Judicial practice and classification of tax disputes

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Tax lawyer

More than 20 years of general legal experience

I will help you defend your rights and not overpay

I will conduct an examination of documents, help you competently draw up an explanation, objection, complaint and increase the chances of resolving the dispute in your favor

Deep understanding of economic processes

Impeccable knowledge of tax legislation

Pre-trial and judicial dispute resolution

Prevention of initiation of criminal cases under Article 159 of the Criminal Code Fraud

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Lawyer Darinsky Yuliy Borisovich

IMPORTANT:

The more successful a business is, the more intense the interest in it from the tax service.

Don't let the situation get worse!

Tax disputes can be resolved pre-trial and through the court.
Advantages of pre-trial resolution: no state fees, ease of filing a complaint, quick time for consideration and decision-making on the complaint

It is better for the taxpayer not to bring the case to court: according to statistics, about 70% of cases are lost, time is wasted and additional costs arise for legal fees

A competent tax dispute lawyer will help you avoid large losses both in pre-trial and court proceedings.

Lawyer Darinsky Yuliy Borisovich

Private legal practice since 2006

In my activities, I am guided by your interests. My principles are honesty and efficiency. I don't make empty promises!

Experience in law enforcement agencies

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• — Assistant Prosecutor
• — Investigator of the prosecutor's office
• — Prosecutor-criminologist
• — Deputy Prosecutor

Legal support experience

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• — Trade enterprises
• — Insurance organizations
• — Construction companies
• - Government agencies
• — Catering enterprises
• — Marine and fishing enterprises
• — Medical device manufacturing companies
• — Warehouse enterprises
• — Service companies
• — Transport companies

Positive results of defense in criminal cases

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Participation in more than 200 cases in arbitration disputes

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Get an initial consultation * The initial consultation is for an overview and does not contain clear instructions

Where to file a complaint?

When choosing a body competent to resolve a tax dispute in each specific case, you must be guided by the following basic rules:

• resolution of a tax dispute presupposes a mandatory pre-trial procedure; therefore, at the first stage of the challenge, the applicant must contact the tax authority that is superior to the one whose decisions are being challenged - para. 1 clause 1 and para. 1 item 2 art. 138 NK;
• If the competent tax authority does not make a decision on the complaint within the time limits established by law, the applicant has the right to apply to the court to protect his rights before such a decision is made - para. 2 p. 2 art. 138 NK;
• if resolution of a tax dispute is necessary in the field of entrepreneurial activity or affects other economic activities of the taxpayer, then the arbitration court is competent to consider it - Part 1 of Art. 197 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the APC);
• tax disputes that do not affect the business activities of citizens and organizations are subject to consideration in courts of general jurisdiction - Art. 17 CAS.

Main stages of consideration of tax disputes

Preparation and submission of a claim

The positive outcome of the case depends on the correctness of the statement of claim.

Notification of all parties to the dispute

All parties to the dispute are notified of the start of the legal process regarding the claim.

Providing documentation

All documents related to the case must be prepared accordingly

Conducting a court hearing

First the preliminary meeting, then the main meeting

Adoption and execution of a court decision

The court makes a decision indicating the legal grounds, which is subject to mandatory execution

We actively defend our position

Proving your position is a right

, and not the responsibility of the taxpayer. In this regard, many companies choose the wrong tactics: they believe that the court will make a positive decision on the case under consideration even without their active participation.

The proceedings may not go to court. For example, the tax office identified any errors or inaccuracies and assessed additional tax, issuing a demand for payment. If the taxpayer does not begin to independently understand why this happened and whether the actions of the tax authorities are legal, then it is considered that he agrees with the opinion of the Federal Tax Service. The fact is that the results of the tax inspection take effect within a month. If during this period the company has not taken any action to appeal the decision, then it is considered that it has agreed with it and, accordingly, must comply.

If during the trial the taxpayer does not defend his position, then the courts are guided by the materials presented by the tax inspectorate.

At the same time, they will not order additional inspections, examinations, etc., unless the taxpayer himself declares this. Accordingly, the court will make a decision based on the information provided by the tax authorities, and it, of course, will not be in favor of the business entity.

Attention! The taxpayer’s position “let them prove it” is incorrect, since the Federal Tax Service has already proven everything based on the materials presented and the audit carried out. The courts will make a decision based on this information.

I will ensure that your interests are respected at every stage

Get an initial consultation and I will select the optimal plan for resolving a tax conflict
Get an initial consultation * The initial consultation is of an overview nature and does not contain clear instructions

2500

successful cases

in 14 years

private practice

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*I respect the privacy of my clients who trust me to protect their interests. Therefore, I cannot make some personal data publicly available.

I work carefully and always take responsibility for my actions

I do not promise unattainable results.
I analyze the case and talk about real prospects. However, I will make every effort, knowledge and experience to achieve the best outcome! IMPORTANT: Every Russian company sooner or later faces tax claims

You call me or leave a request on the website

Preliminary consultation

I dive into your situation and make recommendations on next steps

Conclusion of a contract and development of a strategy

After concluding the contract, I formulate a strategy that will help resolve the situation in your favor

Collection of documents and further support

Together we implement the developed defense strategy

I answer frequently asked questions

1. How to appeal a tax authority’s decision in court?

In order to invalidate the decision of the tax authorities, you need to apply to the arbitration court at the location of the tax authority with an application. If the decision of the arbitration court does not suit the taxpayer, then he can appeal it to higher courts. An application to appeal the decision is submitted by the taxpayer to the arbitration court within three months from the day when he became aware of the violation of his rights and legitimate interests.

2. Within what time frame can I appeal the tax authorities’ decision to higher authorities?

A tax authority decision that has entered into force and has not been appealed may be appealed within one year from the date of the appealed decision.

No one is immune from problems with the tax authorities. Sooner or later, any business is audited. The reasons may include technical errors in documentation, untimely reporting, transactions with suspicious counterparties, complaints and actions of competitors. Large companies usually employ lawyers who provide legal protection for the organization. But the competencies of a full-time lawyer are not always sufficient to resolve tax disputes. In order to conduct tax-related business, it is not enough to know the tax code and have a broad understanding of legal issues. The consequences of the actions of the Federal Tax Service can be very serious, and in order to protect yourself and protect your rights, you must contact a tax lawyer in a timely manner.

EXAMPLE

The decision contested by the taxpayer was made by the tax inspectorate on February 18, 2013, and handed over to the taxpayer’s representative on February 20, 2013.

Consequently, the contested decision enters into legal force within a month from the date of delivery, that is, March 20, 2013. In this case, the taxpayer can file an appeal with a higher tax authority before March 20, 2013, or a complaint against the decision that has entered into legal force inspectorate by 02/18/2014. The taxpayer sent the complaint by postage with declared value on 12/11/2014.

Thus, the taxpayer violated the deadline for appealing the inspector’s decision, established by the provisions of Article 139 of the Tax Code of the Russian Federation. Taking into account the above, as well as the absence of a request from the taxpayer to restore the missed deadline for filing a complaint, the Moscow Office of the Federal Tax Service of Russia left the complaint without consideration (decision of the Moscow Arbitration Court dated 05/07/2015 No. A40-211031/2014).

The absence of reasons to restore the deadline may serve as a basis for refusing to satisfy the application at a court hearing in the court of first instance, since by virtue of clause 1 of Article 115 of the Arbitration Procedure Code of the Russian Federation, persons participating in the case lose the right to perform procedural actions with the expiration of procedural deadlines.

Valid reasons for missing a deadline include circumstances of an objective nature that are independent of the applicant, that are beyond his control, provided that he observes the degree of care and diligence that was required of him in order to comply with the established procedure (decision of the Autonomous District Court of the Yamalo-Nenets Autonomous Okrug dated January 30, 2015 No. A81-6309/2014).

In this case, the courts may recognize the missed deadline as valid due to the insignificance of its violation, and also if a similar decision has previously been challenged (decision of the Administrative Court of the Krasnodar Territory dated January 25, 2016 No. A32-30739/2015).

What is a tax lawyer?

Let’s take a closer look at what the specific features of a tax lawyer are, and why it is important to contact a specialist with a narrow focus. A tax dispute lawyer has competencies that are unlikely to be possessed by a general practitioner. 1. Understands legal tax issues, namely:

• knows what VAT, income tax, single tax, etc. are;
• knows everything about taxation systems;
• knows what types of tax audits there may be, which actions of inspectors are legal and which are not, what needs to be provided during the audit and what needs to be done so that the procedure does not result in unpleasant consequences;
• may appeal the decision of the tax authorities or the court decision.

2. Knowledgeable in accounting matters. The work of a tax lawyer is at the intersection of industries, and knowledge of accounting plays a key role. A tax lawyer's assistance may include the following:

• analysis of advantages and risks when choosing a taxation system;
• creating an optimal way to pay taxes and fees;
• conducting an audit of documents with the provision of conclusions and recommendations.

3. A tax lawyer knows the trends in judicial practice and is constantly involved in tax law. Laws, rules, regulations change regularly and it is important for a specialist to keep track of all changes. 4. Understands related legal areas. Tax disputes can lead to a variety of consequences, including criminal penalties. Choosing the right line of business will help minimize unpleasant consequences. Unlike your general practice colleagues, a tax lawyer will help you achieve results much faster. A specialist does not need to further study the industry or immerse himself in the terminology and specifics of doing business.

Resolving tax disputes in court

After accepting the application for appeal, the court proceeds to the stage of direct consideration of the dispute on the merits. Depending on which judicial body has jurisdiction over the dispute, the rules for its consideration have some features:

ConsultantPlus experts have compiled a selection of tax disputes between individual entrepreneurs and tax authorities. If you do not have access to the K+ system, get a trial demo access and go to the Review material for free.

In what situations is the help of a tax lawyer needed?

Any business strives to reduce costs and increase income, and the taxation system plays a significant role in this. How not to overpay taxes, but also not raise questions from the Federal Tax Service? How to conduct business honestly, but at the same time make good money? In order to ensure the accuracy of tax reporting, entrepreneurs resort to audits. This method is good for preventing possible conflicts with the tax authorities, but what to do if problems have already arisen? If, according to your data, the amount of taxes is one, but the inspectorate charges another? How to behave if you are asked to provide documents and give explanations? The dialogue with the tax office does not always go in favor of the entrepreneur. The tax service has long turned into a supervisory and punitive body, and not an organization that promotes honest business. Automated systems easily identify shortcomings and tax evasion. If you are required to provide an explanation, it means that the Federal Tax Service has found grounds for this. In what situations is the help of a tax lawyer needed?

• You have received a notification about a desk or field inspection. How to prepare, how to behave during inspections? A specialist will provide instructions and accompany you during the inspectors’ visit.
• Discrepancies have been identified between your data and the data of the tax office. Here it is important to identify the reason for the discrepancies and collect evidence confirming the correctness of your numbers.
• Your company is being held liable for taxes. It is important to find out for what reasons and whether the strictly established procedure was followed.
• Problems arose with the use of BSO and CCT.
• You have been refused a refund of overpaid taxes or a VAT refund.

In most cases, accusations arise on the basis of cooperation with unscrupulous contractors. Tax authorities often mistake real companies for unscrupulous ones, which entails additional tax charges.

Appeal period

You must go to court within 3 months. The corresponding rule is enshrined in part 4 of article 198 of the Arbitration Procedure Code of the Russian Federation and in part 1 of article 219 of the Code of Arbitration Procedures of the Russian Federation. If a verdict on the pre-trial complaint has not been rendered, the person has the right to go to court the next day after the end of the period given to the tax service for considering the appeal. If we are talking about challenging the results of a fiscal audit, the response must be provided within 30 days. In all other situations, the period is reduced to fifteen days.

Delay may result in refusal to consider the submitted demands. However, the deadlines can be restored. Action can be carried out only if there are good reasons. It is important to document them. If there are valid reasons, you will need to prepare a petition to restore the deadline.

The period during which representatives of the tax inspectorate have the right to initiate proceedings is also strictly defined. It is 6 months. The period begins to be calculated from the moment the deadline for fulfilling the requirements expires.

Reasons for tax disputes

Imagine this situation: the tax authorities conducted an audit and collected an amount of taxes that the entrepreneur clearly did not expect. As a result of the audit, the tax office considered that a 10% rate cannot be applied to certain types of company products and they should be classified according to another OKP. Consequently, the taxpayer is obliged to pay the amount that the tax authorities collected after recalculating the VAT. Depending on what the company does and what its turnover is, the difference sometimes amounts to hundreds of thousands of rubles or even more. Option number one. An entrepreneur can agree with the tax authorities’ decision and pay this money. If the tax office’s decision was made incorrectly, next time it can be used as leverage and the company may be required to do something else. And this directly leads to losses and unnecessary proceedings. Option number two. Protect your rights and appeal the decision of the tax authorities. In difficult situations, you will need the help of a lawyer to collect as much evidence as possible of your correctness and the illegality of the tax authorities’ actions. And how many situations are there when the taxpayer is confident in the correct payment of taxes, but during the audit, serious violations are revealed? What causes violations?

• The taxpayer does not know the tax legislation, chooses dubious ways to optimize the payment of taxes and fees, without thinking about the consequences. In this case, the audit may reveal violations, assess additional taxes, penalties and impose penalties. If you have doubts about the correctness of your tax system, you do not fully understand the legislation, you enter into agreements with different organizations, it is better to reduce risks and consult with a tax lawyer. Everyone faces audits, and it is better to prepare in advance than to deal with the consequences. If, after all, the tax office found violations on your part and ordered you to pay money to the budget, a lawyer will help you find out how lawful the decision was made. There may be options to reduce this amount legally.
• The taxpayer conducts business in accordance with the law, submits reports on time and pays taxes. Even the most honest taxpayer does not always pass the audit for a number of reasons: a technical error was made in the documentation, a complaint was received. Or perhaps you are participating in a chain where you depend on the supplier and buyer of your products, and in this chain there are unscrupulous counterparties, which is why disagreements have arisen.
• Errors on the part of the tax authority. This includes unjustified sanctions, erroneous debits, account blocking, and refusal to refund VAT. These may be purely technical errors that can be easily resolved by providing the necessary documents and explanations.

An experienced lawyer will help you deal with all these situations. There are often situations when, due to a failure in the Federal Tax Service, the reporting of tax paid is not reflected, while the entrepreneur’s account is blocked and the company cannot manage the money and incurs losses.

Pre-trial procedure for consideration

Referring to the Tax Code of the Russian Federation, it is permissible to go through the stage of pre-trial settlement regarding tax audits. In addition, a person has the right to appeal the tax decision through the court. It is important to understand that this is possible only after filing an appeal to higher tax authorities.

What is called an appeal?

A written application to the tax authority in order to appeal their decision, if it has not yet entered into force. The act may concern the results of an audit by the tax service and cause disagreement among the applicant. The reason is usually a violation of his rights. To file a complaint, three months are given from the day on which it was discovered that a violation of rights occurred. For greater argumentation, additional evidentiary documents are also attached to the complaint.

What is permissible to legally appeal:

• Refusal to return tax or provide a tax deduction;
• The decision to stop account transactions;
• Order to pay taxes, collect penalties, fines and others.

An experienced lawyer will help you write an appeal. It is important to compose a document correctly so that it is accepted for consideration. Also, during the consultation, a specialist will help you figure out whether there really was a violation of your rights and whether it is subject to appeal.

Lawyers help clients successfully draft appeals in defense of their rights. Comprehensive support at all stages.

Entrepreneur mistakes

Tax audits are characterized by their suddenness. Just yesterday everything was calm, but today inspectors are standing on the doorstep asking for access to the premises. And this is always stressful. Often an entrepreneur who has not encountered anything like this makes mistakes. Let's look at the typical mistakes of entrepreneurs and what not to do.

• Solve issues yourself. Tax authorities are not interested in the well-being of your business. The main task of the tax office is timely replenishment of the budget. Accordingly, if a violation is discovered, then it is only your responsibility to prove the opposite.
• Give unnecessary information. Many entrepreneurs mistakenly believe that if they are as sincere and open as possible with inspectors, they will be able to avoid disagreements. Unfortunately, too much information provided often gives rise to finding even more flaws and holding you accountable. The same goes for talkative employees. It is important to instruct key employees to correctly answer only those questions that are directly relevant to the case and not to disclose unnecessary information.
• Agree with additional charges. Do you think it’s easier to accept the arrears and save time? But in reality, you are giving the IRS another reason to keep you on the hook. Next time the arrears may be greater, but you have already paid once, which means you will pay a second time. If you do not agree with something, you have the right to appeal the decision.
• Solve issues using “circumstantial” methods. Attempts to resolve the conflict through connections, cooperation with the tax authorities, as well as through bribes can result in serious consequences, including criminal charges for corruption. Your position can only be justified by law, and a lawyer will help with this, and not a familiar official with whom you are on good terms.

Attempts to “agree” can only aggravate the situation, since there is always a chance that you are under the control of several departments.

Consequences of disagreements with the tax authorities

Why is the support of a lawyer at any stage so important? Because the sooner you protect yourself, the fewer negative consequences will affect your business. Disputes with tax authorities may result in:

• fines and additional taxes;
• initiation of a criminal case, for example, under an article for fraud;
• appointment of an on-site inspection if the desk inspection is not completed;
• blocking of accounts and suspension of the company's activities.

Such consequences can lead to the company incurring losses and the business closing. A blow to reputation in this case may have a negative impact on further cooperation with bona fide counterparties. Therefore, the problem must be solved before it arises.

Help from a tax lawyer

Now it’s worth summarizing what the help of a tax lawyer consists of.

• Consultation. The help of a lawyer may be needed if you need to choose the optimal taxation scheme, when it is necessary to assess the risks and consequences of transactions, if questions arise regarding the payment of taxes and fees, and also in order to prepare for possible audits.
• Accompaniment during interrogations and during on-site inspections. In order not to harm the business and himself, it is important for an entrepreneur to build the right line of behavior. A lawyer will prepare you to testify and undergo an inspection, determine the essence of each issue and stop abuse of official powers by inspectors.
• Pre-trial dispute resolution. In order for a decision to be made in favor of the taxpayer, it is important to correctly draw up a complaint and send it to the tax authority.
• Protecting the client's interests in court. If the issue cannot be resolved pre-trial, the lawyer defends the client’s rights in court. This is preceded by the collection of evidence and the development of a line of defense.
• Appealing the results of inspections and court decisions. If the decision is not made in favor of the client, it can be appealed. Although the process is labor-intensive and can take a lot of time, an appeal will save not only your budget, but also your reputation.

Company debts can be collected not only from the company’s money, but also from personal property and the property of family members.

Concept

Tax fees refer to disagreements between the subjects of legal relations - the regulatory authority and taxpayers. Conflicts arise in relation to mutual rights and obligations that arise in connection with the determination and payment of taxes.

The object is the interests of the participants. On one side are the taxpayers, and on the other is the administrator for collecting payments to the state. It is important for the control body to collect the required amount of funds in a timely manner and in full.

If we are talking about a tax dispute, it is always a conflict with the state. The fact is that it is on his behalf that tax authorities with certain competence act. The procedure for resolving tax disputes involves the implementation of certain procedures established by law.

Not every disagreement is included in this category. Many cases that begin at the request of the inspectorate arise from civil or public law relations. The above category includes the following disputes:

• on the forced termination of the activities of organizations;
• protesting previously concluded transactions;
• on challenging state registration.

There are also quite a lot of tax disputes. They are divided into certain categories. First of all, the grounds for the dispute are taken into account. According to this criterion, conflicts are divided into:

• appearing in the process of fulfilling obligations to pay taxes;
• arising from the right to return or offset overpayments;
• resulting from an on-site or desk audit;
• appeared as a result of taxpayer registration.

The subject of disagreement may also vary significantly. There are disputes:

• on issues of interpretation of legal norms;
• different assessments of the circumstances of what happened;
• about violation of the procedure for conducting inspections or rules for bringing to responsibility.

What determines the cost of providing tax lawyer services?

The cost of services depends on the problem to be dealt with. Sometimes a consultation with a tax lawyer is enough to resolve the issue, and that’s one price. In other cases, long, labor-intensive work is required, consisting of several stages, and this is a completely different cost. Very often, clients turn to us when their last hope remains. Before this, there were attempts to deal with the problem on our own, but they all failed and the matter went to court. Litigation is a lengthy, expensive and labor-intensive process. Therefore, the sooner you seek help, the less costs you will face. If you need to resolve issues with the tax authorities, if you have questions, sign up for a consultation. Value your time, take care of your business and always protect your rights!