the danger for the subject of tax legal relations to incur financial (and other) losses associated with the taxation process, due to negative deviations for this subject from the states of the future assumed by him, based on the current rules of law, based on which they make decisions in the present, or the possibility of obtaining additional benefits (income) as a result of positive deviations.
At the same time, it should be noted that not only taxpayers, but also other subjects of tax legal relations are subject to tax risks. If for taxpayers an increase in the level of the tax burden or financial losses associated with violation of tax laws entail a decrease in financial resources and property potential, then, for example, for the state, the tax risk consists in reducing tax revenues as a source of budget formation.
In order to take adequate measures to manage tax risks, it is primarily of interest to identify and assess tax risks with negative consequences. In a formalized form, the definition of risk with negative consequences in tax planning can be represented as follows.
Let F be an objective function that determines the result of tax planning; Fexp is the value of the objective function expected by the company; ∆F is the area of uncertainty regarding the values of the objective function. The area of uncertainty is the set of all values that, based on available information, cannot be ruled out as possible.
Loss risk in tax planning (∆pF ) is a set of objective function values that belong to the area of uncertainty relative to the values of this function, and which are worse for the company than the expected value:
pF = ( F F F< Fож } .
The presence of target risks (∆pF ) is a consequence of the presence of factor risks (∆pХ ). Thus, the presence of risk (∆pF ) is due to the existence of an area of uncertainty regarding the value of the vector of variables X of the function F(X) :
pX = ( X X F(X) pF) .
In turn, the vector of variables X can be a function of other variables: X = X (Y), etc. Thus, we can talk about the presence of factor risks of the first, second and subsequent levels.
The identified causal relationships can be used as the basis for the classification of risks in tax planning, in which each risk corresponds to a certain level of hierarchy.
Based on the concepts of target and factor risks in tax planning and applying the logical modeling method, tax risks can be classified according to the following criteria (Fig. 1.2):
1. By entities bearing tax risks: tax risks of the state
gifts, taxpayers, tax agents, related parties. The risk of taxpayers can be detailed for the risk of legal entities and individuals.
2. According to the factors that determine financial risks (sources of
penetrations): external and internal (Fig. 1.3). For the state, external risks are due to the effect of international treaties in the field of taxation, changes in taxation conditions in offshore zones
and etc.; internal - by the activities of legislative and executive authorities that perform the functions of the state in the process of taxation, as well as taxpayers. For a business entity, the source of external risks are, in particular, changes by the state in terms of taxation:
− introduction of new types of taxes and fees; − change in the level of current tax rates;
− changing the procedure for determining taxable bases; − Cancellation of granted tax benefits;
− changing the terms and conditions for making tax payments;
- the use by the state of ways to reduce the ability of companies to minimize tax payments. We are talking about the doctrines of "substance over form" and "business purpose", as well as filling gaps in tax legislation. In particular, a transaction may be reclassified in accordance with its substance if it is proved that its form does not correspond to the nature of the relations actually established between the parties to the contract. Under the business purpose doctrine, a transaction that creates a tax advantage may be reclassified if it does not achieve a business purpose. The implementation of these doctrines is based on the provisions of the Civil Code of the Russian Federation, which provide for the nullity of imaginary (performed without the intention to create the corresponding legal consequences) and sham (performed in order to cover up another transaction) transactions. To a sham transaction, the rules of the transaction are applied, which the parties actually meant when it was made. Thus, if the court proves the sham or pretense of transactions, the implementation of which creates tax advantages, the company will suffer direct financial losses in the form of additional taxes, as well as the application of penalties for violations of tax laws.
by entities bearing risks
by factors that determine risks (sources of occurrence)
by time of occurrence
Tax risks
state risks |
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by object |
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tax risks |
connections with others |
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types of risks |
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risks of legal entities |
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taxpayers |
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risks of individuals |
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interdependent |
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consequences |
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internal |
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existing |
in size |
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possible |
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Rice. 1.2. Classification of tax risks |
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risk of lost profit
risk of loss of material and other
values
insolvency risk
investment risk, etc.
tax control risks
risks of increased tax burden
risks of criminal prosecution
new character
admissible
critical
catastrophic
Factors that determine risks (sources of occurrence)
internal |
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for the state
the effect of international treaties in the field of taxation
changes in taxation conditions in offshore zones, etc.
for business entity
introduction of new types of taxes and fees
change in the level of current tax rates
change in the procedure for determining taxable
cancellation of tax breaks
change in the terms and conditions of tax payment
application by the state of ways to reduce the ability of companies to minimize taxes
for the state
activities of legislative and executive authorities that perform the functions of the state in the process of taxation
taxpayers' activities
for business entity
tax planning mistakes
negative changes in economic and financial activities
double reading of tax laws
tax errors
Rice. 1.3. Sources of tax risk
AT Among the internal factors of tax risk, the following can be distinguished:
− mistakes made during tax planning; − negative changes in economic and financial activities; − double reading of tax legislation; − human factor (tax errors).
AT number of negative changes in economic and financial activities that are factors in the occurrence of tax risk, we can name the following:
− violation of contractual relations affecting the calculation and payment of taxes;
− non-fulfillment of the plan; − participation in legal proceedings;
- insolvency of the subject, the consequences of which may be losses in the form of penalties, seizure of accounts and property and bankruptcy.
Tax errors that occur in the financial activities of an organization can be divided into several groups:
1) the absence or incorrect execution of primary documents;
2) errors caused by incorrect interpretation of tax legislation, insufficient qualifications of performers and lack of control by management:
− incorrect definition of the taxable base; − incorrect differentiation of income and expenses by periods; − incorrect application of tax incentives; − incorrect determination of the tax rate;
3) untimely response to changes in the taxation system;
4) arithmetic (counting) errors;
5) untimely submission of reporting documentation to the tax authorities;
6) delay in payment of taxes due to the financial insolvency of the subject or due to the forgetfulness of the performers.
2. According to the object of connection with other types of risks : risk of lost profit
dy, the risk of loss of tangible and intangible assets, the risk of insolvency, investment, etc.
3. By type of consequences for business entities: tax risks
control, risks of increasing the tax burden, risks of criminal prosecution of a tax nature. The risks of tax control can be divided into the risks of ordinary and custom tax control. The latter are related to the control initiated by law enforcement agencies as part of a "political order", refer to force majeure circumstances and cannot be assessed accurately enough. The risks of an increase in the tax burden are divided into risks of growth in taxable bases and rates due to changes in the methodology for calculating taxes, as well as risks
increase in taxable bases in connection with the expansion of the volume of activities. The risks of criminal prosecution can only be indirectly assessed in terms of the consequences associated with the impossibility of continuing to manage the taxpayer subject to persons subject to criminal prosecution. Note that risks classified by types of consequences are considered in the work. However, the authors of the work state only the grounds for the occurrence of these risks, without touching upon the issue of their direct assessment.
4. By the magnitude of possible losses: permissible, critical and ca-
tastrophic risks. Critical losses pose a threat to the solvency of the organization, catastrophic - the existence of the organization-taxpayer.
5. By time of occurrence: future and existing risks. Existing are the risks of tax sanctions for past periods, reporting on which is submitted to the tax authorities. Future risks are associated with the activities of the organization in the current and upcoming tax periods, reporting on which will be submitted to the tax authorities in the future.
So, tax risk should be understood as the danger for the subject to incur financial losses as a result of tax legal relations due to negative deviations from the expected states of the future, on the basis of which he makes decisions in the present, or the possibility of obtaining additional benefits (income) as a result of positive deviations. From a mathematical point of view, the risk of losses in tax planning (∆pF ) is the set of objective function values that belong to the uncertainty area with respect to the values of this function and which are worse for the company than the expected value. The presence of target risks (∆pF ) is a consequence of the presence of factor risks (∆pХ ). Thus, the presence of risk (∆pF ) is due to the existence of an area of uncertainty regarding the value of the vector of variables X of the function F(X) . In turn, the vector of variables X can be a function of other variables: X \u003d X (Y), etc. Thus, you can go-
talk about the presence of factor risks of the first, second and subsequent levels.
Risk management is based on an assessment of their significance, thus, at the next stage of the study, it seems appropriate to explore methodological approaches to risk assessment, as well as to adapt them for risk assessment in tax planning.
2. PRINCIPLES, DETECTION METHODS AND METHODS FOR ASSESSING TAX RISKS
2.1. Principles for identifying and assessing tax risks
One of the main rules of financial and economic activity says: “Do not avoid risk, but anticipate it, trying to reduce it to the lowest possible level”, and for this it is necessary to properly manage risks, including tax ones. To do this, it is necessary to determine the key principles that should guide the implementation of activities aimed at identifying, assessing and reducing tax risks. These include the following.
1. The principle of cost adequacy.The cost of the implemented risk reduction scheme should not exceed the amount of possible losses resulting from tax risks.
The allowable ratio of the costs of the created scheme and its maintenance to the amount of savings in tax costs, expressed as a risk, has an individual threshold, which may depend on the degree of risk associated with this scheme, and on psychological factors. In practice, this threshold is 50-90% of the size of the reduced risks.
2. The principle of legal compliance.Tax optimization scheme
govt risks must be undeniably legitimate in relation to both domestic and international law.
This principle is sometimes referred to as the "least resistance" tactic. Its essence lies in the inadmissibility of building schemes to reduce tax risks based on conflicts or "gaps" in regulations. In cases where certain provisions of the legislation are controversial and can be interpreted both in favor of the taxpayer and in favor of the state, there is either the likelihood of future litigation, or the need to refine the scheme, or incur costs associated with informal payments to controllers, and etc.
3. The principle of confidentiality. Access to information about actual
purpose and consequences of ongoing transactions should be as limited as possible.
In practice, this means that, firstly, individual performers and structural units participating in the overall risk optimization chain should not have an idea of the whole picture, but can only be guided by certain instructions of a local nature. Secondly, officials and owners should avoid giving orders and storing general plans using means of personal identification (handwriting, signatures, seals, etc.).
Compliance with the principle of confidentiality "conceals" the possibility of losing full control over all the links involved in the scheme. One of the features of most structures to reduce tax
Tax risks are a probable loss of an enterprise that may arise in the event of an unfavorable development of events in terms of fiscal relations with the state. In the article, we will understand what the tax risks of an organization are, define the criteria and procedure for their assessment.
The essence of the problem
The emergence of tax risks (NR) is largely due to the desire of the taxpayer to reduce the size of the fiscal burden. In other words, all companies and entrepreneurs are interested in paying smaller amounts of taxes and fees to the state budget. Moreover, the solution of this issue is not always carried out legally.
However, deliberate concealment and understatement of the tax base is not the only factor of HP. These include:
- financial and legal illiteracy of the subject;
- incorrect interpretation of the current legislation;
- duality of fiscal norms and rules of taxation;
- lack of information about changes and innovations in the legal framework;
- technical errors;
- dishonesty of counterparties.
In other words, the occurrence of fiscal risks is associated with a direct violation of the law, when the norms Tax Code of the Russian Federation and other laws are completely ignored. Or with indirect violations, in which the norms and rules of taxation are not fully observed.
Consequently, if similar violations are detected, the economic entity almost immediately falls under special control by the Federal Tax Service. The tax authorities initiate an on-site audit in order to determine the tax risks of the enterprise on the spot.Classification by type
Types of tax risks of an organization are classified into:
- Internal and external.
- Predictable and unpredictable.
- Systematic and non-systematic.
Also, HP can be classified into three large groups according to the time of their occurrence:
- Prior to the audit of the Federal Tax Service, when a dispute with representatives has not yet arisen, for example, errors and violations arise due to the dishonesty of counterparties or due to incorrect registration of business transactions.
- during control activities. Violations were identified during the inspection (audit), both office and field.
- Based on the results of the audit. In this case, disagreements arise between the Federal Tax Service and the controlled entity, in which an appropriate act is drawn up for further appeal.
Valid assessment criteria
For analysis, the Federal Tax Service has developed a special list of criteria by which the degree of fiscal losses is determined. Note that this list is not secret. That is, the tax authorities strongly recommend conducting independent checks on this list. This approach will allow the company to avoid fiscal violations and penalties.
So, the current criteria for assessing tax risks are enshrined in the Order of the Federal Tax Service of Russia dated May 30, 2007 No. MM-3-06 / [email protected] and reflect:
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Absence |
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These criteria are applicable not only to taxpayers on the OSNO, but also to "simplified" taxpayers who have switched to special taxation regimes. For example, it will assess the tax risks of the business of legal entities and individual entrepreneurs on the simplified tax system or UTII.
It should be noted that based on the analysis of these criteria, the external and internal tax policy of our country is formed, and the tax risks of the state as a whole are assessed. This approach allows you to timely adjust the current policy in order to avoid adverse consequences.
Self control
In order for taxpayers to avoid problems with the Federal Tax Service, it is necessary to organize independent control and effective management of HP. A systematic assessment of tax risks is the only right decision in this situation.
- Avoid questionable deals.
- Make deals only with trusted counterparties.
- Refuse the services of suspicious companies.
- Document all transactions in accordance with applicable instructions and requirements.
- Constantly follow the updates and changes in fiscal legislation.
- Take care of developing and approving a tax risk management system.
