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1Генеральш! Асамбле! ООН вщ10 березня 1988 року: Постанова Верховно! Ради Укра!ни № 3735-XII ввд 17.12.93 // Офiцiйний вкник Укра!ни: офь цiйне видання вщ 26.01.2007 р. - № 3. - Стор. 297. -Ст. 139.
9. Про приеднання Укра!ни до Афшсько! кон-венцi! про перевезення морем пасаж^в та !х багажу 1974 року i Протоколу 1976 року до не!: Закон
Укра!ни ввд 15 липня 1994 року № 115/94-ВР // Вь домосп Верховно! Ради Укра!ни. - 1994. - № 33. -Ст.305.
10. Укрморрiчiнспекцiя тдбила пiдсумки кон-трольно-наглядово! дiяльностi у 2014 роцi - заборонено експлуатащю 14 маломiрних суден та 66 баз стоянок, складено 543 протоколи про адмшстрати-внi правопорушення // Електронний ресурс: режим доступу - офщшний сайт Мшютерства шфраструк-тури Укра!ни: http://mtu.gov.ua/news/19320.html.
Ponomarev O. V.,
«Far Eastern Federal University», Senior Lecturer of Constitutional and Administrative Law
Mamedova A. O., Raduta A.D.
«Far Eastern Federal University», students.
LEGAL PRINCIPLES OF TAXATION MONITORING CONDUCT IN THE RUSSIAN FEDERATIN IN
THE MORDERN PERIOD
ABSTRACT
The article describes the main aspects characterizing the tax monitoring, conditions of its carrying out and practical efficiency. The advantages and disadvantages of a new form of control. Keywords: tax monitoring; informational interaction.
Since 1st of January, 2015, The Russian Tax Code 1 st part amendments Federal Act took effect in Russian Federation, according to which new type of tax control - taxation monitoring - is to be put into effect. Main point of this taxpaying administering regime involves information interaction of tax authorities and taxpayers, where an organization submits access to accounting and tax reporting in real-time mode, which makes it possible to keep a close watch on timelines and correctness of tax and duties computation, and get in turn a right request tax authorities for motivated opinion on the question of tax consequences from implemented transactions.[2]
Meanwhile, tax authority gets true information about corporate activities, which frees organization from conduct of audit. According to general rule, for period, which is subjected to taxation monitoring, inspection doesn't have any right to perform field and desk audits (clause 1.1 of article 88, clause 5.1 of article 89 of The Russian Tax Code).This rule contains several exceptions. For example, audit will be carried on if specified declaration, submitted during the reporting period of taxation monitoring, amount of tax which is due to the budget is less than the one in declaration submitted previously (sub-clause 3 of clause 1.1 of Article 88, sub-clause 4 of clause 5.1 of Article 89 of The Russian Tax Code).
It is worth mentioning that conduct of tax control in this form is voluntary. Taxation monitoring is carried out by tax authority on the grounds of relevant decision, which, in its turn, is made based on results of processing of application from organization on conduct of taxation monitoring and documents, information, which are submitted together with such application (clause 2 of Article 105.26, clause 4 of Article 105.27 of The Russian Tax Code).
Taxation monitoring implies settlement of tax questions long before submission of tax declarations.
Federal Tax Service obtains access to accounting and tax reporting of a taxpayer. Article 105.26 of The Russian Tax Code states that the subject of taxation monitoring is correctness of computation, completeness and timelines of taxes (tax remission) and duties paying, obligation for paying remission) of which is entrusted on taxpayer (payer of duty, tax agent) - organization.^]
For the Russian Federation, taxation monitoring is an innovative tool, but in Western countries it is spread widely and being in use quite successfully. Taxation monitoring is not domestic invention. And implementation of it into tax control of Russian Federation was a matter of debate. There were some opinions that the experiment will not get wide spread in Russia, because it requires trust, transparency, and what is the most important, disclosure of all information about corporate activities to tax authorities. But from the other side, such mechanism will allow to reduce tax risks and minimize problems of tax law interpretation and use. For the sake of its ratification, there was a pilot project set up in 2012 year, and 5 top taxpayers took part in it -«Mobile TeleSystems», «Rushydro», «Northern steel», «INTER RAO UNIFIED ENERGY SYSTEM
OF RUSSIA», «Ernst&Young». As a result, participants gave positive feedback on taxation monitoring and intended to take part in proposals development and tax law improvement. Summarizing the results of this project in Russia, an institute of taxation monitoring was put in effect legislatively. [3]
Only those organizations, which meet must requirements, fall within the scope of taxation monitoring (clause 3 of Article 105.26 of The Russian Tax Code). So, lets take into consideration the conditions, without which monitoring will not be conducted. Firstly, gross amount of such taxes as VAT, tax on the profit of organizations, excise duties, tax on the extraction of commercial minerals, which are due to the budget system
of the Russian Federation for a calendar year, which is preceding to the year, when an application on taxation monitoring conduct is submitted, and it must be not less than 300 mln. rubles. Taxes, which are paid because of goods transfer across the customs border, are not taken into calculation. Secondly, gross amount of earned revenue according to annual accounting reports of organization for a calendar year, must be not less than 3 bln.rubles. And, finally, the 3rd condition means that aggregate value of assets according to annual accounting reports of organization on 31st of December of a calendar year, preceding to the year, when an application on taxation monitoring conduct is submitted, is not less than 3 bln.rubles.
In the first instance, an organization must submit an application on conduct of taxation monitoring to the tax inspection. An application on initiation of monitoring is submitted not later than 1 of July (clause 1 of Article 106.27 of The Russian Tax Code). Along with an application, it is required to submit rules of information interaction, which reflect order of documents submission to the tax authority, order of reflection of business and tax accounting on revenue, expenses and tax objects by an organization, data on analytic accounting registers, and also information on system of internal control of an organization over correctness of computation (retention), completeness and timelines of paying (remission) of taxes and duties.
After application and documents processing, head of tax authority must make a decision regarding conduct of taxation monitoring, or reject its arrangement. Last case make take place under the condition that there were no documents (information) submitted by an organization in full or they were not submitted at all, also, it may be nonobservance of the above terms by an organization and non-compliance of order of information interaction with established form and requirements to order of information interaction.
Based on monitoring results, a motivated opinion of tax authority may be taken into account (clause 1 of Article 105.30 of The Russian Tax Code). Should it be established that a fact of incorrect computation, underpayment and late payment of taxes and duties by an organization took place, it can be made upon an initiative of tax authority itself. And it also can be requested by an organization in case of doubts and obscurities over similar questions. Disagreements over motivated opinion are to be settled via mutual agreement procedure at level of the Federal Tax Service of Russian Federation (clause 105.31 of The Russian Tax Code). If a taxpayer agreed with opinion of tax authority and corrected mistakes in reports and declarations, than he is exempted from penalties and fines.[4]
As it was noted by deputy head of Control directorate of the Federal Tax Service of Russia Mr. Novo-selov K.V., taxation monitoring is based on a whole new level of interaction of tax authorities with organizations. Main point of procedure is about that now inspectors will get access to accounting systems of companies and control «not specific operations of taxpayers, but a model of internal control system establishment of a company». As a result of supervi-
sory activities, corporate activities will become transparent and clear. And based on monitoring interaction results, reference systems of internal accounting system arrangement will gradually get formed, and «they will be used during tax control of other companies».
According to estimates of the Federal Tax Service, nowadays there are only 2 thousand of taxpayers in Russia, who meet the requirements, which allow to participate in program of taxation monitoring. Most of them are engaged in sphere of finance and industrial production. So, in the nearest 1-2 years, it is obviously, no sense to expect boom in form of growth of budget revenue or company number, which joined taxation monitoring program — as explained by deputy head of the Federal Tax Service Mr. Arakelov S.A., only 20-30 companies showed interest toward the program. It is likely that in course of time more taxpayers will be able to participate in tax monitoring. It may happen that if an experiment is regarded as successful, the requirements for revenue amount in order to enter the program will be reduced, and it will become more open for wider range of taxpayers. Another question is that in order to launch taxation monitoring project at federal level, taking into consideration current and obviously huge workload of the Federal Tax Service, the Federal Tax Service itself will require significant additional resources, including training of staff, development of standard procedures of information exchange with taxpayers etc., which will not appear at once.
Tax lawyer Andrei Duyunov assumes that taxation monitoring will be interesting, in the first instance, for those huge companies, which follow maximum safe, non-confrontational approach towards relationship with its tax authorities. But even for such companies monitoring may become unprofitable, if inspections will maintain current bright fiscal orientation in its activities, which ignores main goal of tax control — audit of correctness of tax liabilities computation. But Andrei Duyunov indicates that if it is possible to avoid fiscal defect in practice, than in future taxation monitoring may become very good alternative for classical relationship with tax authorities and really effectively redice administrative pressure on taxpayers.
As any other innovation, taxation monitoring has its advantages and disadvantages. Advantages of such control method include the following:
- cancel of tax audit during conduct of monitoring, and in particular, field audit, with the exception of cases, mentioned above;
- efficient settlement and approval of all issues under debate;
- exemption of an organization from liability for any mistakes during tax paying, if a taxpayer followed recommendations of tax authority at that time. Meanwhile, an organization is not exempted from submission of tax declaration. And if it contained mistakes, than it will be possible to submit corrected declaration and pay assess additional tax. In case of disagreement with tax authority or doubts, it is always allowed to request motivated opinion;
- reduction of expenses for conduct of tax audit and legal arguments as a result of increase of responsibility among citizenships and respectful attitude towards human rights.
At the same time, taxation monitoring has few disadvantages:
- range of persons, who can implement this activity, is limited by only large-scale companies;
- significant expenses for development and implementation of needed software and new system teaching for tax inspectors;
- tax audit is not excluded completely;
- due to this control type innovation there is no practice of its use, and as a result, there is a possibility that an organizations will not rush for participate in taxation monitoring till the time when the mechanism of its conduct doesn't work out for the best completely and juridical practice will get shaped based on the results of monitoring.[3]
However, nowadays taxation monitoring is not perfect. Above mentioned advantages and disadvantages of taxation monitoring are more typical for organizations, which can use this type control. As for the national government, main advantage is that cash inflow to the budget increases. But, at the same time, due to the high threshold for entering the program, it will not bring serious influence on budget inflows. In order to achieve this, it is needed to lessen established requirements towards the amounts of paid taxes, cost of assets and volume of revenue, as a result of which this institute will be open for wider range of taxpayers.
In sum, it is needed to improve and review tax control. This will allow to increase effectiveness of its implementation, and, this way, cut down the number of
violations and breaches of tax law, educate conscientious taxpayers, which will lead to increase of revenue base of all budget levels. Initiating of taxation monitoring is needed because of constant change of legislation in sphere of taxes. It makes possible to identify, warn and eliminate tax violations, because there is a constant interaction of taxpayer with tax authorities, and if to be exact, settlement of disputable situations via information obtain and explanations long before completion of any transaction or operation. This method of control will provide cultivation of tax culture among taxpayers and, as a result, improve taxation competence.
References
1. "Tax Code of Russia Federation (part one)" from 31.07.1998 N 146-®3 (edition from 03.07.2016) - ConsultantPlus. - [Electronic source]. - Regime of access: http://www.consultant.ru/;
2. The Russian Tax Code 1st part amendments Federal Act from 04.11.2014 N 348-®3- Consultant-Plus. - [Electronic source]. - Regime of access: http://www.consultant.ru/;
3. Akinshina I.M. How does tax control end// Practical accounting.2013. N 10. page. 32 - 34; Consultant. 2013. N 21. page. 70 - 86.
4. Batirshina A. F. Tax monitoring// Young scientist. — 2015. — №9. — page. 526-528.
5. Zubareva I.E. Horizontal monitoring as a way to control taxpayers, which is based on trust: experience of the Kingdom of Netherlands // Your tax law-yer.-2008. - №5. - page. 33-40.
6. Klimentyeva N.M. Ways of improvement of modern forms of tax control, increase of its effectiveness // Young scientist. — 2014. — №8. — page. 495497.
Сотсков Ф.Н.
кандидат юридических наук, адвокат, доцент Российского Государственного Гуманитарного Университета (РГГУ, филиал г. Домодедово); Академия труда и социальных отношений (АТиСО. Москва)
КОРРУПЦИЯ КАК ОНА ЕСТЬ. МИФ ИЛИ РЕАЛЬНОСТЬ
CORRUPTION AS IT IS. MYTH OR REALITY
Sotskov F.N., candidate of legal Sciences, advocate, associate Professor of Russian State Humanitarian University (Russian state University for Humanities, Domodedovo branch); Academy of labor and social relations (of atiso. Moscow)
АННОТАЦИЯ
Автор статьи, изучив нормативные акты, призванные противодействовать коррупции, обращает внимание на отсутствие в них юридически значимого определения коррупции, которое, по сути, должно обосновывать целенаправленность борьбы с ней, в том числе и уголовно-правовыми методами. В противном случае, считает автор, коррупция представляется как некая мифическая аллегория, борьба с которой носит абстрактный характер.
Таким образом, в представленной статье, впервые предпринята попытка на основе методов научного познания, сформулировать научно обоснованное определение коррупции, выявить её объективный и субъективный состав, а также представить меры эффективного противодействия её проявлениям.
ABSTRACT
The Author, having examined the regulations designed to counter corruption, draws attention to the absence of the legally relevant definition of corruption, which, in fact, should justify the purposefulness of dealing with it, including criminal law means. Otherwise, according to the author, corruption appears as a kind of mythical allegory, the struggle with which is abstract.
