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Ramaldanova A.Sh. masters degree student 1st year Faculty of Economics Dagestan State University Russia, Makhachkala TAX OPTIMIZATION OR TAX EVASION
Annotation. The paper is devoted to the tax optimization and its legality. Types, basic methods and principles of the tax optimization are considered in the article.
Keywords: tax optimization; legal optimization; tax evasion, tax planning, tax deferral.
Under the present conditions of market economy, all enterprises are experiencing financial pressure that can be caused by different reasons, such as: decrease in buying interest, high level of competition, difficulties in obtaining loans. That's why enterprises are forced to look for ways to increase their revenue by raising income and reducing expenses. In the Russian Federation, a tax burden is rather high, so some companies are trying to reduce their income just by lowering the tax burden.
There are two ways to reduce the tax burden: legal and illegal. Illegal methods are: unlawful use of tax benefits by a company, late tax payment and defrauding of income, failure to submit or delayed submission of documents for a tax calculation. In case of tax evasion, an enterprise - a taxpayer under the law - reduces its tax obligation by methods prohibited by the law. Tax evasion is a tax offense. This method has its advantages - cheapness and availability, as well as a great disadvantage - risks when detecting violations by the tax authorities.
With development of fiscal system, companies are less likely to use these means and reorient to the legal methods: "optimization" or "minimization" of taxation. /5/
In the literature, the definitions of "tax optimization" are quite similar. Tax optimization is reducing the amount of tax liabilities through targeted actions of a taxpayer, including the full use of all benefits provided by the legislation, tax exempts and other legal means and methods. /8/
Tax optimization enables a taxpayer to legally avoid or minimize mandatory payments to the budget, as well as to receive tax deferral, installments, tax credit and, therefore, does not entail adverse consequences for a taxpayer. Only high cost and need for special knowledge are disadvantages of these methods [5, p. 42].
As a rule, tax optimization is divided into two types: strategic and point. The first type lasts long and involves several tax periods. The second one (tax optimization of certain operations, current) has a one-time nature and involves the use of a set of methods for reducing a tax burden for a taxpayer in each case in a certain tax period (for example, in the implementation of a particular operation by choosing the optimal transaction form).
Tax optimization can also be divided into prospective and current.
Prospective tax optimization means the selection of the most effective legal form of economic activity, construction of schemes of financial and economic activity with regard to the most typical relations, development of appropriate accounting and tax policy, as well as use of other methods that have a long-term affect on the amount of tax payments. Current tax optimization is performed by selecting an optimal type of a civil contract, determining its terms, defining the order of execution of particular actions in the implementation of economic operations.
Tax optimization in the company is carried out within the framework of tax planning, which in turn is part of tax activities of an enterprise.
The main methods of tax optimization are:
— use of "gaps" in existing laws;
— choice of a legal form of enterprise;
— development of a competent accounting policy for the use of optimal legislative options for calculating taxes;
— choice of the taxation regime;
— choice of the most advantageous (from the point of view of taxation) location of an organization or structural units;
— use of tax benefits;
— tax deferral;
— division or replacement of relations in the implementation of transactions;
— tax planning with the use of contractual relations. /5/
It should be noted that these tax optimization schemes are only templates. The final variant of optimization is developed for each enterprise individually, taking into consideration factors of internal and external environment of an enterprise.
Is tax optimization a criminal act?
Tax optimization is based only on legitimacy, while tax evasion is carried out by a taxpayer through the tax offenses or tax crimes, that is, through violations of tax or criminal legislation.
In case of tax evasion, taxpayer actions are always illegal, and for their commission the law provides different types of responsibilities: civil, administrative, financial and criminal [4, p. 12]. Depending on the nature of actions, committed in tax evasion, and the severity of consequences of such actions, they can be divided into two categories:
1. non-criminal tax evasion. Actions committed by a taxpayer break the tax law, but do not form part of a tax crime. It makes it impossible to apply measures of criminal responsibility to such a taxpayer;
2. criminal tax evasion. Actions committed by a taxpayer not only break the tax law, but also lead to the formation of tax crimes that entail the application of measures of criminal responsibility.
The law does not set rules for tax optimization, so all that is not prohibited by the law can be attributed to tax optimization, and not to tax evasion. But if we take into consideration judicial practice, such "rules" exist.
In order to ensure uniformity of judicial practice, in 2006 the Plenum of the Supreme Court of the Russian Federation issued a resolution evaluating the validity
of tax benefit reception by the tax bearer. This document defines the concept of "tax benefit" as a reduction in the amount of tax liability due to the reduction of tax base, obtaining a tax deduction, tax relief, application of a lower tax rate, as well as the right to refund (offset) or refund of tax from the budget[1].
One of the most important points of this document is the consolidation of the presumption of good faith of a taxpayer. In other words, taxpayer actions, in which result tax benefits are obtained, are considered economically justified, and the information contained in the Tax Declaration and financial statements are reliable [1] [2] [3]. Therefore, the fiscal authorities must prove the fact of receiving an unjustified tax benefit.
In conclusion, we can say that there is a fine line between the tax optimization and tax evasion. As a rule, any reduction in the tax burden is connected with tax risks. At that, the more the tax minimization is, the higher the risks are. Therefore, the main task in tax optimization is to form a tax burden at an acceptable level of risk.
Undoubtedly, tax optimization is an important link that is necessary for each organization, because it reveals itself in reducing a tax burden or a more rational distribution of tax deductions, as well as in reducing tax risks, including for individual transactions. It can allow to release money which will be used in activity of an enterprise that, in turn, will increase its profits.
References:
1. Tax code of the Russian Federation. Part one No. 146-FZ of July 31, 1998. Mode of access: <http://www.consultant.ru>
2. Tax code of the Russian Federation. Part two No. 117- FZ of August 5, 2000. Mode of access: <http://www.consultant.ru>
3. The resolution of the Plenum of the Russian Federation of October 12, 2006 № 53 "On evaluation by arbitration courts of validity of tax benefit reception by the tax bearer"
4. Bolshukhina I. S. Tax planning. — Ulyanovsk: UlSTU, 2011.
5. Grebnev G. D. Problems of optimization of tax costs, tax burden and profitability of business in commercial organizations // Taxes and taxation — 2014.-№2
