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58OF THE EURO-ASIAN LAW CONGRESS
Информация для цитирования:
Винницкий Д.В., Курочкин Д.А. СОВЕРШЕНСТВОВАНИЕ НАЛОГОВОГО АДМИНИСТРИРОВАНИЯ В ГЛОБАЛЬНОМ ИЗМЕРЕНИИ: ПОДХОД ГОСУДАРСТВ БРИКС // Herald of The Euro-Asian Law Congress. 2018. № 1. С. 27-43.
Vinnitsky D., Kurochkin D. IMPROVING TAX COMPLIANCE IN A GLOBALIZED WORLD: AN APPROACH OF BRICS COUNTRIES. Herald of The Euro-Asian Law Congress. 2018. Is. 1. Pp. 27-43.
УДК 341.1/8 В^АС LAW086000
СОВЕРШЕНСТВОВАНИЕ НАЛОГОВОГО АДМИНИСТРИРОВАНИЯ В ГЛОБАЛЬНОМ ИЗМЕРЕНИИ: ПОДХОД ГОСУДАРСТВ БРИКС
ДАНИЛ ВЛАДИМИРОВИЧ ВИННИЦКИЙ, Уральский государственный юридический университет (Екатеринбург, Россия)
ДЕНИС АЛЕКСЕЕВИЧ КУРОЧКИН, Уральский государственный юридический университет (Екатеринбург, Россия)
Введение: статья посвящена вопросам совершенствования налогового администрирования. Проблема выпадения налоговых доходов приводит к потере запланированных доходов бюджетной системы, поэтому Российская Федерация, как и многие другие страны, пытается дать адекватный прогноз возможного выпадения налоговых доходов и минимизировать сумму выпадающих доходов.
Методы: анализ, сравнение, сравнительно-правовой метод.
Анализ: чтобы уменьшить размер выпадающих налоговых доходов, требуется принятие комплекса мер, направленных на улучшение условий: (1) доступа к информации, необходимой налоговым органам, (2) обмена информацией между налоговыми органами разных стран (3) горизонтального мониторинга и применения риск-ориентированного подхода. В настоящее время российское налоговое законодательство включает как традиционные, так и современные формы налогового контроля, которые необходимо развивать по следующим направлениям: (1) обеспечение расширенного электронного документооборота между налоговым органом и налогоплательщиками, (2) сокращение времени и материальных затрат на подготовку и представление налогоплательщиками налоговых деклараций и т. д.
Результаты: эффективное устранение налогового разрыва требует скоординированного и последовательного применения вышеуказанных мер с учетом экономической ситуации и фактической способности определенных категорий налогоплательщиков в отношении уплаты налогов. В контексте БРИКС предлагается принятие международных конвенций, направленных на совершенствование режима налогового администрирования и создание условий для справедливого разрешения трансграничных налоговых споров.
Ключевые слова: налоговое администрирование; проблема выпадающих налоговых доходов; налоговая проверка; трансфертное ценообразование; правила о контролируемых иностранных компаниях; программы добровольного раскрытия информации; обмен налоговой информацией; горизонтальный мониторинг.
UDC 341.1/8 BISAC LAW086000
IMPROVING TAX COMPLIANCE IN A GLOBALIZED WORLD: AN APPROACH OF BRICS COUNTRIES
DANIL V. VINNITSKY, Ural State Law University (Yekaterinburg, Russia)
DENIS A. KUROCHKIN, Ural State Law University (Yekaterinburg, Russia)
Introduction: The article is devoted to the issues of improving tax compliance. The tax gap leads to the loss of the planned revenues to the budgetary system, therefore the Russian Federation, as many other countries, is trying to give an adequate forecast of the possible tax gap and minimize the amount of the falling out revenues.
Methods: comparison and analysis, comparative legal method.
Analysis: to decrease the tax gap it is necessary to adopt a complex of measures such as improving:
(1) access to information needed by tax administration, (2) exchange of information between tax administrations of different countries (3) horizontal monitoring and risk management. At present, Russian tax law includes both traditional and modern forms of tax audit that need to be developed on the following directions: (1) providing for the expanded electronic documentation circulation between the tax administration and taxpayers,
(2) reduction of time and material costs of the preparation and submission of tax returns, and other. Results: the effective elimination of the tax gap requires coordinated and consistent application of the
abovementioned measures taking into account the economic situation and the actual capacity of certain categories of taxpayers in regard to paying taxes. In the context of the BRICS, it is proposed to adopt international conventions aimed at improving tax compliance and creating conditions for a fair resolution of cross-border tax disputes.
Key words: tax compliance; tax gap; tax audit; transfer pricing; CFC-rules; voluntary disclosure programs; exchange of tax information; horizontal monitoring.
INTRODUCTION
Traditionally, the tax gap is understood as the difference between the tax that taxpayers should pay and what they actually pay on a timely basis. The tax gap measures the extent to which taxpayers do not file their tax returns and remit the correct tax on time [Gemmel, Hasseldine 2012]. Thus, when determining the tax gap, the amount of taxes which has not been paid as a result of the application of preferential tax regimes provided for by tax law is not taken into account. In essence, the tax gap is the total arrears with regard to taxes in the case of a certain region, country, etc.
According to James and Alley [James, Alley 2002: 32], tax compliance refers to the willingness of individuals to act in accordance within both the «spirit» and the «letter» of the tax law and administration without the application of enforcement activity.
The tax gap leads to a loss of the planned revenue to the state budget. Therefore, Russia, like many other countries, is attempting to provide an adequate forecast of the possible tax gap and minimize the lost tax revenue. According to Keen and Slemrod [Keen, Slem-rod 2017: 133], this is an intuitively appealing indicator of the effectiveness of a revenue administration - with clear advantages, for instance, over the simple comparison of cost-revenue ratios (i.e., administration (and/or compliance) costs relative to revenue raised) that has traditionally been a focus in assessing the performance of tax administrations.
In general, in Russia the tax revenue that is anticipated to be received, is included in the budget law (for the respective financial year) on the basis of information on the «tax potential», i. e. information about amounts of taxes which hypothetically should be paid
to the respective budget in accordance with tax law (art. 41. of the Tax Code of the Russian Federation, Part One, Federal Law No. 146-FZ of July 31, 1998). In other words, the tax potential is understood as the correlation between the estimated (or calculated on the basis of the budgetary planning procedure) tax revenue per one «average taxpayer» which can be hy-pothetically received by the budget, taking into account the level of the development of the region, the structure of the economy and the «estimated tax base» (art. 131 (6), 137 (3), 138 (3), 142.1 (4), 142.8(4) of The Budgetary Code of the Russian Federation, Federal Law No. 145-FZ of July 31, 1998).
At the same time, the Federal Tax Service (FTS or the tax administration) estimates annually the level of tax expenses - the revenues lost from the budgetary system, stipulated by the application of preferential tax regimes and other instruments (tax incentives) estab-
lished under Russian tax law. In particular, according to the reports issued by the tax administration, from 2011 to 2013 the amount of tax expenses (lost tax revenue) of the Russian budgetary system became 1.3 times higher.
According to the general understanding, the tax gap (in contrast to tax expenses) has three components, namely non-filing, underreporting and underpayment [Toder 2007]. Non-filing occurs when taxpayers that are required to file a return do not do so on time; underreporting of tax occurs when taxpayers either understate their income or overstate their deductions, exemptions and credits on timely filed returns; and underpayment occurs when taxpayers file their returns but fail to remit the amount due by the payment due date [Brondolo, Bosch, Le Borgne 2008].
However, the tax administration uses other classifications of cases connected with the tax gap («tax indebtedness») as shown below (table 1).
Table 1
Structure of indebtedness with regard to the Russian budgetary system
[Официальная статистика 2016]
Type of indebtedness On 1 Jan. 2014 (RUB bil.) On 1 Jan. 2015 (RUB bil.) On 1 Dec. 2015 (RUB bil.) Changes since the beginning of the fiscal year
% (RUB bil.)
Total indebtedness with regard to the Russian budgetary system (including default interest and tax penalties) 1,155.2 1,181.5 1,217.5 103.0 35.9
Unsettled indebtedness 583.3 640.6 692.6 108.1 52.0
Not subject to recovery by tax authorities 572.0 540.9 524.8 97.0 -16.0
Deferred or restructured indebtedness 18.8 18.5 19.6 106.0 1.1
To be received through law-enforcement procedure 164.8 166.3 162.2 97. -4.1
Suspended taxes according to the decision of a court or a superior tax authority 54.3 55.3 56.2 101.6 0.9
Suspended recovery due to bankruptcy 326.7 288.9 278.3 96.3 -10.7
Bad debt (to be written off by tax authorities) 11.0 14.7 11.1 75.5 -3
In 2011, the Tax Justice Network prepared a rating of countries with regard to losses in tax revenue as a result of tax evasion or avoidance. Russia ranked fourth, after the United States, Brazil and Italy [Tax Justice Network 2011].
The growth of the tax gap in Russia is connected with a number of factors. In this context, perhaps, the problem of so-called «one-day companies» is especially significant for the country. In the authors' opinion, this is indeed one of the main reasons for the gap between anticipated tax revenue and tax revenue actually received (at least for the last 15 years). For instance the damage to the budgetary system as a result of transactions involving one-day companies is estimated as approximately 30 % of the total of dubious transactions - more than RUB 450 billion per year [Интервью с С.М. Игнатьевым 2013]. In an effort to solve this problem, the tax administration approved a list of typical characteristics of transactions with one-day companies.
The attention of tax inspectors in Russia is also attracted to facts such as the registration of the contractor of a taxpayer at an «address of mass of registration», as well as the forced liquidation of a legal entity (which was the contractor of a taxpayer).
Another reason for the tax gap is tax evasion of VAT and corporate profits tax (tax on profits of organizations). For instance in 2010, the additional amount of VAT and the respective default interest accounted for RUB 133.5 billion or 42.8% of the total amount of additionally received payments within the framework of a law-enforcement procedure [Chirkov 2012: 350]. Taking into account that the tax bases with regard to VAT and corporate profits tax are computed based on the amount of proceeds or income of a company, the usual schemes of illegal evasion with regard to these taxes are relatively similar or comparable.
Another critical reason of the tax gap in Russia is connected with the withdrawal of capital to offshore jurisdictions and, in particular, tax evasion or avoidance in cross-border situations. The Russian legislature is attempting to resolve these problems using the OECD and G20 recommendations, including some aspects connected with the BEPS Action Plan. For example in recent years, Russian tax law saw the introduction of (i) new transfer pricing rules, (ii) new rules on the residence of organizations or companies and (iii) the first rules on controlled foreign companies.
IMPROVING ACCESS TO INFORMATION NEEDED BY THE TAX ADMINISTRATION
From a procedural perspective, in most cases the need to have access to tax information arises in the course of an on-site tax audit, an off-site tax audit and tax monitoring (within the framework of enhanced tax relations with large companies).
The Tax Code provides for a wide scale of legal means of receiving tax information, including requests for documents, interrogation of witnesses, requests for clarifications and expert appraisals.
An off-site tax audit is conducted on the basis of tax declarations and the documents submitted by taxpayer, as well as other documents concerning the taxpayer's activities which are at the disposal of the tax administration. If there are any contradictions in the information or in the documents submitted by a taxpayer, the tax administration may request the necessary clarifications from the taxpayer. Also, in a number of cases the tax administration has a right to request from the taxpayers those documents concerning entitlement to, for example, tax benefits and tax deductions.
In the course of an on-site tax audit, a wide range of tax control measures may be undertaken, including requests for any relevant documents, interrogation of witnesses, clarifications and expert appraisals.
From the perspective of the information which is necessary for carry out a tax audit, the activities of so called one-day companies deserve special attention. Therefore - and for the purpose of identifying one-day companies, priority is given to the creation of a database of, for example (i) persons who serve as nominal directors of different organizations during the same period of time, (ii) addresses of «mass registration» of organizations and (iii) dubious contractors. Information on the methods of carrying out high-risk financial and economic activities can be found on the official website of the tax administration in the section «Criteria available for independent estimation of risks».
In the context of perspective of receiving tax information, it is especially significant that the Tax Code obliges third parties (tax agents, contractors, banks, various state authorities) to submit tax information to the tax administration. In particular, article 85 of the Tax Code requires bodies maintaining migration and cadastre records, other bodies and organizations to transmit information concerning the records of organizations and individuals to the tax administration.
Banks also must provide information concerning taxpayer records to the tax administration.
Under article 93(1) of the Tax Code, a tax official conducting a tax inspection has a right to demand documents or information that a contractor or other persons may have at their disposal and which concern the activities of the taxpayer being inspected.
Generally, none of the above-mentioned subjects have a right to refuse to submit the requested information by referring to bank secrecy or another type of secrecy provided by law. However, an exception applies for information falling under the attorney-client privilege and auditing secrecy.
The tax administration has the right to request from attorneys and attorney associations that information which is necessary to evaluate the tax consequences of transactions concluded with their clients. At the same time, this information must be regarded as subject to tax secrecy and must be protected from further disclosure by virtue of law. The tax administration may not demand the submission of information connected with the content of the legal assistance provided by an attorney, in light of the constitutionally significant principles of the protect attorney activities.
It is evident that taxpayers need to have an access to information and tax databases, in particular, in order to be able to check the tax status of contractors. The tax administration offers significant assistance in collecting and using information that is significant for taxpayers, including in the form of publications such as «Business Risks: Check Yourself and Your Contractor», «The Real Taxpayer Identification Number (TIN) of Legal Persons», «Invalid Certifications», «Invalid TIN of Individuals», «Invalid TIN of Legal Persons», «Open and Accessible Information on Foreign Organizations» [FTS Electronic Services].
The submitted information is especially effective with regard to tax control of VAT payments. Considering the developed case law of the Supreme Court, a taxpayer must check the information about the taxpayer's contractors (contracting parties) and be in any other way properly careful when choosing contractors. Thus, the verification of the supplier's legal capacity by obtaining information from the website of the tax administration can be considered as evidence of the taxpayer's being properly circumspect when concluding a transaction (provided that, for example, the taxpayer did not have any grounds to doubt the supplier's compliance with tax law).
According to Bayer and Cowell [Bayer, Cowell 2016: 38], firms are usually better informed than tax
authorities about market conditions and the potential profits of competitors. They may try to exploit this situation by under-reporting their own taxable profits. The tax authority could offset firms' informational advantage by adopting «smarter» audit policies that take into account the relationship between a firmDs reported profits and reports for the industry as a whole. Such an audit policy will create an externality for the decision makers in the industry and this externality can be expected to affect not only firms' reporting policies but also their market decisions.
In principle, different means of payment, both cash and bank transfers, may be used in Russia to pay taxes. However, under article 6 of Bank of Russia Directive 3073-Y of 7 October 2013 on exercising cash settlements, cash settlements for one transaction between the same persons are limited to RUB 100,000, so as to allow the monitoring of financial flows by financial institutions.
Russian law provides (indirectly) for tax payments in electronic form. For example if the taxpayer fails to comply, tax debts may be enforced through collection from the taxpayer's funds of electronic money (or «electronic monetary surrogates»). The regime governing the use and transfer of electronic funds is set forth in Federal Law 161-FZ of 27 June 2011 on the national payment system.
Voluntary disclosure programs exist in many countries, and are often part of the general law and valid for an unlimited period. However, some commentators fear that the option of voluntary disclosure increases the incidence of tax evasion, as these programs offer the possibility to escape high punishments if individuals feel that the probability of detection has increased. The economic and legal literature has so far barely studied voluntary disclosure programs [Langenmayr 2017: 110].
In recent years, attempts have been made in Russia to conduct a so-called capital amnesty. Individuals who disclose information about property owned, bank accounts opened and foreign companies controlled by them, may be relieved of criminal, administrative and tax penalties for the violations connected with such activities (see Federal Law No. 140-FZ of 8 June 2015 «On voluntary declaration by individuals of the assets and accounts in banks and on the amendments of certain legislative acts of the Russian Federation»). However, according to a statement by the tax administration, the process of the capital amnesty is going quite slowly and has not yielded the anticipated results.
Russian tax law does not provide for any special voluntary disclosure programme, although certain features of voluntary disclosure programmes can be found in the special forms of tax control, namely tax monitoring and transfer pricing procedures.
Thus, in the case of tax monitoring, the information interaction is provided by the regulation that includes the procedure for (i) submitting to the tax administration those documents which are the basis for calculating taxes and/or (ii) granting access to the databases of organizations that possess the given documents. On the basis of the information obtained within the framework of tax monitoring, the tax administration will prepare a justified opinion if a fact is established that proves a wrong calculation or untimely payment of taxes by a taxpayer. If the taxpayer's complies with the justified opinion of the tax administration (as sent to the taxpayer in the course of tax monitoring), the taxpayer is excluded from guilt in committing a tax law violation.
In addition, the tax administration and the taxpayer may conclude an advance pricing agreement - the means of determining prices and applying the pricing methods to intra-group transactions for tax purposes. If the taxpayer complies with all the terms of the pricing agreement, the tax administration may not impose penalties for committing a tax infringement which involves an additional calculation of taxes with regard to those controlled transactions the prices on which were covered by the pricing agreement.
The Tax Code also provides for the obligation of disclosure of the certain information under the controlled foreign company (CFC) rules. A Russian resident must notify the tax administration with jurisdiction in the place of its residence or incorporation, as to the following:
- their participation in foreign entities (if the share of such participation exceeds 10 %);
- the establishment of foreign structures and the Russian resident's the control over them (including instances when an individual acts as a founder of such a structure or as a person who is the beneficial owner of the resulting income); and
- controlled foreign organizations with regard to which they are controlling persons.
This is aimed at identifying whether Russian residents and companies incorporated in Russia are beneficiaries of income received from sources outside Russia. Moreover, the tax administration may obtain information from other sources about the participa-
tion of an individual in a foreign organization or its control by this individual (e.g. income tax treaties, the Multilateral Convention). There are currently no plans to introduce a state register of beneficial owners in Russia.
Transfer pricing is useful for a variety of management accounting and control issues, including the performance measurement of responsibility centers and their managers. Management accountants and controllers have traditionally been involved in determining suitable transfer prices for such non-tax purposes. However, for intra-group cross-border transactions in multinational enterprises (MNEs), tax compliance has become a dominant concern attracting more attention from MNE management than the traditional management accounting objectives of transfer pricing. MNEs' emphasis on tax compliance stems from an increase in the scope and complexity of transfer pricing tax regulations. Generally, international transfer pricing is subject to increased attention from MNE stakeholders, including policy makers, tax authorities and trade institutions such as the Organisation for Economic Co-operation and Development (OECD) [Rossing, Cools, Rohde 2017: 55].
The choice of transfer prices for tax purposes is typically portrayed as a tax compliance issue. Transfer prices are key to determining a procurement centre's success in a low-tax country. Thus, the reason for business failure may come from the managerial and economic dimensions of transfer pricing [Wu, Lu 2018].
Under Federal Law 227-FZ of 18 July 2011 (effective from 1 January 2012), new transfer pricing rules were introduced in the Tax Code. Although, on the whole, Russian transfer pricing law corresponds to the general approach of the OECD, there are significant deviations. In particular, currently Russian law requires the submission of documents on the sections relevant to the local file (the terminology of BEPS Action 13). Under article 105.15(1) of the Tax Code, a taxpayer must submit the documents concerning a particular transaction (a group of homogeneous transactions) mentioned in a request for documents sent by the tax administration.
At the same time, in practice the tax administration widely applies the clarifications described in a 2012 Letter on the preparation and submission of documents for tax audit purposes. In Supplement I of that Letter, there are partially the sections which correspond in their terminology to BEPS Action 13, specifically to the sections reflected in the master file.
Thus, all the information required for taxpayer's transfer pricing documentation, by virtue of article 105.15 of the Tax Code, may be compared with the information mentioned in the provisions on the local file and master file in BEPS Action 13. However, not all the information subject to disclosure in accordance with BEPS Action 13, and also the relevant sections of the country-by-country report (OECD, Action 13 Final Report, supra n. 43, at 16), are contained in the Russian transfer pricing requirements (e.g. there is no information on all significant intra-group pricing agreements, nor a description of the business of multinational corporations).
In particular, all MNE groups must file a country-by-country report each year, subject to the following exceptions. An exemption from the general filing requirement is provided for MNE groups with annual consolidated group revenue in the immediately preceding fiscal year of less than EUR 750 million or a near equivalent amount in domestic currency as of January 2015 (see OECD, Action 13 Final Report, supra n. 43, at 21).
EXCHANGE OF INFORMATION BETWEEN TAX ADMINISTRATIONS OF DIFFERENT COUNTRIES
The participation of Russia in the international exchange of tax information is based on bilateral tax treaties and the multilateral convention, namely the Convention on Mutual Administrative Assistance in Tax Matters.
However, no Russian bilateral tax treaty provides for the obligation of automatic or spontaneous exchange of tax information. At the same time, the ratification of the Convention on Mutual Administrative Assistance in Tax Matters creates the preconditions for such forms of information exchange. In May 2016, Russia signed the Multilateral Agreement on Automatic Exchange of Information.
The exchange of tax information upon request is carried out quite intensively. According to the report by the Global Forum on Transparency and Exchange of Information for Tax Purposes (Phase 2: Implementation of the Standard in Practice: Russian Federation, at 68) [OECD Global Forum 2014], which completed both phases of Peer Review on Russia, in the 3-year period from July 2010 to June 2013, the Russian tax administration received and processed 7,945 requests for tax information and received approximately 100 messages containing information within the framework of spontaneous exchange. Moreover, judging by the emerging
case law of commercial courts which contains references to evidence received within the framework of information exchange, it has been really increasing in recent years.
Income tax treaty negotiations is based (from the Russian side) on the National Model (the Russian Model) approved of by the government in February 2010 (Government Decree 84 of 24 February 2010 on concluding interstate agreements on avoidance of double taxation and prevention of tax evasion with regard to taxes on income and property). A comparison of article 26 of the Russian Model and article 26 of the OECD Model, indicates that they fully correspond to each other. Thus, in the current orientation of Russia when concluding treaties takes into account the existing OECD standard on the exchange of tax information. As for previously concluded Russian treaties, a significant portion does not correspond to the present version of article 26 of the OECD Model (in particular, from the perspective of article 26(3) and (4) of the OECD Model). However, the treaties that were concluded in the 1990s are being «modernized», for example the new protocol to the Russia-China treaty (Agreement between the Government of the Russian Federation and the Government of the People's Republic of China for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income (13 October 2014)) and the Protocol to the Russia-Cyprus treaty (Protocol of 7 October 2010 on introducing changes in the treaty between the Government of the Russian Federation and the Government of the Republic of Cyprus on avoidance of double taxation with regard to taxes on income and capital of 5 December 1998).
At the moment, Russia has not concluded any agreements based on the OECD Model TIEA. However, the Russian government has adopted a Model on exchange of tax information which de facto is a translation of the respective OECD Model. A number of exchange of information agreements have been concluded with some CIS countries which contain significant deviations from the OECD Model. However, the given agreements are, in essence, quite general.
Russia has been engaged in negotiations for an agreement with the United States on FATCA, and such agreement was supposed to be concluded according to the Model 1 intergovernmental agreement, but the parties did not reach the point of signing it. Currently, Russian financial institutions are being registered to submit information to the IRS within the framework of
the FATCA initiative (more than 1,300 Russian banks, stock exchange companies and other financial institutions have already been registered). When submitting tax information to the US Internal Revenue Service (IRS), financial institutions are to notify the Russian tax administration of that information, and also must receive the client's consent for information transfer/ submission. If a client does not give consent, the respective financial institution has the right to unilaterally terminate the relations with that client.
Simultaneously, taking into account the reciprocity principle, Russia introduced the obligation for foreign financial organizations to provide the Russian tax administration with information about the bank accounts of Russian citizens and legal entities (e. g. companies) controlled by Russian citizens. This obligation is provided under article 6 of Federal Law 173-FZ and is generally referred to as «Russian FATCA». Although in December 2015 the Russian tax administration published forms for reporting under Russian FATCA, it is still not entirely clear how Russian FATCA will work in practice. First, to date, no electronic reporting is possible. Second, it is not clear how foreign financial institutions are to disclose client information if such disclosure is prohibited under their national law (however, the same issue is relevant for the FATCA rules introduced by the United States). Finally, there are no penalties yet established for non-compliance with Russian FATCA.
Reports (within the framework of the Russian FATCA system) are to be filed with Russian tax authorities annually before 30 September of the year following the year of the opening of the relevant account. Reporting forms were approved by the a 2015 FTS Order MMB-7-14/501, although, to date, no clarifications regarding completion of the forms have been published.
As mentioned, from 2018 Russia may begin participating in the Common Reporting Standard. The Common Reporting Standard provides for a more developed and elaborate system for exchange of tax information. Thus, one can suppose that if Russia takes part in the Common Reporting Standard, Russian FATCA will lose practical value. Some representatives of the Russian tax administration even do not exclude that once Russia becomes involved in exchange of information under the Common Reporting Standard, article 6 of Federal Law 173-FZ of 28 June 2014 will be abolished, or will be applicable only with regard to countries that are not members of the Common Reporting Standard system.
Most of the issues existing in the realm of exchange of tax information (also mentioned in the report by the
Global Forum) have not so much legal causes, but rather organizational and technical ones (for example there were cases where Russian competent authorities, in response to a request, submitted copies of documents in Russian without any explanation as to what kind of documents they were and what information they contained). Perhaps the reason of this circumstance may be connected with the large volume of cases.
Although the possibility to conduct joint audits is provided for by the Convention on Mutual Administrative Assistance in Tax Matters, ratified by Russia, to date there is no information about any practice of implementation of the Convention. One reasons is the absence of regulations on the legal status of the representatives of a foreign tax administration within Russian territory, in particular, in the course of a tax audit. Under the Tax Code, these persons just cannot be granted access to the materials of the tax audit, in part, because of the effective rules on tax secrecy (however, work is underway for federal laws that would eliminate the given gaps).
COOPERATION BETWEEN
THE TAX ADMINISTRATION AND OTHER LAW ENFORCEMENT AGENCIES
The exchange of information between the tax administration and other law enforcement agencies is carried out within the framework of the procedure established by law. In particular, Russian law provides for the effective interaction between tax administrations and anti-crime agencies. Thus, if some circumstances are identified requiring actions that are the competence of the tax administration, anti-crime and investigatory agencies must forward the materials to the respective tax administration to take a decision within a 10-day period from the date of revealing such circumstances.
The procedure for information exchange and other issues of interaction between the anti-crime agencies and the tax administrations is governed by an Order of the Ministry of Internal Affairs and by Order of the tax administration (FTS Order MM-7-2-347 of 30 June 2009). Under these Orders, not later than 10 days from the date on which the materials are received, the tax administration must notify the anti-crime agency that sent the materials, as to the decision taken with regard to them:
- to arrange an on-site tax audit or to carry out an off-site tax audit with regard to a respective taxpayer; or
- to refuse to commence any measures of tax control (justifying the given refusal).
If the materials forwarded by the anti-crime agency to the tax administration reveal violations of tax law entailing criminal sanctions, the tax administration, together with the notification of the decision to arrange an on-site tax audit, will send to the respective anticrime agency a request to participate in the respective tax audit (inspectorate).
There is a quite high level of coordination of the interaction of the tax administration with other controlling and law enforcement bodies. For instance there is are common characteristics of «suspicious» taxpayers applied by the tax administration, on the one hand, and the Federal Financial Monitoring Service (known as Rosfinmonitoring) with regard to the clients of banks, on the other hand. These characteristics notably include:
- the «absence of economic sense» in a transaction;
- carrying out transactions only via intermediaries;
- the application of non-market prices;
- unreasonable and unusual transactions;
- very complicated forms of payments;
- violations connected with the procedure of opening accounts and making payments; and
- the absence of information on contractors (clients) of the taxpayer, etc. (see FTS Order of 30 May 2007 MM-3-06/333@ on adopting the conception of the system of planning on-site tax audits; Federal Financial Monitoring Service Order 103 of 8 May 2009 on adopting the recommendations for developing criteria to reveal and identify the characteristics of unusual transactions).
In principle, the cooperation of Rosfinmonitoring and the tax administration is built on a system of operative interaction. This is especially seen in the work connected with the embezzlement of budgetary funds and corruption crimes. Information from the tax administration on accounts opened, as well as the objects of immovable property, allows the identification of assets subject to further confiscation in accordance with the Criminal Procedure Code.
In addition, for only 8 months during 2014 Rosfinmonitoring and the FTS interacted in a «request - reply» format, and there were over 1,000 of these interactions. In October 2015, the heads of the FTS and Rosfinmonitoring signed a bilateral agreement on cooperation and organization of information interaction.
Currently, due to the efforts of the Financial Action Task Force (FATF), nearly all countries around the
world have a standardized law to combat money laundering which provides for, among other things, the disclosure, upon request from abroad, of information about accounts and their beneficiaries [Budilin 2015]. Within the framework of international cooperation, Russia follows FATF recommendations and limits certain aspects of interactions with the black-listed states that do not execute FATF recommendations (Government Ruling 173 of 26 March 2003 on the procedure of identifying and making public the list of the states which do not follow FATF recommendations; Rosfinmonitoring Order 361 of 10 November 2011 on the approval of the Recommendations on the development of criteria for the identification and identification of signs of unusual transactions).
As mentioned, in Russia, if individuals disclose information about the property they own abroad, the foreign bank accounts they have opened and the foreign companies they control, they may be relieved of criminal, administrative and tax penalties. In a number of cases the guarantees depend on the repatriation of the declared movable property to Russia. Such special rules are effective in those situations where such property is located in a black-listed state included in the FATF list or in a state that does not provide for the exchange of information for tax purposes with Russia (Art. 6 Federal Law 140-FZ of 8 June 2015).
COOPERATIVE COMPLIANCE AND RISK MANAGEMENT
Horizontal monitoring is actively used in international practice and now is an element of the Russian tax system. The first agreements on horizontal monitoring were signed in Russia at the end of 2012. In particular, on 25 December 2012 agreements on expanded information interaction (horizontal monitoring) were signed between the tax administration and a number of companies, including OAO Rusgidro, OAO Inter RAO EEC, OAO Mobile TeleSystems and Ernst and Young (CIS) B.V. [Pepelyaev, Zaripov 2013].
The advantages of using horizontal monitoring for taxpayers include that tax inspectors have a chance to monitor and verify income and expense records for tax purposes in «real time» (e. g. in the accounting database of the company), and cannot conduct on-site or off-site tax audits during the period of horizontal monitoring. Consequently, the mistakes identified by tax inspectors can be corrected nearly immediately.
In addition, such interaction allows the tax administration to warn the respective taxpayer about
tax risks and grant the tax administration's justified opinion on specific matters upon the request of the company. Thus, horizontal monitoring guarantees the taxpayer that no extra taxes or default interest will be imposed, even if the company subsequently has indebtedness as a result of following the opinion of the tax administration.
If the taxpayer disagrees with the opinion of the tax administration, a procedure for mutual agreement should be initiated with the tax administration. Thus, horizontal monitoring (under Russian tax law) supposes the following advantages for taxpayers: (i) decrease of tax risks for the taxpayer; (ii) possibility to be relieved from some measures of tax control and audit and (iii) the possibility to be informed, in advance, as to the position of the tax administration on planned transactions, thereby decreasing uncertainty in the application of tax law.
Risk management is also used in the planning of tax audits. In particular, an important point in planning on-site tax audits is the criteria of the taxpayer's independent risk appraisal under section 4 of the Conception of the Planning System of On-Site Tax Inspections (adopted by FTS Ruling of 30 May 2007 MM-3-06-/333@). For example the following facts are regarded as indicative of risk for taxpayers:
- the entry of losses on the accounting and tax records during several tax periods;
- the recording of significant tax deductions on the tax return over a certain period;
- building financial and economic activities on the basis of contracts only with intermediaries («chains of contractors») without any reasonable economic or business purpose;
- the taxpayer's repeated striking from the register and re-registration with the tax administrations in connection with a change of location (so-called migration between tax administrations); and
- significant deviation of the profitability level as reflected in accounting records, from the profitability level for the given sphere activity according to statistical information.
In addition, as mentioned, information about the methods of conducting financial and economic activities with a high tax risk is placed on the official website of the tax administration (www.nalog.ru) in the section «Criteria available for independent risk appraisal».
Horizontal tax monitoring, as provided for in the Tax Code, could hypothetically lead to conflicts with the principles of tax law and constitutional law, which are
connected with the possibility to apply tax monitoring only for those taxpayers with a high level of income and significant valuable assets. As a result, the rights of other taxpayers, including small and medium-sized businesses, will face discrimination.
The Tax Code is vague with regard to the remedies available to defend taxpayer rights in the course of horizontal monitoring. In particular, it not formally stipulated that a taxpayer may go to court to appeal a «justified opinion» of the tax administration and the notification of reserving a «justified opinion» without changes (adopted in the result of the mutual agreement procedure).
IMPROVING THE COLLECTION OF TAXES
Currently, the collection regime for a number of taxes uses the mechanism of withholding. Withholding taxation facilitates the procedure of tax administration. Also, after the tax agent remits the tax, the taxpayer still has a chance to correct the taxation for the reporting period.
In particular, the Tax Code provides that the tax on passive income received by a foreign organization from Russian sources is calculated and withheld by the respective Russian organization or by the respective foreign organization conducting activities in Russia via a permanent establishment.
Under article 24(4) of the Tax Code, tax agents remit the tax withheld from the taxpayer. In light of the peculiarities of the legal status of the tax agent, the Supreme Court clarified some Tax Code provisions regulating enforced execution of the taxpayer's obligation (SC Plenum of 30 July 2013 57 on some issues arising when applying the First Part of the Tax Code by Commercial Courts, sec. 2). Thus, the enforced execution of the obligations of a tax agent by collecting from the respective tax agent any unremitted amounts of tax (plus the respective default interest) is possible when the tax agent has withheld the tax from the income of a taxpayer but has not remitted it to the budgetary system (treasury).
At the same time (taking into account the compensatory character of default interest as a payment aimed at compensating the losses of the treasury as a result of the failure to timely pay tax), a tax agent who has not withheld the tax from the taxpayer's income, is subject to default interest for the period from the moment when the tax agent should have withheld and remitted tax to the treasury, up to the moment when the obligation to remit the tax is
executed by the taxpayer independently after the end of the respective tax period.
However, as the Supreme Court pointed out further, the given recommendations on the impossibility of collecting the non-withheld tax from the tax agent and on the limitation of the period for collecting default interest, which is based on the fact that the taxpayer remains obliged with regard to the tax and from this taxpayer the tax administration should demand the payment of tax, are not applicable when paying income to a foreign person, as the respective foreign person is not registered with the Russian tax administration and cannot be subject to Russian jurisdiction with regard to taxes. Consequently, if the amount of tax was not withheld when income was paid to a foreign person, the tax may be recovered from the tax agent, along with default interest calculated up to the moment when the tax obligation is executed.
Prepayments facilitate tax administration and offer a chance to estimate a person's tax obligations before the tax return is filed. As the Constitutional Court noted: the established obligations of the taxpayer to make tax payments in advance, i. e. before the tax period expires, are stipulated by the necessity, throughout the budgetary year, of a steady inflow to the treasury of funds necessary to cover the expenses of the budget, and cannot be considered as a violation of constitutional rights and freedoms (see RFCC, 4 July 2002, case 200-O).
In particular, in the Russian legal system prepayments are made within the framework of the regime of excises, corporate profits tax, transport tax, tax on the property of organizations and when applying some special tax regimes.
The issue of the legal regime for pre-payments under tax law (whether the legal nature of pre-payments is similar to the legal nature of a tax), as well as the issue of the possibility to apply penalties and security measures with regard to taxes, in the case of nonpayment and/or untimely remission of pre-payments, led in the past to serious discussions in theory and practice. Now, the general approach is that a prepayment is, in its essence, a part of the amount of tax, and consequently, an untimely pre-payment should be regarded as a violation of the deadline for paying a part of the tax itself which entails the application of the security measures established in the Tax Code and ultimately - tax penalties.
Currently, article 58(3) of the Tax Code defines prepayments as preliminary payments with regard to tax.
The obligation to transfer pre-payments is recognized as executed in the same way as it is for the payment of tax. In a 2013 ruling, the Plenum of the Supreme Commercial Court noted that, following from the given norm, it is possible to identify significant differences between tax and pre-payment of tax which -in contradistinction to tax - is paid not on the basis of the financial results, but during the tax period (Plenum of the Supreme Commercial Court, Ruling 57 of 30 July 2013).
At the same time, due to the directive of the law, a violation of the procedure of calculation and/or payment of pre-payments cannot be considered as a ground for tax penalties.
Collection of taxes in cross-border situations under article 27 of the OECD Model Convention is complicated by the difficulties of implementing the given rules into Russian law. Among all Russian tax treaties, only 11 contain a provisions on assistance in the collection of taxes. Five more treaties include declarative provisions that «the contracting states will cooperate» on this issue and/or conclude the respective additional agreements on this matter in future.
It is evident that any collection of taxes supposes enforced withdrawal from private property and transfer to the fisc of a part of the taxpayer's property (monetary means). Under constitutional principles, this action may be carried out only on the basis of, and in the procedure established by, federal law (Arts. 35(1) & 55(3) Constitution).
However, no concrete rules have been established in federal law for enforced execution of tax obligations in the territory of another country. It seems that in order to remove this obstacle to the effective assistance in the collection of taxes, it is necessary to introduce an amendment into the Tax Code under which the Russian tax administration may carry out collection to execute a tax obligation in the territory of another country according to the procedure established by the Tax Code for collecting Russian taxes. In 2014, Russia ratified the Convention on Mutual Administrative Assistance in Tax Matters, under article 11 of which «at the request of the applicant State, the requested State shall [...], take the necessary steps to recover tax claims of the first-mentioned State, as if they were its own tax claims» (Convention on Mutual Administrative Assistance in Tax Matters, concluded in Strasbourg on 25 January 1988).
ADVANTAGES FOR TAXPAYERS
The ranking of favourable conditions for doing business views the Russian tax system quite positively and does not consider it to be an obstacle to conducting business; Russia occupies the 47th place in respect of favourable tax conditions for business (out of 189) [Rating of Countries]. The position of Russia in this ranking is connected with
- the improvement of the tax administration;
- the introduction of tax benefits for small and medium-sized business, in particular the introduction of the «patent (presumed) system of taxation» and the «tax holiday»;
- the introduction of the President Decree on imposing a moratorium on the increase of tax rates and insurance contributions until 2018.
A more critical appraisal of the Russian tax system is given by some categories of taxpayers, including representatives of small and medium-sized business. In particular, the State Council report on measures for developing small and medium-sized business in Russia [Доклад государственного совета Российской Федерации 2015] sums up the tax-related problems of small and medium-sized business, including:
- complicated forms of legalizing labour activity for self-employed individuals;
- long time period for unblocking accounts in the case of an entrepreneur's tax debt which blocks the entrepreneur's current payments; and
- the difficulties in mutual payments between entrepreneurs applying special tax regimes and en-
terprises applying the common tax system. In particular, taxpayers which apply the common tax system and which are VAT payers, when buying products from taxpayers that apply special tax regimes, lose the right to VaT deduction.
Under Russian law, in general, the amount of tax obligations should be estimated by taxpayers themselves. In cases provided for by the Tax Code, the obligation to calculate the amount of tax may fall to the tax administration or tax agent. In particular, such is the cases with regard to calculating the transport tax and land tax by individuals and with regard to calculating the tax on the property of individuals.
When a return is obligatory, the taxpayer must fill out the tax return and submit it to the tax administration. An exception is provided when the tax agent withholds the amount of tax and then sends the respective records to the tax administration. There is no official practice under the Russian tax system in which the tax administration fills out tax returns for taxpayers (although in 2001 the State Duma discussed the establishment of an obligation of the tax administrations to provide assistance to individuals, upon request, in filling out tax returns).
In 2015, the Business Ombudsman submitted his annual report to the President in which he noted that the level of the tax burden in Russia is higher than in neighbouring countries [Борис Титов 2015]. Since 2006, the tax administration has annually published the tax burden with regard to the main types of economic activities. Consider the following statistics (table 2):
Table 2
Tax burden with regard to type of economic activity, %
(see Supplement 3 to the FTS Order MM-3-06/333@ of 30 May 2007 on adopting the conception of the system of planning on-site tax audits)
Types of economic activities 2006 2007 2008 2009 2010 2011 2012 2013 2014
Total 11.6 14.4 13.5 12.4 9.4 9.7 9.8 9.9 9.8
Agriculture, hunting, forestry 5.5 8.7 8.0 7.4 4.2 3.6 2.9 2.9 3.4
Extraction of natural resources 45.1 54.8 46.0 30.8 30.3 33.2 35.2 35.7 38.5
Construction 11.9 15.9 14.5 16.2 11.3 12.2 13.0 12.0 12.3
Wholesale and retailing, repair of vehicles, motorbikes, household devices, products for personal usage 3.8 2.7 3.0 3.0 2.4 2.4 2.8 2.6 2.6
Real estate operations, renting and provision of services 18.2 29.5 30.0 23.7 19.7 22.2 18.6 17.9 17.5
Other utilities, social and personal services 16.8 18.2 37.9 37.3 22.3 23.9 26.6 26.6 25.8
The total tax burden and the burden with regard to the main types of activities is not increasing on the whole. However, the opinion of the Business Ombudsman is that the share of parafiscal payments is very high in Russia.
At the eleventh All-Russia tax forum «Tax Policy: Annual Results and Prospects» in December 2015, the president of the Russian Chamber of Commerce and Industry, S.N. Katyrin, also drew attention to the fact that: the total level of the tax burden on business does not include the burden which business bears in connection with the payment of so-called «parafiscal payments». In the last years, the transparency of the domestic tax system has increased significantly; however outside the framework of the Tax Code, there has appeared, actually, «a parallel tax system». It consists of several dozens of payments, similar to taxes and charges, each with its own rules of calculation, payment collection and reimbursement [Аналитическая записка 2015].
The head of the department of law-making activity of the Chamber of Commerce and Industry, P.E. Fadeev, gave examples of identified parafiscal payments in Russia, including: social contributions, contributions for using natural resources, contributions for the right to be connected to the electricity network, city building contributions, motor-road contributions, contributions for nature preservation and dispatcher contributions (in general, approximately 50) [Фадеев 2016].
A minimal appraisal on the basis of open sources shows that the burden of parafiscal payments which are not included by the Ministry of Finance when calculating the tax burden is not less than RUB 700 billion or 0.99 % of the GDP in 2014. In particular, under the Federal Law on the execution of the federal budget for 2014, the budget revenue from the payment of charges for utilization in 2014 was RUB 102,505 billion. By the end of 2015, this figure (the share of parafiscal charges) could exceed 1 % of GDP, as the number of parafiscal charges has increased (e.g. charges for 12-tonne trucks, contributions for capital repairs).
Finally, the President approved the creation of the single cadastre of parafiscal charges, and the respective orders to the Ministry of Finance are expected in 2016 [Путин 2015].
To decrease the tax gap, it is necessary to adopt a series of measures aimed at solving the problem at the level of domestic and foreign markets.
The 2014 Plan on «Improving Tax Administration» is aimed optimizing the system of tax administration
and creating an atmosphere of comfortable communication with businesses. The Plan provides the following directions for improving tax administration:
- reduction of time and expense of entrepreneurs on tax compliance and payment of taxes;
- improvement of dealings between taxpayers and tax administrations, taking into account best international practices;
- harmonization of tax documentation rules and accounting rules;
- increased effectiveness of VAT administration;
- encouraging the application of electronic documentation by taxpayers and the tax administration; and
- improvement of administration of special tax regimes applied by certain categories of taxpayers.
The effective elimination of the tax gap requires coordinated and consistent application of the above-mentioned measures, taking into account the economic situation and the actual capacity of certain categories of taxpayers with regard to paying taxes.
CHALLENGES AHEAD
In 2014 the Plan on «Improving Tax Administration» was developed and focused, in particular, on the following tasks:
- providing for expanded electronic documentation circulation between the tax administration and taxpayers;
- reduction of time and material costs of the preparation and submission of tax returns to the tax administration; and
- improving tax compliance in cross-border situations.
In the course of implementing the Plan, a series of other significant measures has already been completed.
The improvement of the procedures of tax administration is also achieved through organizing the system of tax administrations under the so-called branch principle when tax audits are conducted in respect of the taxpayers of a certain industry (area of economic activities). Thus, in 2004 the Russian authorities introduced tax administration of the major taxpayers at the federal level in interregional inspections by the tax administration, specialized under the branch principle and at the regional level - in the specialized inter-district inspections by the FTS (Ministry of Taxes and Charges, Order of 16 April 2004 SAE-3-30/290@, at. 2).
As the Constitutional Court held that the Russian government must determine the system of tax authorities and their «specialization» taking into account
certain management tasks, feasibility and cost-effectiveness. However, it is not evident to what extent the branch principle could be applicable in cross-border situations (for example with regard to permanent establishments and controlled companies established by non-residents).
Special tax rules are provided in the Treaty on the Eurasian Economic Union (EAEU). Section 17 of the Treaty regulates the principles of collection of indirect taxes in cross-border situations arising in the EAEU.
It is critical that the exchange of information between the tax administrations of the EAEU Member States necessary for securing the full payment of indirect taxes, be carried out in accordance with a special international treaty that also establishes a procedure for the exchange of information, the application form on imports of goods and payment of indirect taxes, for example.
Article 73 of the EAEU Treaty establishes the specifics of the collection of taxes on income of individuals in cross-border situations. In particular, if, in accordance with its legislation and provisions of international treaties, a Member State is entitled to levy the income tax from a tax resident (permanent resident) of another Member State in connection with his/her employment in the first Member State, such income tax shall be levied in the first Member State starting from the first day of employment at the tax rates stipulated for such income of natural persons - tax residents (permanent residents) of the first Member State.
One can expect further development of the specifics of tax compliance rules in the EAEU in the field of indirect taxation (the new Customs Code of the EAEU should be introduced in 2017).
In the framework of the BRICS and Developing Countries Legal Experts Forum (were held on 210 June 2017 in Yekaterinburg, Russia) the experts elaborated and signed a declaration (summary of the
discussion) in order to analyse the role of the BRICS and developing countries in international economic relations and to outline possible directions for taking concrete measures in areas of joint interest in relation to tax matters, including the settlement of cross-border tax disputes, and information exchange, education, cooperation and research on legal issues connected with capacity building in such areas. Besides, group of experts drafted an aspirational model draft conventions, which suggest innovative and ambitious approaches in terms of tax regimes and cross-border tax dispute resolutions [Vinnitskiy 2018: 140-141].
Based on recent studies conducted by the participants of the Coordinating Committee Meeting of the BRICS Law Institute and Forum, the experts came to the need to identify the following steps in the relevant areas that could provide some contribution to the achievement of the identified directions noted above in this document:
a) Development of an effective system for settlement of cross-border tax disputes, including mediation/ arbitration with representatives of the legal experts nominated by the BRICS, which suggests innovative approaches that are in harmony with the constitutional and legal frameworks of BRICS countries and can furnish a basis of change and innovation to evolve such frameworks;
b) Simplification of the mechanisms for eliminating of international double taxation and tax administration in the BRICS with respect to certain types of income on a multilateral basis;
c) Possible future development of common cross-border tax rules concerning further types of business profits;
d) Coordination of joint actions and efforts of the BRICS states in the field of technical capacity building and education in relation to the matters falling within the scope of this declaration.
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ИНФОРМАЦИЯ ОБ АВТОРАХ
Данил Владимирович Винницкий - доктор юридических наук, профессор, заведующий кафедрой финансового права, директор Института права БРИКС Уральского государственного юридического университета (ул. Колмогорова, д. 54, Екатеринбург, Россия 620034; e-mail: [email protected])
Денис Алексеевич Курочкин - преподаватель кафедры финансового права, научный сотрудник Института права БРИКС Уральского государственного юридического университета (ул. Колмогорова, д. 54, Екатеринбург, Россия 620034; e-mail: [email protected])
INFORMATION ABOUT THE AUTHORS
Danil V. Vinnitsky - doctor of juridical sciences, professor, head of the Financial law chair, director of the BRICS Law Institute, Ural State Law University (54 Kolmogorova St., Yekaterinburg, 620034, Russia; e-mail: [email protected])
Denis A. Kurochkin - lecturer of the Financial law chair, researcher of the BRICS Law Institute, Ural State Law University (54 Kolmogorova St., Yekaterinburg, 620034, Russia; e-mail: [email protected])
Дата поступления в редакцию / Received: 24.04.2018
Дата принятия решения об опубликовании / Accepted: 18.05.2018
© Д.В. Винницкий, 2018 © Д.А. Курочкин, 2018
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