Non-obvious methods used by the Federal Tax Service to identify affiliates. Benefits for IT companies.

Affiliates are individuals or organizations that, due to certain circumstances, such as close relationship, business partnership, subordination by position, etc., can influence each other’s financial and economic activities. Such connections can lead to the possibility of manipulation of financial statements and tax evasion, so the tax authorities use various methods to identify affiliates, see the article for more details.

In the tax sphere for such related persons, the concept of “interdependent” is used. The list of interdependent persons is specified in paragraph 2 of Art. 105.1 of the Tax Code of the Russian Federation, in addition, by decision of the court, other persons not named in the article may be recognized as affiliated persons, since the list is open. For example, by a court decision, persons were recognized as interdependent based on a combination of circumstances: the formation of accounting and tax reporting of counterparties by a controlled organization; use by different firms of the same e-mail address; certification of documents for registration actions by one notary, given that the counterparties are registered at different addresses, and their founders and managers are different persons (Resolution of the Seventh Arbitration Court of Appeal dated September 30, 2022 in case No. A45-5569 / 2022).

Indirect signs indicating affiliation to the Federal Tax Service, which should be avoided:

– General data: tax authorities can compare data for different companies in order to identify the same registration addresses, phone numbers, IP address, website or e-mail;
– Accounting: if organizations apply to one company providing accounting services, this is also a suspicious fact;
– Employees: the companies employ the same personnel, including part-time employees;
– Unjustified transactions: making transactions that at first glance do not make sense or are provided at an overpriced or underpriced price compared to the average market value.
– Assets: use of common fixed assets, such as warehouse or office space, company vehicles, computer equipment.

Identification of affiliated persons during a tax audit is not a violation. But, if the Federal Tax Service can prove that mutual actions are carried out in order to optimize taxes, the missing amount will be additionally assessed and a fine will be issued for late tax payment. As a counterargument, it is necessary to prove to the court that the activity of each person is separate, aimed at making a profit, and not tax savings.

All of the above does not apply only to IT companies. Thus, the reorganization of a business in the field of information technology, the provision of services only to related parties, the implementation of a unified management of such companies, the presence of a common beneficiary with these persons and other features of economic dependence, in this case, are not taken into account by the tax authorities as a tax evasion scheme, about which stated in the letter of the Federal Tax Service of Russia dated March 17, 2022 No. SD-4-2 / 3289@. In order to obtain the status of an IT company and related tax benefits, an organization must be registered in a special register of the Ministry of Digital Development.